[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)]
[Rules and Regulations]
[Pages 952-1050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30332]



[[Page 951]]

Vol. 82

Wednesday,

No. 2

January 4, 2017

Part III





Environmental Protection Agency





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40 CFR Part 171





Pesticides; Certification of Pesticide Applicators; Final Rule

  Federal Register / Vol. 82 , No. 2 / Wednesday, January 4, 2017 / 
Rules and Regulations  

[[Page 952]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2011-0183; FRL-9956-70]
RIN 2070-AJ20


Pesticides; Certification of Pesticide Applicators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is updating the existing regulation concerning the 
certification of applicators of restricted use pesticides (RUPs) in 
response to public comments received on the proposal and based on 
extensive stakeholder review of the existing regulation and its 
implementation since 1974. The final revised regulation will ensure 
Federal certification program standards adequately protect applicators, 
the public, and the environment from risks associated with use of RUPs. 
The final rule will improve the competency of certified applicators of 
RUPs, increase protection for noncertified applicators using RUPs 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 using RUPs under the direct supervision of a 
certified applicator. Recognizing EPA's commitment to work more closely 
with Tribal governments to strengthen environmental protection in 
Indian country, the final rule will provide more practical options for 
establishing certification programs in Indian country.

DATES: This final rule is effective March 6, 2017.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2011-0183, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 
1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OPP 
Docket is (703) 305-5805. Please review the visitor instructions and 
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Keaney, Field and External 
Affairs Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington DC 20460-
0001; telephone number: (703) 305-5557; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. 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.

B. What is the purpose of the regulatory action?

    Applicators are at risk from exposure to RUPs they handle for their 
work. The public and the environment may also be at risk from 
misapplication of RUPs by pesticide applicators. This final rule is 
intended to enhance and improve the competency of certified RUP 
applicators and persons working under their direct supervision. EPA 
expects that improving the competency of certified applicators and 
those under their direct supervision will result in reduced 
occupational pesticide exposure and the reduced incidence of related 
illness among certified applicators, noncertified applicators working 
under their direct supervision, and agricultural workers. EPA also 
expects that improving the competency of certified applicators will 
help ensure that RUPs used according to their labeling do not cause 
unreasonable adverse effects to applicators, workers, the public, or 
the environment.

C. What are the major changes from the proposal to the final rule?

    EPA received extensive comments from entities that administer 
pesticide applicator certification programs (States, Tribes, Federal 
agencies; referred to throughout this document as certifying 
authorities), organizations representing States and Tribes, university 
extension programs, growers and grower associations, pesticide 
applicators and applicator organizations, farmworker advocacy 
organizations, the Small Business Administration Office of Advocacy, 
other groups, and individual members of the public. Based on the 
feedback received, EPA has changed elements of the proposal in this 
final rule. Some of the major changes from the proposal to the final 
rule include:
     Recertification. EPA proposed establishing a maximum 
certification period of 3 years. The proposal also would have required 
applicators to earn a specific number of continuing education units 
(CEUs), based on their existing certification, to maintain their 
certification. The proposal defined a CEU as 50 minutes of active 
training time. The final rule establishes a maximum recertification 
period of 5 years. The final rule does not require applicators to 
complete a specific number of CEUs or hours of training in order to 
maintain their certification. Rather, the final rule establishes a 
framework for certifying authorities to develop a recertification 
program within their jurisdiction. The recertification program must 
ensure that applicators maintain a level of competency to use RUPs 
without causing unreasonable adverse effects to human health and the 
environment. EPA will approve recertification programs as part of its 
review of a certifying authority's certification plan.
     Minimum age. EPA proposed establishing a minimum age of 18 
for private and commercial applicators, as well as for noncertified 
applicators working under their direct supervision. The final rule 
establishes a minimum age of 18 for private and commercial applicators. 
The final rule also establishes a minimum age of 18 for noncertified 
applicators working under the supervision of private and commercial 
applicators with a limited exception; the final rule establishes a 
minimum age of 16 for a noncertified applicator using agricultural RUPs 
under the supervision of a private applicator who is a member of the 
noncertified applicator's immediate family, with certain restrictions. 
The definition of ``immediate family'' in the final rule matches the 
definition of the same term in the revised Worker Protection Standard 
(WPS) (40 CFR 170.305).
     Noncertified applicator qualifications. EPA proposed 
requiring noncertified applicators to qualify as competent to use RUPs 
under the direct supervision of a certified applicator by completing 
pesticide safety training covering content outlined in the proposal. 
The proposal also included two alternative ways to qualify--completing 
pesticide safety training for handlers under the WPS, which covers many 
noncertified applicators in agriculture, or passing the exam for 
commercial applicators that covers core competency (but not a category 
exam). The proposal would have required certifying authorities either 
to adopt the proposed standards for noncertified applicators or to 
prohibit the use of RUPs by noncertified applicators. The

[[Page 953]]

final rule allows noncertified applicators to establish their 
competency by completing pesticide safety training covering content 
outlined in the rule, by completing pesticide safety training for 
handlers as required by the WPS, by meeting requirements established by 
a certifying authority that meet or exceed the standards for 
noncertified applicator qualifications established in the final rule, 
or by being a certified applicator in a category other than the 
category covering the supervised application.
     Commercial applicator recordkeeping. EPA proposed 
requiring commercial applicators to maintain records documenting that 
noncertified applicators using RUPs under their direct supervision have 
satisfied the training requirement. FIFRA prohibits EPA from requiring 
private applicators to maintain records, so EPA did not propose a 
similar requirement for private applicators. The final rule requires 
commercial applicators to maintain, verify, and have access to the 
records of the qualifications of noncertified applicators using RUPs 
under their direct supervision.
     Categories of certification. EPA proposed the addition of 
``application method-specific'' categories (aerial application, soil 
fumigation, and non-soil fumigation) for both commercial and private 
applicators. The proposal would have required commercial applicators to 
be certified in at least one category before being eligible to obtain 
an application method-specific certification (i.e., hold concurrent 
certifications in a pest control category (e.g., turf and ornamental) 
and an application method-specific category (e.g., soil fumigation). 
Under the proposal, private applicators would have needed to hold a 
valid private applicator certification in order to be eligible to 
obtain an application method-specific certification. EPA also proposed 
adding predator control categories for private and commercial 
applicators, with subcategories under each covering the use of sodium 
cyanide dispensed through a mechanical ejection device and sodium 
fluoroacetate dispensed through livestock protection collars. In the 
final rule, EPA has added categories for both private and commercial 
applicators covering aerial application, soil fumigation, non-soil 
fumigation, the use of sodium cyanide dispensed through a mechanical 
ejection device, and the use of sodium fluoroacetate dispensed through 
livestock protection collars. These are stand-alone certification 
categories and do not necessarily require concurrent certification in 
another existing category.
     Identification of candidates for certification and 
recertification. EPA proposed requiring certifying authorities to 
verify the identity of persons seeking certification or recertification 
by checking a government-issued photo identification for each 
candidate. The final rule requires certifying authorities to verify the 
identity of persons seeking certification or recertifying by taking a 
written exam by checking a government-issued photo identification or by 
using another comparably reliable proof of identity approved by the 
certifying authority. The final rule requires the certifying authority 
have a process in place to ensure persons seeking recertification 
successfully complete the course objectives, which includes verifying 
the identity of applicators, but does not include a requirement to 
check a government-issued photo identification.
     Implementation. EPA proposed allowing certifying 
authorities two years from the effective date of the final rule to 
develop and submit a certification plan for EPA review and approval, 
and two years for EPA to review and approve certification plans. The 
proposal allowed certifying authorities that had submitted plans but 
had not yet received EPA approval to continue operating under their 
existing certification plan until EPA issued approval of the revised 
certification plan. The final rule adjusts the proposed implementation 
timeframe to provide additional flexibility. Existing certification 
plans approved by EPA before the effective date of the rule will remain 
in effect until three years after the effective date of the final rule; 
if a certifying authority submits an amended certification plan to EPA 
for approval within three years of the effective date of the final 
rule, its existing certification plan will remain in effect until EPA 
has reviewed and responded to the amended certification plan, but no 
longer than two years, unless EPA authorizes further extension in its 
approval of an amended certification plan. In its approval of an 
amended certification plan, EPA will specify how much longer the 
existing plan may remain in effect while the certifying authority 
prepares to implement its amended certification plan. EPA will base 
each certifying authority's implementation period on the particular 
circumstances of that jurisdiction and the requests from the certifying 
authority, but anticipates that most certifying authorities will be 
allowed two years from the date of EPA approval to fully implement 
their revised certification plans.
    Other changes from the proposal to the final rule are discussed in 
the individual areas of the final regulatory requirements.

D. What are the incremental impacts of the final rule?

    EPA has prepared an Economic Analysis of the potential impacts 
associated with this rulemaking (Ref. 1). This analysis, which is 
available in the docket, is summarized in greater detail in Unit II.C., 
and the following chart provides a brief outline of the costs and 
impacts included in the Economic Analysis.

----------------------------------------------------------------------------------------------------------------
                Category                             Description             Location in the  economic analysis
----------------------------------------------------------------------------------------------------------------
Monetized Benefits Avoided acute          $13.2 to $24.3 million/year from  Chapter 4.4.
 pesticide incidents.                      avoided acute pesticide
                                           incidents, not adjusted for
                                           underreporting of pesticide
                                           incidents.
Qualitative Benefits....................   Willingness to pay to    Chapter 4.2 & 4.5.
                                           avoid 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.
                                           Reduced harm to
                                           wildlife and non-target crops.
Total Costs.............................  $31.3 million/year..............  Chapter 3.5.
Costs to Private Applicators............  483,000 impacted; $8.6 million/   Chapter 3.5.
                                           year; average $25 per
                                           applicator.
Costs to Commercial Applicators.........  421,000 impacted; $16.2 million/  Chapter 3.5.
                                           year; average $46 per
                                           applicator.
Costs to States and Other Jurisdictions.  68 impacted; $6.5 million/year..  Chapter 3.5.

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Small Business Impacts..................  No significant impact on a        Chapter 3.7.
                                           substantial number of small
                                           entities.
                                           The rule may affect
                                           over 800,000 small farms that
                                           use pesticides, although about
                                           half are unlikely to apply RUPs.
                                           Impact less than 1% of
                                           the annual revenues for the
                                           average small entity.
Impact on Jobs..........................  The rule will have a negligible   Chapter 3.6.
                                           effect on jobs and employment.
                                           Most private and
                                           commercial applicators are self-
                                           employed.
                                           Incremental cost per
                                           applicator represents from 0.2
                                           to 0.5 percent of the cost of a
                                           part-time employee.
----------------------------------------------------------------------------------------------------------------

II. General Information

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: A 
person who uses RUPs under the direct supervision of a certified 
applicator; a State, Tribe, or Federal agency who administers a 
certification program for pesticides 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 document 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 action is the Agency taking?

    The final rule revises the existing Certification of Pesticide 
Applicators regulation, 40 CFR part 171 (certification rule). The 
certification rule sets standards of competency for persons who use 
RUPs and establishes a framework for certifying authorities to 
administer pesticide applicator certification programs. The rule seeks 
to ensure that persons using RUPs are competent to use these products 
without causing unreasonable adverse effects to themselves, the public, 
or the environment.
    The final rule takes into consideration comments received from the 
public in response to the proposed rule (Ref. 2), as well as additional 
information such as reported incidents of pesticide-related illness or 
injury.
    EPA is revising the existing regulation 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, Federal agency, and EPA-administered 
certification plans. The final rule revises the existing regulation to 
add: Categories of certification for commercial and private 
applicators, a recertification interval and criteria for 
recertification programs administered by certifying authorities, and a 
minimum age for certified applicators and noncertified applicators 
using RUPs under direct supervision of certified applicators.
    1. Private applicator competency standards. The final rule changes 
the standards of competency a private applicator must meet in order to 
be certified. The final rule expands the private applicator competency 
standards to include most of 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 WPS. 
The final rule amends 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 
in this rule. The final rule eliminates from the existing rule the non-
reader certification option, which allows certification by oral exam to 
use a single product.
    2. Additional categories of certification for commercial 
applicators and private applicators. The final rule adds to the 
existing rule additional categories for commercial and private 
applicators, which certifying authorities may adopt if relevant in 
their jurisdiction. The final rule adds to the existing rule commercial 
and private certification categories for aerial application, soil 
fumigation, non-soil fumigation, sodium fluoroacetate dispensed through 
livestock protection collars, and sodium cyanide dispensed through 
mechanical ejection devices.
    3. Recertification standards and interval. The final rule 
establishes a maximum recertification interval of 5 years for 
commercial and private applicators. The final rule requires certifying 
authorities to develop a recertification program to ensure that 
applicators continue to maintain a level of competency necessary to use 
RUPs without causing unreasonable adverse effects. The final rule 
specifies that such a recertification program may include exams and/or 
training.
    4. Standards for noncertified applicators using RUPs under 
supervision. The final rule establishes requirements to ensure that 
noncertified applicators are competent to use RUPs under the 
supervision of a certified applicator. In order for noncertified 
applicators to use RUPs under the direct supervision of a certified 
applicator, they must qualify as competent under the rule. The final 
rule includes four options for noncertified applicator qualification: 
Complete specific training as outlined in the rule, satisfy the handler 
training requirements under the WPS, satisfy requirements adopted by 
the certifying authority that meet or exceed EPA's standards for 
noncertified applicator qualification, or be a

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currently certified applicator who is not certified to use RUPs in the 
category of the application. The final rule requires noncertified 
applicators to receive annual training or to satisfy the requirements 
adopted by the certifying authority as part of the certification plan.
    The supervising applicator is required to verify that noncertified 
applicators have satisfied the necessary requirements and must have 
access to the records documenting that the qualification requirement 
has been satisfied. The final rule requires that a certified applicator 
supervising noncertified applicators be certified in each category 
relevant to the supervised application, to provide noncertified 
applicators access to 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.
    Certifying authorities have the option to adopt the standards for 
noncertified applicators outlined in the rule, establish alternative 
requirements for noncertified applicators that meet or exceed the 
standards in the rule, and/or prohibit the use of RUPs under the 
supervision of a private or commercial applicator.
    5. Minimum age. The final rule requires commercial and private 
applicators to be at least 18 years old. The final rule requires 
noncertified applicators using RUPs under the direct supervision of 
commercial applicators to be at least 18 years old. The final rule 
requires noncertified applicators using RUPs under the direct 
supervision of private applicators to be at least 18 years old, except 
that those under the direct supervision of a certified private 
applicator who is an immediate family member must be at least 16 years 
old provided that certain conditions are met. The final rule includes a 
definition for ``immediate family'' that mirrors the definition in the 
WPS, which was revised in 2015.
    6. Indian country certification. The final rule offers 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, Tribal, 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 within the Tribe's Indian country. EPA currently 
administers a Federal certification program covering Indian country not 
otherwise covered by a certification plan (Ref. 3) as well as a 
certification program specifically for Navajo Indian country (Ref. 4).
    7. State, Tribal, Federal agency, and EPA-administered 
certification plans. The final rule updates the requirements for 
submission, approval, and maintenance of State, Tribal, and Federal 
agency certification plans. The final rule deletes the section on 
Government Agency Plans (GAP) and codifies existing policy on review 
and approval of Federal agency certification plans. The final rule 
updates requirements for EPA-administered plans.

C. What are the costs and benefits of the rule?

    EPA estimates the total annualized cost of the rule at $31.3 
million (Ref. 1). EPA notes that these costs are the incremental costs 
of complying with the new requirements in the revised rule, not the 
total costs of administering certification programs. Certifying 
authorities that administer certification programs would bear 
annualized costs of about $6.5 million. The upfront costs of revisions 
to certification plans and programs, including revising laws, 
regulations, and policies, developing new certification categories and 
updating tracking databases, are estimated to be about $3.8 million; 
ongoing administration of exams or trainings for the new certification 
and recertification requirements would cost an estimated $2.7 million 
annually. The annual cost to private applicators would be about $8.6 
million, or about $25 per year per private applicator. The estimated 
annual cost to commercial applicators would be $16.2 million, or about 
$46 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 final rule will not have 
a substantial effect on employment.
    EPA acknowledges that there is uncertainty in the cost estimates. 
EPA's cost analysis is generally based on a conservative methodology 
that tends to overestimate the cost of the rule, as explained in 
Chapter 3 of the Economic Analysis (Ref. 1). However, because of 
uncertainties in the estimation, some costs estimated in its the 
Economic Analysis may be underestimated. The estimated cost of $31.3 
million is the best and most reasonable estimate of the total 
annualized costs of the final rule. However, even if EPA has 
underestimated the costs or overestimated the quantified benefits of 
this rule, consideration of the qualitative benefits of the rule leads 
EPA to conclude that the total benefits would outweigh the costs. These 
qualitative benefits include reduced chronic illness to applicators 
from repeated RUP exposure, and benefits to the public from better 
protections from RUP exposure when occupying treated buildings or 
outdoor spaces, consuming treated food products, and when near areas 
where RUPs have been applied. The qualitative benefits also include 
reduced impact on water and non-target plants and animals from 
misapplication.
    The final rule will 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 applicators 
possess critical information on a wide range of environmental issues, 
such as endangered species, water quality, worker protection, and 
protecting non-target organisms. Pesticide safety education helps 
applicators improve their abilities to avoid pesticide misuse, spills, 
and harm to non-target organisms.
    The benefits of the final rule accrue to certified and noncertified 
applicators, the public, and the environment. EPA estimates the 
quantified value of the 157 to 198 acute illnesses from RUP exposure 
per year that could be prevented by the rule to be between $13.2 
million and $24.3 million per year (Ref. 1).
    To arrive at the number of incidents possibly preventable by the 
rule, EPA reviewed pesticide incident cases reported to the Sentinel 
Event Notification System for Occupational Risk (SENSOR) database, 
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-

[[Page 956]]

Pesticides). EPA evaluated incidents reported to SENSOR-Pesticides from 
2008-2011 that involved a pesticide ingredient commonly associated with 
RUPs. EPA initially identified 478 possible unintentional cases 
involving RUPs, but 81 were removed from consideration, leaving 397 
cases. The removed cases included incidents including soil fumigants, 
as well as cases not relevant to the rule. EPA removed the incidents 
involving soil fumigants because the Agency has implemented chemical-
specific mitigation measures aimed at addressing incidents involving 
these products. For the remaining 397 cases, EPA was able to identify 
the proximate causes of the exposure causing the incident using the 
pesticide incident reports from SENSOR-Pesticides including with the 
assigned prevention codes and additional information where available, 
such as from California's Pesticide Illness Surveillance Program. EPA 
reviewed the narrative description of these cases, the information 
identified in the SENSOR-Pesticide database and additional information 
from the state if it was available for the cause of the incident, and 
determined whether the rule included provisions intended to prevent or 
mitigate such incidents. EPA categorized the incidents as 
``preventable'', ``possibly preventable,'' or ``not preventable'' based 
on whether they were within the intended scope of the rule. EPA's 
estimates of the benefits of the rule are based on the cases that were 
categorized as ``preventable'' or ``possibly preventable.'' In order to 
make sure EPA was not overestimating the expected benefits of the rule, 
other incidents were categorized as ``not preventable'' if there was 
not enough information to determine if the incident would have been 
prevented by the rule changes, if compliance with the rule would not 
have prevented the incident, or if the incident was not relevant to the 
rule. EPA classified 202 incidents as ``preventable'', meaning there 
was a clear link between the application/applicator and the adverse 
effect, and the information demonstrated an error by the applicator or 
applicator incompetency that the rule is intended to prevent or 
mitigate. EPA classified 73 incidents as ``possibly preventable'', 
meaning there was a clear link between the application/applicator and 
the effect and an applicator error was possible, but the available 
information did not identify any specific applicator errors that the 
rule is intended to prevent or mitigate. EPA removed from consideration 
32 incidents related to the use of paraquat because the Agency plans to 
implement specific mitigation measures to address issues with the use 
of this product. This approach could underestimate the benefits of the 
rule, because the final paraquat mitigation measures are not yet known, 
and because preventable accidents involving paraquat are likely 
indicative of wider problems with RUP storage and use that may be 
prevented by the rule changes.
    After excluding the paraquat cases, the soil fumigant cases, and 
the not relevant cases, there were 366 incidents determined to be 
relevant to the rule. The review of the SENSOR-Pesticides data 
identified 196 cases that were ``preventable'' under the changes to the 
rule, and another 51 cases were ``possibly preventable''. These cases 
include incidents involving RUPs that were registered by EPA at the 
time of the incident but have since been cancelled, because EPA 
believes they are indicative of the types of incidents that may occur 
with other RUPs, including those that may not have been registered 
during this time period. Accordingly, these incidents reasonably 
reflect the kinds of incidents expected to be mitigated by the 
certification rule. Given 366 incidents determined to be relevant to 
the rule, including those without enough information to determine 
whether the incident could be prevented, EPA concluded that 54 percent 
of RUP incidents would be preventable through the rule changes and an 
additional 14 percent would be possibly preventable. The changes to the 
rule are expected to improve applicator competency in areas reasonably 
expected to reduce recent RUP incidents by 54 to 68 percent, and this 
range was used as the basis for the quantification of benefits. Some 
commenters believe a lower percentage of incidents would be preventable 
by the rule changes. If EPA has mischaracterized some incidents as 
preventable, then the quantified benefits would be lower than 
estimated. Conversely, if EPA has mischaracterized some incidents as 
not preventable, then the quantified benefits would be higher than 
estimated.
    However, EPA recognizes that the benefits 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 95% (Refs. 
5, 6, 7, 8, 9, 10, and 11). EPA included underreporting of pesticide 
incidents as a factor in the sensitivity analysis of the potential 
benefits of the final rule (Ref. 1), but based its estimate of the 
benefits on the rule on figures unadjusted for underreporting.
    EPA's approach to estimating the quantitative benefits of the rule 
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. Under-
trained and underqualified 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 protective 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 Analysis for this rule for a discussion of 
the peer-reviewed literature (Ref. 1). The final rule requirements for 
strengthened competency standards for private applicators, expanded 
training/qualification for noncertified applicators, additional 
certification categories, a minimum age for all persons using RUPs, and 
appropriate certification options in Indian country will lead to an 
overall reduction in the number of human health incidents related to 
acute and chronic pesticide exposure and environmental contamination 
from improper or misapplication of pesticides. Overall, the weight of 
evidence supports the

[[Page 957]]

conclusion that the final rule requirements will result in long-term 
health benefits to certified and noncertified applicators, as well as 
to the public and the environment.
    It is reasonable to expect that the final rule will benefit the 
environment and public health. The final rule enhances private 
applicator competency standards to include information on protecting 
the environment during and after application, such as avoiding 
contamination of water supplies. The requirement 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 Analysis for this final rule 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. 1). The final rule is expected to 
reduce misapplication, and thereby improve environmental quality 
through cleaner water and less impact on non-target plants and animals.
    In addition, the final rule specifically mitigates risks to 
children. The final rule establishes a minimum age of 18 for certified 
applicators (private and commercial) and noncertified applicators 
working under the direct supervision of commercial applicators. The 
final rule establishes a minimum age of 18 for noncertified applicators 
using RUPs under the direct supervision of private applicators, with a 
limited exception requiring noncertified applicators under the 
supervision of private applicators who are members of their immediate 
family to be at least 16 years old, provided certain conditions are 
met. Since children's bodies are still developing, they may be more 
susceptible to risks associated with RUP application and therefore will 
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 properly (Refs. 12, 13, 14, 15). 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, and 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, with a limited 
exception, will 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. Exposure from residential 
applications can occur when RUPs are applied in areas where children 
live, attend school, or visit. 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. 16). The final rule requires pesticide safety training for 
noncertified applicators, strengthens competency standards for private 
applicators, and requires all applicators to demonstrate continued 
competency to use RUPs. These changes will 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 final rule should reduce children's exposure to RUPs and 
contamination caused by improper application of pesticides.

III. Introduction and Procedural History

    Broadly defined, a pesticide is any agent used to kill or control 
undesired insects, weeds, rodents, fungi, bacteria, or other organisms. 
See 7 U.S.C. 136(t) & (u). 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, Zika, 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 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 that are valuable to 
society but that might cause unreasonable adverse effects to human 
health or the environment if applied by inexperienced users are 
classified for restricted use (known as RUPs). Certified applicators 
have the knowledge, experience, and skills to understand and reliably 
follow the precise and often complex risk mitigation measures specified 
on the RUP labeling. Certification serves to ensure competency of 
applicators to use these RUPs, 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 rule, which sets standards for applicators using 
RUPs, is 40 years old and has not had major revisions since 1978. For 
over 25 years, EPA has been engaging with stakeholders to improve the 
certification of applicators and improve the existing certification 
rule. See Unit IV.B. The changes in today's final rule (revising the 
certification rule) focus on five main objectives:
     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, 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.
    The proposed changes were issued for public comment on August 24, 
2015 (Ref. 17). After 150 days, the comment period closed on January 
22, 2016. EPA received over 700 unique comments on the proposed rule. 
Commenters represented a range of stakeholders and co-regulators, 
including certifying authorities, organizations representing States and 
Tribes, university extension programs, growers and grower 
organizations, pesticide applicators and

[[Page 958]]

applicator associations, farmworker advocacy organizations, the Small 
Business Administration Office of Advocacy, other groups, and 
individual members of the public.
    Commenters provided valuable input on all aspects of the 
certification rule. Many comments from certifying authorities and 
university extension programs provided details about current 
administration of their applicator certification programs and the 
impacts various provisions of the proposal would have if finalized. The 
main areas of interest to commenters included proposed provisions 
related to: Recertification and equivalency for State, Tribal and 
Federal agency certification programs, minimum age, implementation, 
reciprocity between certifying authorities, and noncertified 
applicators. Commenters also submitted feedback on the impact the 
proposal would have on applicators of non-RUPs (i.e., general use or 
unclassified pesticides), the administration of State, Tribal, and 
Federal agency programs, and the estimated costs of the proposal.
    EPA considered the comments received on the proposal and evaluated 
the costs and benefits of various requirements in developing a final 
revised rule that is expected to achieve the benefits outlined 
throughout this preamble. For a summary of the benefits, see the table 
in Unit I.D. and the discussion of costs and benefits in Unit II.C.

IV. Context, Considerations, and Reasons for This Rulemaking

A. Context for This Rulemaking

    1. Statutory authority. 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, the 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. 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. Non-RUPs (i.e., general use or 
unclassified 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 non-RUPs without special permits or training.
    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 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 effects 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 RUPs require 
additional regulatory restrictions to ensure that when used they do not 
cause unreasonable adverse effects on human health or the environment. 
However, RUPs can be used without unreasonable adverse effects by 
properly competent and equipped applicators closely following labeling 
instructions. These products may only be applied by certified 
applicators who have demonstrated competency in the safe application of 
pesticides, including the ability to read and understand the complex 
labeling requirements, or persons working under their direct 
supervision. 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 approved by EPA. 7 U.S.C. 
136i(a)(2).
    Provisions limiting EPA's authority with respect to applicator 
certification 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-administered 
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 directs 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 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 PESP Web page on the EPA Web site at: 
https://www.epa.gov/pesp.
    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 Department of

[[Page 959]]

Agriculture (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'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. 7 U.S.C. 136(e)(4). 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. EPA's regulation of pesticides. 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 (or cite to) 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. EPA considers the risk assessments and results of any peer 
review, and evaluates potential risk management measures that could 
mitigate any risks that are at or 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 registration 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 crafting the terms and conditions of each pesticide registration 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 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 without additional restrictions beyond the 
labeling requirements. 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 
(https://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report). EPA has classified about 900 pesticide products as RUPs, 
which is about 5% of all registered pesticide products. EPA does not 
have reliable data on the relative usage of RUPs versus non-RUPs.
    When EPA approves a pesticide, the labeling specifies the risk 
mitigation measures required by EPA. 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 rates or maximum number of 
applications; and limiting the use of the product to certified 
applicators (i.e., prohibiting application of an RUP by a noncertified 
applicator working under the direct supervision of a certified 
applicator. 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.
    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 about these 
pesticides' future use. The Food Quality Protection Act of 1996 (FQPA) 
amendments to FIFRA require that EPA establish, through rulemaking, 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 (40 CFR 155, subpart C). 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. Where necessary 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; prohibiting particular 
application methods; classifying a product or specific use(s) as for 
restricted use; requiring the use of specific personal protective 
equipment (PPE); establishing specific restricted entry intervals; and 
improving use directions.
    Rigorous ongoing education and enforcement are needed to ensure 
that these mitigation measures are appropriately implemented in the 
field. The framework provided by the certification rule and associated 
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

[[Page 960]]

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 to the final rule are designed to enhance 
the effectiveness of the existing regulatory 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 products containing those pesticide chemicals. 
EPA implements the risk reduction and mitigation measures that result 
from the pesticide reregistration and registration review programs 
through individual pesticide product labeling.
    3. Certification rule. The certification rule 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 existing certification rule establishes requirements for 
submission and approval of State plans for the certification of 
applicators. Consistent with the provisions of FIFRA (7 U.S.C. 
136i(a)(2)) and the State plan requirements in the existing rule, 
programs for the certification of applicators of RUPs are currently 
implemented by all States and most territories. (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 has the same 
meaning in this final rulemaking.) Certification programs are also 
carried out by four other Federal agencies under approved Federal 
agency plans. In addition, EPA has approved plans for four Tribes. EPA 
also directly administers a national certification plan for Indian 
country (Ref. 3) and has implemented a specific certification plan for 
the Navajo Nation (Ref. 4). The States, Tribes, and Federal agencies 
certify applicators in accordance with their EPA-approved certification 
plans (Ref. 18).
    The existing certification rule 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 existing 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: Documents from EPA and other certifying 
authorities sometimes refer to 11 categories of certification, counting 
the two subcategories under agricultural pest control 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 or only non-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 existing 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 existing rule does not have requirements regarding 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 CEUs, 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 existing certification rule, 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.

B. Considerations for Improving the Certification 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. 19), followed by sections outlining 
State plan submission and review and certification in Indian country 
(40 CFR 171.7 through 171.10) in 1975 (Ref. 20), and the requirements 
for EPA-administered plans (40 CFR 171.11) in 1978 (Ref. 21). 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. 22 and 23).
    In 1990, EPA proposed amendments to the certification rule that 
included provisions for establishing private applicator categories, 
adding categories for commercial applicators, revising applicator 
competency standards, establishing criteria and levels of supervision 
for the use of an 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-

[[Page 961]]

reader certification (Ref. 24). 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, States 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 
well 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 certifying authorities from accepting 
as valid certifications issued by other certifying authorities, and 
hinder EPA's ability to develop national program materials that meet 
the needs of all States.
    2. Stakeholder engagement. In 1996, stakeholders from the Federal 
and State governments and cooperative extension programs formed the 
Certification and Training Assessment Group (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. 25), which recommended improvements for State 
and Federal pesticide applicator certification programs, including how 
to strengthen the certification rule. 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. 25).
    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. 27). 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. 27), which included many recommendations for rule 
revisions to improve the applicator certification program. The various 
individual opinions expressed 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. 27). 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. 27). While EPA addressed some of 
the recommendations through grants, 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 on pesticide issues, the Pesticide Program 
Dialogue Committee (PPDC), formed a workgroup in 2006 to provide 
feedback to EPA on different areas for change to the certification rule 
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. 28).
    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. 29).
    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. 29). 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 on the 
proposed rulemaking 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 (Ref. 30).
    In addition to formal stakeholder outreach, EPA held numerous 
meetings at the request of various stakeholders to discuss concerns and 
suggestions in detail.
    3. Public comments on the proposal. EPA received over 700 distinct 
comments on the proposed changes (Ref. 17). Commenters represented 
program stakeholders and regulators,

[[Page 962]]

including State pesticide regulatory agencies, pesticide safety 
education programs (university extension programs), farm bureaus, 
associations, nonprofit organizations, certified applicators, 
applicator associations and growers.
    Many comments from State regulatory agencies and pesticide safety 
education programs provide details describing intricacies of their 
certification programs and how the proposal would impact them. Comments 
cover all areas of the proposal, but the areas of the proposal that 
received the most critical comments include recertification and 
equivalency, impact on applicators of non-RUPs, reciprocity, 
establishing a minimum age of 18 for certified and noncertified 
applicators, unfunded mandates, implementation timing, and EPA's 
Economic Analysis of the proposed changes.
    During the public comment period, EPA met with stakeholders 
individually and as organizations to discuss the proposal. EPA met with 
States through the AAPCO workgroup formed to respond to the proposal, 
as well as through other State organization meetings. At the request of 
the Small Business Administration's Office of Advocacy, EPA provided an 
overview of the proposal to interested small business representatives.
    EPA has included a summary of most comments received and EPA's 
responses in this document. EPA has also prepared a separate document 
summarizing comments not included in this document and EPA's responses 
(Ref. 2).
    4. 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. 23). This 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. 31). 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 adolescent 
applicators 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. 15). Decision-making skills and competency 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 
applications.
    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 revised regulation 
will mitigate or eliminate many of the risks faced by adolescents 
covered by this rule.
    5. 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 for the periodic retrospective review of its 
regulations, EPA sought public input on the design of EPA's plan, as 
well as stakeholder suggestions for regulations that should be the 
first to undergo a retrospective review (76 FR 9988, February 23, 
2011). EPA issued the final plan, titled ``Improving Our Regulations: 
Final Plan 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. EPA expects revised regulation to achieve 
the benefits outlined in Section II.C. For a summary of the benefits, 
see the table in Unit I.D. and the discussion of costs and benefits of 
the final rule in Unit II.C.

C. Reasons for This Rulemaking

    1. Reasons for regulatory change. The certification rule 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 existing 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.
    i. The changing nature of pesticide labeling. As discussed in Unit 
IV.A., 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

[[Page 963]]

to ensure they continue to meet the necessary standard. As a result of 
these ongoing evaluations, risk-based labeling changes are occurring 
more frequently than they were when the certification rule was first 
issued. 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. Pesticides that present greater risks generally 
have 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 
unreasonable adverse effects 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 without unreasonable adverse effects. 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 and establishes only very basic 
competencies for private applicators. 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 establishing 
a 5-year certification period, criteria for recertification programs, 
and specifying in more detail the competency standards for private 
applicators.
    ii. Specific application methods that require additional applicator 
competency. RUPs are applied using a variety of application methods. 
Some methods of application may require the applicator to have 
additional specific competencies to perform these applications in a way 
that minimizes risk to the applicator, bystander, and the environment. 
Spray applications, particularly spraying pesticides from an aircraft, 
may result in off-target drift of the pesticide. For example, a 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. 32). In the 2008 REDs for 
soil fumigants (Ref. 33), EPA identified risks that required additional 
training for soil fumigant applicators, and specified labeling 
amendments requiring additional training in addition to the existing 
requirement for the applicator to be certified. The soil fumigant REDs 
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 
use RUPs in a manner that will not cause unreasonable adverse effects. 
Therefore, EPA is adding to the regulation categories for commercial 
and private applicators performing aerial application, soil fumigation, 
and non-soil fumigation.
    iii. 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. EPA is 
updating the regulation to address these and other changes affecting 
applicators of RUPs. In addition to the hundreds of potentially 
avoidable acute health incidents related to RUP exposure reported each 
year (Ref. 16), 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 pesticide misuse 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 adverse health effects for hundreds of homeowners and 
children, and clean-up costs of millions of dollars (Refs. 34 and 35). 
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 phosphide 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). In 2015, improper use 
of methyl bromide in the Virgin Islands caused serious injury and long-
term hospitalization of a four people (see, e.g., https://www.justice.gov/opa/pr/terminix-companies-agree-pay-10-million-applying-restricted-use-pesticide-residences-us). Also in 2015, 
fumigation with sulfuryl fluoride that did not follow proper procedures 
caused serious injury to a young boy (see, e.g., https://www.justice.gov/usao-sdfl/pr/fumigation-company-and-two-individuals-pled-guilty-connection-illegal-pesticide). Finally, several severe 
health incidents have resulted from the public getting access to RUPs 
that were unlawfully transferred into different containers (in one 
case, a soda bottle) that did not have the necessary labeling (Ref. 1).
    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 under the revised certification rule 
(Ref. 1). See the Economic Analysis for this rule for more information 
on human health and ecological incidents stemming from RUP use (Ref. 
1).
    In light of the incidents discussed above, EPA is updating 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 be sufficiently competent and 
professional that they can be relied upon to make responsible choices 
and properly follow all labeling instructions. When labeling 
instructions are followed, RUPs can be used without unreasonable 
adverse effects. EPA expects the revised rule to reduce human health 
and environmental incidents related to RUP use by strengthening the 
standards of competency for certified applicators, training 
noncertified applicators on pesticide safety, and establishing a 
maximum certification period and criteria for recertification programs. 
These changes will be provide better assurance that certified 
applicators and those under their supervision will generally have a 
higher level of competency, and therefore more carefully follow 
pesticide labeling instructions and take proper care to prevent harm.
    iv. Inadequate protection for noncertified applicators of RUPs. The 
existing rule does not require noncertified applicators using RUPs to 
receive specific instruction on how to protect themselves, their 
families, other

[[Page 964]]

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. Many noncertified applicators 
work far from their supervisor, and exercise considerable independence. 
Although these noncertified applicators do not need to have the same 
level of competency as the supervising certified applicator, they 
nevertheless must be sufficiently 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. 1). 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) and 
170.501(c)(2). Agricultural handlers also must have access to the 
product labeling and any other information necessary to make the 
application without causing unreasonable adverse effects. EPA revised 
the WPS in 2015 to, among other changes, add content 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. 36).
    Like agricultural handlers, some noncertified applicators may face 
challenges, such as not speaking or reading English that could put them 
at greater risk of pesticide exposure. They may bear risks from 
occupational pesticide exposure because they work with and around 
pesticides on a daily basis, language and literacy barriers may make 
effective training and hazard communication challenging, and economic 
hardship may make them reluctant to question instructions. 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 has strengthened the standards for noncertified 
applicators to include provisions comparable to the agricultural 
handler training requirements under the revised 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.
    v. 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. The standards for exams and private applicator 
competency standards in the existing rule lack sufficient specificity 
sufficient to ensure an acceptable level of competency. The lack of 
specificity in the existing rule has resulted in States adopting 
differing standards, some of which do not match EPA's expectation 
regarding the minimum level of competency of a certified applicator.
    For example, in 2006, EPA issued guidance on its interpretation of 
exams in the existing rule. The guidance notes that EPA interprets any 
exam administered to gauge applicator competency as being a proctored, 
closed-book, written exam (Ref. 37). However, not all State 
certification programs are consistent with this interpretation; several 
States determine applicator competency based on open-book exams where 
candidates are allowed to bring in their own reference materials. EPA 
is concerned that this process compromises exam security. EPA has 
revised the existing rule to incorporate elements of the 2006 guidance 
and to clarify its expectations regarding administration of 
certification exams and training programs to ensure that the process 
for determining competency meets a standard national baseline.
    The existing 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 core 
competency in 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 competency in specific 
categories of application. Private and commercial applicators have 
access to the same RUPs, and EPA expects that they should have 
comparable levels of competency related to understanding and following 
pesticide labeling. 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 situation, the final rule 
includes more specific standards of competency for private 
applicators--the revised standards include many concepts from the 
commercial core standards as well as competencies necessary to use RUPs 
in agricultural production.
    vi. Outdated and obsolete rule provisions. The existing 
certification rule has one section regarding Tribal programs that is 
outdated and one section on government agency certification programs 
that is not necessary. The existing rule provides three options for 
applicator certification

[[Page 965]]

programs in Indian country. Consultation with Tribes raised an issue 
with one of the existing 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 has 
revised 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 will 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 will address appropriate implementation and enforcement 
issues.
    The existing rule includes a provision for a Government Agency 
Plan, 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 its own 
employees to apply RUPs. Four Federal agencies have EPA-approved 
certification plans. To streamline the rule and codify the existing 
policy, EPA has deleted the existing section on a Government Agency 
Plan and replaced it with requirements consistent with the existing 
policy on Federal agency certification plans.
    2. Surveillance data. i. Incident monitoring. 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. 38). 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 by others directly to EPA. EPA's adverse 
effects reporting rule at 40 CFR part 159 allows the aggregation of 
individual events in some circumstances, meaning an incident with 
negative impacts to a number of individuals (e.g., persons, livestock, 
birds, pollinators) 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 pesticides in water. EPA 
used 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, SENSOR-Pesticides, is maintained by NIOSH and 
covers pesticide-related occupational injuries. 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:
     State workers' compensation claims when reported by 
physicians.
     State Departments of Agriculture.
     Poison Control Centers (PCCs).
    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 Effects Surveillance System. NPDS is a computerized information 
system with geographically-specific and near real-time reporting. While 
the main mission of PCCs 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 recorded 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 information about the 
circumstances causing the incident. Additionally, NPDS does not capture 
EPA pesticide registration numbers, a critical element for identifying 
the specific product and whether it was an RUP.
    It is very likely that these databases significantly undercount the 
actual number of pesticide adverse effect incidents. 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. 13, 14, and 15).
    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. There may not be enough information to 
determine if the adverse effects noted

[[Page 966]]

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. The demographics of the populations that typically work with 
or around pesticides also contribute to underreporting of incidents. A 
more complete discussion of the underreporting and its effect on 
pesticide incident reporting is located in the Economic Analysis for 
this proposal (Ref. 1).
    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 in a manner that does not cause unreasonable 
adverse effects 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 application equipment 
malfunction (Ref. 1). Generally, EPA's analysis showed that many of the 
reported 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. 
1).
    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. See http://aghealth.nih.gov.
    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 in this 
rulemaking.
    3. Demographics. The profile of certified applicators of RUPs has 
shifted over time. The U.S. continues to move 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. 
39). By 2015, the total number of certified applicators decreased to 
around 938,000 (Ref. 18). 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%.
    In contrast to private applicators, who per FIFRA may only apply 
RUPs for the production of agricultural commodities on land owned by 
the applicator or the applicator's employer (with minor exception), 
commercial applicators work in a diverse array of situations. 
Commercial applicators apply RUPs in agricultural production, 
residential pest control, mosquito spraying for public health 
protection, industrial and food processing facilities, 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 1974 certification 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. 40).
    4. Summary of the final rule. Units II. and III. describe the 
stakeholder engagement and reports highlighting the need to update the 
certification rule. In addition to stakeholder recommendations and 
public comments, EPA is revising the regulation to address State 
variability and to support EPA registration decisions. Each of these 
reasons for updating the rule are discussed in Unit IV.
    As noted in Unit III., EPA has not updated the certification rule 
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.
    If certification does not represent a uniform degree of competence, 
this diversity also could compromise 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

[[Page 967]]

pest control needs, EPA is raising the Federal standards for applicator 
competency. By adopting strengthened and additional competency 
standards, the rule will 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 would have had 
to seek label amendments imposing other use limitations that could be 
more burdensome to users, or even cancel certain uses.
    Units V. to XX. describe the most significant of the changes to the 
existing regulation. Each discussion is generally structured to 
provide, where appropriate:
     A concise statement of the existing rule and proposed 
change.
     The final revised requirements.
     A summary of the comments received.
     EPA's responses to the comments received.

V. Private Applicator Certification

A. Private Applicator Competency Standards

    1. Existing rule and proposal. The existing competency standards 
for private applicators cover five general topics. EPA proposed to 
amend the private applicator competency standards from the existing 
standards to include more specific information on pesticide application 
and safe use. EPA proposed to enhance private applicator competency 
standards covering: 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 also 
proposed to include a specific competency requirement related to 
protecting pollinators under the ``environment'' heading. Finally, EPA 
proposed to require that private applicator competency include the 
ability to read and understand pesticide labeling.
    2. Final rule. In the final rule, EPA has adopted the proposed 
private applicator competency standards with minor edits, except for 
the proposed requirement related to protecting pollinators. See Unit 
VI. The final regulatory text for private applicator competency 
standards is available at 40 CFR 171.105(a).
3. Comments and Responses
    Comments. Some commenters expressed general support for EPA's 
proposed competency standards for private applicators. They noted that 
private and commercial applicators have the same access to RUPs and 
should have the same general level of competency related to 
understanding and following pesticide labeling. A few commenters 
supported the adoption of the enhanced competency standards only for 
States that do not require private applicators to certify by passing a 
written exam, in order to improve the competency of applicators who 
certify by training. One commenter supported the adoption of the 
proposed private applicator competency standards to raise the bar in 
States that do not require private applicators to certify by passing a 
written exam because incidents that occur as a result of incompetent 
applicators can have an indirect impact on all applicators if 
particular pesticides are further restricted as a result.
    Many commenters asserted that private applicators make more limited 
types of applications than commercial applicators (i.e., they use fewer 
products and make pesticide applications to a narrow range of sites, so 
the frequency and potential risk of pesticide exposure for private 
applicators is lower than it is for commercial applicators). Some 
commenters asserted that private applicators are more invested in 
protecting the land and environment than commercial applicators because 
they are applying pesticides to their own land. For these reasons, 
commenters asserted that private applicators should not be required to 
meet the same competency standards as commercial applicators.
    Many commenters requested that EPA eliminate the proposed private 
applicator competency standards or leave development of private 
applicator competency standards to the discretion of each State. They 
argued that the existing regulation and State programs adequately cover 
the necessary content to prepare private applicators to use RUPs in a 
competent manner. These commenters objected to EPA's proposal to align, 
for the most part, private applicator competency standards with the 
core competency standards for commercial applicators, noting that the 
universes of private and commercial applicators are distinct and their 
competency standards should be as well.
    Many commenters noted that strengthening the competency standards 
for private applicators may increase the burden for certification, and 
as a result private applicators who do not use RUPs may forego 
certification. They assert that this would result in people using non-
RUPs without any training or competency in safe pesticide use.
    Some commenters opposed the adoption of enhanced competency 
standards for private applicators because it could result in States 
having to pursue statutory or regulatory change. Commenters did not 
feel the potential benefit of enhanced competency standard would 
warrant the burden of such changes. Commenters also noted that some 
legislatures may be opposed to making such changes.
    Some commenters also noted that the increased burden for 
certification could lead to farmers using commercial applicator 
services rather than obtaining a private applicator certification. Some 
commenters asserted that EPA cannot circumvent FIFRA by requiring 
private and commercial applicators to meet the same competency 
standards. Other commenters requested that EPA delete the private 
applicator competency standards and require private and commercial 
applicators both to meet the core standards that currently apply only 
to commercial applicators.
    Some commenters suggested that the only way to ensure that 
applicators are competent is through requiring a written exam, but 
recognized that EPA cannot require people seeking certification as 
private applicators to pass a written exam. Some States questioned how 
EPA could require a demonstration of literacy without requiring private 
applicators to pass a written exam. One State that certifies private 
applicators through training noted that evaluating whether each 
candidate could read would place a significant burden on the private 
applicator certification program. The State suggested that the 
University of Nebraska at Lincoln's Label Exercise training module does 
more to establish an applicator's understanding of the labeling than a 
certification that a person can read English.
    Some States requested that EPA include a grandfathering option to 
allow private applicators who hold valid certifications to retain them 
after the revised private applicator competency standards (including 
the ability to read and understand the labeling) are incorporated into 
State certification programs. These commenters noted that many 
applicators were originally certified by training, so reading 
comprehension was not measured. Commenters also expressed concern 
specifically about requiring all currently-certified private 
applicators to go through initial certification again to ensure they 
have the ability to read and understand the labeling. Some States 
expressed concerns about administering a two-tiered program if 
grandfathering is

[[Page 968]]

allowed; they expressed concern at having to distinguish at 
recertification sessions between those applicators who obtained their 
initial certification by exam and those who obtained it through 
training to ensure each set of private applicators met the competency 
standards relative to their certification. One commenter expressed 
concern about the government taking away a certification previously 
issued without any evidence of misuse on the applicator's part.
    Commenters made a range of general suggestions related to what EPA 
should adopt as private applicator competency standards. Some 
commenters noted that private applicator competency should cover 
elements such as: How a pesticide label is organized, what information 
the pesticide label contains, how to read and understand the pesticide 
label, knowing the difference between mandatory and advisory label 
language, applying pesticide in accordance with the label, recognizing 
environmental conditions, and recognizing poisoning symptoms and 
treatment. Some commenters suggested rather than increasing the 
standards and expected burden on applicators, EPA should ensure that 
high quality training on the existing competency standards is provided 
to improve applicator competency.
    A few commenters discussed specific points in the private 
applicator competency standards. One commenter requested that 
competency standards include equipment maintenance and troubleshooting, 
such as how to safely unclog nozzles and clean spray equipment, as well 
as a safety topic covering specific information about worker protection 
and PPE. Another commenter suggested that EPA replace ``Recognize local 
environmental situations that must be considered during application to 
avoid contamination'' with ``Understand how to prevent unwanted 
pesticide movement and pesticide drift.'' A few commenters suggested 
that EPA adopt Iowa's standards, which they noted include ``laws and 
regulations, storage and safe handling, calibration of application 
equipment, safe application techniques, pesticide drift reduction, 
effects of pesticides on groundwater, personal protective equipment, 
pesticide labels, and pests and pest management.''
    A commenter noted that the proposed requirement for private 
applicators to demonstrate knowledge of specific agricultural pests 
would be burdensome. The commenter noted that there are a variety of 
pests that could affect agriculture and knowledge of all would not make 
an applicator competent. The commenter questioned whether EPA or each 
State would determine what pests to include.
    One commenter suggested an alternative to outlining specific 
private applicator competency in the regulation. The commenter 
recommended that EPA designate a specific general training document 
that outlines the suggested private applicator competencies, which 
could be included in the cooperative agreements between the States, 
university extension programs and EPA, and used in the process for 
updating certification exams.
    Responses. EPA generally agrees with commenters who support a 
consistent level of competency related to understanding and following 
pesticide labeling for all applicators of RUPs, and has decided to 
finalize the proposed competency standards for private applicators as 
proposed with several minor changes. EPA generally agrees with 
commenters who note distinctions between private and commercial 
applicators, especially in the type and frequency of applications each 
group conducts. EPA acknowledges commenters' assertions that private 
applicators may be invested in protecting their land from pesticides. 
EPA notes, however, that all certified applicators must be competent to 
understand and follow the product's labeling in order to apply RUPs in 
a way that protects the applicator, other persons, and the environment, 
regardless of where or how they make the application.
    EPA does not agree with commenters who argue that private 
applicators using RUPs should not be required to meet general 
competency standards with regards to safe use of pesticides that are 
similar to those for commercial applicators, or that private 
applicators should be subject to a different minimum competency 
standard depending on whether the State issuing the certification 
requires them to pass a written exam. Regardless of the certification 
method chosen by the certifying authority, FIFRA requires that EPA 
establish standards for certification that require persons to be 
determined competent to use and handle RUPs. 7 U.S.C. 136i(a)(1). Under 
the existing and revised rules, EPA establishes minimum federal 
standards for certification to use RUPs. States have and will continue 
to be able to develop and maintain their own certification programs as 
long as their programs meet or exceed EPA's requirements. EPA also 
disagrees with contentions that there are no problems with the private 
applicator competency standards in the existing regulation for reasons 
discussed in the proposal (Ref. 17, pp. 51369-51372).
    EPA agrees with commenters who requested that certifying 
authorities retain flexibility to adapt the competency standards to the 
needs of private applicators in their jurisdiction, as long as the 
program meets or exceeds EPA's standards. EPA recognizes that including 
a requirement for specific pest identification could result in 
significant burden on certifying authorities to develop materials 
covering all potential pests in agriculture, and on applicators to 
learn about specific pests that they may never encounter based on their 
crops or geography. Rather than memorization about specific pests, EPA 
believes applicators must have competency in how to identify pests in 
order to make proper applications.
    In response to these comments, EPA has chosen not to include points 
in the competency standards related to pollinator protection and 
specific pest identification. For more information on EPA's 
consideration of pollinators in applicator competency standards, see 
Unit VI. In response to the commenter's suggestion that the proposed 
requirement for private applicators to demonstrate knowledge of 
specific agricultural pests would be burdensome, EPA has revised the 
private applicator competency standards under the ``pest'' heading in 
the final rule. EPA has replaced the proposed requirements with the 
following: ``(4) Pests. The proper identification and effective control 
of pests, including all of the following: (i) The importance of 
correctly identifying target pests and selecting the proper pesticide 
product(s) for effective pest control. (ii) Verifying that the labeling 
does not prohibit the use of the product to control the target 
pest(s).'' Further, EPA has deleted the provision in the proposal that 
would have required private applicators to demonstrate knowledge of 
specific pests of agricultural commodities. EPA does not intend these 
standards to determine which pests private applicators must be able to 
identify; rather, the standards in the final rule are intended to 
ensure that private applicators understand how to identify pests 
properly and how to use pesticides to control those pests. Each 
certifying authority has discretion to include identification of 
specific pests in the jurisdiction-specific private applicator 
competency standards. These general standards balance EPA's need to 
establish federal standards to ensure users of RUPs are competent with 
certifying authorities' needs to maintain flexibility to tailor 
certification

[[Page 969]]

requirements to issues that affect their applicators.
    EPA acknowledges requests to apply the same standards for private 
and commercial applicators, but notes that FIFRA requires EPA to 
maintain separate standards for private and commercial applicators. EPA 
disagrees with commenters who argued that EPA's proposed standards 
violate FIFRA's provision requiring that EPA establish separate 
standards for private and commercial applicators. 7 U.S.C. 136i(e). EPA 
developed the standards for private applicators through an analysis 
that was separate from that used to develop the standards for 
commercial applicators, and fully took into account the nature and 
circumstances of private applicators' use of RUPs. In the end, three 
principle aspects of the final rule distinguish private and commercial 
applicator competency standards. First, private applicator competency 
standards cover different content than commercial core competency 
standards, including information about the WPS and agricultural pest 
control. Second, private applicators can be certified by demonstrating 
competency covering the general private applicator standards, while 
commercial applicators may become certified only by satisfying 
competency standards covering the commercial core requirements plus at 
least one category's requirements. Third, for each of the areas of 
competency identified in the rule, the specific content will be 
established by the States and Tribes in their certification plans, and 
EPA anticipates that in those plans the breadth of scope, level of 
detail, or measures of competency for commercial and private 
applicators may differ to the extent appropriate to each area of 
competency.
    EPA disagrees that strengthening the competency standards for 
private applicators will substantially increase the burden for 
certification. As discussed in the preamble to the proposed rule, 
almost 90% of States noted that their private applicator certification 
standards are already comparable to the existing core standards for 
commercial applicators (Ref. 18). The standards for private applicators 
are comparable to the core standards for commercial applicators, with 
important distinctions. The detailed standards in the final rule will 
assist in ensuring that certification adequately covers topics 
necessary to ensure that applicators are competent to use RUPs in a 
manner that protects themselves, other people, and the environment.
    Because most States note that they already have private applicator 
competency standards that are comparable to the commercial applicator 
core competency standards, EPA disagrees that the updated competency 
standards are substantially more burdensome than existing State 
standards and disagrees that they will discourage a significant number 
of persons from seeking or maintaining certification as private 
applicators, whether or not they use RUPs. In any case, farmers have 
and will retain the choice to seek certification, to barter with other 
farmers certified as private applicators, or to contract with a 
commercial applicator to perform RUP applications.
    EPA recognizes that the updated private applicator standards may 
require certifying authorities to pursue legislative or regulatory 
change, but given the comprehensive nature of this rule revision, this 
is unlikely to be the only aspect of the final rule that will require 
updates to existing laws and/or regulations. The overall benefits of 
the revised rule, including the updated private applicator competency 
standards, outweigh the burden of effecting legislative and regulatory 
change. EPA is committed to working with certifying authority 
regulatory agencies throughout the implementation process, including 
development of certification plans and associated legislative and 
regulatory changes.
    In response to commenters' requests to ``grandfather'' private 
applicators with valid certifications into the certification program 
under a revised certification plan, EPA notes that certifying 
authorities may choose to allow all applicators who hold a valid 
private applicator certification under the existing certification plan 
to retain their certifications when revised certification plans are 
made effective. Only persons seeking initial certification as private 
applicators after revised certification plans are in effect will be 
required to meet the revised private applicator competency standards, 
including demonstrating the ability to read and understand the 
labeling.
    EPA is not requiring that all private applicators currently 
certified under the existing rule complete the initial certification 
requirements again under today's revised rule because the burden would 
be significant and not outweighed by the potential benefits. There are 
over 480,000 persons currently certified as private applicators, and 
the costs associated with having each of them either attend a training 
course or preparing for and taking a written certification exam would 
dramatically increase the estimated cost of this final rule. EPA 
recognizes that some private applicators hold certifications obtained 
by attending a training program that did not require any demonstration 
of the ability to read or understand the pesticide labeling, and, at 
the certifying authority's discretion, would continue to retain their 
certification under a revised certification plan as long as they 
continued to meet the recertification requirements. However, based on 
the anticipated burden on private applicators and certifying 
authorities, EPA is not requiring that all currently-certified 
applicators go through the initial certification process again as a 
condition of approval of a certifying authority's revised certification 
plan.
    As noted in the preamble to the proposed rule and by several 
commenters, FIFRA prohibits EPA from requiring private applicators to 
take a written exam to obtain certification. EPA expects that as part 
of the initial certification process, certifying authorities will 
ensure that candidates have the ability to read and understand 
pesticide labeling. EPA leaves the mechanism of this determination to 
each jurisdiction's discretion, and will review the private applicator 
initial certification program as part of the evaluation of the revised 
certification plan. EPA notes that requiring persons seeking 
certification as private applicators to pass a written exam would 
satisfy the requirement in the final rule for private applicators to be 
able to read and understand the labeling. States that do not require 
private applicator certification by exam will need to explain their 
mechanism for ensuring that those who obtain private applicator 
certification have the ability to read and understand the labeling. For 
example, one commenter suggested that the University of Nebraska at 
Lincoln's Label Exercise training module could establish a person's 
ability to read and understand labeling. EPA would consider such 
programs as part of the revised certification plan, if adopted by the 
State as a mechanism to ensure private applicators have the ability to 
read and understand the labeling. EPA plans to develop guidance on and 
engage in discussions with certifying authorities about potential 
mechanisms that could ensure those seeking private applicator 
certification can read and understand the labeling without imposing 
significant additional burden on the certifying authority.
    EPA expects that the initial demonstration of competency for

[[Page 970]]

private applicators will include an assurance of each candidate's 
ability to read and understand the labeling. EPA does not expect that 
recertification programs will also include a verification of the 
applicator's ability to read and understand the labeling, and the final 
rule does not require States to include such a standard in their 
recertification programs. Therefore, all applicators should be able to 
attend the same recertification programs regardless of whether they 
earned their initial private applicator certification (although not a 
non-reader certification, see Unit V.C.) before or after the revised 
rule is issued and the revised certification plan implemented.
    In response to general suggestions on the contents of private 
applicator competency standards, EPA notes that the private applicator 
competency standards in the final rule do cover pesticide labeling 
generally, environmental considerations, and recognizing poisoning 
symptoms and treatment. In response to the comments, EPA has added a 
sub-point under the labeling area of competency regarding ``recognizing 
and understanding the difference between mandatory and advisory 
labeling statements.'' EPA disagrees that the existing competency 
standards adequately outline the competencies necessary for private 
applicators to use RUPs safely. See the preamble to the proposed rule 
for EPA's reasoning for amending the private applicator competency 
standards (Ref. 17, p. 51369).
    In response to the comment requesting that competency standards 
include equipment maintenance and troubleshooting, such as how to 
safely unclog nozzles and clean spray equipment, as well as a safety 
topic covering specific information about worker protection and PPE, 
EPA notes that these topics are within the scope of the competency 
standards of the final rule. The final rule includes a competency area 
for application equipment maintenance and calibration at Sec.  
171.105(a)(6), and this competency area is reasonably interpreted as 
encompassing activities such as how to safely unclog nozzles and clean 
spray equipment. The private applicator competency standards covers 
worker protection under Sec.  171.105(a)(8); the WPS is listed 
specifically as a regulation that must be addressed in the competency 
determination. PPE is included at Sec.  171.105(a)(2)(vi), which 
covers, in part, ``measures to avoid or minimize adverse health 
effects, including . . . [n]eed for, and proper use of, protective 
clothing and personal protective equipment.''
    In response to the comment that EPA replace ``Recognize local 
environmental situations that must be considered during application to 
avoid contamination'' with ``Understand how to prevent unwanted 
pesticide movement and pesticide drift,'' EPA notes that the cited 
provision of the existing rule does not appear in the final rule, and 
that the final private applicator competency standards include 
``Prevention of drift and pesticide loss into the environment'' at 
Sec.  171.105(a)(7)(iv). Further, the final private applicator 
competency standards provide more detail about avoiding environmental 
contamination throughout, specifically at Sec.  171.105(a)(3).
    Although EPA did not adopt the language of Iowa's standards, as 
recommended by a few commenters, EPA notes that all of the elements of 
Iowa's standards suggested by commenters have corresponding provisions 
in the final private applicator competency standards.
    EPA disagrees with the commenter's suggestion to designate a 
general training document outlining suggested private applicator 
competencies, rather than to adopt revised private applicator 
competency standards in the rule. A reference to a guidance document 
would not result in a binding requirement, and EPA has determined that 
regulation is needed based on its experience with the 2006 testing 
guidance (discussed in Unit IV.C.1.v). EPA has revised the private 
applicator competency standards in the final rule to ensure that all 
private applicators meet a baseline level of competency. EPA expects 
that these standards will be incorporated in certification exams and 
training programs during the implementation process.

B. Strengthen Private Applicator Competency Gauge

    1. Existing rule and proposal. The existing rule requires 
certifying authorities to ensure that private applicators are competent 
and that the certification process uses a written or oral exam, or 
other method approved as part of the certification plan. EPA proposed 
that certifying authorities may certify private applicators either 
through a training program or by requiring candidates to pass a written 
exam. EPA proposed that a training course or exam must meet the 
proposed standards for private applicator certification, which are 
discussed in Unit V.A. of this preamble.
    2. Final rule. The final rule requires persons seeking to obtain 
certification as a private applicator to complete a training program 
approved by the certifying authority or pass a written exam 
administered by the certifying authority, as proposed. Both the 
training course and exam must cover the private applicator standards 
outlined in the rule at Sec.  171.105(a) and discussed in Unit V.A. The 
final regulatory language for this requirement is available at 40 CFR 
171.105(h).
3. Comments and Responses
    Comments. EPA received a variety of comments on the options for 
initial certification of private applicators from States, farm bureaus, 
grower organizations, farmworker advocacy organizations, private 
citizens, and others.
    Comments were mixed on EPA's proposal to require private 
applicators to certify by attending a training course or passing a 
written exam. Several commenters who supported the proposal noted that 
their certifying authority already requires private applicators to be 
certified in a manner that would comply with the proposal, if 
finalized, indicating that the proposed change would have no impact in 
that jurisdiction.
    Some commenters suggested that EPA require all private applicators 
to be certified by passing a written exam; a few suggested that the 
private applicator certification exam should be the same as the core 
exam for commercial applicator certification. Commenters argued that 
allowing a non-exam option would not provide sufficient assurance of 
private applicator competency to use RUPs and would prevent EPA from 
establishing a clear certification standard.
    Other commenters did not support EPA's proposal, noting that 
existing standards adopted at the State level for private applicator 
certification are sufficient. Some commenters reminded EPA that farmers 
would be taking time away from their operations to attend training and 
questioned the need to change what is occurring currently at the State 
level. Another commenter suggested that EPA evaluate the efficacy of 
existing State programs to see if there is any value in pursuing more 
stringent training and testing requirements for private applicators 
than those already in place.
    Commenters provided information in response to EPA's question on 
the efficacy of training and comparisons between training and testing 
programs. Many of those commenting noted that training is an 
appropriate mechanism to transfer information to participants, but is 
not a way to gauge applicator competency. Some commenters recognized 
FIFRA's limitation on EPA's

[[Page 971]]

authority to require private applicators to certify by passing a 
written exam, but stated that without such a barrier EPA should require 
all private applicators to certify by passing written exams. One 
commenter noted that training programs may change depending on the 
instructor or organization providing the training, while testing 
materials can be standardized to achieve the objectives of the 
certifying authority. One commenter supporting a requirement for 
certification by exam only stated its belief that some form of written 
exam is necessary for measuring competency, especially related to label 
comprehension, and suggested that EPA require those who certify as 
private applicators by attending training to complete some limited 
testing on labeling comprehension.
    EPA requested comments on whether it should establish a minimum 
length for private applicator certification training sessions. States, 
worker/handler advocacy and legal assistance organizations, farm 
bureaus, and industry organizations responded to this question. Many of 
those commenters opposed EPA setting any minimum length for a private 
applicator training program. In addition, many commenters requested 
that EPA allow States to determine training content and length, to be 
included in the certification plan. One commenter noted that arbitrary 
universal training times are impossible to establish and defend, and 
noted that training content can only be established reasonably by a 
careful practitioner job analysis or detailed objective study of the 
needs of the trainees and the program. Several commenters expressed 
similar sentiments, noting that variability in agricultural crops and 
cropping systems means that training would vary greatly. Several 
commenters stated their belief that the programs in their States are 
sufficient. One commenter opposing a minimum training length noted that 
it would be meaningless if the training is poor quality. One commenter 
requested that if EPA does allow people to certify as private 
applicators by attending a training program, EPA specify the minimum 
length of training including expanded content.
    Several commenters suggested that training programs that would 
result in private applicator certification should be at least a full 
day and a half in length, include hands-on instruction, and offer the 
opportunity for participants to ask questions. A commenter noted that 
one certifying authority's pre-certification training program for 
private applicator is one and a half days. Another certifying authority 
noted that its current pre-certification training is approximately 11 
hours, which is the time necessary to teach the material needed to pass 
the private applicator certification exam. The commenter noted that 
covering label comprehension, pesticide safety and PPE, equipment 
calibration and recordkeeping takes about seven hours, and the other 
four to five hours are spent on practical exercises, practice testing, 
quizzes, and interactive tools designed to enhance learning. The 
commenter highlighted that the expanded content of private applicator 
competency standards would require lengthening the training course to 
cover the additional topics.
    One commenter requested that EPA allow online training programs to 
qualify as meeting the standard of training programs resulting in 
private applicator certification.
    Responses. EPA is responsible for ensuring that applicators are 
competent to use RUPs in a manner that does not cause unreasonable 
adverse effects to human health or the environment. EPA recognizes that 
many certifying authorities already administer private applicator 
certification programs that meet the final standards by requiring those 
seeking private applicator certification to qualify by passing a 
written exam or to attend a training course. EPA agrees with commenters 
that written exams are a reliable way to gauge applicator competency, 
but notes that other non-exam methods to assure applicators are 
competent to use RUPs in a manner that does not cause unreasonable 
adverse effects also exist. Establishing more specific federal 
standards for private applicator certification can reasonably be 
expected to increase the likelihood that all private applicators will 
have the competency necessary to use RUPs in a manner that does not 
cause unreasonable adverse effects.
    EPA disagrees with the commenter who suggested that further 
evaluation of existing State private applicator certification programs 
is necessary. EPA outlined the rationale for changing the options for 
private applicator certification in the proposal, which included a 
review of existing State programs and does not intend to do further 
evaluation at this time (Ref. 17, p. 51370).
    EPA acknowledges that allowing people to certify as private 
applicators by attending a training session does not establish an 
objective certification standard, unlike a requirement to pass a 
written exam. EPA also acknowledges that FIFRA prohibits EPA from 
requiring candidates for private applicator certification to take any 
examination to establish competency. This also prohibits EPA from 
requiring an exam that only covers labeling comprehension. EPA 
recognizes that certifying authorities may choose to administer the 
same exam to private applicators (for certification) and to commercial 
applicators (as part of the qualification for certification), but they 
are not required to do so.
    EPA recognizes that training programs are less standardized than 
exams, and may vary depending on the instructor or organization 
providing the training. However, the final rule establishes basic 
content requirements that all training programs must cover. See Unit 
V.A. for discussion on the content of the standards for private 
certification. The final rule requires certifying authorities who allow 
people to qualify as private applicators by attending a training 
program that covers the private applicator competency standards in 
sufficient detail to allow the private applicator to demonstrate 
practical knowledge of the principles and practices of pest control and 
proper and effective use of restricted use pesticides.
    EPA has not established a minimum length for training programs that 
lead to private applicator certification. EPA generally agrees with 
commenters who noted that a standard training time would not guarantee 
applicator competency and that training quality is also important for 
ensuring applicators are competent. EPA recognizes that there is 
variability in agricultural crops and cropping systems across the 
country that would necessitate variations in training materials and 
depth of coverage of different topics. The final rule establishes a 
performance standard that a training program for private applicator 
certification must cover the competency standards in sufficient detail 
to provide the private applicator with the practical knowledge required 
by Sec.  171.105.
    The final rule adopts the minimum content requirements for training 
programs used for certification of private applicators with minor 
changes from the proposed rule as discussed in Unit V.A. of this 
preamble. Certifying authorities may tailor the training programs for 
private applicator certification to the needs of their audiences 
provided that the minimum content requirements specified in the final 
rule are met. The final rule does not include a requirement for hands-
on instruction. EPA recognizes that hands-on instruction can be an 
effective way to transfer knowledge; however, EPA does not believe it 
is absolutely necessary for establishing private applicator competency. 
Certifying

[[Page 972]]

authorities may choose to include hands-on elements in a training 
program for private applicator certification, which would be included 
in the certification plan and approved by EPA. Although the final rule 
does not require hands-on instruction for candidates seeking private 
applicator certification, EPA encourages certifying authorities to use 
a variety of approaches to encourage engagement and participation in 
training sessions.
    EPA notes that nothing in the final rule precludes certifying 
authorities from using online training for private applicator 
certification programs. However, EPA notes that all programs must meet 
the standards outlined in Sec.  171.105(h), which includes a 
requirement for candidates for private applicator certification to 
present a valid, government-issued photo identification (or other form 
of similarly reliable identification authorized by the certifying 
authority) to the certifying authority. See Unit IX. for a discussion 
of the final requirements regarding exam security and effectiveness.

C. Eliminate Non-Reader Certification for Private Applicators

    1. Existing rule and proposal. The existing rule allows non-readers 
seeking certification as private applicators an option for obtaining a 
product-specific certification, known as the ``non-reader'' 
certification option. 40 CFR 171.5(b)(1). This provision allows the 
certifying authority 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 certifying authority staff. 
The person seeking certification is not required to demonstrate the 
ability to read pesticide labeling. EPA proposed to delete this 
provision of the rule and to require that private applicator competency 
include the ability to read and understand pesticide labeling.
    2. Final rule. EPA is finalizing this aspect of the rule as 
proposed, eliminating the provision that allows non-readers to obtain a 
product-specific private applicator certification.
3. Comments and Responses
    Comments. Many commenters supported elimination of the non-reader 
certification option for private applicators. Commenters generally 
supported the EPA's proposal to require explicitly that those certified 
to apply RUPs be able to read and understand pesticide labeling. Some 
commenters noted that RUPs present higher risks to human health and/or 
the environment; therefore, the applicator's ability to read and 
understand the labeling is critical to ensuring that the products are 
used properly. One State commenter highlighted that the labeling is the 
chief means by which EPA and State regulatory agencies communicate how 
to use RUPs in a way that does not result in unacceptable risks to 
human health and the environment, underscoring the importance of only 
certifying applicators who can read and understand RUP labeling. The 
same commenter argued ``that providing a certification for the use of 
RUPs to individuals whom [sic] are not able to read the required 
labeling would compromise [EPA's] statutory mandate to prevent 
unacceptable risk to human and environmental health.'' A few commenters 
noted that labeling may change frequently and applicators need to be 
able to read the labeling in order to use the products safely. A few 
States supporting elimination of this provision noted that they will 
need to adjust their State laws or regulations to reflect the deletion.
    Most States that commented on this provision noted that the 
elimination of the non-reader certification option would not cause 
hardship in their States because many have already eliminated this 
provision through State law. Some commenters acknowledged that 
eliminating the provision may result in some persons who currently hold 
non-reader certification not being able to renew their certification; 
however, they could retain the option to use RUPs under the direct 
supervision of a certified applicator. Many commenters suggested that 
EPA allow grandfathering of applicators currently certified under the 
non-reader certification option. One commenter noted that if the non-
reader certification program were administered properly, there would 
not be a need to grandfather applicators because the certification 
should be good only for a single growing season or one year.
    A few States noted that they offer accommodations to those seeking 
certification as private applicators under the Americans with 
Disabilities Act (ADA), 42 U.S.C. 126. For example, one State commented 
that it offers the option of taking the exam by having someone read the 
exam and answers, but not assistance with determining the correct 
answer. Another State provides accommodations in the form of untimed 
examinations but does not provide any accommodations to assist with 
reading or comprehending the exam because both are essential elements 
of applicator certification.
    One commenter requested that EPA define ``non-reader,'' noting that 
many farmworkers and pesticide handlers may be literate in languages 
other than English.
    One commenter asked whether States would retain the option to 
certify private applicators through training or whether States would be 
required to administer a written closed-book exam after completion of 
the training program.
    One commenter noted that to ensure that applicators can read and 
comprehend labels, written exams should be administered in English 
because a majority of RUP labeling is available only in English.
    Responses. EPA agrees with commenters who support elimination of 
the option for a ``non-reader'' certification to use RUPs. EPA agrees 
with commenters that an applicator's ability to read and understand the 
labeling is critical to ensuring that these products are used properly. 
EPA and States do use labeling to communicate to the applicator 
important information on using the pesticide in a manner that will not 
result in unreasonable adverse effects to human health or the 
environment. Labeling can change frequently, and an applicator must be 
able to read and follow the labeling that accompanies each product he 
or she uses. EPA designates pesticides as RUPs because they present a 
higher risk to human health or the environment than non-RUPs if not 
used according to the labeling directions, and requires those using 
RUPs to be certified as competent or working under the supervision of a 
certified applicator. RUPs can be used without unreasonable adverse 
effects when labeling instructions are followed. The certified 
applicator's ability to read and understanding labeling is an essential 
element of the applicator's competency.
    EPA acknowledges that many States have already eliminated the 
limited or non-reader option for certification, so the impact of 
eliminating this option from the federal regulation should be small. 
EPA recognizes that eliminating this option for certification may 
impact applicators in States that currently offer this type of 
certification for private applicators.
    EPA notes that elimination of the non-reader certification would 
only impact those applicators who received a non-reader certification 
to use a single product. Under the final rule, jurisdictions that 
currently permit this type of certification can continue to offer it 
until a revised certification plan

[[Page 973]]

has been approved by EPA. See Unit XX. on implementation. Upon approval 
and implementation of a revised certification plan, applicators will no 
longer be permitted to obtain a non-reader certification. Applicators 
who have a non-reader certification at the time a revised certification 
plan is made effective will have three choices to have RUPs applied. 
One, the person may improve his or her reading sufficiently to satisfy 
the certification authority's requirements and obtain a private 
applicator certification. Two, the person may use RUPs under the 
supervision of a certified applicator. Three, the person may hire a 
commercial applicator or barter with a private applicator to have RUPs 
applied to his or her property.
    EPA acknowledges that certifying authorities may already offer 
accommodations to disabled candidates for certification, and reminds 
certifying authorities that they must comply with the ADA, 42 U.S.C. 
126. However, inability to read is not in itself a disability under the 
ADA. EPA suggests that certifying authorities work with their offices 
of legal counsel to determine what accommodations may be made for 
disabled persons seeking certification under their existing rules and 
under the revised requirements.
    As discussed in Unit V.B., the final rule allows certifying 
authorities to certify private applicators through either completion of 
a training program or passing a written exam, and each process must 
meet the revised competency standards.
    EPA recognizes that the majority of RUP labeling is only available 
in English and suggests that exams be given in English. However, EPA 
has chosen not to require that certification exams be administered in a 
specific language because labeling may be offered in different 
languages and label translation tools may be available to pesticide 
applicators. EPA recognizes that each certifying authority is in the 
best position to determine whether the exam should be offered in any 
language other than English.

VI. Pollinator Issues in Private and Commercial Competency Standards

A. Existing Rule and Proposal

    The existing competency standards for private applicators cover 
five general topics. The current general or ``core'' competency 
standards for commercial applicators cover nine topics with specific 
subpoints under each topic. EPA proposed to add to both private and 
commercial applicator competency standards a specific requirement 
related to protecting pollinators under the ``environment'' area of 
competency. EPA also requested comment on whether the commercial 
category for agricultural--animal pest control adequately covered the 
competencies necessary to treat bee hives.

B. Final Rule

    EPA has decided not to add a specific requirement related to 
protecting pollinators to either private or commercial applicator 
competency standards. EPA also has decided not to incorporate any 
specific competency standards related to treating bee hives.

C. Comments and Responses

    Comments. Some commenters expressed general support for adding a 
point on protecting pollinators to applicator competency standards. 
Some commenters noted that the addition of such a point would work in 
conjunction with State-managed pollinator protection plans and specific 
pesticide product labeling requirements to protect pollinators.
    Many commenters, including certifying authorities, university 
extension programs, applicator organizations, grower organizations and 
others, requested that EPA not include any specific point in the 
competency standard related to pollinator protection. Some commenters 
noted that adding such a specific point to general competency standards 
would open the possibility for adding a number of specific points 
related to special interests that may not be applicable to all 
applicators or in all States. They argued that States and university 
extension programs should have flexibility to address specific topics 
that are relevant to their applicators under the broad headings of 
following pesticide labeling and protecting the environment.
    Further, many commenters noted that pollinator protection is 
already addressed under the certification program and in other ways. 
They reminded EPA that competency standards already cover pesticide 
labeling and avoiding harm to non-target organisms. They also noted 
that EPA's addition of specific information about avoiding harm to 
pollinators to pesticide labeling has occurred and is a quicker process 
than updating regulations. They also noted that State-managed 
pollinator protection plans are being developed to address potential 
harm to pollinators. Lastly, some commenters suggested that emerging 
issues, such as potential harm to pollinators from pesticide 
applications, are better addressed in recertification programs where 
the most current information about updated labeling requirements can be 
shared with applicators.
    Some commenters responded negatively to EPA's question on whether 
the agricultural-animal pest control category adequately covers the 
competencies necessary to treat bee hives. Some commenters noted that 
bees are not agricultural animals. Commenters also noted that if bee 
hives were treated with RUPs, it is likely they would be fumigated, and 
therefore those with a certification to perform fumigation, not 
agricultural-animal pest control, should perform the application. 
Commenters also requested that EPA avoid including minor, species-
specific competency standards, such as treating bee hives, in the rule.
    Response. EPA agrees with commenters' request not to include 
specific competency standards related to protecting pollinators. EPA is 
convinced by commenters who asserted that the competency standards in 
the final rule under the environment heading to be aware of the impact 
of pesticide use and misuse related to ``presence of fish, wildlife, 
and other non-target organisms'' is sufficient to allow States to cover 
the impact of pesticide application on pollinators if relevant without 
requiring all applicators to be instructed specifically on avoiding 
negative impact to pollinators regardless of whether they may encounter 
them. EPA acknowledges commenters' assertions that enumerating many 
specific topics reduces certifying authorities' flexibility in 
developing training, exams, and other certification materials and 
incorporates niche concerns in what should be relatively general 
standards. Furthermore, EPA agrees that current efforts underway to 
protect pollinators, such as changes to pesticide labeling and 
development of State-managed pollinator protection plans, are 
appropriate ways to address this issue. EPA also agrees that competency 
standards should be as general and flexible as possible, allowing 
certifying authorities and university extension programs flexibility to 
address issues of importance and relevance to their applicators. For 
these reasons, EPA has chosen not to incorporate a specific point 
related to protecting pollinators into the competency standards for 
private or commercial applicators.
    EPA agrees with commenters' input on the question of treating bee 
hives and inclusion in the agricultural-animal pest control category 
(in the final rule, this category is called livestock pest control). 
EPA agrees that including treatment of hives under agricultural animal 
is not

[[Page 974]]

appropriate. Therefore, EPA has chosen not to add treatment of bee 
hives to the competency standards for any pesticide applicator 
certification category. Commenters noted that few RUPs may be used on 
bee hives. To use any RUP to treat bee hives, an applicator must be 
certified, which means the applicator has demonstrated competency to 
apply RUPs; in particular, the certified applicator has demonstrated 
competency to read and understand pesticide labeling. EPA communicates 
to applicators information related to protecting bees and other 
pollinators through labeling.
    EPA notes that under the final rule, certifying authorities may 
adopt a specific certification category for applicators treating bee 
hives, including establishing a limited use category. EPA expects there 
are few applicators using RUPs to treat bee hives and there are a very 
limited number of products. EPA acknowledges that this use pattern does 
not fit precisely under any existing certification category. See Unit 
VII.B. for more information on the addition for certifying authorities 
to adopt limited use certification category.

VII. Establish Additional Categories for Commercial and Private 
Applicators

A. Establish Application Method-Specific Categories for Commercial and 
Private Applicators

    1. Existing rule and proposal. The existing rule has no categories 
for private applicators. For commercial applicators, the existing rule 
has 11 pest control categories, although it does not have application 
method-specific categories.
    EPA proposed to establish three new application method-specific 
categories for private and commercial applicators: Soil fumigation, 
non-soil fumigation, and aerial application. For commercial 
applicators, EPA proposed to require applicators seeking certification 
in an application method-specific category to hold at least one 
concurrent certification in a relevant pest control category.
    2. Final rule. The final rule establishes three additional 
categories for commercial and private applicators: Soil fumigation, 
non-soil fumigation, and aerial application. Certifying authorities may 
adopt any of these categories that are relevant in their jurisdiction. 
Under the final rule, certifying authorities may opt to combine the 
soil and non-soil fumigation categories into a single general 
fumigation category. Commercial and private applicators using the 
application methods covered by these categories must obtain the 
relevant certification. However, the final rule does not include the 
proposed requirement for commercial applicators to hold a concurrent 
certification in a related pest control category in order to obtain 
certification in a soil fumigation, non-soil fumigation, or aerial 
application category. Rather, the final rule permits certifying 
authorities to certify persons as commercial applicators in a soil 
fumigation, non-soil fumigation, or aerial application category if they 
pass the core exam and an exam covering the relevant application method 
category standards. Likewise, private applicators seeking to apply 
fumigants or use aerial equipment to make applications must obtain a 
certification in the category relevant to the application method in 
addition to their general private applicator certification.
    To simplify the rule, and because EPA has relaxed the proposed 
requirement for commercial applicators to hold certifications in both 
an application method-specific and pest control category, EPA has 
combined the current pest control categories and the proposed 
application method-specific categories and refers to them collectively 
as categories in the final rule. Similarly, the proposed application 
method-specific categories for private applicators are identified as 
categories in the final rule.
    The final regulatory text for the additional commercial applicator 
categories is located at 40 CFR 171.101(m)-(o). The final regulatory 
text for the additional private applicator categories is located at 40 
CFR 171.105(d)-(f).
3. Comments and Responses
    Comment. Many States and some farm bureaus expressed concern that 
EPA's proposal intended that every entity with a certification program 
would be required to adopt the soil and non-soil fumigation and aerial 
categories, even if there were no applicators using that application 
method in the jurisdiction.
    Response. EPA does not intend to require certifying authorities to 
adopt the proposed soil and non-soil fumigation and aerial categories 
unless the application method is used to apply RUPs in that 
jurisdiction. The final rule clarifies this distinction. As with the 
proposal, Sec. Sec.  171.303(a)(2)(i) and 171.305(3)(i) of the final 
rule clearly state that a certifying authority may omit any unneeded 
certification categories.
    Comment. Many States opposed a requirement to adopt the soil and 
non-soil fumigation and aerial categories for private and commercial 
applicators, preferring that each State independently determine if they 
are needed on a State-by-State basis. Several commenters, including 
some states and retailers, supported the soil and non-soil fumigation 
and aerial categories for both private and commercial applicators, 
noting that these uses present risks and require specialized training.
    Response. EPA disagrees with comments recommending that EPA let 
individual certifying authorities decide whether fumigation and aerial 
application of RUPs require specific demonstrations of competency. 
These applications require specialized skills and present unique risks. 
EPA believes that establishing specific competency standards for 
certification of applicators applying RUPs by fumigation or aerial 
application will provide more consistent levels of competency among 
applicators using these methods. Because several certifying authorities 
have already adopted these categories and have implemented them 
successfully, EPA concludes that, where applicators use these 
application methods to apply RUPs, demonstration of their competency 
through certification in the soil and non-soil fumigation and aerial 
categories is an appropriate means of preventing unreasonable adverse 
effects.
    Comment. A number of States and a national organization for State 
pesticide regulatory agencies expressed concern about the proposed 
requirement for commercial applicators using soil and non-soil 
fumigation and aerial application to obtain both an application method-
specific category certification and certification in a relevant pest 
control categories (i.e., concurrent certification) because the 
existing standards for core and the proposed standards for application 
method-specific categories adequately cover pest control topics. These 
commenters noted that in some States that already require certification 
in one or more of the three categories, applicators are allowed to 
demonstrate their competency in regard to the appropriate pest control 
category or categories through core or application method-specific 
category exams.
    Some of these States asked that EPA consider allowing States to 
continue administering existing programs where the pest control 
component is integrated with soil and non-soil fumigation and aerial 
category certification if such programs provide protection equivalent 
to what is required by EPA. Several States, farm bureaus, and 
university extension programs supported allowing commercial applicators 
to become certified in soil and non-soil fumigation

[[Page 975]]

and aerial categories without certification in any particular pest 
control category (``stand-alone certification''). One such commenter--a 
mosquito abatement district--explained that agricultural aerial 
applicators are needed to supplement public health applicators under 
some conditions. This commenter expressed concern that these 
applicators would decide, based on the additional burden of 
certification, not to certify in the public health category, and their 
limitation to agricultural sites would impair the district's ability to 
protect residents from insect-borne diseases. Two States opposed stand-
alone certification for commercial applicators in the soil and non-soil 
fumigation and aerial categories, based on an assumption that 
applicators would not be tested for competency on core pest control 
topics.
    Response. Information provided by the commenters has convinced EPA 
that commercial applicators seeking to apply RUPs by fumigation or 
aerial application can demonstrate competency that covers the necessary 
pest control information through passing the core competency exam and 
an exam covering the relevant category standards (i.e., soil 
fumigation, non-soil fumigation and aerial application), rendering the 
proposed requirement to obtain concurrent certification in another 
relevant category unnecessary. The substantive content of the 
categories that is relevant to fumigation or aerial application can be 
adequately addressed through the combination of core competency and the 
competency standards of these new categories. Therefore, EPA has 
included all categories (existing and new) under the heading of 
``categories'' in the final rule, rather than breaking them out into 
pest control categories and application-method specific categories. The 
final rule does not have a requirement for commercial applicators to 
hold a valid certification in any specific category to obtain 
certification in another category. Commercial applicators must pass the 
core exam and obtain certification in at least one of the categories 
specified in Sec.  171.101, which includes both the pest control 
categories of the existing rule and the proposed application method-
specific categories. In the final rule, private applicators seeking to 
use fumigants, sodium cyanide, or sodium fluoroacetate, or to apply 
RUPs aerially must obtain a general private applicator certification 
and in addition become certified in the relevant category. Because 
FIFRA limits private applicators to the production of agricultural 
commodities, the general private applicator certification is focused on 
that sector and the rule does not include other pest control categories 
for private applicators.
    Comment. Another concern raised by many States, farm bureaus, 
applicator organizations, academics, and university extension programs 
was the additional burden for recertification faced by applicators 
certified in one or more of the proposed additional method-specific 
categories. States and the extension programs were also very concerned 
about the additional burden on their programs and on applicators that 
would be generated if EPA finalized the recertification requirements as 
proposed, in combination with the requirements for the application 
method-specific and concurrent pest control categories. A few 
commenters were concerned that private applicators may opt to no longer 
certify or that there may be non-compliance.
    Most States that commented--in opposition to or in support of the 
additional categories--noted that adding the categories would burden 
the State and the applicator. One commenter advised EPA that many 
States would need to revise State laws and regulations, mostly related 
to private applicators. States with a broadly inclusive commercial 
fumigation category would be required to establish two separate 
categories, and applicators would have to either reduce the scope of 
their applications or increase their existing certification burden. 
Some States would need to develop new training materials and exams, and 
hold additional training sessions. A few commenters suggested that EPA 
either develop the materials or fund States' development of the 
materials. Some commenters noted that there are few applicators in 
their States using a particular application method, and that the burden 
on the States and extension services would be high to support those few 
applicators.
    Response. The proposal included very specific requirements for 
recertification programs, including requirements for a maximum 
recertification interval of 3 years, a minimum standard for CEUs, and a 
defined length of active training time for each CEU. The increased 
burden for certified applicators to recertify with these additional 
application method-specific and concurrent pest control categories 
under the proposed changes was one of the most frequently raised 
concerns about the proposal. As discussed in Unit XIV, EPA revised the 
recertification requirements to be more flexible and to accommodate a 
broader range of approaches in recertification programs. These changes 
should alleviate or greatly decrease the concerns about the potential 
burden on certifying authorities and applicators. Please refer to Unit 
XIV. for additional information about the final recertification 
requirements.
    Also, EPA has not included in the final rule the proposed 
requirement for applicators who apply RUPs by fumigation or aerial 
application to obtain concurrent certification in both the application 
method-specific category and in each relevant pest control category, 
reducing burden on applicators to certify and recertify in those 
categories.
    To accommodate certifying authorities with few applicators using 
fumigants and to reduce certifying authorities' training burden, the 
final rule to allows certifying authorities the option to combine the 
soil fumigation and non-soil fumigation categories into a single 
fumigation category. EPA expects this change will provide nearly the 
same level of protection against unreasonable adverse effects as the 
proposal, because a general fumigation category must cover the 
standards of competency for both soil fumigation and non-soil 
fumigation. Certifying authorities may opt to certify private 
applicators seeking to use RUPs through soil fumigation, non-soil 
fumigation, and aerial application in the corresponding commercial 
category.
    In response to comments recommending that EPA provide certifying 
authorities with training materials and exams for the application 
method- specific categories, EPA notes that it has worked with State 
regulatory agencies, cooperative extension agencies, applicators, and 
industry to develop training manuals and exam item banks for soil 
fumigation and aerial application that certifying authorities can adopt 
directly or adapt for use in their certification programs.
    Comment. Some States, a registrant organization, and an association 
that represents pesticide safety trainers said the requirement for a 
soil fumigation category would be redundant and confusing to 
applicators in light of the existing labeling requirements for training 
of soil fumigant applicators. Those States where private applicators 
must certify by passing an exam said they would prefer that applicators 
take the registrant-developed training rather than add a soil 
fumigation category. One State said that the labeling-required training 
for soil fumigation and fumigant management plans are a more effective 
approach than requiring a certification in a fumigation-specific 
category, especially for private

[[Page 976]]

applicators. Another State expressed a preference for requiring 
compliance with the training requirement on the labeling for private 
applicators rather than requiring private applicators to certify 
because the State would require the private applicator to pass an exam 
for certification.
    Response. EPA recognizes that the soil fumigant labeling that 
currently contains requirements for registrant-training may overlap 
with the establishment of soil fumigation categories. Under this final 
rule, certifying authorities must adopt the soil fumigation category or 
a general fumigation category if such applications are made in their 
specific jurisdiction. Where registrant-provided training meets some or 
all of the requirements for certification or recertification, 
certifying authorities may include the registrant-provided training in 
their proposed certification plans. Currently, some States have 
different options for applicators to be able to meet the labeling-
required training requirements, which are provided on EPA's Web site: 
http://www.epa.gov/fumiganttraining. EPA will work with the certifying 
authorities and affected registrants to address the concern about 
overlapping requirements and burden on applicators, and will support 
communication of the changes to soil fumigant applicators.
    EPA appreciates that the training currently required through soil 
fumigant labeling offers applicators important information that they 
may not receive through examination. Under the final rule, certifying 
authorities have the option to certify private applicators through 
completion of a training program that covers the competency standards 
outlined in the rule.
    Comment. One commenter recommended grandfathering in currently 
certified applicators making applications covered by the application 
method-specific categories. Under this recommendation, only those 
certified after the new categories are adopted would need to be 
certified in the additional categories.
    Response. EPA is unclear on the commenter's recommendation. If an 
applicator currently holds a soil fumigation certification, EPA does 
not anticipate that the applicator would need to complete the initial 
certification for soil fumigation under the revised certification plan. 
Rather, assuming the certifying authority allows applicators to retain 
existing certifications when the revised certification plan is 
implemented, the applicator could retain his or her valid soil 
fumigation certification and comply with the recertification 
requirements the certifying authority adopts for soil fumigation. 
However, if the applicator is only certified in agricultural plant pest 
control and performing soil fumigation under this certification, EPA 
would not consider the applicator's existing certification sufficient 
to consider the applicator certified in soil fumigation under the 
revised certification plan. The exam for initial certification would 
cover the competency standards specific to soil fumigation. Because 
soil fumigation presents different, and in most cases, greater 
potential for RUP exposure than other application methods if not 
performed properly, the final rule requires certification in the 
specific category to help ensure applicator competency. Upon 
implementation of a revised certification plan by the certifying 
authority, this applicator would need to obtain certification in a 
category covering the soil fumigation competency standards in order to 
continue performing soil fumigation.
    Comment. A pesticide registrant requested that EPA clarify that the 
additional categories apply only to RUPs with fumigation or aerial 
application directions on their labeling.
    Response. EPA confirms that the soil fumigation, non-soil 
fumigation, and aerial application categories established through this 
final rule apply only to applicators using RUPs that are labeled for 
soil or non-soil fumigation or who make aerial applications of RUPs. 
EPA does not require applicators who only apply non-RUPs to be 
certified, irrespective of the method of application; however, 
certifying authorities retain discretion to implement programs more 
stringent than the federal rule and many do currently require 
certification of all ``for-hire'' pesticide users (even if they only 
use non-RUPs).
    Comment. Some certifying authorities commented that rodent control 
fumigants do not fit in either the soil or non-soil fumigation 
category, and asked for guidance on the category in which they should 
be included.
    Response. Based on the labeling and use patterns of rodent control 
fumigants (e.g., they are treating burrows, which are spaces, rather 
than the soil), EPA anticipates that use of these products would 
require an applicator to be certified in a non-soil fumigation 
category. However, EPA notes that certifying authorities do retain 
discretion to adopt a category or subcategory and corresponding 
competency standards specific to rodent burrow fumigations, as well as 
to combine the soil fumigation and non-soil fumigation categories into 
a single fumigation category.
    Comment. A few certifying authorities, farm bureaus and a grower 
group said that the requirement for application method-specific 
categories was not well justified for private applicators. One such 
commenter stated that EPA has failed to demonstrate that there are 
additional public safety benefits where these categories are in use.
    Response. EPA disagrees. Private applicators making fumigant 
applications use the same products as commercial applicators. Private 
applicators may use fumigant products less frequently than commercial 
applicators, but as a result may have less experience and skill using 
these products and applications which pose significant risks if not 
used according to the labeling. The products present similar risks to 
bystanders and the environment as those used by commercial applicators. 
RUPs applied aerially are no less prone to off-target drift if applied 
by a private applicator rather than a commercial applicator. As one 
certifying authority commented in support of the application method-
specific categories for private applicators, ``[this State] feels that 
private applicators should have extensive knowledge of these 
specialized methods of application.''
    In this final rule, EPA has strengthened the competency standards 
for private applicators to cover more detail than in the existing rule. 
The final competency standards for private applicators are similar to 
the commercial core standards because there is a basic level of 
competency that is necessary in order to apply RUPs without causing 
unreasonable adverse effects. This same reasoning compelled EPA to 
establish the requirement that private applicators certify in the 
application method-specific categories.
    In response to the comment that EPA has not demonstrated that 
public health benefits have accrued where certifying authorities have 
required certification in these categories, EPA notes that existing 
databases are insufficient to draw many reliable conclusions about the 
relative effectiveness of different State's certification programs. EPA 
believes it is reasonable to expect improvements to applicators' 
competencies will generally result in improved health of the 
applicator, the public, and the environment.
    Comment. One certifying authority asserted that the proposed aerial 
and non-soil fumigant categories would not be adequate to establish 
competency without subcategories, and

[[Page 977]]

recommended that EPA establish method-specific competencies.
    Response. EPA disagrees that subcategories are necessary to 
establish competency for applicators to perform non-soil fumigation or 
aerial application. The final rule establishes method-specific 
competencies for soil fumigation, non-soil fumigation, and aerial 
application. Absent more specific information about what subcategories 
would be needed to adequately establish competency and why they would 
be necessary, EPA declines to add subcategories under the non-soil and 
aerial application categories, as requested. EPA reminds the commenter 
that certifying authorities may establish subcategories under 
categories as needed to ensure applicator competency.
    Comments. Some certifying authorities, one university extension 
program, and a farm bureau opposed the requirement for separate soil 
and non-soil fumigant categories for private applicators, with one 
commenting that they would not improve competency as compared to a 
single category. One certifying authority commented that existing 
private applicator non-soil fumigation certification and 
recertification requirements, with an emphasis on labels and 
inspections, are sufficient for competency with the application method-
specific categories. Two commenters recommended improving label 
language on the affected products, instead of requiring States to 
establish method-specific categories. Some of these commenters also 
noted that changes to the States' categories would require legislative 
approvals.
    Response. EPA has included in the final rule an option for 
certifying authorities to adopt a single fumigation category with 
competency standards covering, at a minimum, the federal competency 
standards for soil fumigation and non-soil fumigation. EPA will review 
each certifying authority's revised certification plan to determine 
whether the existing requirements satisfy the requirements of this 
final rule.
    EPA disagrees with the commenters' request to improve label 
language in lieu of establishing specific soil and non-soil 
certification categories. Fumigant applications require specialized 
skills and present unique risks. EPA believes that establishing 
categories for certification of applicators performing fumigation or 
aerial application, and adoption of the associated competency 
standards, will improve the competency of applicators using these 
methods, and thereby reduce the likelihood of unreasonable adverse 
effects. Because several States have successfully implemented these 
categories, EPA concludes that, in States where private applicators 
practice these application methods, demonstration of their competency 
through certification in the application method-specific category is an 
appropriate means of preventing unreasonable adverse effects.
    EPA acknowledges that adopting additional categories may require 
the certifying authority to pursue regulatory or legislative change.
    Comment. A few commenters, including the national organization 
representing State pesticide regulatory agencies, asserted that an 
aerial category for private applicators is unnecessary, due to the 
small number of applicators and because the industry is self-regulating 
and already federally regulated by the Federal Aviation Administration 
(FAA).
    One commenter noted that, in their State, private aerial 
applicators are likely certified as commercial, and the federal aerial 
category for private applicators is therefore not needed. This 
commenter noted fewer drift complaints from aerial application in the 
past few years, as compared to drift complaints from ground 
applications. This commenter also opposed the proposed competency 
standard for aerial application, stating that State pesticide 
regulatory agencies and university extension personnel are not 
authorities on the operation of airplanes or their flight altitude or 
pattern.
    Response. Although the FAA regulates agricultural aerial 
applicators, its focus is on flight risks rather than pesticide risks. 
EPA's concerns for aerial pesticide application are centered on the 
potential for off target application, spray drift, and bystander 
exposure. Despite the likelihood that there are a small number of 
private applicators using aerial equipment, the potential for risk and 
the need for competency in making proper application remains high for 
those applicators. The commenters have not provided evidence to support 
the contention that the aerial applicator industry is self-regulated or 
that such self-regulation adequately addresses the risk of aerial 
application of RUPs. EPA does not believe that the aerial application 
industry's self-regulation is an adequate substitute for the competency 
standards and determinations required in the final rule.
    EPA is not opposed to certifying authorities requiring private 
applicators to meet commercial applicator criteria for aerial 
application certification. The final rule does not require certifying 
authorities to offer certification in categories where demand is low. 
In response to the commenter opposed to the private applicator 
competency standard for aerial applicators on the grounds that States 
are not authorities on aviation, EPA reminds the commenter that neither 
is FAA an authority on pesticide risks. EPA's and FAA's requirements 
are complementary in regard to aerial application of pesticides. The 
provisions of this final rule are directly related to the application 
of RUPs, not general operation of the aircraft. Training and knowledge 
on the principles of aerial application to minimize drift and off-
target movement of RUPs are critical competencies for applicators who 
apply RUPs aerially.
    Comment. One State recommended reducing the number of application 
method-specific competencies listed in the proposal, stating that many, 
such as those covering pesticide labels and labeling and target pests, 
are covered in their core competency standards.
    Response. EPA assumes the commenter is requesting that EPA allow a 
certifying authority to include some portion of the competency 
standards listed in certain categories in the core competency standards 
because there appears to be a duplication of some points (e.g., 
labeling requirements). For example, both commercial core competency 
standards and the competency standards for soil fumigation include 
requirements for the applicator to understand labeling requirements. 
However, EPA notes that the core and category competency standards are 
different based on context: Category-specific knowledge of labeling 
concerns common labeling provisions relevant to the products covered by 
the specific category (e.g., application to livestock, seed treatment, 
soil fumigation), while the core competency standards cover labeling 
generally (e.g., understanding the parts of labeling, where to find 
information, requirements for certified applicators). With the possible 
exception of Federal agencies (whose commercial applicators may be very 
specialized), EPA does not anticipate that a certifying authority would 
adopt into the commercial core competency standards requirements for 
all commercial applicators to have competency related to a specific 
category's standards. The certifying authority must specify in its 
certification plan that the competency standards for each category meet 
or exceed the competency standards in the rule. EPA will review each 
certification plan and the proposed categories to determine whether the 
necessary competencies are covered in a manner

[[Page 978]]

likely to ensure that applicators are competent to use RUPs without 
causing unreasonable adverse effects.
    Comment. Several commenters, primarily aerial applicator 
organizations and pesticide manufacturer organizations, expressed 
concerns for the characterization of aerial application as a ``high 
risk'' method. They state that aerial applicators are typically mature 
and experienced individuals who receive frequent, ongoing training to 
ensure competency, and applicators exhibit a high degree of 
professionalism. The commenter noted that aerial applicators prepare 
extensively prior to flight and are knowledgeable of proper procedures 
and safety. One applicator organization observed that the use of the 
term ``high risk'' places an undue potential for legal liability on the 
applicator and their customer.
    Commenters preferred that the aerial application category be 
designated as ``specialty,'' ``highly skilled,'' or ``complex'' 
application method. Several of these commenters agreed that there is 
some risk associated with aerial application, but aerial applicators 
seek to use best practices to minimize or eliminate these risks.
    Response. EPA has not characterized aerial application as a ``high 
risk'' application method in the final rule. However, both the proposed 
and final rules properly reflect the fact that aerial application 
presents different, and in most cases, greater potential for RUP 
exposure than other application methods if not performed properly, and 
therefore requires specialized training and experience.
    Comment. One commenter found statements in the preamble in error. 
Those statements suggested that the national organization representing 
State pesticide regulatory agencies opposed EPA's soil fumigant risk 
mitigation approach, which included requirements on labeling for 
applicators to receive registrant-provided, product-specific training. 
The commenter asserted that States were not opposed to the concept of 
relying on labeling to require applicator training for risk mitigation, 
but instead were concerned for the timeframe that EPA established to 
complete the work. Correspondence from a national pesticide safety 
trainers' organization expressed concerns for the mandate for 
registrant training.
    Response. EPA acknowledges that the intention of the statements 
originating from the national organization representing State pesticide 
regulatory agencies correspondence was to express concern for the 
aggressive timeline involved with the implementation of the labeling 
requirement for registrant-provided training. EPA also acknowledges the 
correspondence from the national pesticide safety trainers' 
organization expressed their concern with the requirement for the 
training that was required to be provided by pesticide registrants.
    Comments. Two States mentioned the anticipated use of Unmanned 
Aerial Vehicles (drones) for pesticide applications. One commenter 
suggested that EPA define terminology and consider establishing a 
category for their use. A second commenter suggested that certification 
of applicators using drones could be accomplished under the existing 
certification program.
    Response. EPA has only a nascent understanding of drone use in RUP 
application, especially as the field and other federal regulations 
related to drone use are developing and evolving quickly. EPA may 
revisit the issue of using drones for RUP applications and whether 
additional competency standards are necessary in the future, but in the 
meantime, it seems likely that RUPs applied by drone would be ``applied 
by fixed or rotary wing aircraft'' and thus be subject to the aerial 
applicator certification requirements of the final rule. Because the 
field is new and developing, EPA will not add a specific certification 
category or competency standards at this time; however, EPA may revise 
existing standards or add a new category to address this issue in the 
future if necessary. Certifying authorities may adopt their own 
categories, and EPA is willing to work with any certifying authority to 
develop competency standards for certifying applicators who would use 
this or other emerging technologies.
    Comment. One certifying authority commented that the proposal to 
subdivide the fumigants by method of application and use site is 
contrary to FIFRA, 7 U.S.C. 136(ee), and sets a precedent for 
subdividing other categories by method of application, for example, 
hand pump sprayers, air blast sprayers, and hydraulic sprayers.
    Response. The fumigation categories are divided into soil and non-
soil on the basis of the site of application. Regarding the concern the 
commenter has for the proposed requirement for separate categories, EPA 
was convinced by States' comments and has determined that certifying 
authorities may establish a single certification category for the 
fumigants, which encompasses the competency standards for both 
fumigation types. EPA does not at this time anticipate subdividing 
categories of use by application equipment type. EPA does not see any 
inconsistency between the final rule and FIFRA (7 U.S.C. 136(ee)).
    Comments. Several States, an organization that represents Tribal 
interests, and a farmworker advocacy organization responded to EPA's 
request for comment on the need for a chemigation certification 
category for applicators who apply RUPs through irrigation systems. All 
certifying authorities who responded to this question opposed the 
alternative. Two certifying authorities noted that the category was not 
needed. One certifying authority where there is substantial use of 
chemigation responded that their private applicators are trained on 
this application method and there are questions on the certification 
exam. Two certifying authorities opposed the addition of a chemigation 
category because of applicator burden. Another certifying authority 
opposed adding a chemigation category, stating that the label addresses 
the need and the establishment of the category would burden the State. 
Another two certifying authorities did not support the additional 
category, and recommended instead an assessment of use of RUPs by 
chemigation while expressing concern for additional burden when 
combined with the proposed fumigation and aerial categories.
    Two commenters supported the addition of a certification category 
for people using RUPs by chemigation. One of these commenters, a 
farmworker advocacy organization, noted that applicators need specific 
skills to use drip lines and there is a need for them to take 
precautions to prevent contamination of waters.
    Response. In drafting the proposal, EPA reviewed certification 
plans and the available incident data but found that few certifying 
authorities had adopted a chemigation category, and chemigation is not 
disproportionately represented among reported incidents. In the 
proposal, EPA requested comment on adding an application method-
specific category for chemigation to gather additional information for 
decision making. No certifying authorities supported the addition of 
chemigation as an application method-specific category. Based on these 
comments and the available information, EPA has concluded that, at this 
time, requiring chemigation-specific certification is unlikely to 
reduce risks enough to justify the associated burden, and therefore has 
not included a requirement for a chemigation category in the final 
rule.

[[Page 979]]

B. Allow Certifying Authorities To Establish a ``Limited Use'' Category 
for Commercial Applicators

    1. Existing rule and proposal. The existing rule has categories of 
certification for commercial applicators covering major types of 
pesticide applications. EPA proposed adding additional application 
method-specific categories covering particular ways that RUPs are 
applied. EPA requested comment on adding a ``limited use'' category for 
small numbers of applicators using RUPs in highly specialized or niche 
applications that do not fit under an existing or proposed category. 
Certifying authorities have expressed concern about the numbers of such 
applicators being too small to justify the cost of developing and 
offering written examinations meeting the criteria of Sec.  
171.103(a)(2) for these niche uses.
    The existing rule and final rule require certifying authorities to 
use written exams to determine the competency of and issue 
certifications to commercial applicators. Under the existing rule and 
final rule, commercial applicators must pass written exams covering 
core competency standards and competency standards for at least one 
category. The costs of written exams for category certification is a 
significant obstacle to certifying commercial applicators who use a 
single product or very few products using specific application 
techniques that do not fit within other categories. Examples of niche 
applications are municipal sewer root control, use of biocides in 
hydraulic fracturing (``fracking'') and wood preservation treatments. 
In the proposed rule, EPA discussed the option of allowing a ``limited 
use'' category that would allow certifying authorities to certify 
commercial applicators based on passing a written exam covering core 
competency and meeting specific additional standards established by the 
certifying authority related to the use of a specific RUP or small 
group of RUPs in a very narrow type of application sites. EPA 
considered and requested comment on whether to allow certification in 
the ``limited use'' category based on qualifications other than passing 
a category-specific exam. EPA discussed three alternatives to passing a 
category-specific exam: (1) The applicator could be required to comply 
with industry-provided training or certification requirements specified 
on the product labeling; (2) the applicator could be required to hold 
applicable State or Federal professional credentials; or (3) the 
applicator could demonstrate competency as required by the product's 
labeling.
    2. Final rule. EPA has chosen to add a provision to the final rule 
that would allow certifying authorities, at their discretion, to add 
``limited use'' categories for commercial applicators. To add a 
``limited use'' category, the certifying authority must establish 
specific competency standards and outline the process for ensuring that 
applicators demonstrate competency. An exception in 40 CFR 171.103(d) 
and 171.303(a)(4) allow the certifying authority to determine 
commercial applicator competency for the ``limited use'' category 
through a method other than a written exam fully conforming to Sec.  
171.103(a)(2). However, candidates for a ``limited use'' certification 
will be required to pass the written exam covering the core standards 
outlined at 40 CFR 171.103(c). But instead of passing a written 
examination to satisfy the State-established category-specific 
competency standards, candidates for a ``limited use'' certification 
may satisfy those standards by other means, which may include 
performance testing, individualized evaluations that do not necessarily 
meet the requirements of Sec.  171.103(a)(2), other professional 
certification programs, or training and/or evaluation provided by 
third-parties such as pesticide registrants and other regulatory 
agencies. The certification plan's description of a ``limited use'' 
category must include information about how applicators would be 
recertified. The certifying authority must ensure that any limited use 
certification credential clearly identifies the limited set of RUPs 
authorized for purchase and use by the applicator. The regulatory text 
for allowing the development of a ``limited use'' category and 
outlining the exception to the requirement for commercial applicators 
to certify by passing a core and at least one category exam is 
available at 40 CFR 171.303(a)(4).
    Comment. Four States, one private individual, and two industry 
organizations with applicators that use RUPs in specialized 
applications supported the addition of a ``limited use'' category for 
commercial applicators, in order to reduce burden on applicators, 
educators, and certifying authorities while assuring competency. 
Commenters noted that certifying authorities have difficulty developing 
valid exams and finding appropriate training for these users. 
Commenters also stated that, in those States, applicators must pass 
exams and take training not relevant to their niche applications or the 
State must develop and maintain an exam and training program covering 
very limited, detailed content that is often applicable to very few 
people in the State. Most of the commenters supported the three 
proposed alternatives to address the category requirements, with one 
commenter supporting the option for certifying authorities to develop 
additional approaches. Four certifying authorities opposed the concept 
of a federal ``limited use'' category, stating that adopting a 
``limited use'' category would increase burden, particularly on 
enforcement staff, who have to verify the alternative credentials.
    Response. EPA recognizes that there are RUP uses that do not fit 
well within the categories outlined at 40 CFR 171.101 and that have 
small numbers of commercial applicators. Because of the small numbers 
of applicators, the per-applicator cost of developing and presenting 
testing and training materials is high and represents a burden on the 
certifying authorities and applicators. Materials, exams, and training 
may be difficult for certifying authorities to develop due to scant 
information, a small applicator pool with which to develop and validate 
exam questions, and limited expertise with these specialized 
applications. The substantive content used for certification in other 
categories may have little relevance to their work.
    EPA is convinced by these comments supporting a ``limited use'' 
category and concludes that allowing certifying authorities the 
discretion to certify these applicators through an alternative 
mechanism, rather than by using the standard requirements to pass a 
core and category exam is appropriate. The alternative approach must 
accurately determine the applicator's competency in making these 
specialized applications, but may do so in a flexible manner that does 
not place excessive burden on the applicator or the certifying 
authority. The final rule allows certifying authorities the option to 
certify commercial applicators for niche uses without having to pass a 
written category exam conforming to Sec.  171.103(a)(2). The final rule 
requires commercial applicators seeking ``limited use'' certification 
to satisfy the core competency standards, including the examination 
standards of Sec.  171.103(a)(2), by passing a written core exam, in 
the same manner as other commercial applicators. The difference is the 
certifying authority's option to develop competency standards for the 
``limited use'' category and to ensure the applicator's competency 
according to those standards through a process other than the written 
examination required by Sec.  171.103(a)(2). Prior to this final

[[Page 980]]

rule, EPA has relied on other methods to establish applicators' 
competency in the case of fumigants and predacides, where commercial 
applicators have been required to pass a core exam, category exam, and 
satisfy the labeling-mandated competency requirements. EPA believes 
that it is a viable approach to ensuring safe and effective 
applications of certain RUPs in very narrow scenarios, and would 
provide better flexibility for certifying authorities to address the 
needs of their applicators. Accordingly, the final rule provides that 
certifying authorities may include in their certification plans 
specific ``limited use'' categories for certification of commercial 
applicators through alternative processes (subject to EPA approval) 
that do not necessarily meet the examination standards of Sec.  
171.103(a)(2). Refer to Sec. Sec.  171.303(a)(4) and 171.305(a)(5) for 
the regulatory text.
    Under the final rule, certifying authorities must provide 
information about the ``limited use'' categories they plan to establish 
in their certification plans submitted to EPA. They must provide the 
related competency standards, as well as their approach to determine 
competency and to recertify commercial applicators in the ``limited 
use'' category. Certifying authorities must explain why it is not 
practical to include the specific product(s) and/or use(s) under any 
other existing category. The certifying authority is required to ensure 
that any certification credential clearly identify the limited set of 
RUPs an applicator holding a limited use certification is authorized to 
purchase and use.
    In response to the concerns from States that a ``limited use'' 
category could be burdensome on State enforcement programs, EPA notes 
that certifying authorities are not required to establish a ``limited 
use'' category.

VIII. Establish Predator Control Categories for Commercial and Private 
Applicator Certification

A. Existing Rule and Proposal

    The existing rule has no categories for private applicators. For 
commercial applicators, the existing rule has 11 categories but does 
not have specific categories for the RUPs for predator control, sodium 
fluoroacetate in a protective collar and sodium cyanide in a mechanical 
ejection device.
    EPA proposed to establish a single predator control category, with 
two subcategories--one specific to sodium fluoroacetate and one 
specific to sodium cyanide. EPA proposed the predator control category 
to codify the competency standards established by each product's 
labeling. EPA proposed to require that to use sodium fluoroacetate or 
sodium cyanide, an applicator would require certification in the 
specific category relevant to the product used.

B. Final Rule

    The final rule establishes for both private and commercial 
applicators two predator control categories--one for sodium 
fluoroacetate in a protective collar and one for sodium cyanide in a 
mechanical ejection device. The final rule codifies the standards of 
competency mandated by the EPA orders (40 FR 44726 (September 29, 1975) 
and 49 FR 4830 (February 8, 1984)) that govern the use of these 
products.
    The final regulatory text for commercial applicator predator 
control categories is located at 40 CFR 171.101(k)-(l) and 
171.103(d)(11)-(12). The final regulatory text for private applicator 
predator control categories is located at 40 CFR 171.105(b)-(c).

C. Comments and Responses

    Comment. Several States and a State association expressed concern 
that every jurisdiction would be required to adopt the two predator 
control categories, even if there were no applicators using that 
application method. Many certifying authorities pointed out that these 
products are not used in their jurisdiction. In some jurisdictions, 
applicators use one or the other predacide products, but not both.
    Response. Neither the proposed nor the final rule requires 
certifying authorities to adopt categories covering the use of sodium 
cyanide or sodium fluoroacetate. Under the final rule, certifying 
authorities retain the discretion to adopt only the federal 
certification categories relevant to their jurisdictions. 40 CFR 
171.303(a)(2)(i) and 171.305(a)(3)(i).
    Comment. A number of States noted that risks to humans and non-
target species from use of these products are great, as the products 
are highly acutely toxic to mammals and there are no antidotes. Most of 
these commenters believe that the labeling requirements are sufficient 
and that the proposed predator control categories are not needed. A few 
commented that sodium fluoroacetate and sodium cyanide are only for use 
by highly trained USDA Wildlife Services personnel, and should not be 
used by private applicators.
    Response. EPA agrees that these products can pose unreasonable 
adverse effects on human health or the environment if not used by 
competent applicators carefully following the labeling use directions 
and precautions. Currently, most of the regulatory requirements 
applicable to these products come from two administrative orders 
published in the 1975 and 1984. Codifying more of the content of those 
orders into this rule will provide greater transparency and provide 
certifying authorities and applicators improved access to information 
they need to ensure the products are applied by competent applicators.
    EPA notes that use of predator control products is not necessarily 
restricted to USDA Wildlife Services personnel; they are also used by 
other certified applicators. Private applicators, legally permitted to 
use these products, are subject to the same labeling-mandated 
competency standards as are commercial applicators.
    Comment. Two States recommended that EPA retain the existing 
commercial category number assignments in the final rule, instead of 
inserting the predator control category before the existing 
Demonstration and Research category. Commenters noted that certifying 
authorities retain information based on the federal category number, 
therefore changes to the category numbers would complicate the tracking 
of their historical information.
    Response. The proposed rule inserted the predator control category 
into the commercial categories as number 10, displacing the 
Demonstration and Research category to number 11, with the intention of 
grouping the predator control category with the pest control 
categories. However, the order of the categories does not significantly 
affect the readability of the rule, so EPA will order the categories as 
the commenters requested. In the final rule, EPA has revised the order 
from the proposal so that Demonstration and Research is category 10 as 
it is in the existing rule.
    Comment. One State supported EPA's intention to promote safer 
pesticide use by establishing predator control categories for private 
applicators, but expressed concern for the burden on that certifying 
authority. They expected that the changes would impact resources to 
revise rules, and stated that EPA should develop study guides and 
exams. This certifying authority also was concerned that private 
applicators would find it too difficult to obtain the additional 
licenses, and may not be able to protect their commodities as a result.
    Response. EPA appreciates the concern raised for the burden on 
certifying authority resources, and for the potential that private 
applicators may lose access to these RUPs to protect their investments. 
However, EPA notes that private applicators using these

[[Page 981]]

products must already comply with the use restrictions and competency 
standards on the labeling, and can reasonably be expected to achieve 
certification to equivalent requirements in a certification context. 
Should they be unable to demonstrate competency in the relevant 
predator control category, their access to and use of these highly 
acutely toxic pesticides would be to barter with other farmers 
certified in this category, to hire commercial applicators, or to 
obtain the help of State or Federal wildlife officials.
    Comment. A federal government agency commented that they were not 
opposed to codifying the labeling requirements for sodium fluoroacetate 
and sodium cyanide, but asked for clarification on how applicators 
would demonstrate competency. They stated that APHIS WS provides 
specific training for applicators in many States, because certifying 
agencies do not have the information or training staff with relevant 
expertise in predator control. They stated that if applicators were 
required to demonstrate competency by passing a closed- book exam for 
certification and obtaining six CEUs for recertification that this 
would be difficult for States to implement for the small numbers of 
applicators. USDA APHIS preferred to keep things as they are, with this 
agency providing training for applicators in many jurisdictions.
    Response. Federal agencies administering certification plans must 
comply with any State- or Tribe-specific certification requirements 
when persons certified under the Federal agency certification plan make 
applications in a specific State or part of Indian country. Neither the 
proposed rule nor the final rule requires applicators to obtain 
certification by completing both a training program and passing a 
closed-book exam. Under the final rule, commercial applicators would be 
required to certify by passing the core exam and the appropriate 
category exam, and therefore, APHIS-provided training without 
examination would not by itself satisfy the requirements for initial 
certification. Private applicators seeking to use one or both of the 
predator control products covered would be required to hold a valid 
private applicator certification and to obtain certification in the 
relevant category by passing a written exam or completing training, 
depending on the certifying authority's requirements for private 
applicators. The certifying authorities will have the discretion to 
decide whether to accept APHIS-provided training as satisfying some or 
all of the requirements for initial certification or recertification in 
the predator control categories.
    The proposal included very specific requirements for 
recertification programs, including a minimum standard for CEUs per 
category recertification period. The final rule provides more 
flexibility to accommodate different approaches by certifying 
authorities and does not require applicators to complete a specific 
number of CEUs or hours of training in order to maintain their 
certification. Rather, the final rule establishes a framework under 
which certifying authorities may develop a recertification program 
within their jurisdiction. Recertification for both private and 
commercial applicators would be consistent with the certifying 
authority's requirements. Each certifying authority has discretion 
regarding whether APHIS-provided training is an acceptable component of 
the certifying authority's recertification program. See Unit XIV, for 
more discussion on the revisions to the recertification requirements.

IX. Security and Effectiveness of Exam and Training Administration

A. Overview and General Comments

    1. Overview. In order to address concerns that administration of 
pesticide applicator examinations and trainings currently affords 
opportunity for cheating or fraud, EPA proposed provisions to ensure 
the security and integrity of examinations and training sessions. EPA 
proposed that all examinations for certification or recertification be 
closed-book and proctored. EPA also proposed that certifying 
authorities verify the identities of candidates seeking certification 
or recertification by examination or at training sessions. Based on 
comments received, EPA is revising the proposed examination and 
administration requirements in the final rule, as discussed in detail 
in the responses that follow.
2. Comments and Responses
    Comments. A number of commenters offered general support for EPA's 
efforts to improve the security and effectiveness of the certification 
and recertification examinations and training sessions by requiring 
candidates to verify their identity and by requiring written 
examinations to be closed-book and proctored. Some certifying 
authorities noted that they already require examinations to be closed-
book and proctored.
    Other commenters stated the belief that the new requirements to 
ensure the security and effectiveness of examination and training 
administration would likely place additional burdens on certifying 
authorities. One commenter noted its expectation that as certifying 
authorities alter their programs to comply with the proposed 
provisions, candidates would be left with fewer options for 
certification and recertification exams and trainings. Some certifying 
authorities provide the option for private applicators to complete a 
take-home workbook to obtain certification; according to one commenter, 
the proposed requirement for closed-book, proctored exams would 
effectively prevent that option.
    Some commenters stated that the proposed provisions are too 
prescriptive, arguing that a requirement to ensure a certifying 
authority has implemented examination security provisions as a part of 
its certification plan should suffice. Some commenters suggested that 
EPA should require certifying authorities to establish a certification 
security system that verifies the applicator's identity and provides 
for examination security, and that any additional examination security 
requirements would be unnecessary. Another commenter argued that 
certifying authorities have been administering examinations for years 
and federal regulation is not needed in this area.
    Response. EPA agrees that it is important to maintain the security 
and integrity of examinations and training sessions to protect the 
investment of resources into quality examination development and to 
ensure the competency of pesticide applicators. EPA acknowledges that 
many certifying authorities already have requirements that meet or 
exceed the examination administration and security provisions in the 
final rule.
    While EPA agrees that the new requirements to ensure the security 
and effectiveness of examination and training administration will 
likely place additional burdens on some certifying authorities, EPA 
notes that other certifying authorities have already adopted similar 
requirements and have not considered the burden unreasonable. EPA 
acknowledges that some certifying authorities will have to alter their 
programs to comply with this final rule. These changes could result in 
candidates being left with fewer options for tests and continuing 
education courses; however, EPA expects that there will be few 
disruptions for those seeking certification or recertification. EPA 
believes the benefits of implementing the new requirements related to 
examination security justify

[[Page 982]]

any increase in burden or reduction in options associated with these 
activities. EPA acknowledges that the improvements in examination 
security in the final rule will prohibit certifications based on take-
home examinations or at-home workbooks that are not proctored. 
Certifying authorities retain other options for certification and 
recertification, such as training (in person or online) or examinations 
administered in accordance with the standards in this rule.
    EPA disagrees with the comments that the security and examination 
administration requirements are too prescriptive and that federal 
guidance is not needed in this area. EPA believes the requirements 
codified in this rule represent a common-sense approach to consistent 
and reliable examination administration. Codifying a minimum set of 
requirements for examination administration and security is necessary 
in order for EPA--which makes registration decisions based on certain 
assumptions regarding the competence of certified applicators--to have 
confidence that certified applicators have an appropriate level of 
competency.

B. Closed-Book Examinations

    1. Existing rule and proposal. The existing rule does not require 
closed-book examinations. In 2006, EPA issued guidance regarding 
examination administration that recommended that examinations be 
closed-book and proctored. EPA proposed including a requirement for 
examinations for initial certification and recertification to be 
closed-book.
    2. Final rule. In response to comments, EPA did not include the 
term ``closed-book'' in the final rule. The final rule includes the 
proposed provision that no reference materials may be used during 
examinations, except those that are approved by the certifying 
authority and provided by the proctor. The final regulatory text is 
available at 40 CFR 171.103(a)(2)(ix).
3. Comments and Responses
    Comments. A number of commenters, including some certifying 
authorities and university extension programs, opposed EPA's proposal 
for closed-book examinations. Other certifying authorities sought 
clarification of the term ``closed-book,'' and opposed any prohibition 
on the use of reference materials. One commenter argued that the 
requirement to give closed-book examinations violates FIFRA's provision 
that EPA ``shall not require private applicators to take any 
examination to establish competency in the use of pesticides.''
    One commenter argued that EPA failed to consider the impacts on 
university extension programs and, in doing so, ignored the cost of 
revising manuals. The commenter noted their category manuals have been 
developed with the idea that they can write examination questions that 
address deeper knowledge because the examinations are open-book. One 
commenter argued that while the proposal to have closed-book 
examinations would increase compliance costs, EPA has not demonstrated 
the increased burden would yield greater protection of workers or the 
environment.
    Some commenters noted that there would be significant impacts from 
a closed-book examination requirement on their private applicator 
certification examination program. One commenter stated that even if 
open-book examinations are allowed under the final rule, if proctors 
administering the private applicator examination must provide all the 
materials, there will be increased costs for purchasing and tracking 
the different private applicator category-training manuals that could 
be used for the examination. The commenter argued that candidates may 
have to wait until the certifying authority has provided the necessary 
reference materials to all testing locations. Another commenter 
recommended that that the final rule allow certifying authorities who 
currently allow open-book examinations to convert to closed-book 
examinations at a rate of two examinations per year.
    A number of commenters challenged EPA's assertion that open-book 
examinations allow a lower standard for the process of determining and 
assuring competency. One commenter stated that the goal of the 
examination should be to test understanding of concepts and application 
of content, rather than memorization, which can be accomplished through 
closed-book examinations. One commenter stated that there is no proof 
closed-book examinations would result in more competent applicators 
than open-book examinations. Some commenters argued that examinations 
should reflect circumstances under which a person will actually 
operate, and that open-book examinations train applicators how to look 
up and use material that will be available. One commenter asserted a 
belief that it is inconsistent to consider the ability to look up 
information on labeling to be a required competency, yet the ability to 
look up information in a key reference material to imply a lack of 
competency. One commenter noted that rather than gauging the test 
taker's competency, closed-book examinations would discriminate against 
those who simply are not good test takers. Another commenter argued 
that applicators would cram for closed-book examinations, and that 
cramming does not lead to retention. Another commenter favoring open-
book examinations cited a study that found no real differences in 
retention a week after administering either an open or closed-book 
examination (Ref. 41). One university extension program stated the 
belief that open-book examinations allow them to test applicators' 
knowledge more thoroughly, in particular for category examinations 
which the commenter believes test more complex material than core 
examinations. The commenter argued that an applicator should know core 
material well enough to answer examination questions without needing to 
refer to the core manual.
    Some commenters argued that examination security issues could 
better be addressed through other means, such as competent, active 
proctoring, multiple or unique versions of tests, and frequently 
modified tests, rather than through closed-book examinations or a 
prohibition on bringing outside materials to the examination. One 
commenter contended that manuals and all other materials could be 
provided to applicators at the examination site and turned in at the 
conclusion of testing to help in maintaining examination integrity. The 
commenter stated the belief that manuals are long enough that a person 
not already familiar with the materials would not have time to pass an 
examination, and thus the manual(s) can only serve as a resource as 
needed.
    Some commenters suggest that EPA require a minimum score that 
candidates must meet in written examinations to obtain certification.
    One commenter suggested that proctors be allowed to translate 
examination questions into a foreign language in order for the 
candidate to fully understand words used in the test that are not part 
of the label.
    Response. In response to comments, EPA has not included the term 
``closed-book'' in the examination administration requirements in the 
final rule. EPA is codifying examination administration standards that 
permit the use of reference materials (e.g., sample labeling, 
conversion tables, or manuals), as long as they are provided by the 
proctor or examination administrator and collected at the end of the 
examination. EPA acknowledges that

[[Page 983]]

the term ``closed-book'' is sometimes interpreted to mean that no 
reference materials are allowed and that the candidate must rely solely 
on his or her memory. In response to comments, the final rule allows 
certifying authorities the flexibility to choose whether to provide 
candidates with reference materials during examinations. It also allows 
those certifying authorities that have designed their examinations for 
candidates equipped with reference materials to continue to use those, 
as long as the only reference materials used are those approved by the 
certifying authority, and are provided and collected by the proctor. 
EPA believes the requirements that reference materials be provided by 
the certifying authority and collected after the examination will 
reduce cheating by preventing candidates from entering the examination 
with prepared answers or copying examination questions into materials 
taken away from the examination.
    EPA disagrees with commenter's assertion that the requirements for 
examinations to be closed-book violates FIFRA. EPA acknowledges that 
FIFRA prohibits EPA from requiring private applicators to take an 
examination to establish competency in the use of pesticides under an 
EPA-administered certification program or from requiring certifying 
authorities to impose on private applicators an examination requirement 
as part of a certification plan. 7 U.S.C. 136i(a)(1). However, FIFRA 
allows States to regulate more strictly than EPA does in certain cases 
(FIFRA section 24(a); 7 U.S.C. 136y(a)), so certifying authorities may 
choose to require testing where EPA has not. And as FIFRA grants EPA 
the authority to prescribe standards for the certification of pesticide 
applicators, EPA may prescribe standards applicable to those certifying 
authorities that choose to certify applicators on the basis of 
examinations. The final rule does not require that private applicators 
take any examination, but it also does not prohibit certifying 
authorities from doing so. And recognizing that many certifying 
authorities do rely to some extent on examinations to establish the 
competence of private applicators, EPA is within its authority to 
specify that those examinations must meet certain minimum standards.
    EPA estimated costs that the States and other certifying 
authorities incur for revising their certification plans, developing 
examination and training materials, administering (proctoring) 
examinations, and providing trainings for certification and 
recertification. EPA estimated the costs of developing new exams and 
training materials (e.g., non-soil certification exams, and private 
core competency materials). For example, there will be new proctoring 
costs for administering aerial and non-soil certification examinations 
and costs for providing recertification trainings. Certifying agencies, 
and in some cases in cooperation with university extension programs, 
have to develop certification examinations and training materials for 
these new categories. However, EPA acknowledges that it did not 
estimate the cost of revising examinations to account for the 
requirement that examinations be closed-book. Since EPA is removing the 
term ``closed-book'' from the rule and clarifying that reference 
materials can be provided by the certifying authority, so long as no 
candidate is permitted to remove from the test site those materials he 
or she used during the examination, EPA believes the cost of revising 
examinations to meet this provision is a negligible portion of the cost 
of routine updates to examinations certifying authorities already 
undertake. However, examination facilities will need to be stocked with 
the reference materials. EPA also believes the examination security 
requirements reduce the burden on certifying authorities associated 
with updating compromised tests. Further, EPA believes that increasing 
examination security and preventing cheating will have a beneficial 
impact on applicator competency by ensuring that candidates have 
attained the knowledge required to pass an examination. In turn, EPA 
believes competent applicators are less likely to have mishaps that 
cause adverse effects on the environment or human health.
    EPA acknowledges that the provisions of this final rule will have 
impacts on private applicator certification examination programs. EPA 
estimated the costs incurred by certifying authorities associated with 
examination and training material development and administration. See 
the Economic Analysis for this rulemaking (Ref. 1). Given the 
clarification in this final rule regarding the use of reference 
materials, EPA believes that most certifying authorities will require 
minor revisions to their manuals and/or tests. Hence, EPA expects 
disruptions to examinations, if any, to be minimal. EPA believes that, 
if necessary, certifying authorities can stock examination facilities 
with reference materials during the implementation period.
    EPA has taken into consideration comments addressing EPA's concern 
that open-book examinations allow a lower standard for the process of 
determining and assuring competency. EPA agrees that the goal of 
certification examinations should be to ensure applicator competency 
(i.e., to test the understanding of concepts and application of 
content, rather than to test memorization). EPA also agrees that the 
ability to look up information in reference material does not imply a 
lack of competency. EPA notes that the authors of a recent review of 
studies comparing open-book and closed-book examinations conclude that 
the available data does not appear to favor using either open-book or 
closed-book examinations (Ref. 42). The authors note that while 
students may prepare more extensively for closed-book examinations, 
post-examination outcomes suggest little difference in testing effects. 
EPA did not find evidence to suggest that retention and competency are 
affected by such factors as whether the examination reflects the 
circumstances under which a person will operate, or that closed-book 
examinations discriminate against poor test takers. EPA agrees that the 
available evidence suggests that open-book examinations can be designed 
to test applicator knowledge without compromising competency standards. 
As a result, EPA is not distinguishing between core and category 
examinations with regard to the use of reference materials. EPA remains 
concerned about the possibility of cheating if candidates are allowed 
to bring outside materials into the examination or take examination 
materials home. In order to ensure the integrity of the examination 
process, EPA is retaining the proposed prohibition against candidates 
bringing in outside materials to the examinations. As discussed above, 
manuals and other reference materials may be provided by the certifying 
authority at the time of the examination for use during the 
examination, but must be collected at the end of the examination 
period.
    In response to commenters who argued that examination security 
issues could be better addressed through means other than requiring 
closed-book examinations, EPA agrees. As discussed above, EPA is 
codifying the requirement that any reference materials used in the 
examination must be provided by the certifying authority at the 
examination and collected at the end of the examination. EPA is also 
establishing a requirement for test takers to provide a valid, 
government-issued photo identification or other form of similarly 
reliable identification to the certifying authority. EPA believes that 
these

[[Page 984]]

measures will assist with assuring the integrity of the examination 
process.
    EPA disagrees with commenters who requested that EPA establish a 
minimum score on examinations to obtain certification or 
recertification. Those who develop and administer examinations are in 
the best position to establish a minimum passing score based on the 
number, type and difficulty of questions. Even if two certifying 
agencies used exactly the same questions, differences in the types of 
reference materials the certifying agencies choose to provide or the 
time allotted could also influence the decision on where to set the 
minimum passing score for the examination. Because EPA is not requiring 
all certifying authorities to administer the same certification 
examinations or requiring standardization in what materials may be 
provided during the examination, it would not appropriate for EPA to 
establish a minimum score for passing an examination.
    Finally, in response to the comment that language translation tools 
be allowed, EPA is not prescribing what reference materials are 
allowable. EPA will generally defer to certifying authorities to 
determine what, if any, materials should be provided to candidates, and 
whether materials would serve as a resource for testing purposes or 
would compromise the utility of the examination in assessing competency 
of the candidate. Manuals, foreign language dictionaries or other 
language translation tools, labeling, and other materials may be 
provided to the candidate, as long as the materials are approved by the 
certifying authority for use during the examination and collected at 
the end of the examination period.

C. Proctor Requirements

    1. Existing rule and proposal. The existing rule does not require 
examinations to be proctored or establish standards for proctors or 
certifying agencies administering exams. In 2006, EPA issued guidance 
regarding examination administration that recommended that examinations 
be closed-book and proctored.
    EPA proposed to require that any examination for certification or 
recertification 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. In addition, EPA 
proposed that the proctor must do the all of the following:
     Verify the identity and age of persons taking the 
examination by checking identification and having examinees sign an 
examination roster.
     Monitor examinees throughout the examination period.
     Instruct examinees in examination procedures before 
beginning the examination.
     Keep examinations secure before, during, and after the 
examination period.
     Allow only the examinees to access the examination, 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 examination 
period.
     Ensure that no portion of the examination or any 
associated reference materials is copied or retained by any person 
other than a person authorized by the certifying authority to copy or 
retain the examination.
     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.
     Review reference materials provided to examinees after the 
examination is complete to ensure that no portion of the reference 
material has been removed or destroyed.
     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.
     Comply with any other requirements of the certifying 
authority related to examination administration.
    2. Final rule. The final rule establishes requirements for exam 
administration and proctoring, but differs from the proposal in several 
ways. The final rule does not include the proposed requirement for the 
proctor to have examinees sign an examination roster. The final rule 
clarifies that the certifying authority, rather than the proctor, bears 
the responsibility for ensuring compliance with examination 
administration and security requirements. The certifying authority may 
assign specific elements of examination administration and security 
procedures to the proctor or to other individuals approved by the 
certifying authority, but the certifying authority remains responsible 
for compliance with its certification plan and the final rule. The 
final rule reorganized the requirements from the proposal and 
eliminated duplicative tasks. The final regulatory requirements are 
available at 40 CFR 171.103(a)(2).
    The final rule adds flexibility for certifying authorities by 
allowing them to adopt standards that meet or exceed the standards at 
40 CFR 171.103(a)(2). The final regulatory requirements for States to 
adopt standards that meet or exceed the standards at 40 CFR 
171.103(a)(2) are located at 40 CFR 171.303(a)(5) and 
171.303(b)(2)(ii)(C).
3. Comments and Responses
    Comments. One commenter stated the belief that competent proctoring 
would reduce the likelihood of questions being copied and shared with 
subsequent test takers.
    Some commenters contended that proctoring requirements should not 
be in the regulations, as certifying authorities have been 
administering and securing examinations for years. One commenter 
suggested that the proctor instructions should be included as part of 
certification plans rather than being placed in the regulations. One 
certifying authority indicated that their examinations are already 
proctored; other commenters noted that the proposal would codify 
existing policy that all examinations be proctored.
    One commenter argued that requiring proctoring of examinations and 
specific proctoring requirements will place a strain on growers. 
Another commenter asked whether and for how long the examination roster 
must be kept.
    Response. EPA agrees that examination administration and security 
are important elements of the certification process. EPA also agrees 
that requiring examinations to be proctored and establishing minimum 
examination security requirements will reduce likelihood of cheating 
during the examinations, including questions being copied and shared 
with subsequent test takers.
    EPA acknowledges that certifying authorities have developed 
expertise in administering examinations for pesticide applicator 
certification and recertification. EPA is codifying certain examination 
security requirements rather than leaving them wholly to the certifying 
authorities because EPA believes that placing the requirements in the 
federal regulations will help assure a level of examination security 
and integrity that is consistent across certifying authorities and 
appropriate for ensuring applicator competency. In 2006, EPA issued 
non-binding guidance regarding examination administration that 
recommended that examinations be closed-book and proctored. EPA notes 
that while many certifying authorities currently require exams to be 
proctored, some certifying authorities have no proctoring requirements. 
The final rule

[[Page 985]]

requires certifying authorities to address exam administration and 
security in their certification plans and allows certifying authorities 
to establish different exam administration security standards that meet 
or exceed EPA's standards.
    EPA does not believe that requiring proctored examinations will 
place a strain on producers. The commenter did not specify what strains 
producers would be placed under by the requirement that examinations be 
proctored, but EPA believes that its Economic Analysis has accounted 
for all reasonably foreseeable impacts of the final rule.
    In the final rule, EPA is not requiring certifying authorities to 
create or keep an examination roster as a record. Therefore, based on 
comments received, EPA removed the proposed requirement for the proctor 
to ensure candidates sign a roster. Nevertheless, EPA believes it would 
be prudent for certifying authorities to maintain a record of 
individuals present at an examination to track applicators' progress 
towards certification or recertification, and in case the presence of 
an individual at an examination is called into question. See Unit IX.D.

D. Verification of Identity

    1. Existing rule and proposal. The existing rule does not have a 
requirement for verification of the identity of persons seeking 
certification or recertification. EPA proposed to add a requirement for 
those seeking certification or recertification to present a government-
issued photo identification at the time of the examination or training 
session. EPA requested comment on whether it should consider allowing 
exceptions to the requirement for candidates to present identification, 
and if so, under what circumstances. EPA also sought examples of how 
such exceptions could be implemented.
    2. Final rule. The final rule requires both private and commercial 
applicators seeking certification or recertification by examination to 
present identification at the time they take the examination. In 
addition, certifying authorities must also verify the identity of 
private applicators seeking initial certification through training. The 
final rule requires that the candidates present a government-issued 
photo identification or other comparably reliable form of 
identification authorized by the certifying agency; certifying agencies 
have discretion to determine what forms of identification are 
appropriate for their jurisdiction.
    In the final rule, EPA has revised the proposed requirement for 
verifying the identity of participants for recertification. Under the 
final rule, certifying authorities must specify their identification 
requirements and procedures for verifying the identities of those 
seeking certification or recertification in their certification plans. 
The final rule does not require private or commercial applicators 
attending continuing education or training sessions for recertification 
to present a government-issued photo identification or comparably 
reliable identification authorized by the certifying authority. 
Instead, the final rule requires certifying authorities to ensure that 
any continuing education course or event relied upon for 
recertification include a process to verify applicators' successful 
completion of the program. This performance standard includes verifying 
the applicator's identity in some way as well as verifying their 
successful completion of the program.
3. Comments and Responses
    Comments. Many commenters agreed with EPA's proposal to require 
positive verification of an individual's identity with a government-
issued photo-identification at the time of examination. Some commenters 
agreed with EPA's proposal to require verification of an individual's 
identity at the time of examination, provided certifying authorities 
are given the flexibility to determine what is considered acceptable 
documentation. Of those States requesting that EPA include some measure 
of flexibility in the requirement for identification, a few cited the 
need to be able to accommodate religious or other groups that do not 
allow the use of government-issued photo identification. One commenter 
suggested that EPA revise the term ``government-issued'' to 
``photographic'' or ``verifiable'' as a way of offering States and 
applicators more options. One commenter suggested that some citizens 
might not have a government-issued ID. As an alternative, the commenter 
suggested EPA could require States to have a procedure as part of their 
certification plans to accommodate candidates and applicators lacking a 
government-issued photo identification, but not specify in the federal 
rule what it is. Another commenter proposed that EPA clearly specify 
that positive identification for purposes of registration for training 
and testing, and granting of certifications may include any document or 
combination of documents that satisfy proper completion of the U.S. 
Citizenship and Immigration Services (USCIS) employment eligibility 
verification documentation, or the USCIS Form I-9.
    Some commenters expressed the concern that the requirement for 
positive verification of identity would be overly burdensome and 
unnecessary for recertification training sessions. Some of these 
commenters anticipated potential issues and additional costs for 
sponsors of large courses, conferences, or workshops with large numbers 
of individuals in attendance. They argued that certifying authorities 
and providers of these services do not have the staff or ability to 
sign off and check each applicator's government-issued identification 
after every session. Another commenter asserted that to do so would be 
cost prohibitive and there would be no additional benefits from adding 
this step to current recertification processes. One certifying 
authority that relies on workshop providers noted that they did not 
have the legal authority to enforce a requirement to check 
identification of participants for each workshop session. Another 
commenter contended that a requirement to present government-issued 
identification for all participants may inhibit or intimidate certain 
individuals from attending valuable training sessions. The commenter 
stated that farmworkers and others should be encouraged, not 
discouraged from seeking training.
    Some commenters suggested that successful candidates for a 
commercial applicator license could be issued a license that includes 
their photograph, similar to a driver's license, which could be used to 
verify attendance at recertification courses. One certifying authority 
that issues a certification card after examination without a photo 
indicated that they felt that card was sufficient and did not want to 
add a photo to the card.
    One commenter proposed the following two-pronged approach to 
replace the proposed requirement for applicators to present a 
government-issued photo identification at every program that offers 
continuing education credits: (1) Allow all of the verification 
procedures described in the two CTAG papers, (``Pesticide Applicator 
Recertification: Verifying Attendance at Training Events'' and 
``Pesticide Applicator Recertification: Online Training--Course Design 
and Structure'', which are available at http://www.ctaginfo.org) 
including sampling and auditing (Refs. 43 and 44); and (2) encourage 
certifying authorities to find a way to move toward the ideal goal of 
checking every applicator's photo

[[Page 986]]

identification by limiting the proportion of recertification credits 
that could be earned at events at which every person's photo 
identification is not checked.
    Response. EPA believes that requiring positive identification of 
candidates seeking certification and recertification by examination is 
critical element of maintaining the integrity of the pesticide 
applicator certification and recertification programs that rely on 
examinations, evidenced by the number of States that have adopted a 
requirement to verify the identity of candidates taking examinations. 
This requirement would help to ensure that the person who takes the 
examination is the same person who receives the certification, and help 
prevent fraud and abuse. It also allows certifying authorities the 
ability to verify that candidates for certification meet the minimum 
age requirements for certification.
    Based on comments, EPA agrees that certifying authorities need 
flexibility to determine what documentation is acceptable to positively 
identify candidates taking examinations in order to accommodate 
candidates who do not have government-issued photo identification, for 
religious or other reasons. Under the final rule, certifying 
authorities must require examination candidates to present a government 
issued photo-identification or other comparably reliable form of 
identification. While EPA encourages certifying authorities to require 
a government-issued photo identification for verification purposes, the 
final rule allows certifying authorities the ability to determine what 
constitutes acceptable documentation for their jurisdiction. EPA also 
agrees with the suggestion that EPA require certifying authorities to 
have a procedure as part of their certification plans to accommodate 
candidates and applicators lacking a government-issued photo 
identification. Hence, in the final rule, EPA is requiring certifying 
authorities to specify their identification verification requirements 
in their certification plans. EPA disagrees with the request that EPA 
specify that any document(s) that satisfy USCIS Form I-9 be acceptable 
as positive identification for purposes of certification. As discussed 
above, EPA is allowing certifying authorities the ability to determine 
what documentation is acceptable.
    For recertification training sessions, EPA acknowledges that it did 
not fully consider the potential burden on certifying authorities to 
require positive identification of candidates, especially at large 
conferences or workshops with multiple sessions. Based on comments, EPA 
agrees that the requirement for checking photo identifications could be 
burdensome and difficult to implement at conferences or workshops with 
large numbers of individuals in attendance. Furthermore, EPA recognizes 
that some States have implemented other methods to verify applicators' 
attendance at recertification training courses or events, such as 
scanning the barcode on the applicator's license at the beginning and 
end of the session. While the final rule does not require certifying 
authorities to identify the applicators attending training sessions, 
either on-line or in person, by checking a government-issued photo 
identification, EPA is requiring that certifying authorities ensure 
that any continuing education course or event includes a process to 
verify the applicator's successful completion of the course or event. 
To meet this requirement, there must be a way to identify the candidate 
for recertification as well as to verify that the candidate completes 
the program. EPA believes that retaining this requirement, while 
relaxing the requirement for presenting a government-issued photo 
identification, will maintain the integrity of the recertification 
process.
    In response to the commenter who stated that some certifying 
authorities that rely on workshop providers have no legal authority to 
enforce a requirement on workshop providers to check identification of 
candidates at recertification trainings, EPA notes that under the final 
rule they would not be required to do so. Under the final rule, the 
certifying authority must have some process for verifying the 
applicators' successful completion of the recertification course or 
event, which involves some method of verifying the applicators' 
identity. The final requirements do not preclude certifying authorities 
from requiring applicators to provide photo identification at private 
or commercial applicator recertification training sessions. In 
addition, certifying authorities must specify in their plans how they 
will ensure that courses or events relied upon for recertification 
include a process to verify that a certified applicator has actually 
completed the training required for recertification.
    EPA is retaining the requirement that private applicators present 
proof of identity to the certifying authority at the time of training 
programs for initial certification. This requirement would help to 
ensure that the person who takes the examination is the same person who 
receives the certification, and meets the minimum age and ensures the 
identity of the person receiving the certification. As with 
examinations, EPA is allowing certifying authorities the flexibility to 
determine what documentation is acceptable.
    While EPA agrees with the commenter that farmworkers and others 
involved in the use of RUPs should be encouraged to seek training in 
their proper use, EPA believes that it is unlikely that farmworkers 
would attend recertification courses for private and commercial 
applicators. EPA has no objection at all to farmworkers or other 
persons taking training for their own purposes without identifying 
themselves. But if an applicator wants a particular training event to 
be part of the basis for his or her certification or recertification, 
the applicator must prove that he or she was in fact the person who 
successfully completed the training.
    EPA disagrees with the request that certifying authorities be 
required to issue to successful candidates a license or other 
documentation, which includes their photograph and which could be used 
to verify attendance at recertification courses. EPA agrees with a 
certifying authority who commented that requiring certifying 
authorities to issue a card with a photo could be burdensome. The final 
rule does requires certifying authorities to issue appropriate 
credentials or documents verifying certification of successful 
candidates. In the final rule, EPA is providing certifying authorities 
the discretion to determine what must appear on the credentialing 
documentation. EPA is concerned that if the Agency were to require a 
photograph on the credentialing documentation, it might be considered 
an official, government-issued photo identification for identification 
purposes beyond the scope of its original intent. EPA is not prepared 
at this time to issue appropriate standards or regulations to ensure 
pesticide applicator credentials are not able to be used for other 
purposes. In addition, as discussed above, such a requirement with a 
photograph would still need exceptions for individuals with religious 
affiliations that prohibit their photograph from being taken. The final 
rule does not preclude certifying authorities from issuing such license 
with a photo.
    EPA is not codifying the two-pronged approach proposed by one 
commenter and described above. EPA agrees with the commenter that the 
ideal goal is to check every applicator's identification at 
recertification trainings. Based on comments received, however, EPA is 
not requiring applicators to present

[[Page 987]]

identification at recertification trainings. As discussed elsewhere, 
EPA is retaining the requirement that any education course or event 
offered to satisfy recertification training requirements must have a 
process to verify the applicator's successful completion of the course 
or event. The verification procedures described in the two CTAG papers, 
(``Pesticide Applicator Recertification: Verifying Attendance at 
Training Events'' and ``Pesticide Applicator Recertification: Online 
Training--Course Design and Structure'') are examples of the types of 
procedures that would be acceptable to include in certification plans 
(Refs. 43 and 44).

E. Online Training and Certification Standards

1. Comments and Responses
    Comments. Some commenters expressed a belief that EPA should 
identify language that allows for future avenues of initial 
certification and recertification training that incorporate electronic 
identification methods not currently widely used by States. Another 
commenter argued that computer-based examinations are the norm in both 
academia and many high-stakes industries and requested assurance that 
``in writing'' (Sec.  171.103(a)(2)(i)) includes electronic media and 
is not limited to paper copies for examinations. One commenter 
requested that the rule allow expressly for online training and 
certification programs that are consistent with applicable on-line 
education standards.
    One commenter asked how online recertification courses will be 
impacted by the requirement to verify the identity of certified 
applicators attending recertification training sessions. One certifying 
authority argued that online tests cannot meet the standards specified 
in Sec.  171.103(a)(2) and that standards to that level are not called 
for in the case of private applicators. In particular, the commenter 
was opposed to requiring States who choose to test private applicators 
to only offer proctored examinations. The commenter stated the belief 
that if the requirement goes through as proposed, States will have to 
consider alternatives including a training-only option for 
certification and not require an examination at all. Another commenter 
expressed concern that requiring applicator candidates to present photo 
identification at the time of examination or training might preclude 
the use of online programs. The commenter contended that online 
training and certification is a valuable tool for pesticide education 
programs for applicators; it allows applicators to receive quality 
training without incurring the economic costs of traveling to a 
physical site, including time away from their business and expenses 
such as meals, transportation, and hotel accommodations. Another 
commenter suggested that an affidavit signed by the candidate 
certifying their participation could be used in place of presenting 
identification for online training to verify the identity of the 
candidate.
    Another commenter asked about the sign-in log the EPA proposed to 
have proctors keep at all testing locations. The commenter assumes that 
their computer based testing system will be sufficient as a sign-in 
log. The system keeps an accurate activity log and all pertinent 
information on every individual. Coupled with verification by a 
government issued ID, it appears unnecessary to require a sign in log 
as well. The commenter had two questions for EPA should a signature log 
be required: (1) What is the record retention period for the signature 
log? (2) Does it coincide with the established 2-year record retention 
for application or the valid term of the applicator's license?
    Response. EPA acknowledges that some certifying authorities 
administer computer-based certification and recertification 
examinations, and that the use of online and distance-based programs is 
likely to expand. In this final rule EPA, however, is not expressly 
codifying language or standards that incorporate electronic 
identification methods for training sessions or examinations. The final 
rule does not prohibit the use of online training programs or 
electronic verification procedures; however, EPA is not prepared at 
this time to establish by regulation specific standards for online 
training and education or electronic verification. EPA confirms that 
the term ``in writing'' as used in the final rule is intended to 
encompass both paper-based and computer-based formats. Certifying 
authorities that are using or intend to use electronic verification 
will need to explain in their proposed plans how their methods satisfy 
the requirements of the final rule. As EPA gains more experience with 
how certifying authorities are using electronic verifications methods, 
EPA may consider providing guidance or explicitly codifying standards 
for electronic verification at some future date.
    EPA agrees that online training and exams are a valuable tool for 
pesticide education programs for applicators. EPA expects that there 
will be minimal impact on online or distance learning continuing 
education programs as a result of this final rule. EPA disagrees with 
the comment that the examination standards specified in the proposed 
rule cannot be met through on-line testing. EPA agrees that some on-
line testing procedures may not meet the standards in the final rule. 
For example, some remote on-line testing may not meet the 
identification verification and proctoring standards in the final rule. 
However, EPA believes remote, on-line testing can be done in a way the 
does meet the standards. For example, testing centers that provide 
proctoring services for a fee are available today in many locations; 
other alternatives may be available in the future.
    EPA believes that the same examination procedures should apply to 
testing for both private and commercial certifications. EPA does not 
require examinations for private applicators, and EPA recognizes that 
some certifying authorities may decide to provide only training options 
for private applicators. But where a certifying authority intends to 
certify or recertify private applicators through examination, the 
examinations must meet the requirements of the final rule. As discussed 
above, EPA is not prohibiting on-line or remote testing that meets the 
standards in the final rule. If a certifying authority chooses that 
option, however, their certification plan should specify how it meets 
the examinations security and administration procedures in the final 
rule.
    As discussed in the response above, EPA is not requiring 
applicators taking recertification trainings to present a government-
issued photo identification, whether the training is offered in person 
or online. However, certifying authorities must positively identify 
both private and commercial applicator candidates taking an examination 
for initial certification or recertification, as well as those 
candidates seeking private applicator certification through training. 
This requirement is necessary to maintain the integrity of the 
examination process, and to ensure applicators meet the minimum age 
requirements for initial certification. The identity verification 
requirements apply to both in person and online examinations, for both 
initial certification and recertification, as well as to trainings for 
initial certification. Recertification training courses or events must 
include verification of each applicator's successful completion of the 
course or event, which includes some verification of the applicator's 
identity.

[[Page 988]]

    EPA disagrees that requiring candidates to present identification 
at the time of examination for recertification would preclude the use 
of online programs for examination. EPA acknowledges that this 
requirement would preclude remote, online examinations that are not 
proctored or do not verify proof of identity. As discussed above, 
however, proctoring services may be available that would permit remote 
testing. EPA also acknowledges that some training programs for initial 
certification for private applicators would potentially be impacted. 
Certifying authorities who allow private applicators to certify 
initially through training would be required to positively identify the 
candidates in order to ensure that the candidate himself/herself 
successfully completed the training, and that minimum age requirements 
are met.
    For recertification training sessions, EPA is not requiring proof 
of identity to be presented by attendees under the final rule. EPA is, 
however, retaining the requirement that any continuing program or 
event, whether online or distance learning, must have a process to 
verify the applicator's successful completion of the educational 
objectives of the program, which includes verifying each participant's 
identity. EPA is not codifying the method by which certifying 
authorities require that recertification courses or events verify 
applicators' successful completion of the program. There are a number 
of ways to verify the applicator's identity as well as whether the 
applicator completed the program. EPA acknowledges that an affidavit 
signed by the candidate certifying their participation, as suggested by 
a commenter, could be a component of such a process.
    EPA agrees with the commenter who suggested that a computer-based 
system would be sufficient as a sign-in log, when coupled with 
verification of identity. Although EPA is not finalizing a requirement 
for certifying authorities to maintain sign-in logs, EPA notes that 
keeping such a log would be a prudent way to verify the presence of a 
candidate at an examination in the event that other records indicating 
that the candidate has completed testing are lost, or that the presence 
of the candidate is disputed. Further, EPA would consider a sign-in log 
for recertification training sessions as a component of the process of 
verifying that an applicator has completed the training objectives.

X. Strengthen Standards for Noncertified Applicators Working Under the 
Direct Supervision of Certified Applicators

A. Qualifications of Noncertified Applicators Working Under the Direct 
Supervision of a Certified Applicator

    1. Existing rule and proposal. FIFRA requires that a noncertified 
applicator using an RUP under the direct supervision of a certified 
applicator (hereinafter ``noncertified applicator'') be competent. 7 
U.S.C. 136(e)(4). The existing rule requires the certified applicator, 
if not present during an application, to provide verifiable 
instructions to the noncertified applicator including detailed guidance 
on proper applications.
    EPA proposed to require that noncertified applicators receive 
pesticide safety training covering the content outlined in the 
proposal, and that training be completed annually. EPA proposed two 
alternatives ways to satisfy this training requirement. Noncertified 
applicators could become qualified by either satisfying the training 
requirement for handlers under the WPS annually, or passing the exam on 
core standards of competency for certified commercial applicators every 
3 years. EPA also proposed a requirement that the training be presented 
orally from written materials or audio-visually in a manner understood 
by the noncertified applicator, such as through a translator, and that 
the trainer be present during the entire training program and respond 
to noncertified applicators' questions.
    2. Final rule. The final rule includes four options for 
noncertified applicators to become qualified to use RUPs under the 
supervision of a certified applicator. Two of the options are the 
training options from the proposed rule, with edits to the training 
content listed in 40 CFR 171.201(d) to parallel the final handler 
training requirements under the WPS. For the training options, the 
final rule requires that noncertified applicators receive training 
covering the content outlined in the rule or satisfy the training 
requirements for handlers under the WPS. Either method of qualification 
must be completed within the 12 months preceding the use of an RUP 
under the direct supervision of a certified applicator and must be 
completed annually. A third option is that the noncertified applicator 
has met the qualification requirements established by a certifying 
authority that meet or exceed the annual training specified in this 
rule. The final option is that the noncertified applicator is currently 
a certified applicator but is not certified to perform the type of 
application being conducted, such as if a commercial applicator 
certified in ornamental and turf is a noncertified applicator working 
under the supervision of a certified applicator for a rights-of-way 
application, or is only certified in another jurisdiction. The final 
regulatory text for this requirement is located at 40 CFR 171.201(c) 
and (d).
    Certifying authorities will have the option to adopt additional or 
different requirements for noncertified applicator qualifications, as 
long as they meet or exceed the requirements in the rule. The final 
rule specifically lists this option at 40 CFR 171.201(c)(3).
    The content of the training in the final rule is similar to what 
EPA proposed, with minor edits to ensure consistency with the final 
handler training requirements under the WPS. As proposed, in the final 
rule training must be presented either orally from written materials or 
audiovisually in a manner understood by the noncertified applicator, 
such as through a translator if necessary, and the trainer must be 
present during the entire training program and must respond to 
noncertified applicators' questions. The final regulatory text for 
these requirements is located at 40 CFR 171.201(d).
3. Comments and Responses
    General Comments. Some certifying authorities and advocacy 
organizations generally supported training (with an exam option) for 
noncertified applicators of RUPs, and noted that some certifying 
authorities already require training of noncertified applicators of 
RUPs. Two certifying authorities said that training would be beneficial 
for new employees and for those who cannot pass a certification exam 
but could use RUPs as noncertified applicators given adequate training 
and supervision. One grower organization said allowing noncertified 
applicators to satisfy the training requirement by taking WPS handler 
training would reduce the burden on agricultural employers. Certifying 
authorities requested that EPA develop and approve training materials 
and allow certifying authorities the flexibility to continue their own 
programs. One State and some advocacy organizations favored 
requirements that training must be presented orally from written 
materials or audiovisually and in a manner the trainee can understand, 
and that the trainer must be present during the entire training and 
respond to questions.
    Some commenters suggested other approaches. One pesticide 
applicator,

[[Page 989]]

an advocacy organization and an applicator organization recommended 
requiring a combination of training and hands-on experience. The 
applicator organization emphasized the need to allow an option for 
computer-based training, and noted that computer-based training is 
permitted for training required by the Occupational Safety and Health 
Administration.
    Some certifying authorities and advocacy organizations emphatically 
opposed any use of RUPs without full applicator certification because 
of the potential impacts on people and the environment. In one State, 
noncertified agricultural handlers are prohibited from using RUPs. One 
State asserted that establishing a program allowing noncertified 
applicators to use RUPs contradicts EPA's intention to strengthen 
federal certification standards with the revised rule. Another 
certifying authority interpreted the proposal as indicating a 
conclusion by EPA that the ``under the supervision'' provision does not 
work.
    Three applicator associations, some grower organizations, two 
university extension programs, a county government, a business 
organization and a few State farm bureaus were generally opposed to a 
training requirement for noncertified applicators. They were concerned 
that the employee turnover rate, already high for noncertified 
applicators, would substantially increase. They also questioned the 
need for the proposed training program when noncertified applicators 
mostly use non-RUPs. These commenters favored State-by-State 
requirements in lieu of a national requirement. According to one grower 
organization, many people could be involved in applications on one 
establishment, thereby requiring the need to train many noncertified 
applicators. One grower organization concluded that even if a federal 
standard were established, certifying authorities would always exercise 
their right to tailor their programs based on pesticide use and the 
needs.
    Many certifying authorities and a State farm bureau asserted that 
EPA is establishing an unwarranted, de facto certification program, and 
a new certification classification. They argued that noncertified 
applicators might as well become certified applicators if they have to 
take an exam and/or training. One certifying authority suggested EPA 
add an enforceable alternative to the proposed alternatives, allow on-
site (or ``line-of-sight'', ``within-sight'') supervision, which would 
resolve any certifying authority's need for a ``non-reader'' provision 
while sparing inexperienced persons from a scripted training program 
for which they have no context. One certifying authority suggested that 
from its point of view, EPA's proposal ignored the certifying 
authority's long established multi-layer and varied classification 
system of applicators (i.e., apprentices, technicians, journeymen) and 
would impose requirements on persons who may only occasionally handle 
pesticides.
    A recurring theme of many comments by certifying authorities and 
university extension programs was a desire for certifying authorities 
to be able to continue their existing programs, especially if the 
program meets the same objectives as EPA's. They suggested that the 
proposed changes would cause confusion and perhaps conflict with the 
existing regulations of certifying authorities. Many certifying 
authorities felt strongly that they should be allowed to continue 
programs already established before EPA's proposal. For example, some 
commenters noted that their certifying authorities already have in 
place a noncertified applicator qualification option similar to the 
proposed option to qualify by passing the commercial core exam. Other 
commenters opposed the proposed option to qualify as a noncertified 
applicator by passing the core exam for commercial applicators because 
in their jurisdiction, passing the commercial core exam confers 
certification as a private applicator. Another commenter opposed the 
proposed option to qualify as a noncertified applicator by passing the 
commercial core exam because it would burden the State's exam centers, 
which are already operating beyond their intended capacity. The 
commenter requested that EPA eliminate this option and allow 
qualification only through training under the certification rule or 
training as a handler under the WPS. One commenter requested that if an 
option to qualify by passing the commercial core exam is included in 
the final rule, the requalification interval and requirements should be 
linked to the certifying authority's applicator recertification 
program, rather than requiring requalification by retesting within 3 
years, completing training under the certification rule, or training as 
handler under the WPS. Some advocacy organizations opposed allowing 
certifying authorities to have different requirements, resulting in 
migrant workers using RUPs as noncertified applicators having to take 
multiple trainings throughout a year. One certifying authority was 
uncertain whether the proposal would require noncertified applicator 
training with each new employer. Another commenter questioned whether 
medical doctors and veterinarians would be exempt from the requirements 
for direct supervision of noncertified applicators by certified 
applicators.
    Responses. EPA acknowledges commenters' point that the most 
protective and safest approach would be to require all users of RUPs to 
become certified applicators, and recognizes that some certifying 
authorities do prohibit RUP use by anyone other than a certified 
applicator. However, FIFRA permits RUP use by noncertified applicators 
under the direct supervision of a certified applicator who may not be 
physically present, and EPA may not prohibit the use of RUPs by 
noncertified applicators except through product-specific labeling 
decisions. EPA seeks to reduce the risks associated with use of RUPs by 
noncertified applicators by adding requirements for noncertified RUP 
applicators to be qualified, either through training, being a certified 
applicator in a different category or jurisdiction, or meeting 
requirements established by the certifying authority that meet or 
exceed EPA's requirements. The options for qualifying as a noncertified 
applicator are flexible and significantly less burdensome than the 
requirements for becoming a certified applicator. Further, the options 
to qualify by training are tailored to the responsibilities of 
noncertified applicators applying RUPs under the supervision of a 
certified applicator who may not be physically present.
    Noncertified applicators of RUPs in nonagricultural settings are 
just as likely to experience illness and injury from pesticide 
exposure, and cause harm to others and the environment, as agricultural 
handlers of RUPs. However, agricultural handlers are required to 
receive pesticide safety training under the WPS, while nonagricultural 
handlers currently are not. And in both agricultural and 
nonagricultural contexts, noncertified applicators are often using RUPs 
with considerable independence, far from the supervising certified 
applicator. FIFRA requires noncertified applicators to be ``competent'' 
and acting under the direct supervision of a certified applicator who 
is available if and when needed, but neither FIFRA nor EPA's existing 
regulations specify competency standards for noncertified applicators 
of RUPs. Because RUPs generally present a greater risk to health or the 
environment than other pesticides, noncertified applicators need to be 
more competent in regard to pesticide use than the average person. In 
order that EPA's

[[Page 990]]

registration decisions regarding RUPs can presume a nationwide minimum 
standard of competency among noncertified applicators, it is reasonable 
to establish competency standards for noncertified applicators by 
requiring pesticide safety training similar to what is required for 
agricultural handlers under the WPS.
    EPA agrees with the comment that a combination of training and 
hands-on experience would be ideal, but recognizes that setting 
criteria for hands-on experience would be a complicated proposition 
given the various types of application categories and uses involved. At 
a minimum, the requirement would have to be tailored to each 
application category. Given the many possible RUP use scenarios, EPA 
has chosen not to require a hands-on experience requirement in the 
final rule. However, EPA recognizes that some certifying authorities 
currently require noncertified applicators to have hands-on experience, 
and may continue to do so under the final rule.
    Many commenters opposed a required training program for 
noncertified applicators because most of the time they use non-RUPs. 
EPA notes that the federal training requirements will only apply to 
those noncertified applicators using RUPs. The training required for 
noncertified applicators under the final rule is important whether they 
use an RUP once a year or every day. Certifying authorities that 
currently do not distinguish between RUP and non-RUP noncertified 
applicators may reconsider whether such a distinction is more 
appropriate in the context of this final rule. A company with many 
noncertified applicators whose business involves applying a few RUPs 
and many non-RUPs might control costs by training a small number of the 
noncertified applicators as users of RUPs.
    In response to the request by commenters to be able to maintain 
existing programs, EPA specifically added a provision to the 
noncertified applicator qualification requirements to accommodate other 
approaches and will consider approval of such programs in lieu of the 
federal requirement during the certification plan approval process. EPA 
acknowledges that an option to qualify as a noncertified applicator by 
passing the commercial core exam, along with an appropriate method to 
ensure requalification, would meet or exceed the standards for 
noncertified applicator qualification in the final rule. However, in 
response to comments regarding certifying authorities' need to maintain 
flexibility to choose which non-training qualifications for 
noncertified applicator are appropriate in their jurisdiction (subject 
to approval by EPA under the certification plan), in the final rule EPA 
is not requiring certifying authorities to accept passing the 
commercial core exam as sufficient qualification to use RUPs under the 
supervision of a certified applicator; EPA leaves the decision of 
whether or not to allow this and other methods of qualification to the 
discretion of each certifying authority.
    Because EPA added a requirement to the final rule for the 
supervising applicator to be certified in an appropriate category 
relative to the RUP use, EPA also added a corresponding method for 
qualification as a noncertified applicator to the final rule. Absent 
this addition, a person who holds a valid certification would not be 
considered a certified applicator for RUP uses outside the 
category(ies) in which the applicator is certified. For example, a 
person could hold a valid certification in the turf and ornamental 
category, but for the purposes of conducting a fumigation of turf, the 
person would be considered a noncertified applicator because he or she 
does not hold a valid certification to perform soil fumigation. Such a 
person has clearly demonstrated competency to use certain RUPs by 
obtaining a certification. EPA acknowledges that obtaining a 
certification in any category exceeds the standards for noncertified 
applicator qualification. Therefore, EPA added an option to the final 
rule to allow certified applicators who are not certified in the 
category of the RUP use to operate under the supervision of an 
applicator holding a valid certification to conduct and supervise the 
use of the RUP without additional training or qualification 
requirements.
    Regarding the burden of providing training, EPA will support the 
development of training materials. EPA will review computer-based and 
online training programs, such as those allowed by Occupational Safety 
and Health Administration (OSHA) (e.g., 29 CFR 1910.120, Hazardous 
Waste Operations and Emergency Response) and other entities, and will 
consider issuing guidelines on computer-based and online programs.
    If training is used to qualify noncertified applicators, subsequent 
supervising certified applicators do not have to provide noncertified 
applicators under their direct supervision training provided they can 
verify the existence of and have access to documentation establishing 
that the noncertified applicator has completed training within the 
previous 12 months. Noncertified applicators who work in more than one 
jurisdiction must comply with the requirements of each certifying 
authority as specified in its EPA-approved certification plan. EPA has 
clarified the final rule to state that medical doctors and 
veterinarians, who are exempt from the standards for certification of 
commercial applicators under both the existing and final rules, are 
also exempted from the requirements for direct supervision of 
noncertified applicators by certified applicators.
    Comments on Requalification Interval. While there is general 
agreement that there should be an interval or cycle for requalification 
for noncertified applicators (e.g., retaking training), commenters 
favored intervals ranging from one to five years. One certifying 
authority organization requested that EPA establish the same retraining 
or requalification interval for noncertified and certified applicators 
to minimize confusion. Several advocacy organizations and one Tribal 
organization favored a one-year retraining interval because more 
frequent repetition increases retention and is consistent with the WPS 
handler training interval. One State expressed support for establishing 
a three-year interval to be consistent with the proposed 
recertification interval for certified applicators. Two commenters 
asserted that a five-year interval would be reasonable given that 
noncertified applicators receive continuous hands-on experience. A few 
certifying authorities requested that they establish their own 
requalification period up to a maximum that is no longer than the 
period established by EPA. One applicator association requested that 
the noncertified applicator training interval be identical to the 
certified applicator recertification interval.
    Responses. EPA agrees with commenters favoring a one-year interval 
for retraining noncertified applicators. As expressed by several 
advocacy organizations, repetition increases retention. EPA notes that 
the annual training requirement is consistent with the interval for WPS 
handler training. EPA recognizes that a person may be both a 
noncertified applicator and a WPS handler, so allowing the WPS handler 
training to qualify a noncertified applicator prevents duplication and 
burden on the noncertified applicator, trainers, and supervisors. Also, 
an annual interval could be easier to track and remember than longer 
intervals. Given the potential for harmful effects to humans and the 
environment, it is reasonable to provide noncertified applicators using 
RUPs with pesticide safety training at

[[Page 991]]

least every 12 months. The training content for noncertified 
applicators covers a limited number of key pesticide safety points and 
is less substantial than the continuing education required for 
recertification by certifying authorities, so a shorter interval for 
noncertified applicators is reasonable. During the certification plan 
approval process, EPA may consider different requalification intervals 
for noncertified applicators if the certifying authority proposes 
another method of qualification that meets or exceeds EPA's standards 
in the final rule as permitted under 40 CFR 171.201(c)(3).
    Comments on Training Content. One advocacy organization supported 
the proposal to require that training include information on how to 
report a suspected illness to a State agency. In response to EPA's 
question about whether a point on protecting pollinators should be 
added to the noncertified applicator training program, certifying 
authorities and a grower organization expressed general opposition. 
Commenters argued that it was not relevant to all applicator categories 
and would already be incorporated where applicable.
    Responses. The final rule revises the proposed requirement for 
training to include information on how to report a suspected illness 
related to pesticide exposure to the regulatory agency. This change was 
made to be consistent with the final WPS handler training content. EPA 
has chosen not to add a point to the noncertified applicator training 
on pollinator protection, for the same reasons it was not included in 
the competencies for private or commercial applicators. See the 
discussion in Unit VI. for more details. However, the final rule 
requires training on environmental concerns ``such as drift, runoff, 
and wildlife hazards'' which would reasonably be expected to include 
pollinators in situations where that is appropriate. EPA expects that 
at minimum, noncertified applicators will get information on protecting 
pollinators where relevant and on a case-by-case basis when the 
labeling includes pollinator protection language.
    Comments on Burden. Certifying authorities expressed concern that a 
training requirement for RUP noncertified applicators places a burden 
on pesticide safety education programs, certifying authorities, and 
exam centers that are already strained, and that EPA simply should 
require all applicators using RUPs to be certified. One certifying 
authority requested that EPA not require an exam option because 
applicator candidates in their jurisdiction already face a two-month 
wait to take an exam. One certifying authority noted that if 
supervisory requirements were adequate, there would be no need for a 
training program. Another certifying authority asserted that instead of 
creating more work for States, trainers, certified applicators, and 
noncertified applicators by establishing a training program, EPA should 
simply require all applicators using RUPs to be certified.
    Responses. EPA maintains that training or some other method of 
ensuring that noncertified applicators have a basic understanding of 
pesticide safety is important for noncertified applicators to ensure 
that they are able to use RUPs without causing unreasonable adverse 
effects to themselves, other persons, or the environment. If EPA were 
to tighten supervisory requirements (e.g., limitations on proximity, 
number of persons supervised, types of activities) enough to eliminate 
the need for training noncertified applicators, it would be 
significantly more disruptive and burdensome than the training 
requirements of the final rule. Moreover, even if supervisory 
requirements were substantially strengthened, there would still be 
benefits in noncertified applicators understanding the potential 
hazards associated with using RUPs.
    The final rule allows certifying authorities to adopt different 
requirements for noncertified applicator qualifications that meet or 
exceed the requirements in the final rule. This may include approaches 
such as prohibiting the use of RUPs by noncertified applicators or 
requiring noncertified applicators to pass a written exam.

B. Establish Qualifications for Training Providers

    1. Existing rule and proposal. The existing rule does not require 
that noncertified applicators be trained, and therefore, does not 
specify qualifications of trainers of noncertified applicators.
    EPA proposed to require that providers of noncertified applicator 
training be qualified by being a certified applicator, a trainer of 
certified applicators or handlers designated by the certifying 
authority, or a person who has completed a WPS train-the-trainer course 
for training handlers.
    2. Final rule. The final rule adopts the proposed requirement with 
minor edits. Under the final rule, the person conducting noncertified 
applicator training as specified in 171.201(d) must be a certified 
applicator, a trainer of certified applicators or handlers designated 
by the certifying authority, or a person who has completed a WPS train-
the-trainer course for training handlers. The final regulatory text for 
this requirement is located at 40 CFR 171.201(d)(2).
3. Comments and Responses
    Comments. In general, most certifying authorities expressed 
appreciation that a certified applicator could be a trainer of 
noncertified applicators. These commenters were concerned that without 
this qualifying option there would be a shortage of noncertified 
applicator trainers. Several applicator organizations suggested that 
EPA create a national train-the-trainer program for trainers of 
structural applicators.
    Several certifying authorities, an association of certifying 
authorities, and a grower organization opposed EPA's proposal on 
noncertified applicator trainer requirements. These commenters asserted 
that the proposal was a WPS-like training program with little value 
added. Certifying authorities were generally concerned with adding 
burden to their programs. One certifying authority requested that EPA 
allow them to set their own requirements for noncertified applicator 
trainers. One organization of certifying authorities opposed WPS 
trainers giving training to nonagricultural noncertified applicators. 
One grower organization opposed any requirement, but agreed that if EPA 
adopted the proposed requirement, trainers designated by certifying 
authorities and WPS trainers were qualified to train noncertified RUP 
applicators.
    Response. The final rule retains the proposal's three options for 
persons to qualify as a trainer of noncertified applicators to ensure 
an adequate number of trainers would be available while seeking to 
ensure that those conducting training are adequately qualified to do 
so. The options for noncertified applicator trainer qualifications 
should make it easier for supervisors and noncertified applicators to 
find qualified trainers so that they can comply with the training 
requirement. In many cases, the certified applicator supervisor may be 
tasked with providing training. Allowing certified applicators and WPS 
trainers to become trainers of noncertified applicators lifts the 
potential burden on certifying authorities to designate trainers. WPS 
trainers are qualified to provide WPS-required training to agricultural 
handlers, and have the background that should enable them also to 
effectively present the noncertified applicator training content 
required under this final rule to train noncertified applicators. This 
should not be a problem for WPS trainers since the

[[Page 992]]

noncertified applicator training content in Sec.  171.201(d) is a 
subset of the WPS handler training content plus one point about the 
information that a certified applicator should provide to noncertified 
applicators. Lastly, in response to the commenter who requested that 
EPA allow certifying authorities to establish their own requirements 
for trainers of noncertified applicators, EPA notes that the final rule 
allows certifying authorities to set their own requirements for 
noncertified applicators and the supervision of noncertified 
applicators, including designating who is qualified to conduct training 
for noncertified applicators, as long as the certifying authority's 
requirements meet or exceed the requirements in Sec.  171.201.
    EPA does not plan to create train-the-trainer programs for trainers 
of noncertified applicators in the structural pesticide application 
industry or other pest control industries. However, certifying 
authorities may review for approval any such programs developed for use 
in their jurisdiction for State-designated trainers of noncertified 
applicators using RUPs.

C. Establish Qualifications for Certified Applicators Supervising 
Noncertified Applicators

    1. Existing rule and proposal. The existing rule requires certified 
applicators supervising noncertified applicators to demonstrate a 
practical knowledge of Federal and State supervisor requirements 
related to the application of RUPs by noncertified applicators. The 
supervising certified applicator must be available if and when needed 
directly related to the hazard of the situation.
    EPA proposed to require that certified applicators supervising 
noncertified applicators must meet the following requirements:
     Be certified in a category applicable to the supervised 
RUP use.
     Have practical knowledge of applicable Federal, State and 
Tribal supervisory requirements, including any on the label or labeling 
regarding use of RUPs by noncertified applicators.
     Be physically present when required by the product 
labeling.
    EPA also proposed to make the certified applicator responsible for 
ensuring that each noncertified applicator meets certain requirements 
before using RUPs under the certified applicator's supervision. 
Specifically, noncertified applicators must:
     Be at least 18 years old.
     Have received the required training within the last 12 
months.
     Have been instructed in the safe operation of equipment 
before use and within the previous 12 months.
     Have a copy of the full labeling in possession during use 
of the product.
     Have any label-required PPE (clean and in proper operating 
condition) and use it correctly for its intended purpose.
    In addition, EPA proposed to require that the certified applicator 
supervisor must take the following actions:
     Prepare and maintain noncertified RUP applicator training 
records for two years from the date of meeting training requirements.
     Before each application made under the certified 
applicator's supervision, provide the noncertified applicator with use-
specific instructions from the labeling, conditions of the application 
and how to use the application equipment.
     Ensure before each day of use that equipment is inspected 
and if worn or damaged, it is repaired or replaced.
     Ensure a method is available for immediate communication 
with the noncertified applicator.
    EPA requested comment on but did not propose other restrictions 
related to supervision of noncertified applicators, including:
     Requiring the supervising certified applicator to be 
physically present with the noncertified applicator during application.
     Limiting the number of noncertified applicators that could 
be supervised by each certified applicator at any one time.
     Limiting the distance between the supervising certified 
applicator and noncertified applicator when the application is taking 
place.
    EPA did not propose, but requested comment on whether certified 
applicators should be required to provide translators and/or translated 
labeling to non-English speaking noncertified applicators of RUPs.
    2. Final rule. The final rule retains the proposed requirements 
with several changes. First, the final rule establishes a minimum age 
of 18 for noncertified applicators working under the direct supervision 
of certified applicators and adds an exception to the minimum age of 18 
for noncertified applicators working under the direct supervision of 
private applicators when certain conditions are met. See Unit XIII. 
Second, rather than requiring the supervising certified applicator to 
provide a copy of each applicable product labeling to the noncertified 
applicator as proposed, the final rule requires the supervising 
applicator to ensure that at all times during a supervised RUP use the 
noncertified applicator has access to relevant labeling. Third, the 
final rule clarifies that the use-specific instructions must be 
provided in a manner that the noncertified applicator can understand. 
Fourth, the requirement for use-specific instructions does not include 
instructions on how to use the application equipment nor does the 
certified applicator have to inspect the equipment before each use. 
Instead, the certified applicator must ensure the noncertified 
applicator has been instructed within the last 12 months in the safe 
operation of any equipment before mixing, loading, transferring or 
applying pesticides, and that before each day of use equipment is in 
proper operating condition as intended by the manufacturer and can be 
used without causing harm to the noncertified applicator, other 
persons, or the environment. Lastly, the final rule reorganizes the 
responsibilities of the certified applicator into three main sections: 
Qualifications of the supervising certified applicator, qualifications 
of the noncertified applicator and requirements the supervising 
certified applicator must ensure are met before a noncertified 
applicator uses an RUP under his or her supervision. The supervising 
certified applicator is responsible for ensuring compliance with all of 
these requirements.
    Under the final rule, the supervising certified applicator must 
meet the following qualifications:
     Be certified in the category(s) applicable to the 
supervised use.
     Have practical knowledge of applicable Federal, State and 
Tribal supervisory requirements, including any requirements on the 
product label or labeling, regarding the use of RUPs by noncertified 
applicators.
    Under the final rule, the supervising certified applicator must 
ensure each noncertified applicator meets all of the following 
requirements before using an RUP under his or her direct supervision:
     Be at least 18 years of age, except that a noncertified 
applicator must be at least 16 years of age if certain conditions are 
met. See Unit XIII. for the conditions of the exception.
     Meets at least one qualification for noncertified 
applicators outlined under the rule.
     Has been instructed within the last 12 months on the safe 
operation of any equipment used for mixing, loading, transferring, or 
applying pesticides.
    Under the final rule, the supervising certified applicator must 
ensure the following conditions are met before a noncertified 
applicator uses an RUP under his or her direct supervision:

[[Page 993]]

     The noncertified applicator has access to the applicable 
product labeling at all times during a supervised use.
     Where the labeling of a pesticide product requires PPE be 
worn for mixing, loading, application, or any other use activities, the 
certified applicator must ensure that the noncertified applicator has 
clean labeling-required PPE in proper operating condition, and that the 
PPE is worn and used it correctly for its intended purpose.
     The supervising certified applicator has provided the 
noncertified applicator, in a manner the noncertified applicator can 
understand, instructions specific to the site and the pesticide used, 
including labeling directions, precautions and requirements applicable 
to the specific use and site; how characteristics of the use site 
(e.g., surface and ground water, endangered species, local population, 
and risks) and the conditions of the application (e.g., equipment, 
method of application, formulation) might increase or decrease the risk 
of adverse effects.
     Equipment intended to be used for mixing, loading, 
transferring, or applying pesticides is in proper operating condition 
as intended by the manufacturer, and can be used without causing harm 
to the noncertified applicator, others, or the environment.
     Each noncertified applicator working under his or her 
direct supervision has a means to immediately communicate with the 
certified applicator.
     The certified applicator is physically present during use 
when required by the product labeling.
    The final regulatory text for these requirements is located at 40 
CFR 171.201(b).
3. Comments and Responses
    Comments on the Certification Category of the Supervisory 
Applicator. Some certifying authorities and some advocacy organizations 
supported requiring the certified applicator to be certified in the 
same category as the supervised application. One certifying authority 
stated that it had interpreted years ago that the existing federal 
requirement was the same as EPA's proposal to require the supervisor to 
be certified in the category of supervised application.
    Some certifying authorities, a grower organization, and an 
association of university extension programs were opposed to requiring 
the supervising certified applicator to be certified in the same 
category as the application. Instead, they requested that EPA allow 
certifying authorities to set requirements, or that EPA permit the 
supervising applicator to be certified in any category.
    Several certifying authorities misunderstood the proposal, and were 
concerned that persons who had qualified to be trainers of WPS handlers 
by completing a WPS Train-the-Trainer program would be able to 
supervise non-agricultural, noncertified applicators during RUP use.
    Response. EPA is finalizing the proposed requirement that 
commercial applicators become certified in one or more categories 
applicable to the supervised RUP use. If an applicator certified in one 
category were allowed to supervise the use of an RUP by a noncertified 
applicator in an unrelated category, the certified applicator would be, 
through the actions of the supervisee, bypassing applicator 
certification requirements. Such an approach would allow any certified 
applicator to apply any category or RUP, simply by directing a 
noncertified applicator to do so. This would defeat the purposes of the 
certification categories.
    EPA is aware that most certifying authorities do not have the same 
pesticide applicator categories as specified in the federal rule. Many 
certifying authorities have applicator categories separated out 
differently (e.g., instead of ``industrial, institutional, structural, 
and health related pest control'' they might have separate category for 
each of those), with subcategories (e.g., ``structural--general pest 
control and structural--fumigation''). Under the final rule, the 
supervising certified applicator must be certified in the category 
applicable to the RUP used by the noncertified applicator.
    Lastly, EPA seeks to clarify some commenters' misunderstanding of 
the proposal. EPA stresses that an RUP may only be used by a certified 
applicator or a noncertified applicator working under the direct 
supervision of a certified applicator. EPA notes that completing a WPS 
Train-the-Trainer program is not sufficient to qualify as a certified 
applicator. Only certified applicators may supervise the use of RUPs, 
so completion of a WPS train-the-trainer program alone is not 
sufficient qualification to allow a person to supervise RUP use by a 
noncertified applicator. EPA reminds readers that under the final rule, 
a person who has completed a WPS train-the-trainer course for pesticide 
handler training is qualified as a trainer of noncertified applicators; 
this qualification alone does not mean the trainer is a certified 
applicator authorized to supervise noncertified applicators using RUPs.
    Comments on Immediate Communication. Many certifying authorities, 
university extension programs, a grower organization and an applicator 
organization requested that EPA allow any form of immediate 
communication to satisfy EPA's requirement for communication between 
the supervising certified applicator and the noncertified applicator. 
They explained that this would allow for changes in technology, give 
flexibility depending on the type of application and site involved, as 
well as permit many certifying authorities to keep their own 
communication requirements. The choice of communication methods may 
depend on many variables such as geography, cost, business model, 
portability and viability. One certifying authority and a grower 
organization suggested that if a type of application required a 
specific communication method between the supervisor and noncertified 
applicator, it should be required by labeling.
    Several certifying authorities requested that EPA define 
``immediate communication'' as voice-to-voice contact (cell phone or 
two-way radio), and prohibit texting, computer-generated voice paging 
or voicemail. Other certifying authorities supported establishing a 
definition of ``immediate,'' but did not offer a suggested definition. 
One certifying authority preferred ``a reasonable amount of time'' 
instead of ``immediate communication.'' One certifying authority noted 
that people are using video-conferencing applications on their cell 
phones to show the supervisor the situation in real time.
    In the opinion of one certifying authority, communications 
technology such as cell phones or two-way radios are not cost 
prohibitive, and should be required by EPA. On the opposite side, a 
grower organization thought that EPA underestimated the cost for cell 
phone service because applicators may use their own cell phones but 
request reimbursement from the employer for cell phone service or a 
separate service.
    One certifying authority was concerned that certified applicator 
supervisors cannot always comply with a requirement to be in 
``immediate communication'' when there are areas lacking cell phone 
coverage. The same commenter also asserted that immediate communication 
is not always necessary for all types of application, but when it is 
warranted it should be added to the product label's requirements 
instead.
    Response. EPA is aware of the need for flexibility, and therefore 
the final

[[Page 994]]

rule does not restrict or define ``immediate communication'' as a 
specific method of communication or with a limit on travel distance or 
time. EPA agrees with commenters who noted there are many variables 
related to communication with a noncertified applicator. In some 
situations the certified applicator supervisor may need to be within 
eyesight while in other situations they could supervise adequately away 
from the RUP use site. When a certified applicator is within the line 
of sight or earshot, face-to-face oral communication may be sufficient. 
Where cell phone service is lacking, supervisors and noncertified 
applicators could use two-way radios or satellite phones. EPA does not 
expect that there are many situations in which all forms of immediate 
communication between the supervisor and noncertified applicator would 
be impractical. However, as with many parts of the final rule, 
certifying agencies may propose to include in their certification plans 
other requirements related to supervision of noncertified applicators 
that would provide protection in such scenarios that would meet or 
exceed EPA's standards (see 40 CFR 171.303(b)(5)(iii)). As noted by 
commenters, additional limits and restrictions may be included in the 
labeling.
    EPA disagrees with commenters who allege that the estimated cost of 
cell phone service in the Economic Analysis for the proposal was not 
accurate. EPA recognizes that some noncertified applicators might 
request reimbursement from their supervisors for their cell phone bills 
or request to be issued a work-only cell phone. However, EPA stands by 
the assumption that the costs for the immediate communication 
requirements are negligible because EPA expects that use of a cell 
phone by noncertified applicators to contact a supervising certified 
applicator will be infrequent compared to use of a cell phone for 
personal reasons. However, EPA maintains that the costs for the final 
requirement are negligible because cell phone use would be limited to 
emergencies or unexpected situations.
    Comments on Providing a Copy of the Labeling. One certifying 
authority mentioned that the difficulty of obtaining the most current 
labeling from retail or wholesale suppliers could be a compliance 
problem. Several certifying authorities questioned the need to provide 
the labeling if the supervising certified applicator is required to 
review the use-specific information from the labeling in person with 
the noncertified applicator. Several grower associations argued that 
even if the noncertified applicator was given a copy of the labeling, 
the certified applicator may not be present to verify that they have 
the labeling with them at all times. Two grower organizations asserted 
that providing the noncertified applicator with a copy of the labeling 
is redundant because it is already on the container of the product they 
are about to use, and the WPS requires that agricultural handlers have 
access to labeling. One certifying authority remarked that a labeling 
would not be useful to a Spanish-speaking noncertified applicator.
    One application company pointed out that the proposed requirement 
to ``ensure that the applicator have the full labeling for the product 
in their possession during use'' can be problematic for some 
application types. They claim that in some areas, ``possession'' means 
``on the person.'' The commenter suggested that when it is impractical 
for the person to have the labeling on them, they should be allowed to 
have the label in the truck and accessible in a reasonable amount of 
time.
    Response. In response to the comments, EPA has revised the proposed 
requirement. The final rule requires the supervising certified 
applicator to ensure that the noncertified applicator has ``access to'' 
the labeling at all times during use of an RUP, rather than the 
proposed requirement to provide a copy of all applicable labeling to 
the noncertified applicator. The final requirement achieves EPA's 
intention to allow the noncertified applicator to quickly and easily 
access the labeling when a question arises or in the event of an 
emergency, and does not require each noncertified applicator to have a 
copy of the labeling on his or her person.
    EPA acknowledges that the final rule does impose specific 
requirements on the supervising certified applicator to provide use-
specific instructions, ensure equipment is operating properly, provide 
and ensure proper use of PPE, and provide a means for the noncertified 
applicator to communicate with the supervisor. These requirements do 
not negate the need for the noncertified applicator to have access to 
the product's labeling during use. The labeling provides important 
information on use directions, environmental precautions, and how to 
deal with an emergency. Noncertified applicators who do not speak 
English can request assistance in consulting the labeling from someone 
at the application site who does speak English, but would not be able 
to do so absent the requirement that they have access to the labeling.
    Comments on a Maximum Physical Distance or Travel Time between the 
Supervising Certified Applicator and the Noncertified Applicator. EPA 
requested comment on, but did not propose, a maximum physical distance 
or travel time between the supervising certified applicator and 
noncertified applicator using RUPs under his or her direct supervision. 
A few certifying authorities and a worker/handler advocacy organization 
supported EPA setting a maximum distance. One certifying authority 
requested that the supervisor be required to be within a maximum 
distance of two hours of the application site, in addition to a 
requirement of real-time, immediate communication. Many certifying 
authorities and a worker/handler advocacy organization supported a 
combination of a maximum travel time (or a ``reasonable distance'') and 
immediate communications. One certifying authority proposed that EPA 
require the supervising certified applicator to be able to reach the 
noncertified applicator during RUP use within ``a reasonable amount of 
time,'' rather than a set maximum length of travel time. One certifying 
authority, several grower groups, and a few other commenters favored an 
either/or approach, such as a maximum 30 minutes travel time or 
immediate communications via voice, two-way radio or cell phone 
connection. Many worker/handler advocacy organizations suggested EPA 
adopt California's requirements that the certified applicator be aware 
of site conditions and able to halt the application when warranted 
(such as for inclement weather), and that the noncertified applicator 
have a means to contact the supervisor if problems arise.
    One county government and an advocacy organization requested that 
EPA require on-site supervision. They explained that the supervising 
certified applicator should be present to help respond to emergencies 
and urgent questions, that application sites can be far away from the 
office, and that every second counts in an emergency. Several 
certifying authorities encouraged EPA to allow ``on-site'' supervision 
as an option, especially for noncertified applicators who speak another 
language or cannot pass an exam.
    Many certifying authorities, some university extension programs, an 
association of university extension programs, an agricultural 
organization and a Federal agency opposed EPA setting a maximum 
distance between the supervising certified applicator and noncertified 
applicators using RUPs

[[Page 995]]

under his or her direct supervision. One commenter noted that it would 
be difficult to calculate the specific distance or time in remote 
areas, and immediate communication between the supervisor and 
noncertified applicator should be sufficient. The commenter explained 
that the characteristics of a site are highly variable depending on 
``the type of application, product being applied, industry operating 
procedures, geographic locations, etc.'' Although some certifying 
authorities included in their comments a description of their existing 
time or distance requirements related to supervision of noncertified 
applicators, they opposed a federal requirement based on the variety of 
existing requirements across the country.
    Some certifying authority commenters recommended defining ``direct 
supervision'' as being within ``eye and earshot'' for commercial 
applicators and as being available ``if and when needed'' for private 
applicators, or being within the line of sight or hearing distance 
during an RUP use. Some certifying authorities recommended establishing 
a distance/travel time of three hours, or a distance of one hour/50 air 
miles. Some commenters opposed to establishing a national standard for 
distance or time between the supervising certified applicator and 
noncertified applicators under their supervision supported EPA allowing 
certifying authorities to set their own requirements. One grower was 
against requiring on-site supervision. One certifying authority and 
several worker/handler organizations said the availability of the 
supervisor should be proportional to the potential or actual hazard of 
the situation. One certifying authority commented that the real concern 
should be the effectiveness of the supervision, not a distance.
    Response. In response to commenters' concerns and for the reasons 
outlined in the proposal (Ref. 17, pp. 51383-51384), EPA is not 
establishing a maximum time or distance between the supervising 
certified applicator and noncertified applicators using RUPs under his 
or her direct supervision. It is evident from the comments that 
situations can vary greatly depending on factors such as geographic 
locations, State and site characteristics, and type of application. The 
comments have not significantly clarified EPA's questions about the 
practicality or the potential for risk reduction that might result from 
requiring any particular time or distance between certified applicators 
and noncertified applicators using RUPs under their direct supervision. 
However, certifying authorities may retain their existing maximum time 
and/or distance limits, or set new limits if they choose.
    Comments on Limiting the Number of Noncertified Applicators under 
the Direct Supervision of a Certified Applicator. EPA requested comment 
on an alternative to the proposal about setting a limit on the number 
of noncertified applicators that one certified applicator could 
supervise at a time. A few certifying authorities were in favor of such 
a limit. One alleged they knew of companies that allowed the certified 
applicator to supervise an ``unreasonably large number'' of 
noncertified applicators. Another set a limit of 15 persons, of which 
only eight could be noncertified applicators, while another is 
promulgating regulations to set a 12-person limit. One certifying 
authority suggested that EPA impose a limit on the number of 
noncertified applicators that a certified applicator could supervise 
only when the noncertified applicator qualified by taking training 
rather than by passing the core exam.
    Many certifying authorities and an applicator organization opposed 
any federal limit to the number of noncertified applicators supervised 
by one certified applicator at any one time. Instead, they expressed a 
preference for EPA to allow certifying authorities to set their own 
limits, especially since there are so many variables involved. One 
certifying authority asserted that they have not set a limit because 
they say they never experienced a problem. One certifying authority 
that opposed EPA establishing any limit on the number of persons that 
could be supervised by a single applicator commented that they set a 
20-person supervising limit after discovering that one company allowed 
a ratio of 50 noncertified RUP applicators to one certified applicator. 
One organization of certifying authorities suggested that any limit 
would be seen as an arbitrary number.
    Response. The comments have not significantly clarified EPA's 
understanding of the practicality or the potential for risk reduction 
that might result from a national limit on the number of noncertified 
RUP applicators one certified applicator can supervise at a time. EPA 
has decided not to establish a federal requirement; however, certifying 
authorities retain discretion to establish their own maximum time and/
or distance limits within their jurisdiction.
    Comments on Inspecting Equipment Each Day before Use. One 
certifying authority, an applicator organization and a university 
extension program opposed a federal requirement that the certified 
applicator supervisor inspect equipment each day before use. Commenters 
asserted their experience that most applicators and their supervisors 
make a daily visual inspection of application equipment. They were 
concerned that as written, the proposed requirement would be difficult 
to comply with because many parts of the equipment are not easy to 
access (e.g., the proposal would require supervisors to disconnect and 
take apart hoses to see if there was a clog). Instead, one commenter 
suggested that EPA amend the proposal to require that the equipment be 
``visually inspected for leaks or damaged parts.'' On the other hand, 
several commenters asserted that it would be difficult to enforce a 
requirement to visually inspect equipment.
    Response. In response to commenters' concerns, EPA has revised the 
final requirement. The final rule requires that the supervisor ensure 
equipment used for mixing, loading, transferring, or applying 
pesticides is in proper operating condition as intended by the 
manufacturer, and can be used without causing harm to the noncertified 
applicator, others, or the environment. EPA expects that the certified 
applicator could accomplish this requirement in various ways such as 
visually inspecting the equipment, testing the equipment, or using the 
equipment before use by any noncertified applicator under his or her 
direct supervision. If the supervising applicator finds leaks, 
clogging, or worn or damaged parts, the equipment must be repaired or 
replaced before use in order to meet the requirement that it be in 
proper operating condition as intended by the equipment manufacturer.
    Comments on Providing PPE. One professional organization of 
university extension programs and one of their members suggested that 
the certified applicator be required to give the noncertified 
applicator the proper PPE in good condition along with training on the 
correct use, but not be responsible for the noncertified applicator 
ultimately wearing and using it correctly. They explained it was 
impractical given that the supervisor may not be on site and that the 
noncertified applicator must take sole responsibility for wearing and 
correctly using PPE as trained.
    Response. Neither the proposed rule nor the final rule specifies 
the steps a supervising certified applicator must take in order to 
ensure that the noncertified applicator wears and uses PPE correctly 
for its intended use. In some cases, it may be reasonable and 
appropriate for the supervisor to trust an

[[Page 996]]

experienced noncertified applicator to wear and use PPE properly 
without any oversight, while in other cases, it may be necessary to 
supervise closely and consistently. The PPE requirements specified on 
pesticide labeling are necessary to prevent unreasonable adverse 
effects, and the certified applicator is responsible for ensuring that 
those requirements are met. Accordingly, the final rule requires the 
supervising certified applicator to ensure the noncertified RUP 
applicator wears or uses any label-required PPE correctly for its 
intended purpose.
    Comments on Site-Specific Instructions before Each Application. One 
application company, many applicator organizations and several 
certifying authorities emphatically opposed a requirement to provide 
site-specific instructions to the noncertified applicator before each 
application. They explained that it would be unmanageable because many 
certified and noncertified applicators routinely service 10 or more 
sites each day. Instead, commenters recommended that noncertified 
applicators be able to rely on their training and professional judgment 
based on site conditions along with the option to contact their 
supervisor in the event of any questions or problems. One applicator 
association asked EPA to clarify the meaning of ``site-specific'' and 
interpreted EPA's proposal as requiring a ``site-specific plan.'' One 
certifying authority asserted its belief that its existing requirements 
satisfy the proposed requirement.
    Response. In the final rule EPA defines ``use-specific 
instructions'' as the information and requirements specific to a 
particular pesticide product or work site that an applicator needs to 
use the RUP in accordance with applicable requirements without causing 
unreasonable adverse effects. EPA's intention is that the certified 
applicator make the noncertified applicator aware of labeling 
requirements and site-specific conditions that are critical for safe 
use, or that may not be obvious and/or could be problematic. The final 
rule does not require the supervising certified applicator to be 
physically present, but it does require that the supervisor learn 
enough about the site that he or she can give the noncertified 
applicator instructions adequate to prevent unreasonable adverse 
effects. The supervisor is responsible for ensuring that the RUP 
application conforms to the labeling and does not result in misuse by 
the noncertified applicator. Therefore, it is up to the supervising 
certified applicator to familiarize him or herself with the application 
site (first-hand or through reliance on others) and provide the 
noncertified applicator the particular use and site-specific 
information necessary to prevent unreasonable adverse effects.
    Comments on Translation Needs. Two certifying authorities requested 
that certifying authorities be allowed to determine whether there is a 
need for translators and label translations. Many worker/handler 
organizations emphasized the need for English/Spanish bilingual product 
labeling. In the absence of bilingual labeling, these organizations 
urged EPA to require that the supervisor take steps to ensure that 
noncertified applicators understand all of the safety information on 
the RUP labeling.
    Response. The final rule requires certified applicators to provide 
use-specific instructions to noncertified applicators in a manner the 
noncertified applicator can understand. Apart from this requirement, 
the final rule allows certifying authorities to decide whether to 
require that labeling be translated. EPA has been developing a pilot 
project to test the usefulness of translated labels (or sections of 
labels) for Spanish-speaking noncertified applicators, but it is in too 
early a stage to inform this rulemaking.
    Comments on Supervisor Qualifications. One certifying authority 
commented that supervisors should demonstrate practical knowledge of 
supervisory requirements by adding it to core training.
    Response. EPA agrees that certified applicators who would supervise 
noncertified applicators should have practical knowledge of supervisory 
requirements. In both the proposal and the final rule, EPA added 
competency standards related to the ``responsibilities of supervisors 
of noncertified applicators,'' for both commercial applicators (in the 
core competency standards, 40 CFR 171.103(c)(9)) and private 
applicators (in the general competency standards; 40 CFR 
171.105(a)(9)). This standard addresses understanding and complying 
with the requirements for supervisors of noncertified applicators in 
the rule, providing use-specific instructions to noncertified 
applicators, and explaining appropriate State, Tribal, and Federal laws 
and regulations to noncertified applicators.
    General Comments. Many worker/handler advocacy organizations urged 
EPA to adopt language providing that the supervising applicator's 
license (i.e., certification document allowing them to purchase and use 
RUPs) may be refused, revoked or suspended by the certifying authority 
if negligent in their supervisory duties.
    Response. The final rule requires certifying authorities to include 
in their certification plans provisions for reviewing, and where 
appropriate, suspending or revoking an applicator's certification based 
on proven violations of FIFRA or state laws or regulations relevant to 
the certification plan. Pursuant to those certification plan 
provisions, EPA expects that all certifying authorities will be able to 
refuse, revoke or suspend the license of a certified applicator 
supervisor whose neglect of supervisory responsibilities results in a 
proven violation of FIFRA or relevant State law.

XI. Expand Commercial Applicator Recordkeeping To Include Noncertified 
Applicator Training

A. Existing Rule and Proposal

    The existing rule does not require training of noncertified 
applicators, and consequently does not require training records.
    EPA proposed to require commercial applicators to collect and 
maintain records for each noncertified applicator using RUPs under 
their direct supervision for two years from the date of the 
noncertified applicators meeting the necessary qualifications. EPA 
proposed that the records include:
     The noncertified applicator's printed name and signature.
     The date the noncertified applicator completed the 
required training.
     The name of the person who provided the training or the 
certifying agency, as applicable.
     The supervising certified applicator's name.

B. Final Rule

    In the final rule, EPA revised the requirement to document 
noncertified applicators' qualifications. The final rule separates the 
records to be maintained by the method of qualification for the 
noncertified applicator. For records documenting compliance with the 
training outlined at 40 CFR 171.201(d), the final rule does not require 
that the record include the supervising certifying applicator's name or 
the name of the certifying agency. In addition to the name of the 
person who provided the training, the final rule requires the record to 
include the title or description of the training. For records 
documenting qualification by having valid training as a handler under 
the WPS, the rule specifies that the records documenting completion of 
training under the WPS satisfy the requirements under this rule. For

[[Page 997]]

documenting qualification by a method established by the certifying 
authority, the final rule requires documentation of the qualification 
as required by the certifying authority. Finally, for documenting 
qualification by being a certified applicator not certified in the 
category or jurisdiction of the supervised application, the rule 
requires the record to include the noncertified applicator's name, the 
certification number and expiration date of the certification, and the 
certifying authority that issued the certification.
    The final rule also adjusts the proposed requirement related to 
recordkeeping. As an alternative to requiring the supervising 
commercial applicator to create and maintain records, the final rule 
requires the supervising commercial applicator to create and maintain, 
or verify the existence of and have access to the training record. In 
addition, the final rule requires that the records be retained for two 
years from the date of use of the RUP by the noncertified applicator 
rather than two years from the date of meeting the qualification, as 
described in the proposal.
    The final regulatory text for this requirement is located at 40 CFR 
171.201(e).

C. Comments and Responses

    Comments. EPA received several comments on the recordkeeping 
requirement for noncertified applicator training. Two certifying 
authorities opposed a recordkeeping requirement for noncertified 
applicator training. One commenter asserted that the proposed 
recordkeeping requirement would add to the recordkeeping burden for WPS 
handler training. A grower organization recommended the use of a simple 
form with a signature to be kept in the personnel file. Some commenters 
noted that a noncertified applicator may work under the supervision of 
multiple certified commercial applicators while employed by one 
business, resulting in duplicative records of meeting the training 
requirement. No commenters responded to EPA's question of whether the 
noncertified applicator should receive a copy of the training record.
    Response. Training reduces the chance that RUP applications will 
result in unreasonable adverse effects. It is reasonable to expect that 
requiring documentation of the training will increase the likelihood of 
noncertified applicators receiving training.
    The WPS requires agricultural and commercial handler employers to 
maintain records of handlers' completion of the training requirements. 
An agricultural or commercial handler employer could rely on the 
training record required by the WPS to satisfy the recordkeeping 
requirements under this final rule and those under the WPS.
    EPA notes that certified applicators supervising noncertified 
applicators may develop and use a simple form as long as the form 
contains or can be filled in with all of the information required by 
the rule. For example, if a pest control company employs the same 
trainer and uses the same materials, that information could be pre-
printed on the form; the remaining, noncertified applicator-specific 
information, such as the date of the training and the noncertified 
applicator's name and signature would need to be completed on an 
individual basis.
    Further, EPA addressed this comment in the final rule by requiring 
the certified applicator to create or verify the existence of training 
records and to have access to them during the two year retention 
period, rather than retaining the proposed requirement for each 
supervising certified applicator to collect and maintain the records. 
EPA has amended the recordkeeping to delete the requirement for the 
record to include the supervising applicator's name. EPA expects that 
the language in the final rule would allow an operation in which 
multiple commercial applicators may supervise the same noncertified 
applicator to maintain one copy of the necessary record that is 
accessible to all supervising certified applicators. It would also 
allow that where a noncertified applicator changes employers and brings 
a copy of his or her training record, the new supervising certified 
applicator may comply with the training and recordkeeping requirements 
by making and retaining a copy of that training record.

XII. Establish Minimum Age for Certified Applicators

A. Existing Rule and Proposal

    The existing rule does not establish any age restriction for 
certified applicators. EPA proposed to establish a minimum age of 18 
for any person to become certified as a private or commercial 
applicator.

B. Final Rule

    The final rule prohibits persons younger than 18 years old from 
being certified as a commercial or private applicator to apply RUPs. 
The final regulatory text for these provisions are located at 
Sec. Sec.  171.103(a)(1) and 171.105(g), respectively.

C. Comments and Responses

    Comments. Many commenters expressed support for establishing a 
minimum age of 18 for certified commercial applicators, including 
certifying authorities, farmworker advocacy organizations, pesticide 
applicator associations, and small entity representatives. Commenters 
expressed less support for establishing a minimum age of 18 for 
certified private applicators. Some commenters addressed minimum age 
requirements generally for all applicators of RUPs and did not 
distinguish between certified and noncertified applicators under the 
supervision of a certified applicator. General comments covering the 
minimum age and those specific to certified applicators are summarized 
in this Unit, while comments specific to establishing a minimum age for 
noncertified applicators applying RUPs under the supervision of a 
certified applicator are addressed in Unit XIII.
    Comments in support of a minimum age of 18 for all applicators of 
RUPs highlighted the protection of children, the environment and others 
from pesticide exposure. Commenters, including those from farmworker 
advocacy organizations, noted that adolescents' bodies are still 
developing and they may be more susceptible to the effects of pesticide 
exposure. Commenters also noted that adolescents are less mature and 
their judgment is not as well developed as that of adults. This 
immaturity may mean that adolescents may be less consistently aware of 
risks associated with handling and applying RUPs, that they may not 
adequately protect themselves or others from known risks, and that 
spills, splashes, and improper handling practices may be more likely. 
In addition, a few commenters noted that persons under 18 years old are 
protected in other industries by OSHA and should receive similar 
protections under this rule, and that many States have already set a 
minimum age for certification of applicators. Some supporters 
considered the proposal a logical step to protect youth and noted that 
it is consistent with the minimum age of 18 in the revised WPS for 
agricultural pesticide handlers and early-entry workers in pesticide 
treated areas.
    On the other hand, some commenters did not agree with the EPA's 
rationale for proposing a minimum age and did not consider age as 
determining competency. These commenters noted that applicators are 
determined to be competent when they pass certification exams, which 
have been established as the gauge of competency to determine who can 
apply RUPs. A few commenters asserted that the proposal did not have 
sufficient quantifiable

[[Page 998]]

benefits related to establishing a minimum age.
    Some commenters recommended alternatives to the proposed minimum 
age of 18. The Small Business Administration Office of Advocacy 
recommended that EPA follow the recommendations of the SBAR panel, 
which was to consider establishing a minimum age of 18 for commercial 
applicators, 18 for hired private applicators, and 16 for private 
applicators that are family members, with a grandfather clause to allow 
currently certified applicators to retain their certification after the 
minimum age requirement becomes effective.
    Some commenters opposed establishing any minimum age. Some 
certifying authorities and farm bureaus asserted that establishing any 
minimum age for pesticide applicators of RUPs is a matter that should 
be determined by the States, not EPA. A few of these commenters 
asserted that EPA should not take any action because the DOL's 
hazardous occupations orders under the Fair Labor Standards Act (FLSA) 
already prohibit adolescents under 16 years old from handling 
pesticides in toxicity categories I and II in agriculture with limited 
exceptions. Some commenters supported establishing a lower minimum age 
of 16 for all applicators of RUPs, applicators from small and family 
businesses, and/or youth in educational/vocational programs. Many of 
these comments expressed concerns for fiscal impacts and hardships to 
family businesses if the proposed minimum age of 18 were finalized.
    Some certifying authorities expressed concerns about the burdens 
and political difficulty of implementing a minimum age requirement, 
including the need to make legislative and/or regulatory changes in 
order to establish or change a minimum age, and the burden to verify 
and track the age. A few commenters expressed concern in handling 
personally identifiable information (PII). A commenter requested that 
the requirement include a phased implementation to allow youth already 
certified to apply RUPs be grandfathered in. A few certifying 
authorities expressed doubt that they could effectively manage and 
track exceptions or exemptions to the minimum age or purchase of RUPs.
    Certifying authorities and pesticide applicator associations 
expressed an understanding that the proposed rule would apply to 
applicators using RUPs. However, they noted that certifying authorities 
have long required commercial applicators to be certified regardless of 
whether they use RUPs, non-RUPs or both. Many certifying authorities 
expressed concern that the rule could have a significant impact on non-
RUP applicators, and cause substantial hardships within the 
agricultural community and in some nonagricultural industries, such as 
structural pest control. Some certifying authorities asserted that 
certifying agencies could not manage and track separate non-RUP and RUP 
programs, and therefore, a minimum age requirement in effect would be 
applied to both types of applicators. A few certifying authorities 
highlighted the benefits of requiring certification for all commercial 
applicators (demonstrated competency to apply pesticides safely, even 
if not using RUPs), which would be lost if a certifying authority opts 
to remove the broader commercial applicator certification requirements 
when developing and implementing a revised certification plan. A few 
commenters requested that EPA issue a specific clarification that the 
minimum age requirement is only intended to apply to RUPs.
    Many certifying authorities generally supported a minimum age of 18 
specifically for commercial applicators. A number of certifying 
authorities supporting a minimum age of 18 already have a minimum age 
of 18 for commercial applicators. Some of these certifying authorities 
commented that a federally-required minimum age would have little or no 
impact on their certification programs. A few certifying authorities 
expressed a belief that they have few applicators under the age of 18, 
and therefore, again, the proposed minimum age requirement would have 
little impact. A few certifying authorities supporting the proposed 
minimum age highlighted that adults, those persons over the age of 18 
years old, can ordinarily be held legally responsible for their 
actions; adolescents, those persons under the age of 18, are less 
likely to be held legally responsible for their actions. Alternatively, 
a few commenters asserted that the certified applicator is legally 
responsible regardless the age.
    Comments were generally less supportive of a minimum age of 18 for 
private applicators than for commercial applicators. Comments opposing 
the proposed minimum age of 18 for private applicators emphasized 
concerns for impacts to family farms. Many commenters representing 
certifying authorities, pesticide applicator associations, small 
business advocates and applicators recommended that EPA consider the 
impacts of a minimum age to family farms. A few commenters expressed 
general support for a minimum age of 16 for private applicators. Other 
commenters who supported establishing a minimum age of 16 noted that 
this requirement would align with DOL's restriction on handling 
pesticides in toxicity categories I and II in agriculture. A few 
commenters suggested establishing a minimum age of 16 or including an 
exemption from the minimum age for private applicators that certify 
through training courses provided by technical or vocational schools.
    Some commenters requested that EPA add an exemption from any 
minimum age requirement for members of immediate family on family-owned 
farms. Some commenters supported adding an exception to the minimum age 
requirement for members of the farm owner's immediate family, similar 
to the WPS exemption. Some commenters in support of an exemption for 
immediate family recommended applying the same definition for immediate 
family in the WPS to this rule. Some commenters requested that EPA 
outline criteria for an exemption for youth education and vocational 
programs. A few commenters recommended that EPA establish a minimum age 
of 16 for certain educational programs. Some commenters expressed 
concerns for impacts of a minimum age on nonagricultural family 
businesses, small businesses, and businesses that hire seasonal workers 
and recommended that EPA establish exemptions for these commercial 
applicators to obtain certification while under the age of 18. Other 
commenters asserted that adolescents' developmental status does not 
differ whether they are an employee on a farm owned by an immediate 
family member or by someone unrelated to them, and therefore, are 
opposed to any exception to a minimum age requirement.
    Responses. Based on the comments received and an evaluation of 
existing literature related to adolescents' development of maturity and 
judgment, EPA has decided that the benefits of restricting 
certification to use RUPs to persons at least 18 years old justify the 
costs; the final rule prohibits persons under 18 years old from 
becoming certified to apply RUPs. EPA recognizes that adolescents' 
bodies and judgment are still developing. While studies have not 
demonstrated a clear cut off point at which adolescents are fully 
developed, literature indicates that their development may continue 
until they reach their early to mid-20s. EPA also agrees that research 
has shown that adolescents may take more risks, be less aware of the 
potential consequences of their actions on themselves and others,

[[Page 999]]

and be less likely to protect themselves from known risks. All of this 
information supports a minimum age of 18 years old in order to allow 
those applying RUPs to develop more fully before putting themselves, 
others, and the environment at risk.
    EPA agrees that it is appropriate to take reasonable precautions to 
protect adolescents from pesticide exposures, both because of the 
potential impact of pesticides on further development and because 
adolescents may not properly appreciate (and take appropriate steps to 
avoid) the risks of potential pesticide exposure (Ref. 17, pp. 51385-
51388). 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 Analysis for this rule for a discussion of the peer-
reviewed literature (Ref. 1). While statistical associations have been 
observed in studies that estimate the relation between pesticide 
exposure and chronic health outcomes such as cancer, the causal nature 
of these associations has not yet been determined; thus quantifying the 
magnitude of the chronic health risk reduction expected as a result of 
pesticide exposure reduction is not possible. However, based on what is 
known about the potential for biologically active chemicals generally 
to disrupt developmental processes, it is reasonable to have heightened 
concern for adolescents under the age of 18 in situations where they 
face particularly high pesticide exposures and exposure to pesticides 
classified as RUPs. Although EPA agrees that certification exams are a 
gauge of competency, they are not the only relevant gauge, and EPA 
disagrees with the contention that age should not be a consideration 
for determining competency. Generally prohibiting adolescents under the 
age of 18 from applying RUPs will protect them from any potential risks 
of using RUPs, ensuring that adolescents do not cause or suffer 
unreasonable adverse effects from using RUPs.
    EPA recognizes that DOL prohibits persons under 18 years old from 
engaging in hazardous tasks in other industries, and that some 
certifying authorities have taken action to prohibit certain 
adolescents from applying RUPs (minimum ages for applicators of RUPs, 
where established, range from 16 years old to 18 years old). These 
examples of protections for adolescents in other industries or by 
certifying authorities reflect a broader societal agreement that some 
workplace activities are inappropriate for adolescents. Use of RUPs is 
reasonably included among those workplace activities considered 
inappropriate for adolescents.
    EPA disagrees with commenters' request to establish a minimum age 
lower than 18 for certified applicators. While there is no single, 
definitive age where one passes from immature judgment to mature 
judgment (research shows that brains continue to develop until people 
are in their early to mid-20s), the minimum age to engage in many 
hazardous activities has been established as 18 years old. EPA 
acknowledges that, in the event of a mishap with potential legal 
consequences, the certified applicator is responsible. However, it may 
not be possible to hold a person who is not at least 18 years old 
legally responsible for such a mishap. Requiring all certified 
applicators to be at least 18 years old will ensure all certified 
applicators can be held legally accountable in the event of violations 
of FIFRA and other State or Tribal laws.
    EPA has established a minimum age of 18 for employees who are not 
immediate family members and who handle agricultural pesticides or 
enter treated areas while a restricted entry interval is in effect 
under the WPS (known as early-entry workers). 40 CFR 170.309(c), 
170.313(c), 171.605(a). EPA agrees that restricting youth from applying 
RUPs in non-agricultural is consistent with EPA's decision to require a 
minimum age of 18 for handlers in the WPS (Ref. 36, p. 67525). 
Irrespective of the decision in this certification rule, persons using 
RUPs in agriculture will be subject to the WPS age limit where 
applicable beginning January 2, 2017, the compliance date for the 
recent WPS revisions.
    EPA also disagrees with commenters' assertions that EPA should 
defer to certifying authorities or the FLSA and not establish any age-
related restrictions related to use of RUPs. EPA has the responsibility 
under FIFRA to regulate the use of pesticides to avoid unreasonable 
adverse effects, apart from any requirements established by other 
federal or state laws. The DOL's actions under the FLSA limiting the 
use of certain pesticides to persons at least 16 years old do not 
preclude EPA from taking actions to ensure that human health and the 
environment are protected from unreasonable adverse effects of 
pesticides. While DOL's hazardous occupations order prohibiting those 
under 16 years old from handling certain pesticides satisfies the 
purposes of the FLSA, those purposes are distinct from those of FIFRA. 
EPA has concluded that because, as discussed previously, adolescents' 
bodies, maturity, and judgment are still developing, the application of 
RUPs by persons under 18 years old presents an unreasonable likelihood 
of adverse effects. Therefore, the final rule generally limits the 
application of RUPs to persons who are at least 18 years old.
    EPA acknowledges that the minimum age requirement may require 
changes in legislation, regulation, and/or Tribal code in some States 
or Indian country. In the final rule, EPA has revised the proposed 
implementation provisions to provide adequate time for certifying 
authorities to make the necessary legislative and regulatory changes. 
In response to comments (such as those provided by the Small Business 
Administration Office of Advocacy) requesting that certified 
applicators who are not 18 when the final rule, including the minimum 
age requirement, is implemented be allowed to retain their 
certification, a certifying authority may allow applicators who hold a 
valid certification but who are not at least 18 years old at the time 
the revised certification plan is implemented to retain their existing 
certifications; however, once certifying authorities implement plans 
complying with this rule, no one under 18 years old may obtain an 
initial certification. See Unit XX. on implementation of the final 
rule.
    In addition, EPA recognizes some certifying authorities may need to 
revise their tracking systems as part of their process to verify the 
age of those seeking initial certification. The final rule requires 
certifying authorities to verify the identity and age of a person as 
part of initial certification. Verifying the identity of certification 
candidates through a government-issued photo identification or other 
comparable method should provide the age-specific information needed to 
verify the person meets the minimum age requirement. In response to 
concerns about collection and retention of PII, EPA notes that the 
final rule has no requirements to maintain records of birth dates, so 
concerns about PII are not warranted. There is no recordkeeping 
requirement related to minimum age. See Unit IX. on exam 
administration, for more discussion on identification needed at time of 
initial certification.
    Although this rule applies only to RUP use, EPA recognizes that 
many certifying authorities have established certification programs for 
commercial applicators that do not distinguish between applicators of 
RUPs and non-RUPs. Certifying authorities have the discretion to apply 
the minimum age

[[Page 1000]]

requirement to both non-RUP and RUP certifications or to make the 
necessary changes to separate and manage non-RUP and RUP 
certifications. EPA agrees that applicators of non-RUPs benefit from 
the training and certification programs and supports their 
continuation; although this rule regulates the application of RUPs and 
does not directly impose a minimum age on the commercial applicators of 
non-RUPs, EPA believes the minimum age requirement may provide 
additional benefits in reduction of pesticide exposures in States with 
combined certification programs by preventing youth from applying any 
pesticide commercially. Few certifying authorities combine non-RUP and 
RUP certifications for private applicators, and moreover, EPA notes 
that beginning January 2, 2017, persons using both RUP and non-RUP 
agricultural pesticides will be subject to the WPS age limit where 
applicable. Therefore, EPA believes the minimum age requirement will 
not significantly impact private applicators' use of non-RUPs.
    EPA recognizes that some family-owned farms or family-owned 
businesses may employ members of the owner's immediate family who are 
under 18 years old to apply RUPs. However, EPA agrees with commenters 
who noted that adolescents' developmental status does not differ if 
they are employees on a farm owned by an immediate family member or by 
someone unrelated to them. Due to the risk to the applicator, 
environment and public health if RUPs are not applied properly, EPA has 
decided to restrict certification as a private or commercial applicator 
to persons at least 18 years old. EPA is not allowing a lower minimum 
age or exemption from the minimum age requirement for certification for 
applicators working on family farms or for family businesses, for small 
businesses, or hired seasonally/temporarily. EPA recognizes the 
benefits to adolescents and society of vocational education and 
training programs. Adolescents may participate in these programs but 
will be required to be at least 18 years of age before being eligible 
to be a certified applicator of RUPs. However, as discussed in Unit 
XIII., EPA is accommodating the needs of family-owned farms by allowing 
an exception in limited circumstances for noncertified applicators 
using RUPs under the supervision of a certified private applicator who 
is also an immediate family member.

XIII. Establish Minimum Age for Noncertified Applicators

A. Existing Rule and Proposal

    The existing rule does not establish a minimum age for noncertified 
applicators using RUPs under the direct supervision of a certified 
applicator. EPA proposed to require that noncertified applicators who 
use RUPs under the direct supervision of a certified applicator be at 
least 18 years old.

B. Final Rule

    The final rule establishes a minimum age of 18 for noncertified 
applicators applying RUPs under the direct supervision of certified 
applicators. The rule includes an exception to the minimum age 
requirement; noncertified applicators supervised by a certified private 
applicator who is also an immediate family member must be at least 16 
years old. The exception does not apply to soil and non-soil 
fumigation, aerial applications, and use of predator control products 
(sodium cyanide and sodium fluoroacetate); these uses require the 
noncertified applicator to be at least 18 years of age and the 
supervising private applicator to be certified in the appropriate 
category for fumigation, aerial application, or predator control.
    The final regulatory text for this requirement and the exception is 
available 40 CFR 171.201(b)(2)(iii).

C. Comments and Responses

    Comments. Some commenters supported establishing a minimum age of 
18 for noncertified applicators. Fewer commenters supported 
establishing a minimum age of 18 for noncertified applicators applying 
RUPs under the direct supervision of private applicators. The Small 
Business Administration Office of Advocacy recommended that EPA follow 
the recommendations of the SBAR panel to consider establishing a 
minimum age of 18 for noncertified applicators applying RUPs under the 
direct supervision of commercial applicators and 16 for noncertified 
applicators applying RUPs under the direct supervision of private 
applicators. Commenters supporting a minimum age of 18 for noncertified 
applicators highlighted the protection of children, environment and 
others from pesticide exposure. Some commenters opposed to the proposed 
minimum age of 18 suggested that EPA establish a lower minimum age 
requirement of 16 years old for all noncertified applicators. Some 
commenters did not support establishing any minimum age requirements. 
See in Unit XII. for general comments in support of and opposition to 
the proposed minimum age requirement for applicators of RUPs.
    A few commenters did not agree with EPA's rationale for proposing a 
minimum age, and instead suggested that EPA emphasize improving the 
competence of noncertified applicators. A commenter cited information 
to support adolescents' cognitive capabilities and reasoning skills as 
well-developed in early adolescence (Refs. 15 and 45). A few 
alternatives to the minimum age requirement suggested by commenters 
include requiring noncertified applicators to take an exam, allowing 
noncertified applicators to obtain a provisional certification, or 
requiring classroom and hands-on experiences to develop competency in 
adolescents. One commenter recommended that EPA allow an applicator to 
be under the age of 18 when the individual provides a signed approval 
from a parent or guardian. Some certifying authorities and farmworker 
advocacy organizations opposed any use of RUPs by noncertified 
applicators; they suggested that all persons using RUPs should be 
certified.
    Few certifying authorities require a minimum age for noncertified 
applicators of RUPs. Commenters opposed to establishing a minimum age 
of 18 for noncertified applicators emphasized concerns for impacts to 
family farms, businesses and youth in vocational/educational programs. 
Many commenters from certifying authorities, grower organizations, and 
applicators recommended that EPA consider the impacts of a minimum age 
to family farms. A few commenters expressed support for a minimum age 
of 16 for immediate family members. A few commenters who supported a 
minimum age of 16 noted that this requirement would align with DOL's 
restriction on handling pesticides in toxicity categories I and II in 
agriculture. Some commenters opposed establishing any minimum age for 
immediate family members applying RUPs on family farms.
    Some commenters requested that EPA add an exemption from any 
minimum age requirement for immediate family members on family-owned 
farms. Commenters supported adding an exception for members of the 
owner's immediate family similar to the exemption to the minimum age 
requirements under the WPS. Commenters suggested applying the same 
definition for immediate family in the WPS to this rule.
    In the case of family-owned commercial businesses, a few

[[Page 1001]]

commenters expressed concerns that limiting noncertified applicators to 
those at least 18 years old would prevent younger family members from 
learning the family business, such as in lawncare and landscape 
businesses and in the structural pest control industry. Some commenters 
expressed concerns for commercial businesses that hire seasonal or 
temporary workers, such as lawncare and landscape businesses.
    Some commenters, including university extension services and 
certifying authorities stated the proposed minimum age requirement 
would negatively impact adolescent education and vocational programs in 
high schools, such as Future Farmers of America and 4-H. Some 
commenters requested that EPA outline criteria for an exemption for 
participants in these types of programs. One commenter suggested an 
exemption to the minimum age requirement with parental approval for 
adolescents to apply RUPs. Several commenters speculated that RUPs may 
not be widely applied in these programs. However, other commenters 
pointed out that non-RUPs and RUPs are treated similarly by some 
certifying authorities, and therefore the proposal would also impact 
applicators of non-RUPs in these programs. Other commenters asserted 
that adolescents' developmental status does not differ if they are an 
employee on a farm owned by an immediate family member or by someone 
unrelated to them and therefore oppose any exception to the proposed 
minimum age.
    Responses. Based on the comments received and an evaluation of 
existing literature related to adolescents' development of maturity and 
judgment, EPA has decided that the benefits of generally prohibiting 
persons under 18 years old from applying RUPs justify the costs. See 
the responses in Unit XII. for general discussion of minimum age 
requirements for all applicators of RUPs, as similar comments were 
received for the proposed age requirements for certified and 
noncertified applicators of RUPs.
    EPA agrees that improving the competency of noncertified 
applicators applying RUPs under the direct supervision of a certified 
applicator strengthens protections for applicators, others and the 
environment. The final rule includes requirements aimed at enhancing 
the competency of noncertified applicators beyond the minimum age 
requirement. See Unit X.
    EPA recognizes that DOL prohibits persons under 18 years old from 
engaging in hazardous tasks in other industries, and that some 
certifying authorities have taken action to prohibit certain 
adolescents from applying RUPs. See Unit XII. for a discussion of EPA's 
consideration of existing rules related to the minimum age requirement.
    EPA disagrees with commenters' request to establish a minimum age 
lower than 18. While research shows that brains continue to develop 
until people are in their early to mid-20s, the minimum age to engage 
in many hazardous activities has been established as 18 years old. In 
addition, EPA recognizes that adolescents may not feel empowered to 
question or refuse tasks assigned to them that would put them or others 
at risk, which is important when using RUPs.
    EPA has established in the WPS a minimum age of 18 generally 
applicable to persons handling agricultural pesticides and for early-
entry workers. Persons using RUPs in agriculture would be subject to 
both the WPS and this certification rule. Noncertified applicators as 
defined by this rule are also handlers under the WPS when using certain 
agricultural pesticides. Establishing a consistent minimum age would 
ensure consistent protections for noncertified applicators working in 
agriculture and other industries, and would avoid the confusion that 
could result if noncertified applicators were subject to different 
minimum age requirements in agriculture versus other industries.
    EPA agrees that adolescents' developmental status does not differ 
if they are employees on a farm owned by an immediate family or by 
someone unrelated to them, as also discussed in Unit XII. However, EPA 
recognizes that imposing a minimum age for noncertified applicators 
applying under the direct supervision of a certified applicator could 
significantly disrupt some family-owned farms. Given the high social 
cost of imposing a minimum age of 18 years old on noncertified 
applicators on family farms, EPA has included in the final rule an 
exception to this requirement. The exception allows noncertified 
applicators who are at least 16 years old to use RUPs under the direct 
supervision of a private applicator who is also an immediate family 
member. The final rule adds a definition of immediate family that 
matches the definition included in the revised WPS. However, the 
exception in this rule is different from the complete exemption from 
the minimum age requirement in the WPS for handlers and early-entry 
workers who are for members of the owner's immediate family, because 
even in the context of the family-owned farm, the heightened risks of 
RUPs warrant both training and a minimum age of 16. Although under the 
WPS, owners and their immediate family members are also exempted from 
certain provisions of the WPS (e.g., providing pesticide safety 
training for immediate family members), this certification rule does 
not include any exemption from or exception to the training requirement 
for noncertified applicators. In addition, the exception does not apply 
to certain types of RUP applications that present greater potential for 
adverse effects: The exception does not apply soil and non-soil 
fumigations, aerial applications, and use of predator control products 
(sodium cyanide and sodium fluoroacetate). Noncertified applicators who 
use RUPs in these application categories must be at least 18 years old.
    EPA does not agree with commenters' requests to establish 
exceptions to the minimum age requirement for noncertified applicators 
working under the direct supervision of commercial applicators, 
regardless of whether the supervising commercial applicator is a member 
of the noncertified applicator's immediate family. Noncertified 
applicators under the supervision of commercial applicators are more 
likely to use RUPs at sites where misapplication could cause harm to 
other people, such as to schools, homes, hospitals, parks, shopping 
centers and offices. To ensure an adequate level of protection not only 
for the noncertified applicator, but also for those who live in, work 
at, or visit areas treated by these noncertified applicators, EPA has 
chosen to require that all noncertified applicators under the 
supervision of commercial applicators must be at least 18 years old.

XIV. Recertification

A. Existing Rule and Proposal

    The existing rule requires States to ensure applicators maintain a 
continuing level of competency and ability to apply pesticides safely 
and properly as part of their certification plans. 40 CFR 171.8(a)(2). 
The existing rule requires that under certification plans administered 
by EPA, commercial applicators must be recertified every three 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 three years.
    EPA proposed a minimum set of criteria for recertification that 
certifying authorities would have to meet. Applicators would have to 
recertify by continuing education or an exam and would have to 
recertify at least every

[[Page 1002]]

three years. The continuing education program would have to be approved 
by the certifying authority and be designed to ensure the applicator 
continues to demonstrate the level of competency required for initial 
certification. In addition, a continuing education program would have 
to meet certain criteria, including: (1) Applicators would have to earn 
at least half of the required training in the last 18 months; (2) a CEU 
would be defined as 50 minutes of active training time; and (3) 
applicators would have to complete a minimum amount of training based 
on their certification. Specifically, the proposal would have required 
commercial applicators to earn at least six CEUs of core training and 
six CEUs for each category (pest control and application method-
specific) of certification. The proposal would have required private 
applicators to earn at least six CEUs in general private applicator 
training and three CEUs per application method-specific category of 
certification.

B. Final Rule

    EPA has completely revised the approach for recertification in the 
final rule in response to comments. Instead of establishing 
prescriptive minimum requirements for all recertification programs, the 
final rule establishes several performance standards for 
recertification programs and describes the information about 
recertification programs that must be provided in certification plans 
submitted by certifying authorities. The final rule requires 
applicators to recertify through continuing education or an exam and to 
recertify at least every five years. The recertification program 
established by a certifying authority may rely on continuing education 
or an exam or both.
    The final regulatory text for recertification programs is available 
at 40 CFR 171.107. The final regulatory text for State plans related to 
recertification is located at 40 CFR 171.303(b)(4). The final 
regulatory text for Federal agency plans related to recertification is 
located at 40 CFR 171.305(b)(3). The final regulatory text for Tribal 
plans related to recertification is located at 40 CFR 171.307(b).

C. Comments and Responses

    Comments--Support Overall Approach or a More Stringent Approach. 
Several individual commenters generally supported the proposed 
requirements to increase the amount of training required. One 
individual supported standardizing the amount of training and another 
urged EPA to require training annually instead of every three years. 
Several worker/handler advocacy organizations urged EPA to make the 
recertification requirements more stringent by requiring certified 
applicators to recertify every year and take more training than was 
proposed. They also suggested that EPA require all pesticide 
applicators to take a written exam after every recertification training 
to demonstrate their competency and verify their attendance.
    Response--Support Overall Approach or a More Stringent Approach. As 
explained below, EPA was convinced by the majority of comments that a 
more flexible approach to recertification is the best path forward. The 
frequency, content, and quantity of training are factors that the 
certifying authorities will have to specify in their certification 
plans, in addition to the frequency, content, and quality of any 
examinations. EPA disagrees that it is necessary for pesticide 
applicators to take a written exam after every recertification 
training. Instead, the final rule requires certifying authorities to 
ensure that any recertification continuing education course or event 
includes a process for verifying the applicator's successful completion 
of that course or event.
    Comments--Oppose Overall Approach. There was widespread and strong 
opposition to the proposed recertification requirements across most 
commenter categories, including States, university extension programs, 
applicators, growers, farm bureaus, and the Small Business 
Administration (SBA) Office of Advocacy. Commenters generally agreed 
with allowing recertification through continuing education or exams, 
although most preferred continuing education as more effective in 
improving applicator competency. However, commenters opposed the other 
proposed recertification criteria, including a three-year certification 
period, the minimum number of CEUs for commercial and private 
applicators, requiring half of the training in the last 18 months of 
the certification period, and defining the length of a CEU as 50 
minutes.
    Many commenters argued that States have invested resources in 
determining appropriate continuing education programs and the 
commenters largely believe that existing recertification programs are 
effective. State pesticide regulatory agencies or university extension 
programs in a few States cited relatively low violation rates to 
justify the effectiveness of their certification and recertification 
programs. For example, there were 4,600 pesticide use inspections 
conducted in Florida from 2010 to 2015. Of these, 2,701 involved a 
licensed applicator but only 132 of the inspections identified RUP 
violations. Of the 132 inspections with RUP violations, there were 290 
individual RUP violations listed and 260 of these were ``failure to 
maintain applicator RUP records,'' so only about 30 of the RUP 
violations that were identified were something other than recordkeeping 
deficiencies.
    Further, many commenters suggested that the one-size-fits-all 
proposed approach would require a lot of States to completely revamp 
their programs without adequate justification and that EPA's proposed 
approach seemed arbitrary. Many commenters stated that the costs of the 
proposed recertification criteria to States, university extension 
programs and applicators were not adequately accounted for in the 
Economic Analysis of the proposed rule. Some States and a State 
organization commented that the proposed approach would not facilitate 
certifying authorities reliance on other jurisdictions' certifications 
because that is a State-specific decision and is often determined by 
factors that the certification rule would not address, such as state 
laws that prohibit such reliance, State-specific differences that make 
such reliance impractical, and the time needed to coordinate 
certification standards and records with another State.
    A few States supported the proposed certification (and 
recertification) period of three years because they already follow that 
approach. However, many other commenters including States, university 
extension programs, applicators, growers and farm bureaus opposed 
establishing three years as a maximum certification period, arguing 
that it would greatly increase the burden on States, university 
extension programs and applicators without any clear benefit. 
Approximately half of the States have a four- or five-year 
certification period. As an example of the potential impact, a 
certifying authority described the potential impact on its private 
applicator recertification program, which has a certification period of 
five years. Instead of spreading recertification training for 21,000 
private applicators over five years (an average of 4,200 per year), the 
university extension program would have to provide training to 7,000 
private applicators each year. This would require additional staff to 
meet the training demand. Some training programs are required to be 
self-funded through fees charged for the training,

[[Page 1003]]

increasing the probability of higher fees for training to support 
additional staff. One certifying authority stated that it changed the 
certification period from three years to five years and found that a 
five-year certification period significantly reduced administrative 
costs without sacrificing the effectiveness of the program, although no 
evidence was provided to support this belief.
    Many commenters opposed the proposed minimum number of CEUs for a 
variety of reasons. First, some commenters pointed out that the 
proposed CEU approach does not account for workshop-type programs, 
which are not based on CEUs that are used in about 15 States. Some 
other commenters asked if the category-specific CEU requirements would 
apply to the federal categories or to the State-defined categories that 
often reflect a subset of a federal category. Many commenters pointed 
out that requiring six CEUs per category for commercial applicators 
could be very burdensome for applicators who hold certifications in 
multiple categories. For example, one certifying authority commented 
that its program has a total of 26 categories. More than 7,000 of the 
certifying authority's 15,000 commercial applicators are certified in 
four or more categories, and business owners, who must certify in all 
categories their business covers, often are certified in seven to ten 
categories. Because there was not a proposed cap on the number of 
category-specific CEUs, the proposed rule would have required some 
applicators to obtain 30 to 70 hours of training every three years. 
Many commenters expressed concern about the burden and effect this 
could have on applicator businesses and the decisions made by 
applicators. The Small Business Administration Office of Advocacy's 
comments included the following points: (1) Obtaining the proposed 
number of CEUs would impose excessive costs as a result of increased 
time away from the job, travel expenses to attend trainings, and the 
training fees; (2) applicators may choose to opt out of recertification 
classes and retest instead because it would be less burdensome; (3) 
retesting is a less effective way to provide applicators with the most 
current knowledge, technology and skills than recertification classes 
because tests and manuals are updated less frequently than training 
material; and (4) EPA should encourage States to require 
recertification by training rather than testing. Other commenters 
pointed out that there was a lot of overlap in the training for certain 
categories, such as the identification of weed pests common to the 
categories of agricultural pest control--plant, forest pest control, 
ornamental and turf pest control and right-of-way pest control.
    Many commenters stated that the necessary amount of training 
depends on the category. There are not many changes or new material for 
some categories, such as wood treatment, seed treatment or some small 
state-specific categories. This could lead to training becoming 
repetitive, which is not effective and actually could be negative. 
Further, many commenters argued that the effectiveness of training 
depends on a number of factors besides frequency (certification period) 
and the amount of training, such as the content that is covered, the 
quality of the training, how training providers are approved and 
auditing or somehow assessing the delivery of the training. Many of the 
commenters argued that the quality of the training was the most 
important factor in how effective the training is for the applicators.
    There was more variation in the comments regarding the proposed 
requirement for commercial applicators to obtain some training on core 
competencies and some on category-specific content, although no 
commenter supported the proposed requirement of six CEUs of core 
content and six CEUs per category. One State farm bureau commented that 
core (general) training is more important to protecting the consumer, 
environment and applicator and should reflect the majority of the 
training hours. A few other commenters, mostly States, suggested that 
there is value in covering both core and category content but the 
actual amount of core training should be reduced or should not be 
mandated. Some other commenters pointed out that a lot of topics 
covered in training cover both core and category-specific content. They 
also commented that implementing the proposed approach would be 
problematic because States would have to identify whether specific 
training sessions counted for core or a category; tracking these 
different requirements would be burdensome and would require expensive 
changes to databases that were not included in the Economic Analysis. 
Some other commenters, including States and university extension 
programs, argued that requiring six CEUs of core training is too high, 
and would lead to repetitive and ineffective training. For example, the 
Iowa State University extension program combines pertinent core 
information with category-specific content, which has increased 
applicator understanding and retention of topics based on exit surveys. 
Therefore, this university extension program commented that providing 
generalized, non-specific core information to applicators rather than 
concise information tailored to their specific category needs would be 
a step backward.
    Commenters suggested a number of alternative approaches to EPA's 
proposed requirements for recertification of pesticide applicators. 
Many commenters urged EPA to withdraw or not finalize the proposed 
recertification requirements. Comments from the Small Business 
Administration Office of Advocacy covered two other common 
recommendations from a variety of commenters and suggested that EPA 
should reduce the number of required CEUs for private and commercial 
applicators by consolidating or streamlining the CEU requirements or 
that EPA should accept the States' requirements for recertification. 
Most of the States and many other commenters urged EPA to leave 
decisions about the certification period and the amount of 
recertification continuing education to the States who are more 
familiar with the specific applicator, funding and pesticide conditions 
and can facilitate changes when needed. In a survey of States submitted 
as part of the comments from a State organization, 33 of the 42 States 
responding (almost 80%) indicated that they have changed their 
pesticide regulations (not necessarily certification regulations) in 
the past five years and 26 have changed their pesticide statutes in 
that time period. Another suggestion from some States and applicator 
associations was for EPA to allow an equivalency approach similar to 
the process used for State pesticide containment programs that could 
allow States to have a longer certification period, different 
approaches for continuing education and a different amount of required 
continuing education.
    Response--Oppose Overall Approach. The comments make it clear that 
State recertification programs have gone many different ways over the 
past 40 years, which led EPA to conclude that it is too late to set 
detailed numeric federal standards for recertification to encourage 
acceptance of other jurisdictions' certifications. In addition, the 
comments explained that there are many reasons a State may or may not 
accept certifications from other jurisdictions and EPA acknowledges 
that recertification programs seem to be a minor factor in that 
decision. EPA has also been convinced that the effectiveness of 
recertification training

[[Page 1004]]

depends on a number of factors besides the two addressed in the 
proposed rule--the frequency (certification period) and amount (hours 
of training per recertification period). Finally, EPA generally agrees 
with the commenters' assessment that certifying authorities have 
adopted a wide variety of approaches that would not necessarily fit 
under EPA's proposed recertification scheme but nevertheless are 
effective in maintaining applicator competency.
    Therefore, EPA has completely revised the approach for 
recertification in the final rule. Instead of establishing prescriptive 
minimum requirements for all recertification programs, the final rule 
establishes several performance standards for recertification programs 
and describes the information about recertification programs that must 
be provided in certification plans submitted by certifying authorities. 
The final rule requires applicators to recertify through continuing 
education or an exam and to recertify at least every five years. The 
recertification program established by a certifying authority may rely 
on continuing education or an exam or both. EPA acknowledges that there 
are different ways to accomplish the goals of ensuring the continued 
competency of pesticide applicators. The approach in the final rule 
provides more flexibility and accommodates the different approaches 
that States have developed including: Recertifying by exams only; 
recertifying by continuing education or exams; providing continuing 
education by workshops or by CEUs; providing continuing education by 
university extension programs, industry groups or other organizations; 
dividing the universe of certified applicators into a larger number of 
more specific categories; and using a wide variety of approaches to 
establish the amount of continuing education required to maintain 
certification.
    EPA also acknowledges that the Economic Analysis of the proposed 
rule did not account for the costs of all of the changes certifying 
authorities and pesticide safety educators would have had to make to 
comply with the proposed approach. For example, changing from workshop-
based continuing education to CEU-based programs would have required 
about 15 certifying authorities to completely redesign their 
recertification programs. Also, all certifying authorities would have 
had to develop or revise systems to track core versus category CEUs and 
the distribution of CEUs over the first and last 18 months of the 
certification period. Additionally, certifying authorities with longer 
certification periods would have had to provide more continuing 
education opportunities to accommodate more applicators needing 
training each year, so more pesticide safety educators would have been 
needed in States where training is done solely by the university 
extension program. Finally, the Economic Analysis did not fully account 
for applicators who are certified in multiple categories, especially in 
states that have 20 or more categories. The proposed requirement for 
six CEUs per category would have required more training than EPA's 
estimate, which assumed that each commercial applicator was certified 
in two categories. However, EPA does not have to include the costs 
described in this paragraph associated with the proposed rule in the 
revised Economic Analysis because the final rule adopts a more 
flexible, performance standard approach instead of the prescriptive 
requirements and quantitative standards of the proposed rule.
    The final rule requires applicators to recertify either through a 
written examination that conforms to the certification exam standards 
or through a continuing education program. A recertifying authority's 
recertification program may rely on written examinations, continuing 
education programs or both. This requirement did not change from the 
proposed rule and was generally supported by commenters. The SBA Office 
of Advocacy urged EPA to encourage States to require recertification by 
training rather than by testing because training is a better way to 
provide updated information to applicators. EPA notes that most States 
already promote their continuing education program as the primary 
option for recertification and include exams as an option available to 
applicators if they cannot obtain the required amount of training.
    In the final rule, EPA revised the maximum length of time that an 
applicator's certification is valid from three years to five years. 
Nearly all certifying authorities currently require recertification 
within five years or less, and therefore will not be affected by this 
change (although they will not be free to lengthen recertification 
periods beyond five years in the future). This requirement will bring 
any certifying authorities with longer recertification periods into 
line with the majority, and should provide a more uniform national 
level of competency. EPA also revised the regulatory text to clarify 
that five years is the maximum and that a certifying authority may 
establish a shorter period for how long an applicator's certification 
is valid.
    The final rule incorporates the proposed requirement that written 
examinations used for recertification must be 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. EPA has adopted a similar, performance 
standard approach to continuing education programs as well.
    EPA was convinced by comments that the effectiveness of training 
depends on a number of factors. In the final rule, Sec.  
171.107(b)(2)(i) establishes a performance standard for continuing 
education programs that broadly groups the factors into the quantity, 
content and quality of continuing education programs, which 
collectively must be sufficient to ensure the applicator continues to 
demonstrate the competency required by Sec.  171.103 for commercial 
applicators or Sec.  171.105 for private applicators. This provides 
flexibility to accommodate the different approaches taken by States, 
Tribes and Federal agencies. It also allows each certifying authority 
to determine how the continuing education is provided--by workshops, a 
CEU-based program or another method. However, this broad performance 
standard also makes it difficult to specifically describe what would be 
``sufficient'' quantity, content and quality of continuing education 
programs. This will ultimately be determined on a case-by-case basis 
between the certifying authority and EPA during preparation, review and 
approval of individual certification plans. EPA plans to develop a 
guidance document after the final rule is published to describe some 
characteristics and parameters of sufficient quantity, content, and 
quality based on information provided in the comments and anticipates 
further dialogue with certifying authorities before the guidance is 
issued.
    The final rule establishes two additional requirements regarding 
the quality of continuing education programs. First, a certifying 
authority must approve any continuing education course or event relied 
upon for applicator recertification as being suitable (on its own or in 
combination with other recertification program elements) for its 
purpose in the certifying authority's recertification process. 40 CFR 
171.107(b)(ii). Second, a certifying authority must ensure that any 
continuing education course or event, including an online or other 
distance education course, that provides continuing education for 
applicator recertification includes a process to verify the 
applicator's successful

[[Page 1005]]

completion of the course or event. 40 CFR 171.107(b)(iii). This is 
intended to be flexible and allow a variety of ways to ensure that an 
applicator successfully completed the course or event. As discussed in 
Unit IX., this performance standard also requires the continuing 
education course or event to somehow identify the certified applicator, 
which is a necessary part of verifying that the applicator successfully 
completed the course or event.
    The final rule also expands the information about recertification 
that a certifying authority must provide in its certification plan. 
Specifically, Sec. Sec.  171.303, 171.305 and 171.307(b) require State, 
Federal agency and certain Tribal certification plans to contain 
sufficient documentation that the recertification standards meet or 
exceed the standards in Sec.  171.107, including:
     A list and detailed description of all the standards for 
recertification adopted by the certifying authority including the 
elements described below.
     The certification period, which may not exceed 5 years.
     If recertification relies upon written examination, a 
description of the certifying authority's process for reviewing, and if 
necessary, updating the written examination(s) to ensure that the 
written examination(s) evaluates whether that a certified applicator 
demonstrates the level of competency required by Sec.  171.103 for 
commercial applicators or Sec.  171.105 for private applicators.
     If recertification relies upon continuing education, an 
explanation of how the quantity, content and quality of the Federal 
agency's continuing education program ensures that a certified 
applicator continues to demonstrate the level of competency required by 
Sec.  171.103 for commercial applicators or Sec.  171.105 for private 
applicators, including but not limited to:
     The amount of continuing education required to maintain 
certification.
     The content that is covered by the continuing education 
program and how the certifying authority ensures that content is 
covered.
     The process the certifying authority uses to approve 
continuing education training courses or events, including information 
about how the certifying authority ensures that any continuing 
education courses or events verify the applicator's successful 
completion of the course or event.
     How the certifying authority ensures the on-going quality 
of the continuing education program.
    This required information will include several narrative 
explanations, which is a change from the current manner in which 
certifying authorities enter their certification plan information into 
CPARD (i.e., drop-down menus or entering specific information). 
However, this level of description is necessary for EPA to make a 
determination of whether the quantity, content and quality of 
continuing education programs is sufficient to ensure continued 
competency of applicators.
    Comments--Require Half of Training in the last 18 Months. Many 
commenters, including States, university extension programs, 
applicators, growers, farm bureaus, farmworker advocacy organizations, 
other non-governmental organizations and the SBA Office of Advocacy, 
strongly opposed the proposed requirement to earn at least half of the 
training credits in the last 18 months of the certification period. In 
summary, the commenters asserted their belief that this proposed 
requirement would be unnecessary and unworkable, and would not add 
benefit.
    Many commenters pointed out that applicators are professionals and 
can retain information for more than 18 months. Other commenters stated 
that the proposed requirement would not accomplish the goals of 
spreading training out over the whole certification period because 
nothing would prevent an applicator from taking all of the training in 
the last year. Several of the commenters supported a requirement for 
the training to occur throughout the entire recertification period such 
as requiring some training annually. A few other commenters suggested 
that establishing a limit on the maximum number of CEUs that could be 
earned each year would be a more effective way to spread the training 
over time. Some other commenters stated that this proposed requirement 
is not needed because applicators end up taking their training over 
time based on their schedules and the availability of training.
    Many commenters also addressed the burden this proposed requirement 
would put on certifying authorities, university extension programs and 
applicators. First, certifying authorities do not have systems in place 
to track CEUs on 18-month intervals and would need to update their 
tracking systems to do this. The Michigan Department of Agriculture and 
Rural Development estimated it would cost at least $100,000 to update 
their tracking system, which cost $250,000 in 2006. Second, applicators 
would also have to track their progress over time, which would make the 
process more difficult and would create an incentive for them to take 
exams instead of the continuing education. Third, this would create 
more of a burden for university extension programs and applicators to 
have the needed training courses available at the required times. Since 
most training happens in the winter and early spring, there could be 
limited opportunities for applicators to obtain the necessary training 
in the last 18 months of their certification period in general and 
especially if sessions are cancelled due to weather or other 
conditions. Obtaining the required amount of training in the last half 
of the certification period could be even more difficult for 
applicators who have a second job and for those in the military because 
their availability may be even more limited.
    Response--Require Half of Training in the last 18 Months. EPA has 
been convinced by commenters that it is not necessary to establish a 
limit in the federal certification rule for when continuing education 
has to take place. While EPA continues to see value in applicators 
receiving continuing education on a regular basis, this often happens 
under current recertification programs because of the design of 
existing recertification programs or because of the logistics 
determined by applicator and training availability. In addition, the 
need for certifying authorities and applicators to track the credits 
over a subset of the certification period could be burdensome. It is 
not clear that the proposed requirement to earn at least half of the 
training credits in the last 18 months of the certification period 
would provide additional improvements in applicator competency 
sufficient to justify the associated burdens. Therefore, EPA is not 
finalizing the proposed requirement that half of the required 
continuing education must be obtained in last 18 months of the 
certification period. EPA notes that certifying authorities may choose 
to establish limits in their own programs, such as establishing a 
maximum number of CEUs that can be earned in a year, as some States 
currently do.
    Comments--Length of a CEU. A State, a university extension program 
and an individual supported EPA's proposal to define a CEU to be 50 
minutes. Some commenters from a variety of commenter groups opposed the 
proposed definition of a CEU. The alternative suggestions for defining 
a CEU from States and a university extension program included 30 
minutes, 60 minutes and 60 minutes with a 10 minute tolerance. Grower 
organizations,

[[Page 1006]]

retailer organizations and the SBA Office of Advocacy suggested that 
the CEU requirement should be based on the subject matter since some 
might require less than or more than 50 minutes. A few commenters 
pointed out that the definition of the CEU is only in the preamble of 
the proposed rule and needs to be added to the regulatory text.
    Response--Length of a CEU. EPA is not finalizing the proposed 
definition of a CEU as 50 minutes. Because of the revised approach to 
recertification, it is no longer necessary to define a CEU as a 
specific length of time. This further supports the flexible approach in 
the final rule to clearly allow continuing education to be provided by 
workshops, CEUs or another method. A certifying authority has the 
ability to establish its own definition of a CEU where applicable.
    Comments--Impact on Commercial Applicators of Non-RUPs. Commenters 
including States, pesticide applicator organizations, university 
extension programs, agricultural retail organizations, grower 
organizations, a pesticide manufacturer organization, a farm bureau, 
and an advocacy group expressed concerns regarding the impact that the 
proposed rule might have on non-RUP applications. Commenters expressed 
concern that the proposed rule could unintentionally impact applicators 
of non-RUPs because commercial applicators are treated similarly in 
some States (i.e., they require all for-hire/commercial applicators to 
be certified whether they use RUPs, non-RUPs, or both).
    While the proposed rule would apply only to the certification of 
applicators using federal RUPs, many States commented that they would 
have to update their existing statutes and rules to meet the new 
requirements and it would be infeasible for them to create and 
implement an effective two-tiered system by separating requirements for 
RUP and non-RUP applicators. Many States whose certification programs 
cover applicators who do not use RUPs noted that the cost and 
administrative burden that would be imposed on State certification 
programs and applicators by the proposed requirements might force them 
to relinquish implementation of the federal program back to EPA. This 
would result in a State left with a dual compliance standard, one 
administered and enforced by EPA for federal RUP use, and a second 
administered and enforced by a State for State RUP and non-RUP use. A 
university extension program expressed concern that some States might 
decide to rescind the requirement for commercial applicators to 
participate in the certification program even if they only use non-RUPs 
to reduce the certified applicator population and the burden on 
applicators.
    Pesticide applicator representatives commented that the proposed 
rule would create many new requirements for all applicators and would 
negatively impact applicators that occasionally apply RUPs and the vast 
majority that only apply non-RUPs with little supporting evidence that 
the existing certification system is not adequate.
    Response--Impact on Commercial Applicators of Non-RUPs. While these 
comments do not specifically mention the proposed recertification 
requirements, EPA assumes that the proposed recertification 
requirements are a large part of the cost and burden mentioned in these 
RUP/non-RUP comments, based on the comments summarized earlier in this 
section. EPA acknowledges that many certification (and recertification) 
programs apply to a broader range of applicators than the federal 
certification rule requires, especially for commercial applicators. It 
is not clear whether jurisdictions that currently require certification 
of commercial applicators of non-RUPs will continue to do so, or 
whether they will choose to modify their approach to certification. In 
any case, this is a choice for each State and Tribe, based on their own 
evaluations of the expected costs and benefits.

XV. General Certification Plan Requirements

A. Overview

    1. Existing rule and proposal. The existing 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. 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 proposed 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 have impacted the requirements for Tribal 
and Federal agency plans.
    2. Final rule. The final rule differs from the existing rule 
primarily in the following areas: Requirements for State plans to 
conform with the final rule specifically related to the standards for 
the certification of commercial and private applicators, 
recertification, and direct supervision of noncertified applicators; 
additional reporting and accountability requirements; required 
enforcement authorities; 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. As discussed in Unit VII.B., the final rule also includes a 
provision that allows certifying authorities, at their discretion, to 
add ``limited use'' categories for commercial applicators. The specific 
provisions of the final rule are discussed in more detail below.

B. Modification of Existing Certification Plans To Conform to the Final 
Rule

    1. Proposal. EPA proposed to add provisions to ensure that State 
plans conform to the proposed standards and requirements proposed in 
other parts of the rule. The proposed changes included standards for 
the certification of commercial and private applicators, 
recertification, and direct supervision of noncertified applicators. 
EPA proposed to retain the existing provision permitting states to 
adopt, as they considered appropriate, the federal categories 
appropriate for their States, add subcategories under the federal 
categories, and add state-specific categories not reflected by the 
federal categories. EPA proposed that States would be required to adopt 
the exam administration and security standards outlined as proposed at 
40 CFR 171.103(b)(2), including a requirement for the certifying 
authority to verify the identity of candidates seeking certification or 
recertification by requiring candidates to present a government-issued 
photo identification.
    2. Final rule. The final rule adds provisions to ensure that State 
plans conform to the standards and requirements of the final rule. This 
includes the standards for the certification of private and commercial 
applicators, recertification of applicators, and direct supervision of 
noncertified applicators. States will continue to be permitted to adopt 
federal categories appropriate for their States, add subcategories 
under the federal categories, delete federal

[[Page 1007]]

categories not needed, and add state-specific categories not reflected 
by the federal categories.
    In general, the changes to this section of the final rule provide 
States with more flexibility to establish requirements that meet or 
exceed the standards established by EPA in Sec. Sec.  171.101 through 
171.201 as discussed in previous units of this preamble. For example, 
the changes to the final rule require States to provide a list and 
detailed description of the recertification standards demonstrating 
that the State recertification program meets or exceeds the 
requirements in Sec.  171.107. In addition, the final rule allows 
States to implement a mechanism for noncertified applicator 
qualification that meets or exceeds the requirements at Sec.  171.201.
    For standards for direct supervision of noncertified applicators, 
EPA has adopted a different requirement than proposed. The final rule 
allows certifying authorities to adopt the standards listed at Sec.  
171.201, to prohibit the use of RUPs by anyone other than a certified 
applicator, or to adopt standards for noncertified applicators that 
meet or exceed the standards at Sec.  171.201.
    For exam administration and security standards, EPA has revised the 
proposed approach to allow more flexibility for States to adopt 
different approaches that meet or exceed EPA's standards at Sec.  
171.103(a)(2). The final rule allows States to adopt the standards 
listed at Sec.  171.103(b)(2), or to adopt standards for exam security 
and administration that meet or exceed the standards at Sec.  
171.103(b)(2). The final rule requires the certifying authority to 
check the age and identification of candidates for initial 
certification, regardless of whether they certify by written exam or 
training for private applicators, and for recertification by 
examination. However, the final rule adopts a more flexible requirement 
by allowing States to authorize candidates to present a government-
issued photo identification or a similarly reliable form of 
identification authorized by the certifying authority, rather than just 
a government-issued photo identification as proposed. The final rule 
requires States to specify in their certification plans whether they 
authorize any other forms of identification and, if so, how they are 
comparable to a government-issued photo identification.
    The final regulatory text for these requirements is located at 40 
CFR 171.303(a) and (b).
3. Comments and Responses
    Comments. Commenters raised concerns about the proposal limiting 
States to adopting the proposed standards for noncertified applicators 
or prohibiting the use of RUPs by anyone other than a certified 
applicator. Many certifying authorities commenting on the proposal 
noted that they implement programs for noncertified applicators that 
are more stringent than EPA's proposal, but would not be acceptable if 
the proposal were finalized. Some commenters noted the need for 
flexibility for certifying authorities to adopt standards for 
noncertified applicators that that meet or exceed EPA's standards and 
that fit within the certifying authority's certification program.
    Response. EPA acknowledges that many certifying authorities may 
have existing programs for the protection of noncertified applicators 
that are sufficient to ensure that noncertified applicators under the 
supervision of certified applicators are competent to use RUPs without 
causing unreasonable adverse effects. In response to the comments, EPA 
has added a provision to the final rule adding an option for certifying 
authorities regarding noncertified applicator programs--allowing the 
adoption of requirements that meet or exceed EPA's standards in the 
final rule. EPA will evaluate a certifying authority's program against 
EPA's noncertified applicator program as part of the State plan review 
and approval process. See Unit X. for more details.

C. Program Reporting

    1. Existing rule and proposal. The existing rule requires States to 
report annually on information related to the administration of the 
applicator certification program under the EPA-approved certification 
plan.
    To reflect the proposed changes to applicator certification 
categories and to ensure EPA receives adequate information to monitor 
the certifying authority's implementation of its certification plan, 
EPA proposed to require certifying authorities to report the 
information below to EPA annually.
     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 at the end of 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 had established subcategories within any of the 
commercial categories, the report would have to 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.
    2. Final rule. The final rule incorporates the proposed reporting 
requirements with a few changes. The final rule does not distinguish 
between ``pest control categories'' and ``application method-specific 
categories'', designating them all formally equivalent categories. The 
final rule does not include the proposed requirement to report misuse 
incidents and reduces the proposed reporting on enforcement activities.
    The final regulatory text for the program reporting is located at 
40 CFR 171.303(c).
3. Comments and Responses
    Comments. Many commenters, including certifying authorities,

[[Page 1008]]

requested that EPA refrain from finalizing the proposed requirement for 
a narrative summary of enforcement activities. Commenters cited 
existing reporting requirements related to pesticide use and applicator 
certification programs, and noted that the proposed requirement would 
be duplicative. Some commenters also noted that it would be difficult 
to separate out RUP incidents from the data currently collected (i.e., 
identifying whether the product was an RUP). Commenters noted that 
tracking such detailed narrative information, maintaining the 
information, and compiling the information to report would be time 
consuming. Commenters asserted that CPARD is not the proper reporting 
mechanism for this information, if required; they suggested that it be 
included in the ``5700 form'' that States, Tribes, and territories 
submit to EPA's Office of Enforcement and Compliance Assistance. 
Finally, commenters noted that they may discuss major incidents already 
in their year-end reports to EPA.
    Responses. EPA appreciates the concerns raised by the commenters. 
In light of the burden on certifying agencies to track, maintain, and 
compile detailed narrative information, as well as the potential for 
EPA to obtain the information about enforcement activities generally 
through other existing reporting requirements, EPA has chosen not to 
include the proposed requirement to provide a narrative summary of 
misuse incidents or enforcement activities in the final rule.

D. Civil and Criminal Penalty Authority

    1. Existing rule and proposal. The existing rule is not clear on 
whether States must have authority to impose both criminal and civil 
penalties on commercial and private applicators. EPA proposed to revise 
the rule to expressly require that States have both civil and criminal 
penalty provisions.
    2. Final rule. EPA is finalizing the civil and criminal penalty 
authorities as proposed. The final regulatory requirements for civil 
and criminal penalty authority is located at 40 CFR 171.303(b)(7)(iii).
3. Comments and Responses
    Comments. EPA received comments on this provision from certifying 
authorities and from certifying authority and pesticide safety educator 
associations. Almost all commenters suggested that EPA eliminate the 
proposed requirement for States to have both civil and criminal penalty 
authority. Commenters generally requested that EPA retain the existing 
language ``. . . for assessing criminal and/or civil penalties,'' 
rather than the proposed language ``. . . for assessing criminal and 
civil penalties.'' Commenters recognized that FIFRA has a requirement 
for States to have both criminal and civil penalty authority, but 
requested that EPA retain more lenient language.
    Commenters also expressed concerns about the proposal at Sec.  
171.303(b)(6)(i), suggesting that the proposal would make recordkeeping 
violations a criminal matter. (``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.'') Commenters noted that 
without further explanation of what ``falsification'' means, and at 
what threshold that action would be considered a criminal act, they had 
concerns that something as innocent as a typographical error might 
appear to be intentional falsification, which could result in criminal 
prosecution.
    Responses. FIFRA requires certifying authorities to have both 
criminal and civil penalty authority. EPA disagrees with commenters' 
request to retain the more lenient ``and/or'' language, and is 
finalizing the rule's requirement to mirror what is required by FIFRA.
    In response to the comments raising concerns about the language in 
the proposal at Sec.  171.303(b)(6)(i), EPA notes that this requirement 
has been in the existing rule since the 1970s. Likewise, falsification 
of records and reports has been a violation of FIFRA since 1972. 7 
U.S.C. 136j(a)(2)(M). Commenters did not raise any instances where a 
missing or incomplete definition of ``falsification'' has resulted in a 
typographical error resulting in criminal prosecution. Enforcement 
agencies, prosecutors and courts all have considerable experience 
distinguishing typographical errors from criminal falsification. 
Therefore, EPA has chosen to retain the existing regulatory language. 
EPA will work with certifying authorities as needed to provide 
interpretations of and guidance on regulatory language and provisions.

E. Commercial Applicator Recordkeeping

    1. Existing rule and proposal. The existing rule mandates that 
State plans include requirements for certified commercial applicators 
to maintain for a least two years routine operational records 
containing information on kinds, amounts, uses, dates and places of 
applications of RUPs.
    EPA proposed to clarify what records commercial applicators must 
maintain. EPA proposed recordkeeping requirements 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. EPA proposed recordkeeping for commercial 
applicators that included the following:
     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.
    2. Final rule. EPA has finalized the commercial applicator RUP 
recordkeeping requirements as proposed, except that EPA has changed the 
substance of the recordkeeping related to supervision of noncertified 
applicators. See Unit XI. for a discussion of the final requirement for 
recordkeeping of noncertified applicator training.
    The final regulatory requirements for commercial applicator 
recordkeeping are located at 40 CFR 171.303(b)(6)(vi).
3. Comments and Responses
    Comments. Commenters were generally neutral or supportive toward 
the proposed recordkeeping requirements. Many certifying authorities 
noted that they already require commercial applicators to maintain 
records with at least the same content as EPA's proposal. One 
certifying authority opposed adoption of commercial applicator 
recordkeeping requirements. The commenter asserted that certifying 
authorities are responsible under State primacy

[[Page 1009]]

authority for inspection, violation determinations and enforcement, 
which includes examination and review of application records to verify 
label compliance and proper application, and that States currently have 
recordkeeping requirements in place and are the best judge of what 
records must be kept.
    One commenter raised concern about documenting the area treated, 
especially for spot treatments.
    Responses. EPA has chosen to finalize the approach that adopts a 
consistent national standard for commercial applicator recordkeeping to 
ensure that the same minimum information about RUP use is maintained by 
all RUP applicators.
    EPA notes that the requirement to record the area treated can be 
met by recording the number of acres, or other appropriate measure, to 
which the pesticide was applied. Other appropriate measures could 
include an area within which treatments were made with a notation that 
the entire area was not treated (e.g., ``spot treatments within 600 sq. 
ft. lawn'').

F. RUP Dealer Recordkeeping

    1. Existing rule and proposal. The existing rule does not have a 
requirement for dealers of RUPs to maintain records; however, all 50 
States currently have recordkeeping requirements for RUP dealers. EPA 
proposed to require certifying authorities 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 
an RUP is distributed or sold by that dealership to any person. EPA 
proposed that records of each such transaction 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.
    2. Final rule. EPA has finalized the RUP dealer recordkeeping 
requirement as proposed with a few minor wording changes. The final 
regulatory text for the RUP dealer recordkeeping requirement is located 
at 40 CFR 171.303(b)(7)(vii).
3. Comments and Responses
    Comments. Some commenters expressed general support for the 
proposal. Other commenters questioned the need for a federal 
requirement for RUP dealer recordkeeping when EPA acknowledged in the 
proposal that all 50 States already have provisions in place requiring 
RUP dealers to maintain records.
    A few commenters suggested that EPA require RUP dealers to maintain 
the records for four years instead of two years, citing the requirement 
in California for RUP dealers to maintain records for four years.
    Several commenters opposed RUP dealer recordkeeping on the category 
of certification. Commenters noted that it would be unreasonable to 
expect RUP dealers to have knowledge of the labeling for each RUP to be 
able to tell whether the uses on the labeling were covered by each 
certification category. Other commenters noted that the proposed 
requirement to collect and verify the applicator's category of 
certification would impose substantial burdens on dealers.
    Response. EPA disagrees with commenters who suggested that a 
federal RUP dealer recordkeeping requirement is not necessary. The 
federal rule sets a minimum standard with which all certifying 
authorities must comply. Recordkeeping is an important way to verify 
compliance with the provisions of the rule. In order to ensure that all 
certifying authorities maintain a requirement for RUP dealers to keep 
records of sales, and to ensure that all records cover minimum 
necessary information, EPA has decided to retain the proposed 
requirement.
    EPA disagrees with commenters' request to extend the period the 
records must be maintained from two years to four years. EPA 
established a two-year recordkeeping period to correspond with the 
length of time other records under the certification rule and FIFRA 
must be kept. Absent justification from stakeholders that a longer 
period is necessary to ensure compliance with the rule or to improve 
protection of human health and the environment, EPA has chosen to 
retain the proposed timeframe of two years.
    EPA acknowledges commenters' concerns that verifying and recording 
the applicator's category of certification could be burdensome. 
However, EPA notes that applicator certification only covers use of 
products covered by the category of certification, and that labeling 
already requires RUP dealers to verify that the applicator is certified 
in an appropriate category for use of the RUP he or she is purchasing. 
EPA's regulations require RUP labeling to state: ``For retail sale to 
and use only by Certified Applicators or persons under their direct 
supervision and only for those uses covered by the Certified 
Applicator's certification.'' (emphasis added) 40 CFR 
156.10(j)(2)(i)(B). Therefore, RUP dealers are already responsible for 
knowing the use patterns of the RUPs they sell and which categories of 
certification are appropriate. For these reasons, EPA has chosen to 
retain the proposed requirement for the RUP dealer to record the 
applicator's category(ies) of certification.

G. Certified Applicator Credentials

    1. Existing rule and proposal. The existing rule does not have 
requirements related to content in the credentials that States must 
issue to certified applicators.
    EPA proposed 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.
    2. Final rule. The final rule includes a requirement for States to 
``describe the credentials or documents the State certifying authority 
will issue to each certified applicator verifying certification.'' The 
final rule does not include the proposed general requirement for 
applicator credentials to

[[Page 1010]]

contain specific information. The final regulatory text for applicator 
certification credentials is located at 40 CFR 171.303(a)(8).
3. Comments and Responses
    Comments. EPA received comments from certifying authorities, 
certifying authority associations, pesticide safety educator 
associations, advocacy organizations, and individuals. Most commenters 
on this issue did not support EPA's proposal and requested that EPA 
leave the content of certification credentials to the certifying 
authority's discretion. Many commenters noted that States have 
processes in place for issuing licenses, and mandating specific 
information to be included on a certification credential would disrupt 
the existing processes without any reason for the change. Several 
commenters noted that the certifying authority's ability to add 
additional information to the certification document may be limited 
(i.e., a broad State regulation or law may govern issuance of all 
licenses). One certifying authority described its recently implemented 
an internet-based licensing system under which the certifying authority 
issues the applicator a credential with the applicator's name, license 
number, and barcode, as well as information on how to access other 
certification information (e.g., categories of certification, 
recertification status) online. This system allows the certifying 
authority to update the categories of certification within 24 hours of 
a change (e.g., passing category exam), rather than issuing a new 
certification credential with the additional category information or 
issuing a separate credential for each category of certification. This 
system also allows the certifying authority to document attendance at 
recertification courses by scanning the barcode on the license 
document. Given the ease of use, investment in developing and 
implementing a new system, and lack of identification of problems 
associated with the absence of a federal standard for applicator 
credentials, the commenter requested EPA not finalize the proposal for 
the content of applicator credentials because the credentials issued 
under the certifying authority's licensing system would not meet the 
proposed content requirements for applicator credentials.
    A few commenters expressed specific opposition to the proposal to 
add to the credential, if applicable, a statement specifying whether 
the certification was issued in reliance upon another jurisdiction's 
certification. Applicators may be certified in several categories, and 
some but not others may be based on certifications received from other 
jurisdictions. Commenters said that distinguishing between the 
categories of certification issued by the certifying authority and 
those based on certifications earned in another jurisdiction would 
impose significant burden on the certifying authority and be difficult 
to accomplish.
    A few certifying authorities noted that they already issue 
certification credentials with the proposed content. One individual 
commenting suggested that EPA require the credential to include all of 
the proposed content, plus the expiration date for each category.
    Responses. EPA recognizes that certifying authorities have already 
developed a variety of requirements for issuing applicator credentials. 
EPA is convinced by the comments received that the proposal to require 
applicator certification credentials to include specific content would 
cause significant additional burden for many certifying authorities, 
without commensurate additional benefit. EPA has decided to continue 
with the existing regulatory requirement for certifying authorities to 
have in place a provision for issuance of the appropriate credentials 
or documents verifying certification of applicators instead of the 
proposed approach to specify the information that must be on 
credentials. EPA notes that this requirement is intended to allow the 
certifying authority, enforcement personnel, and RUP dealers to verify 
that the person purchasing or using RUPs has a valid certification and 
is certified in the appropriate categories for the products being 
purchased or used.

H. Reliance on Certification by Other Certifying Authorities

    1. Existing rule and proposal. The existing rule requires States to 
provide information in their certification plans a description of any 
arrangements that a State has made or plans to make relating the 
acceptance of certified applicators from those States or jurisdictions.
    EPA proposed to revise these provisions to allow certification 
relying on certification by another certifying authority under the 
following conditions:
     A certifying authority could only rely on current, valid 
certifications issued under another certifying authority's approved 
certification plan, and could only rely on a certification issued by a 
certifying authority 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 would be accepted, the certifying authority must determine that 
the standards of competency in the other jurisdiction are comparable to 
the standards of the accepting certifying authority.
     Any certifying authority which chooses to certify 
applicators based, in whole or in part, on the applicator having been 
certified by another certifying authority, must implement a mechanism 
to ensure the certifying authority would immediately terminate an 
applicator's certification if the applicator's original certification 
terminates for any reason.
     The certifying authority issuing a certification based, in 
whole or in part, on the applicator having been certified by another 
certifying authority would have to issue an appropriate credential or 
document in accordance with the requirements of this section.
    2. Final rule. The final rule adopts the proposal with one 
substantive changes. EPA is not finalizing the proposed provisions 
requiring the certifying authority to automatically terminate 
certifications issued based on the applicator's certification in 
another jurisdiction immediately upon termination of the original 
certification. The final regulatory requirements are as follows:
     A certifying authority may only rely on current, valid 
certifications issued under an approved certification plan.
     The certifying authority has examined the standards of 
competency in the jurisdiction that originally certified the applicator 
and has determined that, for each category of certification that will 
be accepted, they are comparable to its own standards.
     Any certifying authority that 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 that allows the certifying authority to terminate an 
applicator's certification upon notification that the applicator's 
original certification terminates because the certificate holder has 
been convicted under section 14(b) of FIFRA (7 U.S.C. 136l(b) or has 
been subject to a final order imposing a civil penalty under section 
14(a) of FIFRA (7 U.S.C. 136l(a).
     The certifying authority 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 Sec.  171.303(a)(8).
    The final regulatory text for these provisions is located at 40 CFR 
171.303(a)(9).

[[Page 1011]]

3. Comments and Responses
    Comments. EPA received comments on this proposal and the issue of 
reliance on prior certifications generally from certifying agencies and 
their associations, pesticide safety educators and their associations, 
pesticide applicator associations, individuals, and USDA APHIS.
    Overall, most commenters did not support EPA's proposal to require 
certifying authorities that choose to issue reciprocal certification to 
outline the process they would use in the certification plan and to 
abide by specific conditions. Commenters asserted that including the 
proposed requirements in the final rule could result in certifying 
authorities that currently issue such certifications to discontinue the 
practice because it would become too time consuming without additional 
benefit to the certification program. Almost all commenters requested 
that EPA leave to the discretion of the individual certifying 
authorities all decisions related to reliance on other jurisdictions' 
certifications.
    Many commenters specifically opposed the proposed provisions 
requiring that the certifications issued in reliance on another 
jurisdictions' certification ``must terminate immediately if the 
applicator's original certification terminates for any reason'' and 
requiring that certifying authorities ``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.'' They noted that implementation of such a provision would 
be extremely difficult or impossible. Once a certification has been 
issued, a certifying authority does not generally track whether it was 
based on a certification issued in another jurisdiction. Further, the 
jurisdiction in which the applicator earned the original certification 
is unlikely to track which other jurisdictions used its certification 
as the basis for certification or notify the other jurisdictions when 
action is taken against the applicator that could result in termination 
of the certification. Commenters noted that absent a national 
certification database that would provide notifications when an 
applicator's certification status changed, certifying authorities would 
not be able to track the status of each's applicator original 
certification. Commenters also pointed out that what caused termination 
of a certification in one jurisdiction may have no impact on another 
jurisdiction's certification. One jurisdiction noted that it will award 
an initial certification based on certification granted by another 
certifying authority, but the applicator must satisfy all of the second 
certifying authority's recertification requirements. This commenter 
noted that many applicators who receive their initial credential based 
on certification awarded by another jurisdiction will let the original 
certification lapse and continue to meet the necessary recertification 
requirements in the reciprocal State to maintain their certification. 
Under the proposal, this would require the certifying authority that 
relied on another jurisdiction's certification to terminate its 
certification despite the applicator satisfying all necessary 
recertification requirements within that jurisdiction.
    Some commenters generally supported the concept of reciprocal 
certifications, but not the proposed changes to the rule. These 
commenters noted that requiring the proposed provisions as part of 
certification plans would not have an impact on a certifying 
authority's decision on whether to rely on other jurisdictions' 
certifications.
    A few commenters supported the proposal and suggested that EPA 
should do more to encourage or require reliance on other jurisdictions' 
certifications, especially to reduce the burden on the pest management 
industry. One commenter suggested that EPA should require adjacent 
States to: Enter into reciprocal agreements, harmonize categories and 
subcategories, and allow CEUs to transfer between jurisdictions. One 
commenter suggested that the information and training requirements for 
core certification lend themselves to standardized materials. This 
commenter suggested that EPA develop such materials and distribute to 
certifying authorities. The commenter also suggested that EPA could 
also provide standard training materials for CEUs and testing materials 
for pest control and application method-specific categories. Another 
commenter suggested that EPA require consistency by requiring all 
certifying authorities to use the same titles for their categories and 
subcategories.
    Some commenters seemed to interpret EPA's proposal as requiring 
mandatory reliance on other jurisdictions' certifications, and strongly 
opposed any efforts by EPA to require certifying authorities to engage 
in issuing reciprocal certifications.
    Reponses. EPA agrees that each certifying authority should have 
discretion to rely or not rely on other jurisdictions' certification 
programs and notes that EPA is not mandating such reliance in any form. 
However, EPA notes that the existing rule contains provisions similar 
to some of the elements EPA proposed; requiring that a certification 
plan must describe any reliance on other jurisdictions' certifications 
is not new.
    EPA acknowledges commenters' concerns about implementing the 
proposed provisions requiring automatic termination of a certification. 
While EPA continues to believe that it would be straightforward to 
establish a requirement that a reciprocal certification terminates 
automatically if the applicator's original certification terminates for 
any reason, EPA has decided not to finalize this requirement. First, 
there are situations where an applicator's certification may terminate 
that are not problematic, such as if the applicator allows the 
certification in the original State lapse because he/she no longer 
works there but continues to stay certified in the second State by 
completing that State's recertification requirements. This is a very 
different scenario than if the applicator's original certification was 
revoked because of serious pesticide use violations. Second, EPA 
generally agrees that there would be implementation challenges with the 
proposed requirement because States may not become aware of the 
applicator's initial certification terminating without a national 
applicator certification data base or significant effort by the State. 
However, EPA has retained the requirement for certifying authorities to 
have provisions allowing them to terminate reciprocal certifications, 
which would allow a certifying authority to terminate an applicator's 
certification if they are notified of the termination and if the 
termination was for a violation of FIFRA or other acts identified by 
the certifying authority.
    Many comments seemed to misinterpret the proposal and suggested 
that EPA proposed to mandate reciprocal certification between 
jurisdictions. EPA did not propose and is not including any mandatory 
reciprocal certification requirements in the final rule.

I. Certification Plan Maintenance, Modification, and Withdrawal

    1. Existing rule and proposal. The existing rule specifies that an 
EPA-approved certification plan may not be substantially modified 
without the prior approval of the Administrator. EPA issued guidance in 
2006 outlining EPA's interpretation of the types of plan revisions that 
would constitute substantial modifications and therefore

[[Page 1012]]

require additional review and approval by EPA.
    EPA proposed to replace the provisions in the existing rule related 
to maintenance, modification, and withdrawals of State certification 
plans with a codification of the provisions of the 2006 guidance. The 
proposed revisions would codify existing interim program policy and 
guidance issued by EPA in 2006 (Ref. 37).
    2. Final rule. EPA has finalized the proposal with some changes. 
The final rule adds a provision for modification and withdrawal of 
approval of existing certification plans while certifying authorities 
are developing and implementing certification plans that meet the 
standards of this final rule. The final regulatory text for 
modification and withdrawal of approval of State plans is located at 40 
CFR 171.309.
3. Comments and Responses
    Comments. Several certifying authorities and a certifying authority 
association submitted comments on the proposal related to substantial 
modifications. Several commenters noted that the clarified language was 
an improvement from the existing rule. However, they expressed concern 
that the wording of the proposed requirement would place a burden on 
certifying authorities to conduct regular reviews and to inform EPA of 
any modifications to the certification plan. These commenters 
recommended that the final rule clearly indicate that certifying 
authorities would only be required to notify EPA of proposed 
substantial modifications at the year-end review or pre-award 
negotiation meeting.
    One certifying authority requested that EPA leave the definition of 
what constitutes a substantial modification to the certifying 
authorities.
    Responses. EPA is finalizing the certification plan modification 
section mostly as proposed. EPA recognizes that States may be concerned 
about increased burdens to review and report to EPA but notes that EPA 
is not requiring regular reviews of approved certification plans. EPA 
disagrees with commenters' requests to require reporting of substantial 
changes only at the year review or pre-award negotiation meeting. Given 
the need to ensure that any significant change to the plan, which is 
likely to require substantial effort on the part of the certifying 
authority to implement, would not result in EPA rescinding approval of 
the certification plan, it is reasonable for EPA to require 
notification prior to the substantial modification.
    EPA disagrees with the commenter who requested that EPA leave the 
definition of what constitutes a substantial modification to the 
certifying authorities. By defining substantial modifications in the 
rule, EPA will reduce burden on certifying authorities and the Agency 
to determine what qualifies as a substantial modification, requiring 
prior notification to EPA and additional review.

J. Certified Applicator Lists Available to the Public

    1. Option considered but not proposed. EPA did not propose a 
requirement for certifying authorities to make available publically a 
list of all applicators it has certified, but did ask for comments. 
Under this alternative, EPA considered whether such a list could be 
made available electronically (e.g., via the internet, and could be 
used by the public to identify pest control operators certified to 
perform the application properly and effectively.
    2. Final rule. EPA has not added any requirements for certifying 
authorities to make information about certified applicators available 
to the public.
3. Comments and Responses
    Comments. Most commenters on this option opposed it. Several 
commenters noted that certifying authorities may have limits on what 
information can be released publically, especially related to 
personally identifiable information. One commenter cited the potential 
for the information to be misused if made available to the public.
    Response. EPA has chosen not to add to the rule a requirement to 
make information about certified applicators available to the public. 
However, EPA suggests that certifying authorities explore workable 
options within their jurisdictions to make information about certified 
applicators available to the public, such as maintaining a Web site to 
verify that an applicator's certification is valid. EPA's Web site 
already offers general information to the public about RUPs and 
restrictions on their use (i.e., for use only by certified applicators 
or someone under their direct supervision). RUPs have the potential to 
cause unreasonable adverse effects to the environment and injury to 
applicators or bystanders if not used by a competent applicator, and 
are not available for purchase or use by the general public. EPA's Web 
site also notes that certifying authorities may have more restrictive 
requirements (e.g., require certification for all ``for hire'' users of 
pesticides, not only RUP users). EPA's Web site also provides links to 
State certification program coordinators so the public can direct their 
inquiries to the appropriate agency. EPA intends to work with 
certifying agencies to develop resources for those seeking to hire 
certified applicators, such as fact sheets summarizing certification 
requirements, and a Web site providing links to publically available 
certified applicator information.

XVI. Establish Provisions for Review and Approval of Federal Agency 
Plans

A. Existing Rule and Proposal

    The existing rule includes a provision for a Government Agency Plan 
(GAP) certification program that would cover all employees of all 
Federal agencies using RUPs in the course of their duties. However, the 
GAP certification process was never developed or implemented by EPA or 
the Federal government. In 1977, EPA announced a policy that provided 
an alternative approach for Federal agencies to develop and implement 
their own plans for the certification of applicators of RUPs (Ref. 46). 
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. Currently, four Federal agencies have 
EPA-approved Federal agency plans that were approved prior to 1990: 
Department of Defense (DOD), USDA, Department of Energy (DOE) and the 
Department of the Interior (DOI).
    In order to streamline the rule and codify the existing policy, EPA 
proposed to add to the rule a provision for review and approval of 
Federal Agency Plans, eliminate the GAP certification program for 
federal government employees, and establish new requirements for 
Federal agency certification plans similar to those proposed for State 
and Tribal plans. EPA proposed to clarify and expand the requirements 
for Federal agency plans from the existing policy to include:
     Compliance with all applicable standards for 
certification, recordkeeping, and other similar requirements for State/
Tribal plans.
     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.
     Compliance with all applicable Executive Orders.
     Specific requirements for annual reporting and 
certification plan maintenance.

B. Final Rule

    The final rule includes the proposed requirements for Federal 
agency

[[Page 1013]]

certification plans with minor revisions and deletes the GAP section. 
It also includes many of the same changes made to the requirements for 
State plans to accommodate changes made to the requirements for 
certification, recertification, and supervision of noncertified 
applicators. The final regulatory text for these requirements is 
available at 40 CFR 171.305.

C. Comments and Responses

    Comments. EPA received only a few comments regarding this proposal. 
None of the four Federal agencies that currently have EPA-approved 
Federal Agency Plans (i.e., DOD, USDA, DOE and DOI) addressed the issue 
during the comment period.
    In general, commenters representing States and grower organizations 
did not express opposition regarding provisions for Federal agency 
plans, and supported EPA requiring equivalent program standards and 
approval processes for certification plans of States and Federal 
agencies.
    A State and an applicator organization representative commented 
that the current standard under the 1977 policy is adequate and each 
State should be allowed to continue oversight of applicators operating 
within each State without having the rules revised, ``so that Federal 
employees are accountable for State requirements.''
    Response. EPA notes that if applicators certified under a Federal 
agency certification plan are using RUPs in States or Indian country, 
they must follow the applicable laws and regulations of the 
jurisdiction where the use occurs. Under the final rule, Federal agency 
employees will be accountable for complying with relevant State 
requirements.

XVII. Certification Programs in Indian Country

A. Clarifying Options for Certification Programs in Indian Country

    1. Existing requirement and proposal. The existing rule provides 
three options for applicator certification programs in Indian country:
     Tribes may utilize State certification to certify 
applicators, which requires concurrence by the State(s) and should be 
memorialized in an appropriate State-Tribal agreement;
     Tribes may develop and implement a Tribal certification 
plan, which 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. 3).
    EPA proposed to revise the mechanisms for establishing applicator 
certification programs in Indian country as follows:
     Revise the current option for Tribes relying on State 
certification by providing for Tribes to utilize State, Tribal, or 
Federal agency certification; and replacing the provision regarding 
Tribes entering into cooperative agreements with States, with a 
requirement for Tribes to enter into agreements with EPA Regional 
offices. The proposal also eliminated current requirements for States 
to include in their State certification plans references to any 
cooperative agreements with Tribes for recognizing the States' 
certificates.
     Clarify that EPA can, in consultation with the affected 
Tribe(s), implement a Federal certification plan in any area of Indian 
country not covered by an approved certification plan.
     Update the requirements for Tribal plans by providing for 
submission of Tribal plans directly to the EPA; and requiring those 
Tribes that choose to manage their own certification plan to conform to 
the new standards being proposed for State and Federal agency 
certification plans for 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. However, Tribes would not be required to meet 
criminal enforcement requirements that would apply to State plans.
    2. Final rule. EPA is finalizing the options for applicator 
certification in Indian country as proposed with some changes. The 
final regulatory text for this requirement is available at 40 CFR 
171.307.
3. Comments and Responses
Comments--General
    Ten commenters provided comments on the options for establishing a 
certification program in Indian country (four States, two applicators, 
one grower association, one private citizen, one Federal agency, and 
one Tribal organization). In general, the commenters expressed support 
for the proposed options. However, some comments indicated that 
additional clarification on the options is needed.
    Comments--State notification. One State commenter and one Tribal 
organization expressed support for EPA's proposal that Indian Tribes 
may enter into agreements with EPA to recognize certifications issued 
under other EPA-approved or administered certification plans (e.g., 
State, Tribal, or Federal) instead of entering into agreements with 
States administering EPA-approved plans. However, both commenters asked 
how a State would know whether a Tribe had an agreement with EPA to 
recognize the certification of the State. The State commenter stated 
that the certifying State must be notified because multiple Indian 
Tribes, nations, and entities are present in many States, each with 
their own authorities and programs, making coordination of pesticide 
regulation challenging. The State commenter suggested that notification 
to all parties of certification actions taken by any party is also 
necessary to avoid confusion to the applicator as well as the 
regulatory entities, and that such notification of certification 
actions is the only way to ensure that Tribes are aware of cancelled or 
modified certifications so they can take appropriate action under 
Tribal authority.
    Response--State notification. In both the proposed and final rules, 
if a Tribe chooses to allow persons holding currently valid 
certifications issued under one or more specified State, Tribal, or 
Federal agency certification plans to apply RUPs within the Tribe's 
Indian country, the Tribe's certification plan and/or the Tribal-EPA 
agreement must identify the State(s), Tribe(s) or Federal agency(ies) 
upon whose certifications the Tribe relies. These plans and agreements 
will be made publicly available to interested parties, including 
States, once approved.
    Comments--Requesting clarification of ``jurisdiction'' in the 
definition of ``Indian country.'' Two commenters (one State and one 
Tribal organization) requested further explanation of ``jurisdiction'' 
in EPA's clarification of the definition of ``Indian country.'' The 
State commenter indicated that not all land inside reservations is 
under Tribal jurisdiction. For example, the commenter stated that non-
trust land (also called deeded land or non-Indian fee land) within the 
boundaries of established reservations in their State is under the 
primary jurisdiction of the State. The State commenter stated that this 
distinction of jurisdiction is important because without it, for 
example, applicators may potentially be unable to continue to use FIFRA 
Section 18 Emergency Exemptions, 7 U.S.C. 136p, or Section 24(c) 
Special Local Need Registrations, 7 U.S.C. 136v(c), anywhere within the 
boundaries of a reservation, resulting in lost resources and revenue on 
deeded or fee-owned land.

[[Page 1014]]

    A Tribal organization also asked for further clarification on 
jurisdiction, indicating that jurisdiction on Tribal fee lands has been 
an issue for a Tribal member who also has a State applicator's license. 
The commenter stated that the Tribal member has been prevented from 
applying pesticides on Tribal fee lands in aquatic situations because 
the State that issued his license will not cover him under its National 
Pollutant Discharge Elimination System permit program for discharges 
from pesticide applications because the fee land is Tribal land (e.g., 
not trust land), and EPA will not cover his application of pesticides 
because it claims the land is under the jurisdiction of the State.
    In addition to these questions, the Tribal organization also asked 
for clarification on which entity's RUP list will be adopted under a 
Tribal-EPA agreement. The commenter stated that the RUP list for a 
State and EPA will not necessarily be the same, and that it was 
uncertain which one will control. Complicating the situation is how an 
RUP will be treated on Tribal trust lands. The commenter stated that 
the Tribal member identified in the previous paragraph has indicated 
that a pesticide he uses is not an RUP under the EPA list, but once he 
is on fee lands of the Tribe, the pesticide is considered an RUP on the 
State list.
    A third commenter recommended that EPA delete the definition of 
``Indian country,'' but did not provide a rationale or alternative 
language for this recommendation.
    Response--Requesting clarification of ``jurisdiction'' in the 
definition of ``Indian Country.'' Section 171.3 of the proposed and 
final rule define ``Indian country'' as follows:
    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.
    This definition is consistent with the definition of Indian country 
at 18 U.S.C. 1151. Under EPA's longstanding approach, EPA treats as 
reservations, and thus as Indian country, lands held by the United 
States in trust for an Indian Tribe even if the Tribal trust land is 
located outside the boundaries of a formal Indian reservation. (See, 
e.g., 56 FR 64876, 64881 (December 12, 1991); 63 FR 7254, 7258 
(February 12, 1998)).Under relevant principles of federal Indian law, 
jurisdiction in Indian country generally lies with the federal 
government and the relevant Tribe, and not with the States. Alaska v. 
Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1998). 
State certification plans are, therefore, generally not approved by EPA 
to operate in Indian country absent an express demonstration of 
authority by a State--e.g., under a separate federal statute granting 
the State such authority--and an express approval by EPA of the State 
plan for such area. Currently, most of Indian country is covered by 
EPA's existing Federal certification plan for Indian country, and will 
continue to be covered by that plan unless and until replaced by an 
EPA-approved plan.
    For purposes of implementing the certification plan under FIFRA and 
EPA's regulations, only products classified as RUPs by EPA trigger 
certification requirements; non-RUPs can be used by any person and do 
not require the user to be certified. States must use EPA's list of 
RUPs, but may classify additional non-RUPs as restricted at the State 
level. This additional State product restriction would trigger the 
certification requirements at the State level, but would not 
necessarily trigger certification requirements in Indian country. 
Because Indian country includes all lands within the exterior 
boundaries of an Indian reservation irrespective of who owns the land, 
an applicable certification plan administered pursuant to a Tribal-EPA 
agreement (i.e., pursuant to section 171.307(a) of the proposed rule), 
would generally apply on all land that is located within the exterior 
boundaries of an Indian reservation. Although proposed section 
171.307(a) (like section 171.10(a) of the existing rule) permits Indian 
Tribes to allow RUP use by applicators holding valid State 
certifications, the rule would not authorize or approve any State plan 
or exercise of State jurisdiction in Indian country under FIFRA, 
whether on fee-owned land or otherwise. For purposes of the 
certification plan, jurisdiction under this scenario would be exercised 
by the relevant Tribe and EPA in accordance with the Tribal-EPA 
agreement. To the extent the Tribal fee land described in the Tribal 
organization's comment is within the exterior boundaries of an Indian 
reservation, it would be reservation land and, thus, Indian country, 
regardless of the fact that a Tribe or other entity holds a deed of 
ownership to the land. EPA notes that there may be circumstances where 
non-reservation lands are entirely surrounded by reservation lands. 
This may occur, for instance, where an Indian reservation is formed 
around an area that is never made part of the reservation, where land 
located within the original exterior boundaries of an Indian 
reservation loses its reservation status by virtue of an act of 
Congress, or in other unusual circumstances. To the extent the Tribal 
fee land described in the comment is non-reservation (and non-Indian 
country) land, then the State's RUP list would apply as it would in any 
other non-Indian country area.
    Comments--EPA-administered certification plan in Indian country. 
One Tribal organization stated that they did not support a Federal 
certification plan that would cover applicators using RUPs in 
different, non-contiguous parts of Indian country. Instead, the 
commenter expressed support for the existing EPA plan for the 
certification of applicators of RUPs within Indian country which 
provides that ``[t]he certification on which the Federal certificate 
will be based must be from a State or Tribe with a contiguous boundary 
to the relevant areas of Indian country (Ref. 3).'' Additionally, the 
commenter stated that the existing EPA plan for certification in Indian 
country indicated that EPA Regional offices have little discretion in 
allowing Federal certification under the final EPA plan based on valid 
certifications from nearby States or Tribes not directly contiguous to 
the Indian country area at issue.
    One Federal agency stated that EPA should consider certification 
under the corresponding State plan to be sufficient in place of the EPA 
national plan. The commenter believed that this would reduce the burden 
for applicators, particularly for APHIS Wildlife Services commercial 
applicators, whose assistance has been requested by the Tribe and who 
are already certified in that State.
    Additionally, two applicators stated that the rules and 
certification within Indian country should be the same as the rules and 
regulations governed by the State in which the Indian country exists.
    Response--EPA-administered certification plan in Indian country. It 
is EPA's position that certification plans in Indian country should 
serve the needs of the relevant Tribe and Indian country community. 
Tribes are not required to develop their own plans. Where EPA

[[Page 1015]]

has not approved a certification plan for an area of Indian country, 
the Agency is authorized to implement an EPA-administered plan for the 
Federal certification of applicators of RUPs pursuant to FIFRA sections 
11 and 23. 7 U.S.C. 136i, 136u. In any area of Indian country where EPA 
has not approved a Tribal certification plan and no other EPA-approved 
or administered plan applies, EPA will implement the 2013 ``EPA Plan 
for the Federal Certification of Applicators of Restricted Use 
Pesticides within Indian Country'' (Ref.3).
    The comments regarding an EPA-administered certification plan for 
Indian country appear to reflect a misunderstanding of what was meant 
in the proposal. EPA wishes to clarify that the EPA-administered plan 
would cover applicators in different, non-contiguous parts of Indian 
country in the sense that it is intended to serve all areas of Indian 
country throughout the United States where no other certification 
mechanism exists (i.e., Indian country of those Tribes that do not 
implement their own certification plan or base their certification on 
those of another certifying authority, or where no other approved plan 
is in place). Such a plan is already in place and the options for 
certification methods established in the 2013 ``EPA Plan for the 
Federal Certification of Applicators of Restricted Use Pesticides 
within Indian Country'' are unaffected by these rule changes (Ref. 3). 
EPA anticipates that in most cases it will issue certifications to 
individuals with documentation of certification to apply federally 
designated RUPs through a Federal plan or through an EPA-approved State 
or Tribal plan with a contiguous boundary to the relevant area of 
Indian country. Additionally, an EPA-issued certification will only be 
valid in those areas of Indian country specified by that certification 
and will not necessarily be applicable to different, non-contiguous 
areas of Indian country.
    Most areas of Indian country are not covered by an EPA-approved 
plan, so the EPA-administered plan for the federal certification of 
applicators of RUPs within Indian country already applies to most of 
Indian country. Since private and commercial applicators certified by a 
State have no authority to apply RUPs in Indian country except pursuant 
to a Tribal plan or the Federal plan, EPA believes any provisions that 
facilitate these plans will be a benefit to State-certified 
applicators, rather than a burden. EPA does not believe that the 
requirements for the EPA-administered plan in the final rule will 
negatively impact or cause undue burden on private or commercial 
applicators because applicators with an approved certification from a 
certifying authority with a contiguous boundary to the relevant area of 
Indian country will likely be able to obtain certification under the 
EPA-administered plan. The changes in the final rule are primarily a 
clarification of existing requirements and policy, and not the 
imposition of substantial new requirements or obligations with respect 
to the EPA-administered plan. As such, applicators seeking 
certification in areas of Indian country under the EPA-administered 
plan are already familiar with this process.

B. EPA's Consultation Process With Tribal Governments

    Comments. One Tribal organization provided comments on EPA's 
consultation process during the proposed rulemaking, expressing the 
view that the Tribal consultation regarding the proposed rule fell 
short for at least three reasons. First, the commenter stated that EPA 
failed to indicate to whom the letters of invitation for consultation 
were sent, such as Tribal leaders, administrators and/or environmental 
department directors. The commenter stated that this is important 
information to know in order to determine whether EPA provided Indian 
Tribes with proper notice about consultation regarding the proposed 
rule. Second, the commenter stated that EPA failed to provide proof 
that the Tribal representatives who participated on the Tribal 
consultation calls were designated by their respective Tribes to 
consult with EPA. Absent such a designation, the commenter suggested 
that these representatives were likely participating for informational 
purposes only. Third, the commenter indicated that the Tribal 
consultation took place several years ago, long before EPA knew what 
portions of the Certification of Pesticide Applicators rule it was 
considering revising, and suggested that EPA should have invited Tribes 
to participate in additional government-to-government consultation at a 
time closer to the proposal being issued. The commenter stated that EPA 
must engage in meaningful government-to-government consultation now to 
allow for each individual Tribe to consider the proposal in its own 
way.
    Response. As stated in the proposed rule, EPA consulted with Tribal 
officials during the development of this action via a series of 
scheduled conference calls with Tribal representatives to inform them 
about potential regulatory changes, especially areas that could affect 
Tribes, and to inform EPA's development of the proposed rule. EPA also 
informed the commenter about the potential changes to the rule. A 
summary of EPA's Tribal consultation is provided in the docket for this 
action (Ref. 30).
    During the consultation process, the Agency prepared a letter of 
invitation (Ref. 47) and a fact sheet (Ref. 48) on the Certification of 
Pesticide Applicators rule for mailing to federally-recognized Tribal 
leaders, environmental directors, and pesticide program directors. 
Approximately one thousand letters and fact sheets were mailed to 
Tribal leaders in early April 2010, prior to the scheduled consultation 
calls. An initial call was held with the commenter on April 7, 2010, to 
inform them of the consultation and provide an overview of the 
regulatory revisions. The consultation calls were held on April 27 and 
29, 2010. Twenty-five Tribal representatives attended one or both 
calls. Among the nearly 20 different Tribes represented during the 
calls, EPA was able to document participation from the following 
Tribes:

     Sac & Fox Tribe of the Mississippi in Iowa (Meskwaki 
Nation)
     Salt River Pima-Maricopa Indian Community
     Yakama Nation
     Flandreau Santee Sioux Tribe
     Jicarilla Apache Nation
     Gila River Indian Community
     Southern Ute
     Confederated Salish and Kootenai Tribes
     Winnebago Tribe of Nebraska
     Oglala Sioux Tribe

    EPA began the consultation process noting that the regulatory 
process was continuing to move forward and this was the time for Tribes 
to offer their comments and suggestions prior to proposal, and that 
there would be further opportunities to comment after the proposed rule 
was published. The background of the rule was presented, and 
discussions were held among the participants.
    As indicated by the commenter and docketed material, EPA sent the 
Tribes the letter inviting Tribal leaders to participate in 
consultations on April 1, 2010, and the consultation meetings occurred 
April 27 and 29, 2010. EPA acknowledges that this was a short timeframe 
between receiving the notification and holding the consultation 
meeting, and that the Agency should continue to strive to improve our 
consultation protocols to ensure that sufficient time is available for 
Tribes to participate in consultations. EPA notes that this 
consultation occurred prior to the

[[Page 1016]]

Agency issuing its Tribal consultation policy in May 2011, titled ``EPA 
Policy on Consultation and Coordination with Indian Tribes,'' (Ref. 49) 
and that the Agency's consultation procedures have continued to improve 
following finalization of that Policy. In conducting consultation on 
this regulatory revision, EPA followed the procedures that were in 
effect at that time. Additionally, EPA believes that the consultation 
efforts in 2010, which covered both the Worker Protection Standard 
rulemaking and Certification of Pesticide Applicators rule (Ref. 30), 
provided adequate materials (e.g., presentation (Ref. 50), fact sheet 
(Ref. 48), follow-up report (Ref. 30)) for Tribal leaders and 
representatives to review. The information provided in those materials 
and the consultation meetings represented proposals that were not 
substantially different from what EPA eventually published in the 
proposed rule, which include efforts to revise the rule to streamline 
opportunities for Tribes to participate in the certification and 
training program. Given that EPA believes it provided adequate 
information and materials to the Tribes on the proposed changes, that 
the rule closely corresponds to the proposals in regard to 
certification in Indian country, and that EPA did not receive any 
comments on the proposals from individual Tribes, EPA does not believe 
that further consultation is needed prior to finalizing the rule.
    EPA plans to provide at least two informational sessions for Tribes 
on the final rule to assist Tribes in understanding the changes to the 
rule and the resource needs for both implementation and enforcement. 
One of these informational sessions will be provided to the Tribal 
organization that provided the comment, while the other session will be 
an open session for all 567 federally recognized Tribes. These 
informational sessions will be in addition to the general outreach and 
implementation and compliance assistance that EPA plans to offer to all 
stakeholders over the next year.

XVIII. Revise Provisions for EPA-Administered Plans

A. Existing Rule and Proposal

    The existing rule establishes requirements for EPA-administered 
certification of applicators of RUPs in States or areas of Indian 
country without EPA-approved certification plans in place, including 
specific standards for certification and recertification of pesticide 
applicators.
    EPA proposed to revise the existing rule to incorporate the 
proposed changes to State certification plans related to applicator 
certification, recertification, and noncertified applicator 
qualifications, as well as reporting and maintenance requirements. EPA 
intended the proposed revisions to parallel the proposed revisions to 
requirements proposed for States, Tribes, and other Federal agencies.

B. Final Rule

    EPA is finalizing the requirements for EPA-administered 
certification plans to parallel State certification plan requirements. 
The final requirements are substantially similar to the proposal, 
except where the proposed requirements for State certification plans 
have changed in the final rule, corresponding changes have been adopted 
in the EPA-administered plan section. The final regulatory requirements 
for EPA-administered plans are available at 40 CFR 171.311.

C. Comments and Responses

    Comments. One commenter expressed general support for the proposed 
revisions to this section. Two commenters suggested that EPA-
administered plans should fall within the same standards as the State 
within which the plan is being administered.
    Response. EPA notes that by definition, an EPA-administered plan 
cannot fall within the same standards as the State within which the 
plan is being administered, because EPA only administers certifications 
if there is no certification plan in place for the jurisdiction. 
However, any EPA-administered plan will meet or exceed the standards 
for State plans in Sec.  171.303 of the final rule.

XIX. Revise Definitions and Restructure 40 CFR Part 171

A. Definitions

    1. Existing rule and proposal. The existing rule includes 
definitions for terms related to the rule, as well as terms defined in 
FIFRA.
    EPA proposed to delete, amend, and add definitions to the rule. EPA 
proposed to delete terms defined in FIFRA, as well as terms not 
relevant to the proposed rule. EPA proposed to redefine ``agricultural 
commodity'', ``certification'', ``compatibility'', ``competent'', 
``dealership'', ``non-target organism'', ``ornamental'', ``practical 
knowledge'', ``principal place of business'', and ``toxicity.'' EPA 
proposed to replace five existing terms with new terms: Replace 
``accident'' with ``mishap,'' replace ``calibration of equipment'' with 
``calibration,'' replace ``protective equipment'' with ``personal 
protective equipment,'' replace ``uncertified persons'' with 
``noncertified applicator,'' and replace ``restricted use pesticide 
dealer'' with ``restricted use pesticide retail dealer.'' EPA proposed 
to add new terms and definitions: ``Application,'' ``application 
method,'' ``application-method specific certification category,'' 
``applicator,'' ``fumigant'' and ``fumigation,'' ``Indian country'' and 
``Indian Tribe,'' ``use'' and ``use-specific instructions.''
    2. Final rule. The final rule deletes all terms as proposed, except 
for ``Agency'' (retained existing definition with minor changes). The 
final rule adds two terms and definitions: ``Applying'' and ``immediate 
family.'' EPA is not finalizing two proposed terms and definitions: 
``Application method,'' and ``application-method specific category.'' 
About half of the proposed definitions are being finalized as proposed 
while the other half have been revised, as described below. Commenters 
requested that EPA add the following definitions, but they are not 
included in the final rule: ``Active training time,'' ``drones,'' 
``immediate,'' and ``immediately.'' Relevant definitions and terms are 
discussed below in alphabetical order.
    The final regulatory text for these definitions is available at 40 
CFR 171.3.
    3. Active training time. i. Existing rule and proposal. ``Active 
training time'' is not defined in the current or proposed rules.
    ii. Final rule. The final rule does not include a definition for 
``active training time.''
    iii. Comments and responses.
    Comments. One certifying authority requested a definition for the 
term ``active training time,'' noting that EPA used the term in 
discussions of the length of time that constitutes a CEU.
    Response. The final rule does not define CEUs or the number of CEUs 
that an applicator must earn to maintain certification. Therefore, EPA 
has not included this term in the final rule.
    4. Agricultural commodity. i. Existing rule and proposal. EPA 
proposed to modify the definition of ``agricultural commodity'' in the 
existing rule by inserting the phrase ``but not limited to,'' as 
follows (emphasis added): ``agricultural commodity means any plant, or 
part thereof, or animal, or animal product, produced by a person 
(including, but not limited to, a farmer, rancher, vineyardist, plant 
propagator, Christmas tree grower, aquaculturist, floriculturist, 
orchardists forester, or other comparable persons) primarily for sale, 
consumption, propagation, or other use by man or animals.''

[[Page 1017]]

    ii. Final rule. The final rule revises the proposed definition to 
include fungus and algae. Agricultural commodity means any plant, 
fungus, or algae, or part thereof, or any 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 
use by man or animals.
    iii. Comments and responses.
    Comment. One commenter suggested the EPA consider expanding the 
definition of agricultural commodity to include fungi (e.g., mushrooms) 
and algae.
    Response. In the final rule, EPA is revising the definition of 
``agricultural commodity'' as suggested by the commenter to ensure that 
mushrooms and algae are included in the scope of the definition.
    5. Agency. i. Existing rule and proposal. ``Agency'' is defined in 
the existing rule to mean the United States Environmental Protection 
Agency unless otherwise specified. EPA unintentionally omitted this 
definition from the proposal.
    ii. Final rule. The final rule retains ``Agency'' and the existing 
definition of Agency, with some changes to the order of the words.
    6. Application and applying. i. Existing rule and proposal. 
``Application'' is not defined in the existing rule. EPA proposed to 
define ``application'' to mean ``the dispersal of a pesticide on, in, 
at, or around a target site.''
    ii. Final rule. EPA has revised the proposed definition in the 
final rule to replace ``around'' with ``directed toward.'' EPA has also 
revised the term defined to include both ``application'' and 
``applying.'' The final definition is ``Application and applying mean 
the dispersal of a pesticide on, in, at, or directed toward a target 
site.''
    iii. Comments and responses.
    Comments. Commenters expressed a belief that the inclusion of the 
word ``around'' in the definition could be interpreted as allowing 
pesticide overspray or drift. They explained that a target site is a 
specific defined area where a pesticide is applied, and that using the 
word ``around'' could lead someone to think that it is acceptable if a 
treatment is ``in the ballpark.'' Commenters urged EPA to eliminate the 
word ``around'' from this definition. One commenter recommended EPA 
replace the term ``around'' with ``perimeter.''
    Response. EPA agrees with commenters that the word ``around'' in 
this context could be misconstrued as permitting off-target 
application. In the final rule, EPA has replaced ``around'' with 
``toward,'' to shift the focus to the user's intention to direct the 
application towards the target site. The revised definition appears 
sufficient for distinguishing between application and other pesticide-
related activities (e.g., mixing, disposal), and should not be 
interpreted as a statement regarding what applications are lawful. EPA 
notes that off-target application of an RUP is misuse and a violation 
of FIFRA.
    7. Application method and application method-specific category. i. 
Existing rule and proposal. ``Application method'' and ``application 
method-specific category'' are not defined in the existing rule. EPA 
proposed to add these two terms to the rule.
    ii. Final rule. EPA is not adding either of these terms to the 
final rule. EPA has chosen not to distinguish application method-
specific categories from other use categories in the final rule, so 
adding these terms to the rule is not necessary.
    8. Applicator and certification. i. Existing rule and proposal. 
``Applicator'' is not defined in the existing rule. EPA proposed to 
define ``Applicator'' to mean ``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.''
    In the existing rule, ``certification'' means ``the recognition by 
a certifying agency that a person is competent and thus authorized to 
use or supervise the use of restricted use pesticides. EPA proposed to 
define ``certification'' to mean ``a certifying authority's issuance, 
pursuant to this part, of authorization to a person to use or supervise 
the use of restricted use pesticides.''
    ii. Final rule. The final rule includes ``applicator'' and 
``certification'' as proposed.
    iii. Comments and responses.
    Comments. One commenter argued that since almost every State also 
defines ``applicator'' and ``certification'' to include general use 
pesticides, both definitions in this rule should include non-RUPs. 
Another commenter supported the definitions as proposed.
    Response. EPA acknowledges that many certifying authorities may 
define ``applicator'' and ``certification'' to include non-RUPs. 
However, FIFRA allows EPA to establish standards for certification only 
for users of RUPs, not all pesticides. Therefore, EPA has decided to 
finalize the definitions as proposed, including only RUPs, not all 
pesticides.
    9. Calibration. i. Existing rule and proposal. In the existing 
rule, EPA defines ``calibration of equipment.'' EPA proposed minor 
changes to the definition, removing the phrase ``of equipment'' and 
adding the phrase ``if applicable,'' to read: ``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 particle size of a pesticide dispersed 
by the equipment.''
    ii. Final rule. The final rule revises the definition of 
calibration to mean ``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 particle size of a 
pesticide, and/or equalized dispersal pattern.''
iii. Comments and Responses
    Comment. One commenter noted that the existing and proposed 
definitions of calibration do not contain a reference to equalized 
pattern or product dispersion. The commenter contended that these 
elements are critical to proper use.
    Response. EPA agrees with the commenter and as a result has amended 
the definition to include ``equalized dispersal pattern.''
    10. Certified applicator. i. Existing rule and proposal. In the 
existing rule, ``certified applicator'' means any individual who is 
certified to use or supervise the use of any restricted use pesticides 
covered by his certification. EPA proposed to remove the definition 
from the rule.
    ii. Final rule. The final rule does not include a definition of 
certified applicator.
    11. Certifying authority. i. Existing rule and proposal. 
``Certifying authority'' is not defined in the existing rule. EPA 
proposed to define ``certifying authority'' as ``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.''
    ii. Final rule. EPA is finalizing the definition as proposed.
    12. Compatibility. i. Existing rule and proposal. The existing rule 
includes a definition of ``compatibility.'' EPA proposed to redefine 
``compatibility'' to mean ``the extent to which a pesticide can be 
combined with other chemicals without causing undesirable results.''
    ii. Final rule. EPA is finalizing the definition as proposed.

[[Page 1018]]

    13. Competent (competency) and practical knowledge. i. Existing 
rule and proposal. The existing rule defines ``competent'' and 
``practical knowledge.'' EPA proposed to redefine ``competent'' to mean 
``having the practical knowledge, skills, experience, and judgement 
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'', and 
``practical knowledge'' to mean ``the possession of pertinent facts and 
comprehension sufficient to properly perform functions associated with 
the application of restricted use pesticides, including properly 
responding to reasonable foreseeable problems and situations.''
    ii. Final rule. EPA is changing the term from ``competent'' to 
``competency'' and finalizing the definition as proposed for the term 
``competent.'' In the final rule, EPA is revising the definition of 
``practical knowledge'' by replacing the phrase ``application of 
restricted use pesticides'' with ``use of restricted use pesticides'' 
to clearly include all of the activities included in the definition of 
use. In the final rule, ``practical knowledge'' means ``the possession 
of pertinent facts and comprehension sufficient to properly perform 
functions associated with the use of restricted use pesticides, 
including properly responding to reasonable foreseeable problems and 
situations.''
iii. Comments and Responses
    Comments. One commenter supported the proposed definition for 
``competent.'' Another commenter argued that the definitions of 
``competent'' and ``practical knowledge'' are unsatisfactory because 
they raise the question of who determines what counts as practical. The 
commenter suggested that these definitions require clarity and ought to 
be grounded in the basic tenets of credentialing practice. The 
commenter recommended replacing the term ``competent'' with 
``competencies'' defined as ``the collective knowledge, skills, and 
abilities necessary to perform a job.'' The commenter recommended 
replacing ``practical knowledge'' with ``job knowledge,'' defined as 
``an article of information job holders need to know in order to 
perform the job.'' The commenter recommended adding ``job skill'' 
defined as ``an acquired proficiency needed to perform a job 
activity;'' ``job analysis'' defined as ``the collection and 
organization of information about a job in terms of what jobholders do 
and the qualities they need to possess in order to perform the job-
derived from actual jobholders or persons who immediately supervise the 
work;'' and ``standard'' defined as ``a recognized degree of 
proficiency, as determined by a passing score on a job-related 
examination.''
    Response. EPA appreciates the commenter's suggestions to align the 
definitions with basic credentialing tenets, but does not agree with 
changing the definitions or adding the terms proposed by the commenter. 
EPA believes the proposed definitions appropriately contextualize basic 
credentialing tenets within the framework of FIFRA and the 
certification of RUP applicators. EPA recognizes that there is an 
element of subjectivity to these definitions, and expects each 
certifying authority to exercise its sound judgment in determining--
within the parameters set by these definitions and subject to EPA's 
approval of the certifying authority's certification plan--what is 
practical and who is competent to apply RUPs.
    14. Dealership. i. Existing rule and proposal. The current rule 
defines dealership, and the definition applies only to dealerships in 
States or in Indian country where EPA administers the certification 
plan. EPA proposed to redefine ``dealership'' to mean ``any 
establishment owned or operated by a restricted use pesticide retail 
dealer where restricted use pesticides are distributed or sold,'' and 
to apply the definition to all situations.
    ii. Final rule. EPA is finalizing the definition as proposed.
    15. Drone. i. Existing rule and proposal. The term ``drone'' is not 
included or defined in the existing or proposed rules.
    ii. Final rule. The final rule does not include or define 
``drone.''
iii. Comments and Responses
    Comment. One commenter argued that EPA should define the term 
``drone'' because the commenter expects that the use of drones, also 
known as ``Unmanned Aerial Vehicles (UAVs)'' in agricultural practices, 
including for aerial application of pesticides, will increase.
    Response. EPA is not defining ``drone'' in this rulemaking, but may 
consider it for future rulemaking.
    16. Fumigant and Fumigation. i. Existing rule and proposal. The 
existing rule does not include or define ``fumigant'' or 
``fumigation.''
    EPA proposed to define ``fumigant'' to mean ``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'', and ``fumigation'' as ``the application of a fumigant''.
    ii. Final rule. The final rule revises definition of ``fumigant,'' 
to mean ``a restricted use pesticide that bears labeling designating it 
as a fumigant.'' The final rule revises the definition of 
``fumigation'' to mean ``the use of a fumigant.''
3. Comments and Responses
    Comments. EPA received comments on these definitions from two 
certifying authorities, a pesticide manufacturer, an organization of 
pesticide manufacturers, a pesticide applicator organization, and a 
university extension program. One commenter supported the proposed 
definitions. Other commenters opposed the proposed definitions, and two 
commenters explained that there were programmatic consequences to the 
proposed definition. For example, some commenters contended that as 
written, the definitions of fumigation and fumigant would unnecessarily 
require applicator certification and excessive training and education 
for non-RUP, low-risk products and prohibit the use by applicators who 
are now qualified to use them.
    Commenters explained that the proposed definition describes 
products that have fumigant activity (based on their ability to harm 
plants via vapor drift) but are not fumigants, such as foggers, pest 
strips, mothballs, and the herbicides 2,4-D and clomazone. One 
commenter noted that the vast majority of all pesticides form gasses to 
one degree or another. One commenter requested that the definition be 
specific to pesticides that are active gasses. Another commenter 
contended that the proposed definition does not consider materials like 
phosphides, which do not form a gas upon application but instead 
release gas as the product reacts with atmospheric moisture. Another 
commenter argued that vapor and gas are ill-defined terms that mean 
different things to different people, even among physical chemists. 
Furthermore, the commenter contends that a product's mode of action 
(i.e., vapor or gas) is irrelevant. Instead, what is relevant is the 
risk profile of a pesticide classified as an RUP and a fumigant.
    Several commenters offered alternative definitions. One commenter 
suggested changing the definition to ``fumigant means a restricted use 
pesticide in which the target mode of action is achieved by the product 
in a gaseous or vapor state or by a reaction to form a gas or vapor.'' 
Another

[[Page 1019]]

commenter suggested ``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.'' One commenter explained 
the importance of including the phrase ``whose pesticidal action is 
through the gaseous state.'' This phrase excludes pesticides that 
vaporize and cause pesticidal action with limited weak movement that 
does not penetrate commodities or structures in the same way true 
fumigants do. One commenter argued that EPA could remove the ambiguity 
of the proposed definition by defining a fumigant as one that is 
labeled a fumigant. Another noted that because the proposed rule 
applies only to RUPs, the definition should be ``fumigant means a 
restricted use pesticide whose label classifies the product as a 
fumigant.''
    Response. EPA acknowledges that the proposed definition could be 
interpreted to exceed the intended scope. In response to the comments, 
EPA defines fumigant for the purposes of this rule as an RUP whose 
labeling designates it as a fumigant.
    17. Immediate and immediately. i. Existing rule and proposal. The 
terms are not defined in the existing or proposed rules.
    ii. Final rule. The final rule does not define the terms 
``immediate'' and ``immediately.''
iii. Comments and Responses
    Comments. Some commenters urged EPA to add a definition for the 
terms ``immediate'' or ``immediately available'' as they apply to the 
availability of a supervisor of a noncertified applicator. One 
commenter argued that while in practice adequate supervision is going 
to vary considerably by site, situation, pesticide being used, 
geography, abilities of the supervisor, and other factors, the 
commenter expressed a belief that there is a need to not leave the 
terms completely open ended. Some commenters suggested defining these 
terms to allow for the supervisor to be able to arrive at the site of 
application within three hours of communication from the noncertified 
applicator, or to be physically present at the site of application. One 
commenter contended that immediate communication should mean that 
individuals can contact each other and communicate orally such as a 
two-way radio or cell phone, but should not include text messaging or 
voicemail.
    Response. EPA has chosen not to define ``immediate communication'' 
in the final rule to allow it to be interpreted as needed according to 
the characteristics of the application and application site. Although 
some commenters requested a definition, they also explained that there 
are many variables involved that determine the type of communication, 
such as the type of application and product applied, geographic 
locations and distances in remote areas, and the availability of cell 
phone service. EPA recognizes that some certifying authorities have 
established definitions for ``immediate communication'' and expects 
that those certifying authorities will continue to use their existing 
definitions, which may include limits on time, distance, and method of 
communication.
    18. Immediate family. i. Existing rule and proposal. The term 
``immediate family'' is not defined in the existing or proposed rules.
    ii. Final rule. EPA is adding a definition for ``immediate family'' 
to the final rule. This definition is relevant to the exception to the 
minimum age requirement for noncertified applicators under the direct 
supervision of private applicators. The final rule defines ``immediate 
family'' as it is defined in the revised WPS (40 CFR 170.305). 
Immediate means familial relationships limited to the spouse, parents, 
stepparents, foster parents, father-in-law, mother-in-law, children, 
stepchildren, foster children, sons-in-law, daughters-in-law, 
grandparents, grandchildren, brothers, sisters, brothers-in-law, 
sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. 
``First cousin'' means the child of a parent's sibling, i.e., the child 
of an aunt or uncle.
iii. Comments and Responses
    Comments. Some commenters requested an exception or exemption to 
the proposed minimum age requirements for family farms. As part of the 
exception, some commenters recommended defining ``immediate family'' as 
defined in the Worker Protection Standard (WPS).
    Response. EPA considered commenters' requests for an exemption or 
exception to the minimum age requirement and to use the same definition 
of ``immediate family'' as defined in the WPS. In the revised WPS, EPA 
expanded the definition to include grandparents, grandchildren, some 
in-laws, cousins, aunts, uncles, nieces and nephews to better reflect 
the actual patterns of family-based farm ownership in the United States 
(Ref 36, p. 67540). Because the two regulations cover persons using 
RUPs in agriculture, EPA agrees that the same definition of immediate 
family should be applied. In the Certification Rule, EPA has finalized 
the definition of ``immediate family'' as the same definition provided 
in the WPS. See Unit XIII. for a discussion of the exception from the 
minimum age requirement for a noncertified applicator applying RUPs 
under the direct supervision of a certified private applicator who is 
an immediate family member of the noncertified applicator.
    19. Indian country. i. Existing rule and proposal. The term 
``Indian country'' is not defined in the existing rule. EPA proposed to 
define ``Indian country'' to mean ``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.''
    ii. Final rule. EPA is adding the term ``Indian country'' with the 
definition as proposed.
    iii. Comments and responses. See Unit XVII. for a complete 
discussion of comments and EPA's consideration of the definition of 
``Indian country'' in conjunction with the options for establishing a 
certification program in Indian country.
    20. Indian Tribe or Tribe. i. Existing rule and proposal. The term 
``Indian Tribe'' is not defined in the existing rule. EPA proposed to 
define ``Indian Tribe'' or ``Tribe'' to mean ``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.''
    ii. Final rule. EPA is finalizing the definition as proposed.
iii. Comments and Responses
    Comment. One commenter requested that EPA omit the definition of 
Indian Tribe in the final rule.
    Response. EPA disagrees with the commenter's request to omit the 
definition. The commenter did not propose a rationale for omitting the 
definition or alternatives.
    21. Mishap. i. Existing rule and proposal. In the existing rule, 
the term mishap is not defined, but a similar term, ``accident,'' is 
defined to mean ``an unexpected, undesirable event, caused by the use 
or presence of a pesticide, that adversely affects man or the 
environment.'' EPA proposed to replace

[[Page 1020]]

the term ``accident'' with ``mishap,'' defined to mean ``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.''
    ii. Final rule. The final rule retains the term ``mishap,'' but 
omits ``may'' from ``may adversely affect.'' The final definition is 
``an event that adversely affects man or the environment and that is 
related to the use or presence of a pesticide, whether the event was 
unexpected or intentional.''
iii. Comments and Responses
    Comments. A number of certifying authorities noted that the 
definition of ``accident'' is when an adverse event has occurred, while 
the proposed definition of ``mishap'' would include an adverse event 
may have occurred. Instead of using and defining the term ``mishap,'' 
the commenters requested that EPA retain the term ``accident'' as 
currently defined in 40 CFR 171. Furthermore, one commenter stated that 
``mishap'' appears to be unique to 40 CFR 171. Commenters argued that 
the new term is unnecessary, could be confused with similar terms 
already used (e.g., ``incident'') and is inconsistent with terminology 
used for pesticide incidents or events. The commenter urged EPA to 
remove this term, or to revise it to be consistent with existing 
definitions in the majority of certifying authorities' statutes and 
regulations.
    Response. EPA agrees with commenters that the word ``may'' does not 
belong in the definition, as the term mishap is intended to encompass 
events that do adversely affect man or the environment, not events that 
may adversely affect them. The term ``accident'' usually connotes an 
unintentional event, but ``mishap'' encompasses both intentional and 
unintentional events. EPA believes the broader term is appropriate as 
used in this rule.
    22. Non-target organism. i. Existing rule and proposal. In the 
existing rule, ``non-target organism'' means ``a plant or animal other 
than the one against which the pesticide is applied.'' EPA proposed to 
redefine ``non-target organism'' to mean ``any plant, animal or other 
organism other than the target pests that a pesticide is intended to 
affect.''
    ii. Final rule. EPA is finalizing the definition as proposed.
    23. Noncertified applicator. i. Existing rule and proposal. In the 
existing rule, ``uncertified applicator'' means ``any person who is not 
holding a currently valid certification document indicating that he is 
certified under section 11 of FIFRA in the category of the restricted 
use pesticide made available for use.'' EPA proposed to replace 
uncertified applicator with noncertified applicator, defined as ``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.''
    ii. Final rule. In the final rule, EPA is deleting ``uncertified 
applicator'' and revising the proposed definition of ``noncertified 
applicator'' to add the phrase ``in the category appropriate to the 
type of application being conducted.'' In the final rule, 
``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 category appropriate to the type of application being 
conducted 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.'' The 
change in the definition from the proposal to the final rule was made 
because a person who is a certified applicator in one category, such as 
turf and ornamental, would be a noncertified applicator if involved in 
the application of an RUP in a different category, such as industrial, 
institutional and structural pesticide control, and therefore would 
have to work under the supervision of a certified applicator.
    24. Ornamental. i. Existing rule and proposal. In the existing 
rule, ``ornamental'' means ``trees, shrubs, and other plantings in and 
around habitations generally, but not necessarily located in urban and 
suburban areas, including residences, parks, streets, retail outlets, 
industrial and institutional buildings.'' EPA proposed to redefine the 
term ``ornamental'' to mean ``trees, shrubs, flowers, and other 
plantings intended primarily for aesthetic purposes in and around 
habitations, buildings, and surrounding grounds, including residences, 
parks, streets, and commercial, industrial, and institutional 
buildings.''
    ii. Final rule. EPA is finalizing the definition as proposed.
    25. Personal protective equipment. i. Existing rule and proposal. 
In the existing rule, ``protective equipment'' means ``clothing or any 
other materials or devices that shield against unintended exposure to 
pesticides.'' EPA proposed to replace ``protective equipment'' with 
``personal protective equipment'' and define it to mean ``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.''
    ii. Final rule. EPA is finalizing the definition of ``personal 
protective equipment'' as proposed.
    26. Principal place of business. i. Existing rule and proposal. In 
the existing rule, ``principal place of business'' means ``the 
principal location, either residence or office, in the State in which 
an individual, partnership, or corporation applies pesticides.'' This 
definition only applies to dealers, dealerships and transactions in 
States or on Indian Reservations where EPA directly administers a 
pesticide applicator certification program. EPA proposed to redefine 
``principal place of business'' to mean ``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.''
    ii. Final rule. EPA is finalizing the proposed definition with one 
revision to replace ``business of applying RUPs'' with ``business that 
involves the use of RUPs.'' The final definition is ``Principal place 
of business means the principal location, either residence or office, 
where a person conducts a business that involves the use of 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.''
    27. Regulated pest. i. Existing rule and proposal. In the existing 
rule, ``regulated pest'' means ``a specific organism considered by a 
State or Federal agency to be a pest requiring regulatory restrictions, 
regulations, or control procedures in order to protect the host, man 
and/or his environment.'' EPA proposed to revise the definition of 
``regulated pest'' to ``a particular species of pest specifically 
subject to Tribal, State or Federal regulatory restrictions, 
regulations, or control procedures

[[Page 1021]]

intended to protect the hosts, man and/or the environment.''
    ii. Final rule. EPA is finalizing the definition as proposed.
    28. Restricted use pesticide. i. Existing rule and proposal. In the 
existing rule, ``restricted use pesticide'' is defined as ``a pesticide 
that is classified for restricted use under the provisions of section 
3(d)(1)(C) of the Act.'' EPA proposed to revise the definition of 
``restricted use pesticide'' to be ``a pesticide that is classified for 
restricted use under the provisions of FIFRA section 3(d).''
    ii. Final rule. In the final rule, EPA is revising the definition 
of ``restricted use pesticide'' to be more complete. The definition in 
the final rule is ``restricted use pesticide'' means ``a pesticide that 
is classified for restricted use under the provisions of section 3(d) 
of FIFRA and 40 CFR part 152, subpart I.''
    29. Restricted use pesticide retail dealer. i. Existing rule and 
proposal. In the existing rule ``restricted use pesticide dealer'' 
means ``any person who makes available for use any restricted use 
pesticide, or who offers to make available for use any such 
pesticide.'' EPA proposed to replace ``restricted use pesticide 
dealer'' with ``restricted use pesticide retail dealer'' and to define 
it to mean ``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.''
    ii. Final rule. EPA is finalizing the definition as proposed.
iii. Comments and Responses
    Comments. A few certifying authorities supported the inclusion of a 
restricted use pesticide retail dealer definition, and recommended 
clearer wording, such as ``means any person who is engaged in the 
business of distributing, selling, offering for sale, or holding for 
sale restricted use pesticides for distribution directly to users.'' 
One certifying authority offered as an alternative definition, ``any 
person who is engaged in the wholesale or retail sale of restricted use 
pesticides.''
    Response. EPA is finalizing the proposed definition. The phrase 
``distribute or sell'' is defined in FIFRA, 7 U.S.C. 136(gg), and 
includes all of the activities in the first suggested definition as 
well as others, so it is more clear for the definition to use the 
language from FIFRA. The final definition correctly excludes certain 
transactions, which could be included in ``wholesale or retail sale'' 
of RUPs.
    30. Toxicity. i. Existing rule and proposal. In the existing rule, 
the term ``toxicity'' means ``the property of a pesticide to cause any 
adverse physiological effects.'' EPA proposed to redefine ``toxicity'' 
to mean ``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.''
    ii. Final rule. EPA is revising this definition to be ``toxicity'' 
means ``the property of a pesticide that refers to the degree to which 
the pesticide, and its degradates and metabolites, are able to cause an 
adverse physiological effect on an organism.''
    31. Under the direct supervision of. i. Existing rule and proposal. 
In the existing rule at Sec.  171.2(a)(28) EPA defines the term ``under 
the direct supervision of'' to mean the act or process whereby the 
application of a pesticide is made by a competent person acting under 
the instructions and control of a certified applicator who is 
responsible for the actions of that person and who is available if and 
when needed, even though such certified applicator is not physically 
present at the time and place the pesticide is applied. ``Direct 
supervision'' is not defined in the existing or proposed rules.
    ii. Final rule. EPA is deleting ``under the direct supervision of'' 
and is not codifying a definition of the term ``direct supervision'' in 
the final rule.
iii. Comments and Responses
    Comments. EPA received comments from two certifying authorities. 
One commenter requested a definition for ``direct supervision'' and 
suggested that the term ``under the direct supervision of'' be defined 
to mean ``the act or process whereby the application of a pesticide is 
made by a competent person acting under the instructions and control of 
a certified applicator who is responsible for the actions of that 
person and who is available if and when needed, even though such 
certified applicator is not physically present at the time and place 
the pesticide is applied.'' Another commenter noted that their State 
definition of direct supervision differs from the federal in that the 
State requires the physical presence of a certified applicator within 
line of sight or hearing distance of a non-certified applicator using 
RUPs in a private application setting or any category pesticide in a 
commercial application setting.
    Response. EPA appreciates the interest from commenters, but EPA's 
discretion to interpret ``under the direct supervision of a certified 
pesticide applicator'' is constrained by FIFRA section 2(e)(4), which 
provides that ``unless otherwise prescribed by its labeling, a 
pesticide shall be considered to be applied under the direct 
supervision of a certified applicator if it is applied by a competent 
person acting under the instructions and control of a certified 
applicator who is available if and when needed, even though such 
certified applicator is not physically present at the time and place 
the pesticide is applied.'' Because of this statutory definition, it is 
not necessary to define either term in the final rule.
    32. Use. i. Existing rule and proposal. The existing rule does not 
define ``use''. EPA proposed to define ``use'' as in ``to use a 
pesticide'' means any of the following:
    (a) Pre-application activities involving mixing and loading the 
pesticide.
    (b) Applying the pesticide, including, but not limited to, 
supervising the use of a pesticide by a noncertified applicator.
    (c) Other pesticide-related 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 pesticide-
containing materials.
    ii. Final rule. The final rule differs from the proposed definition 
in that it omits the proposed pre-application activities except for 
mixing and loading and adjusts the wording of paragraph (c) to be 
consistent with the description of ``other pesticide-related 
activities'' in the WPS definition of use in 40 CFR 170.305. The final 
definition is: Use, as in ``to use a pesticide'' means ``any of the 
following:
    (a) Pre-application activities involving mixing and loading the 
pesticide.
    (b) Applying the pesticide, including, but not limited to, 
supervising the use of a pesticide by a noncertified applicator.
    (c) Other pesticide-related 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 pesticide-
containing materials.''
iii. Comments and Responses
    Comments. Many certifying authorities, organizations of certifying 
authorities, some applicator organizations, farm bureaus, and 
university extension programs commented on the definition of ``use''. 
All commenters were opposed to the

[[Page 1022]]

proposed definition. Many commenters addressed consequences of the 
change, while others offered suggestions to change the definition.
    Many commenters argued the definition of ``use'' was too broad and 
expansive. A few commenters expressed concern that certifying 
authorities would have to change their definition of ``use'' in their 
law, or it could be outside of the scope of their charter. There was 
some concern on the part of one commenter about the impacts to 
certifying authorities' staff time and resources to make such changes 
since the definition change has far reaching implications involving 
other elements of a regulatory program. Another commenter asked whether 
EPA would expand the label instructing ``users'' on how to perform the 
listed pre- and post-application activities like arranging for the 
application and cleaning equipment and whether the definition of 
``misuse'' would be redefined to correspond with the new definition of 
``use''. Another commenter contended that in some States the definition 
would apply equally to users of restricted and non-RUPs. As a result, 
it would be unmanageable to enforce pre- or post-use requirements of 
non-restricted pesticide use, on individuals who are not required by 
certifying agencies to be licensed or to maintain records.
    A number of commenters argued that the proposed definition of `use' 
should be limited to activities where an individual has the potential 
for exposure to pesticides, specifically the actions involved in the 
application or direct handling (i.e., mixing, loading, dispersing and 
disposing) of pesticides. One commenter asked that the definition 
include only individuals involved in the actual application. Some 
commenters contend that the written definition should specifically 
exclude all activities that cannot or do not lead to direct exposure to 
the pesticide product itself, pesticide containers, or pesticide 
residues.
    Many commenters took issue with the inclusion of most pre-
application activities in the proposed definition. One commenter 
contended that including pre-application decisions or activities in the 
term ``use'' is not consistent with how this term is used in other 
parts of FIFRA, especially where ``use inconsistent with the label'' is 
perhaps the most frequently-used violation used for enforcement 
purposes. 7 U.S.C. 136j. Many pesticide applicator organizations, some 
certifying authorities, university extension programs and farm bureaus, 
and a couple of certifying authority organizations were strongly 
opposed to including ``arranging for the application of a pesticide'' 
in the definition. One commenter believes that in States where the 
``end user'' is responsible for the proper use of the pesticide, some 
of the activities in the proposed definition (i.e., arranging for the 
application of the pesticide) may not be conducted by the end user and 
may therefore be unenforceable by the State. Commenters argued that 
arranging for the application involves individuals who may never come 
into contact with an RUP, such as truckers, staff at a pest control 
firm, consultants, sales staff, veterinarian clinical staff, 
entomologists, arborists, farmers who hire pesticide applicators and 
homeowners. Generally, such pre-application activities are not 
referenced on the pesticide product label. Instead, commenters stated 
that ``use'' should only refer to activities listed in existing label 
language under directions for use. Also, it would be difficult to 
enforce and costly to investigate violations for each instance of a 
pesticide application.
    Some commenters thought post-application activities would also be 
difficult to comply with and enforce, such as transporting open 
containers. It is unclear what part of ``transportation'' is being 
addressed and the use violation EPA is trying to prevent. As is, the 
scope of the definition would include anyone who is cleaning equipment, 
simply storing pesticide containers that have been opened or even 
washing shovels used in spill cleanup. One commenter opposed the 
inclusion of post-application activities of transporting opened 
containers, and disposing of equipment wash water and other materials 
contaminated with pesticides.
    Commenters disliked other parts of the definition of ``use.'' 
Specifically, some were against including responsibilities related to 
providing training, a copy of a label and use-specific instructions to 
noncertified applicators. They explained that trainers, industry 
experts, and corporate partners would have to become certified 
applicators of RUPs. One commenter asserted that only certified 
applicators could train noncertified applicators if training was part 
of ``use.'' One commenter opposed a reference to the WPS in the 
definition. Another commenter argued that including ``disposal of waste 
water'' in the definition of use would require facilities to make 
modifications and that this requirement was not considered in the EPA's 
assessment of financial impact. In addition, one applicator association 
argued that properly rinsed containers and properly cleaned equipment 
should not be included within the term ``use'' because the contaminants 
have been removed. One commenter opposed use of the phrase ``including, 
but not limited to'' in the proposed definition of ``use'' because it 
is open to interpretation by a regulator, trainer and applicator and 
makes it difficult to comply with and enforce.
    Suggestions to change the definition were offered by some 
certifying authorities and their organization, some university 
extension programs, and a few worker/handler advocacy organizations. 
These commenters mostly favored including broad activities directly 
related to the application or handling of pesticides. Similarly, some 
commenters argued that the definition of ``use'' should include 
activities related to handling open or empty containers, following 
label directions, disposing of rinsate or leftover pesticides and 
similar activities, and the direct application of pesticides, and 
should not include any other handling procedures related to the 
pesticide. One State suggested their definition of ``use'' which 
includes the ``loading, transport, storage or handling after 
manufacturer's seal is broken . . .'' One commenter suggested broadly 
defining ``use'' such as ``. . . the application of a pesticide in the 
production of agricultural crops or other purposes by a pesticide 
applicator.''
    Response. In response to commenters' concerns, EPA revised the 
final definition of ``use'' so it is not as broad or far reaching as 
the proposed definition. The final definition limits the pre-
application activities to mixing and loading the pesticide rather than 
the longer list of activities included in the proposed definition and 
in the WPS definition. EPA generally agrees with commenters that 
activities such as arranging for the pesticide application do not have 
to be done by a certified applicator or a noncertified applicator 
working under their supervision.
    The final definition retains the proposed activities regarding 
opened containers, cleaning equipment and disposal but changes the 
heading to ``Other pesticide-related activities'' and revising the 
wording to be consistent with the WPS definition. Transporting and 
storing opened containers, and disposal of pesticides and pesticide 
containers are all part of the core standards of competency for 
private, commercial and noncertified applicators as safety measures to 
avoid or minimize adverse health effects. While not in the competency 
standards, the activities of cleaning equipment and disposing of 
equipment wash waters may expose the persons engaging in those 
activities to pesticides and their residues.

[[Page 1023]]

    Commenters who are concerned about any possible inconsistencies 
between the federal and certifying authorities' definition of ``use'' 
are reminded that in the context of this rule, ``use'' is associated 
with RUPs only. Certifying authorities that currently do not 
distinguish between RUP and non-RUP applicators may reconsider whether 
such a distinction is more appropriate in the context of this final 
rule.
    EPA appreciates the suggested changes to phrases used in the 
proposed definition. However, EPA does not agree that the suggested 
phrase ``after the manufacturer's seal is broken'' is substantially 
different from the phrase in the definition ``containers that have been 
opened''. Both can refer to either containers that are open or 
containers that have been opened and closed by the user, but are no 
longer in the same condition as at the time of purchase. EPA has chosen 
to retain the language ``containers that have been opened''. The 
definition suggested by another commenter, ``the application of a 
pesticide in the production of agricultural crops or other purposes by 
a pesticide applicator'' is too general and does not encompass mixing, 
loading or the other-pesticide related activities that present exposure 
concerns. EPA maintains that the final definition sufficiently and 
adequately includes the main activities of applicators in the 
application and handling of pesticides, and their residues and 
containers that present significant concerns for exposure and risk to 
users, the public, and the environment.
    The final definition of ``use'' retains the phrase ``including but 
not limited to'', because it is neither necessary nor practical to 
specify every aspect of pesticide use that is addressed--or could in 
the future be addressed--on pesticide labeling.
    33. Use-specific instructions. i. Existing rule and proposal. The 
existing rule does not define the term ``use-specific instructions''. 
EPA proposed to define ``use-specific instructions'' to mean ``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.''
    ii. Final rule. In the final rule, EPA is revising the definition 
by replacing ``that are necessary in order for an applicator to'' with 
``that a user needs in order to.'' The definition of ``use-specific 
instructions'' is ``the information and requirements specific to a 
particular pesticide product or work site that a user needs in order to 
use the pesticide in accordance with applicable requirements and 
without causing unreasonable adverse effects.''

B. Restructuring of 40 CFR Part 171

    1. Existing rule and proposal. The existing rule 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, and the 
requirements for persons working under the direct supervision of a 
certified applicator; they also include definitions and a statement of 
purpose. The second half of the existing rule (40 CFR 171.7 through 
171.11) describes the procedures for States, Tribes, Federal agencies, 
and EPA to administer certification programs. The existing rule has a 
section titled ``Government Agency Plan'' describing a certification 
plan covering the entire Federal government that has not been developed 
or implemented.
    EPA proposed to reorganize the rule into four subparts: ``General 
Provisions''--scope, definitions and effective date, ``Certification 
Requirements for Applicators of Restricted Use Pesticides''--all 
standards for the certification and recertification of commercial and 
private applicators, ``Supervision of Noncertified Applicators''--all 
relevant standards for the certified applicator and the noncertified 
applicator using RUPs under his or her direct supervision, and 
``Certification Plans''--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.
    2. Final rule. EPA is adopting the new structure as proposed.
    3. Comment and response. EPA received one comment expressing 
general support for proposal to restructure the rule. EPA is codifying 
the proposed restructuring scheme.

XX. Implementation

A. Proposal

    EPA proposed to make the final rule effective 60 days after the 
final rule is published in the Federal Register. EPA proposed to 
require States, Tribes, and Federal agencies administering EPA-approved 
certification plans to submit amended certification plans to EPA for 
approval within two years of the effective date of the final rule. EPA 
proposed to review and respond to all certification plans submitted 
within 2 years. Therefore, EPA proposed to allow existing certification 
plans to remain in effect for up to four years from the effective date 
of the final rule. After four years, a State, Tribe, Federal agency, 
and EPA would be permitted to certify applicators of RUPs only if they 
have an EPA-approved certification plan that meets or exceeds all of 
the applicable requirements of the final rule. The proposal included a 
provision allowing existing certification plans to remain in effect 
until EPA approved the revised certification plan if the certifying 
authority had submitted the plan to EPA but EPA had not completed its 
review of the plan within the proposed timeframe.

B. Final Rule

    The final rule is effective 60 days after the date the rule is 
published in the Federal Register, March 6, 2017, as proposed. The 
final rule adjusts the proposed implementation timeframe to provide 
certifying authorities additional flexibility. Existing certification 
plans approved by EPA before the effective date of the rule will remain 
in effect until three years after the effective date of the final rule; 
if a certifying authority submits an amended certification plan to EPA 
for approval within three years of the effective date of the final 
rule, its existing certification plan will remain in effect until EPA 
has reviewed and responded to the amended certification plan, but no 
longer than two more years, unless EPA authorizes further extension in 
its approval of an amended certification plan. In its approval of an 
amended certification plan, EPA will specify how much longer the 
existing plan may remain in effect while the certifying authority 
prepares to implement its amended certification plan. EPA will base 
each certifying authority's implementation period on the particular 
circumstances of that jurisdiction, but anticipates that most 
certifying authorities will be allowed two years from the date of EPA 
approval to implement the plan.
    There are currently two EPA-administered certification plans, the 
EPA Plan for Federal Certification of Applicators of Restricted Use 
Pesticides Within Indian Country and the Federal Plan for Certifying 
Applicators in Navajo Indian Country. EPA intends to revise these plans 
to conform to the final rule no later than the dates applicable to 
existing plans in 171.5, and these plans will remain in effect 
consistent with 171.5.

C. Comments and Responses

    Comments. Two certifying authorities supported the proposed 
timeline. Many other States, certifying authority associations, 
university extension

[[Page 1024]]

programs, Tribes, some applicator associations, a farm bureau and few 
individuals opposed the proposed schedule and requested more time to 
submit certification plans, to allow for regulatory changes, and to 
implement the changes. Commenters contended it would take a tremendous 
amount of time and resources to make legislative and regulatory 
changes. According to a survey of certifying authorities by their 
associations, 34% of all certifying authorities indicated that they 
would need to revise regulations while 64% would have to revise both 
laws and regulations. Many certifying authorities explained their 
process and estimated timelines for making such changes, demonstrating 
a tremendous variety in timeframes and process among all programs. Some 
examples of steps in certifying authorities' processes that would make 
it difficult to revise the certification plan in the proposed 
timeframe:
     Engage in local legislative initiatives
     Hold public hearings
     Have final statutory and regulatory changes in place 
before submitting the revised certification plan to EPA
     Engage legislature on statutory revisions, which can 
require multiple exchanges; some legislatures meet on a biennial 
schedule so revised statutes take 2 years to enact.
    Some commenters were concerned that opening up statutes and 
regulations would increase the possibility of other changes being 
introduced. In all, comments demonstrated the complex nature of 
legislative and regulatory change that would be necessary to implement 
revised certification plans.
    Certifying authorities also commented that EPA's plan to develop 
and provide training materials and exams to support implementation 
would not relieve them of the burden and many resources needed to 
implement changes.
    Many certifying authorities and their organizations emphasized that 
EPA underestimated the amount of resources in staff and time to 
coordinate and implement legislative and regulatory change.
    Commenters requested that EPA articulate in the final rule that 
during the entire period for certification plan development and 
submission, and during EPA's review of submitted plans, there will be 
open and transparent negotiations with the certifying authorities. 
These commenters asserted that without such a discussion, certifying 
authorities would have a much harder time convincing the elected 
officials that the federal rule is warranted. Commenters also requested 
that EPA include in the final rule a clear and understandable outline 
showing the expected process by which the certifying authority and EPA 
will work toward a mutually acceptable outcome. Commenters also raised 
questions about the consequences to the certifying authority if EPA 
cannot accept the revised certification plan.
    Responses. EPA recognizes that implementing the final rule will 
require cooperation with each certifying authority. EPA intends to 
engage in open and transparent discussions and negotiations with 
certifying authorities as they develop revised certification plans and 
during EPA's review of the revised certification plans to ensure the 
certifying authority has adequate feedback to develop and submit a plan 
that EPA can approve and that meets the needs of the certifying 
authority. The submission, review, and negotiation process will involve 
the certifying authority, appropriate EPA Regional office (for States 
and Tribes), and EPA's Office of Pesticide Programs. EPA will establish 
an internal workgroup with participants from EPA headquarters and 
Regional offices for the review of certification plans that will 
provide nationally-consistent oversight and guidance, and answer any 
questions that arise during the process.
    EPA recognizes that certifying authorities and pesticide safety 
education programs will need to devote resources to additional 
training, manual development, exam development and review, exam 
administration, and other services that support certification and 
education of pesticide applicators in conformance with the final rule. 
EPA will continue to give priority to funding the States and Tribes for 
these programs through the State and Tribal Assistance Grants program. 
In addition, EPA is committed to working with the States and Tribes to 
provide resources and assistance to alleviate burdens as EPA's budget 
allows, such as by supporting development of training materials and 
exams that can be adopted in whole or part by States and Tribes for use 
in certification and training programs. Further, EPA will continue to 
provide funding to pesticide safety education programs from service 
fees collected under the Pesticide Registration Improvement Act and 
subsequent reauthorizations. Under the existing law, EPA must commit at 
least $500,000 of the funds collected by EPA related to pesticide 
registration-related actions to support the pesticide safety education 
program.
    In response to commenters' concerns, EPA has adopted a final rule 
with options for more flexible time frames. The final rule lengthens 
the time for certifying authorities to submit revised plans and allows 
EPA discretion to grant certifying authorities more or less than two 
years to implement newly approved plans. Certifying authorities will 
have three years to revise and submit their certification plans.
    The final rule adds a provision to grant conditional approval of 
certification plans. Certifying authorities unable to complete 
necessary legislative and regulatory changes before submitting their 
new certification plan would be allowed to submit a draft plan 
conditioned upon those changes becoming effective. EPA expects 
certifying authorities to submit a written request for conditional 
approval with a justification and anticipated time frame. EPA will 
grant conditional approvals to certifying authorities in writing.
    When EPA approves a plan, conditionally or unconditionally, it will 
establish and implementation schedule specific to that approved plan. 
EPA anticipates that most certifying authorities will be allowed two 
years from the date of EPA approval to implement the plan, but may set 
shorter or longer implementation periods as circumstances warrant. EPA 
will develop a process for certifying authorities to follow when 
submitting a draft or final certification plan and notifying EPA of 
final implementation.
    In response to commenters' questions about the status of a 
certification program if EPA does not approve the revised certification 
plan, EPA emphasizes that it plans to work jointly with each certifying 
authority to develop a workable certification plan that can be 
implemented in the jurisdiction and that meets EPA's standards. 
Decisions on certification plans will be made on a case-by-case basis. 
The process for EPA administering a certification plan is outlined in 
40 CFR 171.311.

XXI. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the person 
listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Economic Analysis of Final Revisions to the Applicator 
Certification Regulation. 2016.

[[Page 1025]]

2. EPA. Response to Comment on the Proposed Changes to the 
Certification of Pesticide Applicators Rule. 2016.
3. 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).
4. 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).
5. 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.
6. 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.
7. 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.
8. Mehler L. N., et al. California Surveillance for Pesticide-Related 
Illness and Injury: Coverage, Bias, and Limitations. Journal of 
Agromedicine. 2006. Vol. 11(2), pp. 67-79.
9. U.S. House of Representatives. Hidden Tragedy: Underreporting of 
Workplace Injuries and Illnesses. Committee on Education and Labor. 
Washington: Government. 2008.
10. Ruser, J. W. Examining Evidence on Whether BLS Undercounts 
Workplace Injuries and Illnesses. Monthly Labor Review. August 2008. 
Pp. 20-32.
11. Calvert, G., et al. Acute pesticide poisoning among agricultural 
workers in the United States, 1998-2005. American Journal of Industrial 
Medicine. 2008. Vol. 51(12), pp. 883-898.
12. Young, M., and Rischitelli, D.G. Occupational Risks and Risk 
Perception among Hispanic Adolescents. McGill Journal of Medicine. 
January 2006, Vol 9(1), pp. 49-53.
13. Casey, B.J., et al. The Adolescent Brain. Annals of the New York 
Academy of Sciences. March 2008. pp. 111-126.
14. 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.
15. 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.
16. NIOSH. Data from the Sentinel Event Notification System for 
Occupational Risk--Pesticides Program. 2014. http://wwwn.cdc.gov/niosh-survapps/sensor/.
17. EPA. Pesticides; Certification of Pesticide Applicators. Proposed 
Rule. Federal Register (80 FR 51356, August 24, 2015) (FRL-9931-83).
18. EPA. Certification Plan and Reporting Database. http://cpard.wsu.edu/reports/menu.aspx.
19. EPA. Certification of Pesticide Applicators. 40 CFR part 171. 
Federal Register (39 FR 36446, October 9, 1974) (FRL-269.1).
20. 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).
21. 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).
22. EPA. Certification of Pesticide Applicators; Expansion of 
Recertification Time Period. Final Rule. Federal Register (48 FR 29854, 
June 29, 1983) (FRL-2338-8).
23. EPA. Certification of Pesticide Applicators; Recordkeeping and 
Reporting Requirements. Final Rule. Federal Register (48 FR 53972, 
November 29, 1983) (FRL-2402-7).
24. EPA. Certification of Pesticide Applicator. Proposed Rule. Federal 
Register (55 FR 46890, November 7, 1990) (FRL-2402-7).
25. CTAG. Pesticide Safety for the 21st Century. 1999.
26. EPA. National Assessment of the Pesticide Worker Safety Program. 
Retrieved from EPA Web site. Pesticides: Health and Safety at http://www.epa.gov/oppfead1/safety/workshops.htm. August 3, 2015.
27. EPA. Report on the National Assessment of EPA's Pesticide Worker 
Safety Program. 2005.
28. EPA. Pesticide Program Dialogue Committee Worker Safety Regulation 
Change Subgroup, Summary of PREP and PPDC Comments. Washington, DC. 
2007.
29. 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.
30. EPA. OPP Tribal Consultation; Revisions to the Certification of 
Pesticide Applicators Regulation. 2010.
31. 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.
32. Lee, S.J., et al. Acute Pesticide Illnesses Associated with Off-
Target Pesticide Drift from Agricultural Applications. Environmental 
Health Perspectives. 2011. Vol. 119, pp. 1162-1169.
33. 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).
34. EPA. Review of Methyl Parathion Incident Reports. February 5, 1998.
35. 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.
36. EPA. Pesticides; Agricultural Worker Protection Standard Revisions. 
Final Rule. Federal Register (80 FR 67496, November 2, 2015) (FRL-9931-
81).
37. EPA. Interim National Program Guidance for EPA Regional Offices on 
EPA's Pesticide Applicator Certification Program (40 CFR part 171). 
July 2006.
38. EPA. OPP Report on Incidence Information: The Baseline. 2007.
39. EPA. 1987-2004 Annual Certified Applicator Data. Retrieved from EPA 
Web site. Pesticides: Health and Safety at http://www.epa.gov/oppfead1/safety/applicators/data.htm. August 3, 2015.
40. DOL. U.S. Bureau of Labor Statistics. Occupational Outlook 
Handbook.

[[Page 1026]]

2010-11 Library Edition. Bulletin 2800. Washington, DC.
41. Agarwal P.K., et al. Examining the Testing Effect with Open- and 
Closed-Book Tests. Applied Cognitive Psychology 2008. Vol 22(7), pp. 
861-876.
42. Durning, S.J., et al., ``Comparing Open-Book and Closed-Book 
Examinations: A Systematic Review.'' Academic Medicine. April 2016 Vol. 
91(4), pp. 583-599.
43. CTAG. Pesticide Applicator Recertification: Verifying Attendance at 
Recertification Events. 2009.
44. CTAG. Pesticide Applicator Recertification: Online Training--Course 
Design and Structure. 2010.
45. Kambam, P., and Thompson, C. The Development of Decision-Making 
Capacities in Children and Adolescents: Psychological and Neurological 
Perspectives and Their Implications for Juvenile Defendants. Behavioral 
Sciences and the Law. 2009. Vol. 27(2), pp. 173-190.
46. 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).
47. EPA. Tribal Consultation Letter for ``Pesticides; Certification of 
Pesticide Applicators.'' 2010.
48. EPA. FACT SHEET: EPA's Pesticide Applicator Certification Program 
Basic Elements and Summary of Key FIFRA and 40 CFR part 171 Provisions. 
2010.
49. EPA. EPA Policy on Consultation and Coordination with Indian 
Tribes. 2011. https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes
50. EPA. The Agricultural Worker Protection Standard and the 
Certification of Pesticide Applicators Rule (40 CFR parts 170 & 171)--
Background on Proposed Rule Changes. 2010.
51. EPA. Information Collection Request (ICR) for the Certification of 
Pesticide Applicators (Final Rule). EPA ICR No. 2499.02 and OMB Control 
No. 2070-0196. 2016.

XXII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is a significant regulatory action and was therefore 
submitted to the Office of Management and Budget (OMB) for review under 
Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive 
Order 13563 (76 FR 3821, January 21, 2011). A changes made in response 
to OMB recommendations received during that review have been documented 
in the docket. In addition, 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 II.C. (Ref. 1).

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted to OMB for approval under the PRA, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document that EPA prepared has 
been assigned EPA ICR No. 2499.02 and OMB Control No. 2070-0196 (Ref. 
51). You can find a copy of the ICR in the docket for this rule, and it 
is briefly summarized here. The information collection requirements are 
not enforceable until OMB approves them.
    The information collection activities related to the existing 
certification rule 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 2499.02 only 
addresses the changes to the existing certification rule. These 
include:
     Updating the information States, Tribes, and Federal 
agencies report to EPA.
     Updating the process and requirements for modifying a 
certification plan.
     Updating certifying authorities' databases to track the 
certification of applicators.
     Adding a provision for States to require recordkeeping by 
RUP dealers.
     Adding specific requirements for noncertified applicator 
training.
     Adding a provision for commercial applicators to keep 
records of noncertified applicator training.
    Respondents/affected entities: Certified applicators; private and 
commercial. The number of applicators is based on the Certification 
Plan and Reporting Database for the years 2009 to 2014 (CPARD, 2015), 
there are 420,999 commercial applicators and 482,925 private 
applicators.
    Noncertified applicators under the direct supervision of certified 
applicators. It is estimated that there are 918,892 noncertified 
applicators who apply RUPs under the direct supervision of commercial 
certified applicators, and there are 28,092 noncertified applicators 
who apply RUPs under the direct supervision of private certified 
applicators.
    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 more RUPs are registered for agricultural use than for other 
uses.
    Authorized agencies. Authorized agencies, termed certifying 
authorities in the final rule, are the entities that are authorized by 
EPA 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. Authorized agencies administer certification plans in 50 
States, the District of Columbia, and 6 territories (Puerto Rico, U.S. 
Virgin Islands, American Samoa, Guam, Commonwealth of Northern Mariana 
Islands, and the Republic of Palau). In addition, there are four 
approved Tribal certification plans and five approved Federal agency 
certification plans. The Federal agencies administering certification 
plans are DOD, DOE, USDA APHIS PPQ, USDA Forest Service (the two USDA 
plans are separate plans), and DOI (the DOI plan covers three agencies 
within DOI BLM, BIA and NPS, but no others). EPA administers two 
certification plans, but is not included as a respondent because the 
burden to EPA is estimated separately. Wage rates vary according to the 
entity.
    Respondent's obligation to respond: Mandatory (7 U.S.C. 136-136y, 
particularly sections 136a(d), 136i, and 136w).
    Estimated number of respondents: 1,860,974.
    Frequency of response: Rule familiarization is expected to 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 RUP sales will occur each time an RUP 
is sold, which EPA estimates will be 195 times per year per RUP dealer.

[[Page 1027]]

    Total estimated burden: 2,280,849 hours (per year). Burden is 
defined at 5 CFR 1320.3(b).
    Total estimated cost: $68,573,790 (per year), which includes $0 
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. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I 
certify that promulgation of the requirements contained in this final 
rule will not have a significant economic impact on a substantial 
number of small entities. There are two types of small entities subject 
to the requirements of this action: Small farms with private 
applicators and noncertified applicators using RUPs under their direct 
supervision, and small firms employing commercial applicators and 
noncertified applicators using RUPs under their direct supervision. EPA 
estimates that up to 820,000 small farms use pesticides and may be 
affected by the rule, although not all will use RUPs. EPA further 
estimates that at least 167,000 small firms employing commercial 
applicators may be affected by the rule. The Agency has determined that 
for private applicators, the average impact of the rule is about $25 
per year and represents 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. Costs to small firms employing commercial applicators are 
estimated to average less than $100 per year, which is less than 1% of 
average annual revenue for these firms.
    Impacts to the smallest farms, especially in high-impact States 
such as Alaska, Kentucky, and Rhode Island, where costs could be around 
$100 per year, could exceed 1% of annual sales revenue. However, the 
number of farms facing such impacts is small relative to the number of 
small farms affected by the rule. EPA estimates that around 13,000 
farms may face impacts of one percent or more of annual revenue. These 
farms comprise less than one percent of all 1.5 million small farms and 
less than two percent of all 820,000 small farms that use pesticides 
that may be affected by the rule. For small firms employing commercial 
applicators, average impacts of the rule represent less than 0.1% of 
annual revenue for the average small firm. Even for the high cost 
scenarios, where costs might be as high as $474 per year, the impacts 
are expected to be 0.3% or less of annual revenues. Details of this 
analysis are presented in the Economic Analysis (Ref. 1).
    Although not required by the RFA to convene a Small Business 
Advocacy Review (SBAR) Panel because the EPA has determined that this 
action would not have a significant economic impact on a substantial 
number of small entities, the EPA originally 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 (Ref. 29) is included in the docket for this rulemaking.

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. As such, the 
requirements of sections 202, 203, 204, or 205 of UMRA do not apply to 
this action.

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.

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 
requires 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. 3) and has implemented a specific certification plan for the 
Navajo Nation (Ref. 4). 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 revisions would place any 
unreasonable burden on Tribes because the rule does not require Tribes 
to implement certification programs. There are currently only four 
Tribes with EPA-approved certification plans. The rule requires 
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, 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. 30).

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action 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. 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. 1). EPA nevertheless believes that the environmental 
health or safety risks addressed in this rule could 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 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 final rule 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 rule regulates 
the ages at which children can apply pesticides. The final rule 
establishes a minimum age of 18 for persons to

[[Page 1028]]

become certified to apply RUPs and to apply RUPs as noncertified 
persons under the direct supervision of certified applicators, except 
that a noncertified person using agricultural RUPs under the direct 
supervision of a private applicator who is also a member of the 
noncertified applicator's immediate family must be 16 years old. Since 
many RUPs present heightened risks to harm human health relative to 
other pesticides, EPA feels that they warrant additional risk 
mitigation measures beyond those applicable to non-RUPs. EPA expects 
that the establishment of minimum ages will mitigate or eliminate many 
risks faced by young applicators of RUPs.

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

    This 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.

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

    This action is not expected to have disproportionately high and 
adverse human health or environmental effects on minority or low-income 
populations, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994). This action will increase 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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA (5 U.S.C. 801 et seq.), and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 171

    Environmental protection, Applicator competency, Agricultural 
worker safety, Certified applicator, Pesticide safety training, 
Pesticide worker safety, Pesticides and pests, Restricted use 
pesticides.

    Dated: December 12, 2016.
Gina McCarthy,
Administrator.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 171--[AMENDED]

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 7 U.S.C. 136-136y.


0
2. Add a new heading for subpart A to read as follows:

Subpart A--General Provisions

0
3. Revise Sec.  171.1 to read as follows:


Sec.  171.1  Scope.

    (a) This part establishes Federal standards for the certification 
and recertification of applicators of restricted use pesticides, and 
requirements for pesticide applicator certification plans administered 
by State, Tribal, and Federal agencies. 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, and requirements for noncertified persons using restricted 
use pesticides under the direct supervision of a certified applicator.
    (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.  171.2   [Reserved]

0
4. Remove Sec.  171.2.

0
5. Revise Sec.  171.3 to read as follows:


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 have the meaning 
specified in this section when used in this part:

    Agricultural commodity means any plant, fungus, or algae, or part 
thereof, or any 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.
    Agency means the U.S. Environmental Protection Agency (EPA), unless 
otherwise specified.
    Application and applying means the dispersal of a pesticide on, in, 
at, or directed toward a target site.
    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 particle size of a 
pesticide, and/or equalized dispersal pattern.
    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.
    Competency 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 a restricted use pesticide that bears labeling 
designating it as a fumigant.
    Fumigation means the use of a fumigant.
    Immediate family means familial relationships limited to the 
spouse, parents, stepparents, foster parents, father-in-law, mother-in-
law, children, stepchildren, foster children, sons-in-law, daughters-
in-law, grandparents, grandchildren, brothers, sisters, brothers-in-
law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. 
``First cousin'' means the child

[[Page 1029]]

of a parent's sibling, i.e., the child of an aunt or uncle.
    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 adversely affects man or the environment 
and that is related to the use or presence of a pesticide, whether the 
event was unexpected or intentional.
    Nontarget organism means any plant, animal or other organism other 
than the target pests that 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 category appropriate to the type of application being 
conducted 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 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 
use 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 that involves 
the use of 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 section 3(d) of FIFRA and 40 CFR 
part 152, subpart I.
    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 degradates and metabolites, are 
able to cause an adverse physiological effect on an organism.
    Use, as in ``to use a pesticide'' means any of the following:
    (1) Pre-application activities involving mixing and loading the 
pesticide.
    (2) Applying the pesticide, including, but not limited to, 
supervising the use of a pesticide by a noncertified applicator.
    (3) Other pesticide-related 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 pesticide-
containing materials.
    Use-specific instructions means the information and requirements 
specific to a particular pesticide product or work site that an 
applicator needs in order to use the pesticide in accordance with 
applicable requirements and without causing unreasonable adverse 
effects.


Sec.  171.4   [Removed]

0
6. Remove Sec.  171.4.

0
7. Revise Sec.  171.5 to read as follows:


Sec.  171.5  Effective date.

    (a) This part is effective March 6, 2017. Certification plans 
approved by EPA before the effective date remain approved except as 
provided in Sec. Sec.  171.5(b)-(d) and 171.309.
    (b) Status of certification plans approved before effective date. A 
certification plan approved by EPA before March 6, 2017 remains 
approved until March 4, 2020, except as provided in paragraph (c) of 
this section and Sec.  171.309.
    (c) Extension of an existing plan during EPA review of proposed 
revisions. If by March 4, 2020, a certifying authority has submitted to 
EPA a proposed modification of its certification plan pursuant to 
subpart D of this part, its certification plan approved by EPA before 
March 6, 2017 will remain in effect until EPA has approved or rejected 
the modified plan pursuant to Sec.  171.309(a)(4) or March 4, 2022, 
whichever is earlier, except as provided in paragraph (d) of this 
section and Sec.  171.309(b).
    (d) Extension of an existing plan after EPA has approved a revised 
plan. Where EPA has approved a certifying authority's modified 
certification plan pursuant to Sec.  171.309(a)(4), the certification 
plan approved by EPA before March 6, 2017 shall remain in effect as 
specified in EPA's approval of the modified certification plan.
    (e) States, Tribes, or Federal agencies that do not have an EPA-
approved certification plan in effect 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.


Sec. Sec.  171.6, 171.7, 171.8, 171.9,171.10,171.11   [Removed]

0
8. Remove Sec. Sec.  171.6, 171.7, 171.8, 171.9, 171.10, 171.11.

0
9. Subpart B is added to part 171 to read as follows:

Subpart B--Certification Requirements for Applicators of Restricted 
Use Pesticides

Sec.
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.


Sec.  171.101  Commercial applicator certification categories.

    Certification categories. Categories of commercial applicators 
using or supervising the use of restricted use pesticides are 
identified below.
    (a) Agricultural pest control.
    (1) Crop pest control. This category applies to commercial 
applicators who

[[Page 1030]]

use or supervise the use of restricted use pesticides in production of 
agricultural commodities, including but not limited to grains, 
vegetables, small fruits, tree fruits, peanuts, tree nuts, tobacco, 
cotton, feed and forage crops including grasslands, and non-crop 
agricultural lands.
    (2) 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 paragraphs (k) and (l) of this section.
    (b) 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.
    (c) 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.
    (d) Seed treatment. This category applies to commercial applicators 
using or supervising the use of restricted use pesticides on seeds in 
seed treatment facilities.
    (e) 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 (h) of this section.
    (f) 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, powerlines, pipelines, and railway 
rights-of-way, and similar areas.
    (g) 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 manufacturing 
facilities, warehouses, grain elevators, and any other structures and 
adjacent areas, public or private, for the protection of stored, 
processed, or manufactured products.
    (h) Public health pest control. This category applies to State, 
Tribal, Federal or other governmental employees and contractors who use 
or supervise the use of restricted use pesticides in government-
sponsored public health programs for the management and control of 
pests having medical and public health importance.
    (i) Regulatory pest control. This category applies to State, 
Tribal, Federal, or other local governmental employees and contractors 
who use or supervise the use of restricted use pesticides in 
government-sponsored programs for the control of regulated pests. 
Certification in this category does not authorize the purchase, use, or 
supervision of use of products for predator control listed in 
paragraphs (k) and (l) of this section.
    (j) 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 restricted 
use 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, Federal, 
commercial, and other persons conducting field research on or involving 
restricted use pesticides.
    (k) 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.
    (l) Sodium fluoroacetate predator control. 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.
    (m) Soil fumigation. This category applies to commercial 
applicators who use or supervise the use of a restricted use pesticide 
to fumigate soil.
    (n) Non-soil fumigation. This category applies to commercial 
applicators who use or supervise the use of a restricted use pesticide 
to fumigate anything other than soil.
    (o) Aerial pest control. This category applies to commercial 
applicators who use or supervise the use of restricted use pesticides 
applied by fixed or rotary wing aircraft.


Sec.  171.103  Standards for certification of commercial applicators.

    (a) Determination of competency. To be determined to have the 
necessary competency in the use and handling of restricted use 
pesticides by a State, Tribe, or Federal agency, a commercial 
applicator must 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 
the certifying authority to determine applicator competency must 
include the core standards applicable to all categories (paragraph (c) 
of this section) and the standards applicable to each category in which 
an applicator seeks certification (paragraph (d) of 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. The certifying authority must ensure 
that examinations 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.
    (iii) Each person seeking certification must present at the time of 
examination valid, government-issued photo identification or other form 
of similarly reliable identification authorized by the certifying 
authority as proof of identity and age to be eligible for 
certification.
    (iv) Candidates must be monitored throughout the examination 
period.
    (v) Candidates must be instructed in examination procedures before 
beginning the examination.
    (vi) Examinations must be kept secure before, during, and after the 
examination period so that only the candidates have access to the 
examination, and candidates have access only in the presence of the 
proctor.
    (vii) Candidates must not have verbal or non-verbal communication 
with anyone other than the proctor during the examination period.
    (viii) No portion of the examination or any associated reference 
materials described in paragraph (a)(2)(ix) of this section may be 
copied or retained by any person other than a person authorized by the 
certifying authority to copy or retain the examination or any

[[Page 1031]]

associated reference materials described in paragraph (a)(2)(ix) of 
this section.
    (ix) The only reference materials used during the examination are 
those that are approved by the certifying authority and provided and 
collected by the proctor.
    (x) Reference materials provided to examinees are reviewed after 
the examination is complete to ensure that no portion of the reference 
material has been removed, altered, or destroyed.
    (xi) The proctor reports 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.
    (xii) The examination must be conducted in accordance with any 
other requirements of the certifying authority related to examination 
administration.
    (xiii) The certifying authority must notify each candidate 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. Any such additional 
methods must be specified in 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 labeling requirements that a certified 
applicator must be physically present at the site of the application.
    (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 
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.
    (ix) Recognizing and understanding the difference between mandatory 
and advisory labeling language.
    (2) Safety. Measures to avoid or minimize adverse health effects, 
including all of the following:
    (i) Understanding the different natures of the risks of 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) Drainage patterns.
    (4) Pests. The proper identification and effective control of 
pests, including all of the following:
    (i) The importance of correctly identifying target pests and 
selecting the proper pesticide product(s) for effective pest control.
    (ii) Verifying that the labeling does not prohibit the use of the 
product to control the target pest(s).
    (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 forms and formulations of 
pesticides.
    (ii) Knowledge of which application method to use in a given 
situation and that use of a fumigant, aerial application, sodium 
cyanide, or sodium fluoroacetate requires additional certification.
    (iii) How selection of application method and use of a pesticide 
may result in 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 
of this part for certified commercial applicators who supervise 
noncertified applicators using restricted use pesticides.
    (ii) The recordkeeping requirements of pesticide safety training 
for noncertified applicators who use restricted use pesticides under 
the direct supervision of a certified applicator.
    (iii) Providing use-specific instructions to noncertified 
applicators

[[Page 1032]]

using restricted use pesticides under the direct supervision of a 
certified applicator.
    (iv) Explaining pertinent State, Tribal, and Federal laws and 
regulations to noncertified applicators who use restricted use 
pesticides 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 customers and the public.
    (iii) Appropriate product stewardship for certified applicators.
    (d) Specific standards of competency for each category of 
commercial applicators. In addition to satisfying the requirements of 
paragraph (c) of this section, to be certified as commercial 
applicators, persons must demonstrate through written examinations 
practical knowledge of the principles and practices of pest control and 
proper and effective use of restricted use pesticides for each category 
for which they intend to apply restricted use pesticides, except as 
provided at Sec. Sec.  171.303(a)(4) and 171.305(a)(5). The minimum 
competency standards for each category are listed in paragraphs (d)(1) 
through (15) of this section. Examinations for each category of 
certification listed in Sec.  171.101 must be based on the standards of 
competency specified in paragraphs (d)(1) through (15) 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) Crop pest control. 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) Livestock pest control. Applicators 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 that 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, and the proper 
disposal of unused treated seeds.
    (5) Aquatic pest control. Applicators must demonstrate practical 
knowledge of the characteristics of various aquatic 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 rights-of-way, recognition of target pests, and 
techniques to minimize non-target exposure, runoff, drift, and 
excessive foliage destruction. The required knowledge also includes the 
potential for phytotoxicity due to a wide variety of plants and pests 
to be controlled, and for persistence beyond the intended period of 
pest control.
    (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 regulated 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) Demonstration and research. Applicators 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

[[Page 1033]]

demonstrate competency in each pest control category applicable to 
their demonstrations.
    (11) Sodium cyanide predator 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 pest 
identification and control. Applicators must demonstrate comprehension 
of all 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. . 
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.
    (12) Sodium fluoroacetate predator 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 pest 
identification and control. Applicators must demonstrate comprehension 
of all 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. 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, 
humans, domestic animals, or non-target wild animals.
    (13) Soil fumigation. Applicators 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) Requirements for certified applicators of fumigants, fumigant 
handlers and permitted fumigant handler activities, and the safety 
information that certified applicators must provide to noncertified 
applicators using fumigants under their direct supervision.
    (C) Entry-restricted periods for tarped and untarped field 
application scenarios.
    (D) Recordkeeping requirements.
    (E) Labeling provisions unique to 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 that require that applicators 
wear respirators or 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 
and when to take samples.
    (G) Buffer zones, including procedures for buffer zone monitoring 
and who is permitted to be in a buffer zone.
    (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) Compatibility concerns for tanks, hoses, tubing, and other 
equipment.
    (iv) Application. Selecting appropriate application methods and 
timing, including all of the following:
    (A) Application methods, including but not limited to water-run and 
non-water- run applications, and equipment commonly used for each soil 
fumigant.
    (B) Site characteristics that influence fumigant exposure.
    (C) Understanding temperature inversions and their impact on soil 
fumigant application.
    (D) Weather conditions that could impact timing of soil fumigant 
application, such as air stability, air temperature, humidity, and wind 
currents, and labeling statements limiting applications during specific 
weather conditions.
    (E) Conducting pre-application inspection of application equipment.
    (F) Understanding the purpose and methods of soil sealing, 
including the factors that determine which soil sealing method to use.
    (G) Understanding the use of tarps, including the range of tarps 
available, how to seal tarps, and labeling requirements for tarp 
removal, perforation, and repair.
    (H) Calculating the amount of product required for a specific 
treatment area.
    (I) Understanding the basic techniques for calibrating soil 
fumigant 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 fumigant application, assessing soil moisture, 
and correcting for soil characteristics that could hinder a successful 
soil fumigant application.

[[Page 1034]]

    (D) Identifying pests causing the damage and verifying they can be 
controlled with 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 
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, 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 fumigant management plan and resources 
available to assist the applicator in preparing a fumigant management 
plan.
    (C) The person 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.
    (14) Non-soil fumigation. Applicators must demonstrate practical 
knowledge of the pest problems and pest control practices associated 
with performing fumigation applications of restricted use pesticides 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 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 
and when to take samples.
    (G) Buffer zones, including procedures for buffer zone monitoring 
and who is permitted to be in a buffer zone.
    (H) First aid measures to take in the event of exposure to a 
fumigant.
    (I) 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) Compatibility 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 influence fumigant exposure.
    (C) Conditions that could impact timing of non-soil fumigant 
application, such as air stability, air temperature, humidity, and wind 
currents, and labeling statements limiting applications under specific 
conditions.
    (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 
fumigant 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 and verifying they can be 
controlled with 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

[[Page 1035]]

be kept on file, where it must be kept during the application, and who 
must have access to it.
    (B) The elements of a fumigant management plan and resources 
available to assist the applicator in preparing a fumigant management 
plan.
    (C) The person 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) Understanding 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.
    (15) Aerial pest control. Applicators must demonstrate practical 
knowledge of the pest problems and pest control practices associated 
with performing aerial application of restricted use pesticides, 
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 in 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 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, and 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.
    (E) Recordkeeping requirements for aerial pesticide applications 
including application conditions if applicable.
    (e) Exceptions. The requirements in Sec.  171.103(a)-(d) of this 
part 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.


171.105  Standards for certification of private applicators.

    (a) General private applicator certification. Before using or 
supervising the use of a restricted use pesticide as a private 
applicator, a person must be certified by an appropriate certifying 
authority as having the necessary competency 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 in the categories listed in paragraphs (b) through (f) 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 appropriate category to use 
restricted use pesticides for fumigation or aerial application, or 
predator control devices containing

[[Page 1036]]

sodium cyanide or sodium fluoroacetate, 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.
    (ix) Recognizing and understanding the difference between mandatory 
and advisory labeling language.
    (2) Safety. Measures to avoid or minimize adverse health effects, 
including all of the following:
    (i) Understanding the different natures of the risks of 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) Drainage patterns.
    (4) Pests. The proper identification and effective control of 
pests, including all of the following:
    (i) The importance of correctly identifying target pests and 
selecting the proper pesticide product(s).
    (ii) Verifying that the labeling does not prohibit the use of the 
product to control the target pest(s).
    (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 forms and formulations of 
pesticides.
    (ii) Knowledge of which application method to use in a given 
situation and that use of a fumigant, aerial application, or predator 
control device containing sodium cyanide or sodium fluoroacetate 
requires additional certification.
    (iii) How selection of application method and use of a pesticide 
may result in 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 the 
Worker Protection Standard in 40 CFR part 170 and the circumstances 
where compliance is required.
    (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 part for 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 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 persons.
    (11) Agricultural pest control. Practical knowledge of pest control 
applications to agricultural commodities including all of the 
following:
    (i) Specific pests of relevant 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 
places in which animals are confined based on formulation, application 
technique, age of animal, stress, and extent of treatment.
    (b) Sodium cyanide predator control. In addition to satisfying the 
requirements in paragraph (a) of this section, in order to use sodium 
cyanide in a mechanical ejection device, private applicators must 
demonstrate comprehension of all 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. 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 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.
    (c) Sodium fluoroacetate predator control. In addition to 
satisfying the requirements in paragraph (a) of this section, in order 
to use sodium fluoroacetate, private applicators must demonstrate 
comprehension of all 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. 
Applicators must also demonstrate practical knowledge and understanding 
of the

[[Page 1037]]

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, 
humans, domestic animals, or non-target wild animals.
    (d) Soil fumigation. In addition to satisfying the requirements in 
paragraph (a) of this section, 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 fumigant applications, 
including all the following:
    (1) Label and labeling comprehension. Familiarity with the 
pesticide labels and labeling for products used to perform soil 
fumigation, including all of the following:
    (i) Labeling requirements specific to soil fumigants.
    (ii) Requirements for certified applicators of fumigants, fumigant 
handlers and permitted fumigant handler activities, and the safety 
information that certified applicators must provide to noncertified 
applicators using fumigants under the direct supervision of certified 
applicators.
    (iii) Entry-restricted period for different tarped and untarped 
field application scenarios.
    (iv) Recordkeeping requirements imposed by product labels and 
labeling.
    (v) Labeling provisions unique to products containing certain 
active ingredients.
    (vi) 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 fumigant management plan and 
resources available to assist the applicator in preparing a fumigant 
management plan; the person 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.
    (2) Safety. Measures to minimize adverse health effects, including 
all of the following:
    (i) Understanding how certified applicators, noncertified 
applicators using fumigants under the direct supervision of certified 
applicators, field workers, and bystanders can become exposed to 
fumigants.
    (ii) Common problems and mistakes that can result in direct 
exposure to fumigants.
    (iii) Signs and symptoms of human exposure to fumigants.
    (iv) Air concentrations of a fumigant that require applicators to 
wear respirators or to exit the work area entirely.
    (v) Steps to take if a fumigant applicator experiences sensory 
irritation.
    (vi) Understanding air monitoring, when it is required, and where 
and when to take samples.
    (vii) Buffer zones, including procedures for buffer zone monitoring 
and who is permitted to be in a buffer zone.
    (viii) First aid measures to take in the event of exposure to a 
soil fumigant.
    (ix) Labeling requirements for transportation, storage, spill 
cleanup, and emergency response for soil fumigants, including safe 
disposal of containers and contaminated soil, and management of empty 
containers.
    (3) Soil fumigant chemical characteristics. Characteristics of soil 
fumigants, including all of the following:
    (i) Chemical characteristics of soil fumigants.
    (ii) Specific human exposure concerns for soil fumigants.
    (iii) How soil fumigants change from a liquid or solid to a gas.
    (iv) How soil fumigants disperse in the application zone.
    (v) Compatibility concerns for tanks, hoses, tubing, and other 
equipment.
    (4) Application. Selecting appropriate application methods and 
timing, including all of the following:
    (i) Application methods, including but not limited to water-run and 
non-water-run applications, and equipment commonly used for each soil 
fumigant.
    (ii) Site characteristics that influence fumigant exposure.
    (iii) Understanding temperature inversions and their impact on soil 
fumigant application.
    (iv) Weather conditions that could impact timing of soil fumigant 
application, such as air stability, air temperature, humidity, and wind 
currents, and labeling statements limiting applications during specific 
weather conditions.
    (v) Conducting pre-application inspection of application equipment.
    (vi) Understanding the purpose and methods of soil sealing, 
including the factors that determine which soil sealing method to use.
    (vii) Understanding the use of tarps, including the range of tarps 
available, how to seal tarps, and labeling requirements for tarp 
removal, perforation, and repair.
    (viii) Calculating the amount of product required for a specific 
treatment area.
    (ix) Understanding the basic techniques for calibrating soil 
fumigant application equipment.
    (5) Soil and pest factors. Soil and pest factors that influence 
fumigant activity, including all of the following:
    (i) Influence of soil factors on fumigant volatility and movement 
within the soil profile.
    (ii) Factors that influence gaseous movement through the soil 
profile and into the air.
    (iii) Soil characteristics, including how soil characteristics 
affect the success of a soil fumigant application, assessing soil 
moisture, and correcting for soil characteristics that could hinder a 
successful soil fumigant application.
    (iv) Identifying pests causing the damage and verifying they can be 
controlled with soil fumigation.
    (v) Understanding the relationship between pest density and 
application rate.
    (vi) The importance of proper application depth and timing.
    (6) Personal protective equipment. Understanding what personal 
protective equipment is necessary and how to use it properly, including 
all of the following:
    (i) Following labeling directions for required personal protective 
equipment.
    (ii) Selecting, inspecting, using, caring for, replacing, and 
disposing of personal protective equipment.
    (iii) 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 
canisters.
    (iv) Labeling requirements and other laws applicable to medical 
evaluation for respirator use, fit tests, training, and recordkeeping.
    (7) Fumigant management plans and post-application summaries. 
Information about fumigant management plans, including all of the 
following:
    (i) When a fumigant management plan must be in effect, how long it 
must be

[[Page 1038]]

kept on file, where it must be kept during the application, and who 
must have access to it.
    (ii) The elements of a fumigant management plan and resources 
available to assist the applicator in preparing a fumigant management 
plan.
    (iii) The person responsible for verifying that a fumigant 
management plan is accurate.
    (iv) The elements, purpose and content of a post-application 
summary, who must prepare it, and when it must be completed.
    (8) Buffer zones and posting requirements. Understanding buffer 
zones and posting requirements, including all of the following:
    (i) Buffer zones and the buffer zone period.
    (ii) 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.
    (iii) Using the buffer zone table from the labeling to determine 
the size of the buffer zone.
    (iv) Factors that determine the buffer zone credits for application 
scenarios and calculating buffer zones using credits.
    (v) Distinguishing buffer zone posting and treated area posting, 
including the pre-application and post-application posting timeframes 
for each.
    (vi) Proper choice and placement of warning signs.
    (e) Non-soil fumigation. In addition to satisfying the requirements 
in paragraph (a) of this section, 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:
    (1) Label and labeling comprehension. Familiarity with the 
pesticide labels and labeling for products used to perform non-soil 
fumigation, including labeling requirements specific to non-soil 
fumigants.
    (2) Safety. Measures to minimize adverse health effects, including 
all of the following:
    (i) Understanding how certified applicators, handlers, and 
bystanders can become exposed to fumigants.
    (ii) Common problems and mistakes that can result in direct 
exposure to fumigants.
    (iii) Signs and symptoms of human exposure to fumigants.
    (iv) When air concentrations of a fumigant triggers handlers to 
wear respirators or to exit the work area entirely.
    (v) Steps to take if a person using a fumigant experiences sensory 
irritation.
    (vi) Understanding air monitoring, when it is required, and where 
and when to take samples.
    (vii) Buffer zones, including procedures for buffer zone monitoring 
and who is permitted to be in a buffer zone.
    (viii) First aid measures to take in the event of exposure to a 
fumigant.
    (ix) 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.
    (3) Non-soil fumigant chemical characteristics. Characteristics of 
non-soil fumigants, including all of the following:
    (i) Chemical characteristics of non-soil fumigants.
    (ii) Specific human exposure concerns for non-soil fumigants.
    (iii) How fumigants change from a liquid or solid to a gas.
    (iv) How fumigants disperse in the application zone.
    (v) Compatibility concerns for tanks, hoses, tubing, and other 
equipment.
    (4) Application. Selecting appropriate application methods and 
timing, including all of the following:
    (i) Application methods and equipment commonly used for non-soil 
fumigation.
    (ii) Site characteristics that influence fumigant exposure.
    (iii) Conditions that could impact timing of non-soil fumigant 
application, such as air stability, air temperature, humidity, and wind 
currents, and labeling statements limiting applications when specific 
conditions are present.
    (iv) Conducting pre-application inspection of application equipment 
and the site to be fumigated.
    (v) Understanding the purpose and methods of sealing the area to be 
fumigated, including the factors that determine which sealing method to 
use.
    (vi) Calculating the amount of product required for a specific 
treatment area.
    (vii) Understanding the basic techniques for calibrating non-soil 
fumigant application equipment.
    (viii) Understanding when and how to conduct air monitoring and 
when it is required.
    (5) Pest factors. Pest factors that influence fumigant activity, 
including all of the following:
    (i) Influence of pest factors on fumigant volatility.
    (ii) Factors that influence gaseous movement through the area being 
fumigated and into the air.
    (iii) Identifying pests causing the damage and verifying they can 
be controlled with fumigation.
    (iv) Understanding the relationship between pest density and 
application rate.
    (v) The importance of proper application rate and timing.
    (6) Personal protective equipment. Understanding what personal 
protective equipment is necessary and how to use it properly, including 
all of the following:
    (i) Following labeling directions for required personal protective 
equipment.
    (ii) Selecting, inspecting, using, caring for, replacing, and 
disposing of personal protective equipment.
    (iii) 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 
canisters.
    (iv) Labeling requirements and other laws applicable to medical 
evaluation for respirator use, fit tests, training, and recordkeeping.
    (7) Fumigant management plans and post-application summaries. 
Information about fumigant management plans and when they are required, 
including all of the following:
    (i) 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.
    (ii) The elements of a fumigant management plan and resources 
available to assist the applicator in preparing a fumigant management 
plan.
    (iii) The person responsible for verifying that a fumigant 
management plan is accurate.
    (iv) The elements, purpose and content of a post-application 
summary, who must prepare it, and when it must be completed.
    (8) Posting requirements. Understanding posting requirements, 
including all of the following:
    (i) Understanding who is allowed in an area being fumigated or 
after fumigation and who is prohibited from being in such areas.
    (ii) Distinguishing fumigant labeling-required posting and treated 
area posting, including the pre-application and post-application 
posting timeframes for each.
    (iii) Proper choice and placement of warning signs.
    (f) Aerial pest control. In addition to satisfying the requirements 
in paragraph (a) of this section, private applicators that use or 
supervise the use of restricted use pesticides applied by fixed or 
rotary wing aircraft must

[[Page 1039]]

demonstrate practical knowledge of the pest problems and pest control 
practices associated with performing aerial application, including all 
the following:
    (1) Labeling. Labeling requirements and restrictions specific to 
aerial application of pesticides including:
    (i) Spray volumes.
    (ii) Buffers and no-spray zones.
    (iii) Weather conditions specific to wind and inversions.
    (iv) Labeling-mandated recordkeeping requirements for aerial 
pesticide applications including application conditions if applicable.
    (2) Application equipment. Understand how to choose and maintain 
aerial application equipment, including all of the following:
    (i) The importance of inspecting application equipment to ensure it 
is in proper operating condition prior to beginning an application.
    (ii) Selecting proper nozzles to ensure appropriate pesticide 
dispersal and to minimize drift.
    (iii) Knowledge of the components of an aerial pesticide 
application system, including pesticide hoppers, tanks, pumps, and 
types of nozzles.
    (iv) Interpreting a nozzle flow rate chart.
    (v) Determining the number of nozzles for intended pesticide output 
using nozzle flow rate chart, aircraft speed, and swath width.
    (vi) 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.
    (vii) Where to place nozzles to produce the appropriate droplet 
size.
    (viii) How to maintain the application system in good repair, 
including pressure gauge accuracy, filter cleaning according to 
schedule, and checking nozzles for excessive wear.
    (ix) How to calculate required and actual flow rates.
    (x) How to verify flow rate using fixed timing, open timing, known 
distance, or a flow meter.
    (xi) When to adjust and calibrate application equipment.
    (3) Application considerations. The applicator must demonstrate 
knowledge of factors to consider before and during application, 
including all of the following:
    (i) Weather conditions that could impact application by affecting 
aircraft engine power, take-off distance, and climb rate, or by 
promoting spray droplet evaporation.
    (ii) How to determine wind velocity, direction, and air density at 
the application site.
    (iii) The potential impact of thermals and temperature inversions 
on aerial pesticide application.
    (4) Minimizing drift. The applicator must demonstrate knowledge of 
methods to minimize off-target pesticide movement, including all of the 
following:
    (i) How to determine drift potential of a product using a smoke 
generator.
    (ii) How to evaluate vertical and horizontal smoke plumes to assess 
wind direction, speed, and concentration.
    (iii) Selecting techniques that minimize pesticide movement out of 
the area to be treated.
    (iv) Documenting special equipment configurations or flight 
patterns used to reduce off-target pesticide drift.
    (5) Performing aerial application. The applicator must demonstrate 
competency in performing an aerial pesticide application, including all 
of the following:
    (i) Selecting a flight altitude that minimizes streaking and off-
target pesticide drift.
    (ii) Choosing a flight pattern that ensures applicator and 
bystander safety and proper application.
    (iii) The importance of engaging and disengaging spray precisely 
when entering and exiting a predetermined swath pattern.
    (iv) Tools available to mark swaths, such as global positioning 
systems and flags.
    (g) Private applicator minimum age. A private applicator must be at 
least 18 years old.
    (h) Private applicator competency. The competency of each candidate 
for private applicator certification must be established by the 
certifying authority based upon the certification standards set forth 
in paragraphs (a) through (g) of this section in order to assure that 
private applicators have the competency 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 (h)(1) 
of this section or a non-examination training process as described in 
paragraph (h)(2) of this section to assure the competency of private 
applicators in regard to the general certification standards applicable 
to all private applicators outlined in paragraph (a) of this section, 
and, if applicable, the specific standards for the each of the 
categories outlined in paragraphs (b) through (f) of this section in 
which a private applicator is to be certified.
    (1) Determination of competency by examination. If the certifying 
authority uses an examination process to determine the competency of 
private applicators, the examination process must meet all of the 
requirements of Sec.  171.103(a)(2).
    (2) Training for competency without examination. Any candidate for 
certification as a private applicator may complete a training program 
approved by the certifying authority to establish competency. A 
training program to establish private applicator competency must 
conform to all of the following criteria:
    (i) Identification. Each person seeking certification must present 
a valid, government-issued photo identification, or other form of 
similarly reliable identification authorized by the certifying 
authority, 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 category certification.
    (A) The training program for general private applicator 
certification must cover the competency standards outlined in paragraph 
(a) of this section in sufficient detail to allow the private 
applicator to demonstrate practical knowledge of the principles and 
practices of pest control and proper and effective use of restricted 
use pesticides.
    (B) The training program for each relevant category for private 
applicator certification must cover the competency standards outlined 
in paragraphs (b) through (f) of this section in sufficient detail to 
allow the private applicator to demonstrate practical knowledge of the 
principles and practices of pest control and proper and effective use 
of restricted use pesticides for each category in which he or she 
intends to apply restricted use pesticides, and must be in addition to 
the training program required for general private applicator 
certification.
    (i) Exceptions. The requirements in Sec.  171.105(a)-(h) of this 
part 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.  171.107  Standards for recertification of certified applicators.

    (a) Maintenance of continued competency. Each commercial and 
private applicator certification shall expire five years after 
issuance, unless

[[Page 1040]]

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 examinations set forth in Sec.  171.103(a)(2) 
of this part.
    (2) Continuing education programs. A certified applicator may be 
found eligible for recertification upon successfully completing a 
continuing education program pursuant to the certifying authority's 
EPA-approved certification plan.
    (i) The quantity, content, and quality of a continuing education 
program to maintain applicator certification must be sufficient 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.
    (ii) Any continuing education course or event relied upon for 
applicator recertification must be approved by the certifying authority 
as being suitable for its purpose in the certifying authority's 
recertification process.
    (iii) A certifying authority must ensure that any continuing 
education course or event, including an online or other distance 
education course or event, relied upon for applicator recertification 
includes a process to verify the applicator's successful completion of 
the course or event.

0
10. Subpart C is added to part 171 to read as follows:

Subpart C--Supervision of Noncertified Applicators

Sec.
171.201 Requirements for direct supervision of noncertified 
applicators by certified applicators.


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) Requirements for the certified 
applicator.
    (i) 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.
    (ii) The certified applicator must be certified in each category as 
set forth in Sec. Sec.  171.101 and 171.105(a) through (f) applicable 
to the supervised pesticide use.
    (2) Requirements for the noncertified applicator. The certified 
applicator must ensure that each noncertified applicator using a 
restricted use pesticide under his or her direct supervision meets all 
of the following requirements before using a restricted use pesticide:
    (i) The noncertified applicator has satisfied the qualification 
requirements under paragraph (c) of this section.
    (ii) The noncertified applicator has been instructed within the 
last 12 months in the safe operation of any equipment he or she will 
use for mixing, loading, transferring, or applying pesticides.
    (iii) The noncertified applicator has met the minimum age required 
to use restricted use pesticides under the supervision of a certified 
applicator. A noncertified applicator must be at least 18 years old, 
except that a noncertified applicator must be at least 16 years old if 
all of the following requirements are met:
    (A) The noncertified applicator is using the restricted use 
pesticide under the direct supervision of a private applicator who is 
an immediate family member.
    (B) The restricted use pesticide is not a fumigant, sodium cyanide, 
or sodium fluoroacetate.
    (C) The noncertified applicator is not applying the restricted use 
pesticide aerially.
    (3) Use-specific conditions that must be met in order for a 
noncertified applicator to use a restricted use pesticide. The 
certified applicator must ensure that all of the following requirements 
are met before allowing a noncertified applicator to use a restricted 
use pesticide under his or her direct supervision:
    (i) The certified applicator must ensure that the noncertified 
applicator has access to the applicable product labeling at all times 
during its use.
    (ii) 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 has clean, labeling-required personal 
protective equipment in proper operating condition and that the 
personal protective equipment is worn and used correctly for its 
intended purpose.
    (iii) The certified applicator must provide to each noncertified 
applicator before use of a restricted use pesticide instructions 
specific to the site and pesticide used. These instructions must 
include labeling directions, precautions, and requirements applicable 
to the specific use and site, and how the characteristics of the use 
site (e.g., surface and ground water, endangered species, local 
population) and the conditions of application (e.g., equipment, method 
of application, formulation) might increase or decrease the risk of 
adverse effects. The certified applicator must provide this information 
in a manner that the noncertified applicator can understand.
    (iv) The certified applicator must ensure that before each day of 
use equipment used for mixing, loading, transferring, or applying 
pesticides is in proper operating condition as intended by the 
manufacturer, and can be used without risk of reasonably foreseeable 
adverse effects to the noncertified applicator, other persons, or the 
environment.
    (v) The certified applicator must ensure that a means to 
immediately communicate with the certified applicator is available to 
each noncertified applicator using restricted use pesticides under his 
or her direct supervision.
    (vi) The certified applicator must be physically present at the 
site of the use being supervised when required by the product labeling.
    (vii) If the certified applicator is a commercial applicator, the 
certified applicator must create or verify the existence of the records 
required by paragraph (e) of this section.
    (c) Noncertified applicator qualifications. 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:

[[Page 1041]]

    (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 40 CFR 170.501 of this title within 
the last 12 months.
    (3) The noncertified applicator has met the requirements 
established by a certifying authority that meet or exceed the standards 
in Sec.  171.201(c)(1).
    (4) The noncertified applicator is currently a certified applicator 
but is not certified to perform the type of application being conducted 
or is not certified in the jurisdiction where the use will take place.
    (d) Noncertified applicator training program. (1) General 
noncertified applicator training must be presented to noncertified 
applicators either orally from written materials or audiovisually. 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 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 EPA, the certifying authority, or a State, 
Tribal, or Federal agency having jurisdiction.
    (iii) Have completed an EPA-approved pesticide safety train-the-
trainer program for trainers of handlers under 40 CFR part 170.
    (3) The noncertified applicator training materials must include the 
information that noncertified applicators need in order 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) Potential hazards from toxicity and exposure that pesticides 
present to noncertified applicators and their families, including acute 
and chronic effects, delayed effects, and sensitization.
    (ii) Routes through which pesticides can enter the body.
    (iii) Signs and symptoms of common types of pesticide poisoning.
    (iv) Emergency first aid for pesticide injuries or poisonings.
    (v) Routine and emergency decontamination procedures, including 
emergency eye flushing techniques. Noncertified applicators must be 
instructed that if pesticides are spilled or sprayed on the body, to 
immediately wash or to rinse off in the nearest clean water. 
Noncertified applicators must also be instructed to wash or shower with 
soap and water, shampoo hair, and change into clean clothes as soon as 
possible.
    (vi) How and when to obtain emergency medical care.
    (vii) After working with pesticides, wash hands before eating, 
drinking, using chewing gum or tobacco, or using the toilet.
    (viii) Wash or shower with soap and water, shampoo hair and change 
into clean clothes as soon as possible after working with pesticides.
    (ix) Potential hazards from pesticide residues on clothing.
    (x) Wash work clothes before wearing them again and wash them 
separately from other clothes.
    (xi) Do not take pesticides or pesticide containers used at work to 
your home.
    (xii) Potential hazards to children and pregnant women from 
pesticide exposure.
    (xiii) After working with pesticides, remove work boots or shoes 
before entering your home, and remove work clothes and wash or shower 
before physical contact with children or family members.
    (xiv) How to report suspected pesticide use violations to the 
appropriate State or Tribal agency responsible for pesticide 
enforcement.
    (xv) Format and meaning of information contained on pesticide 
labels and in labeling applicable to the safe use of the pesticide, 
including the location and meaning of the restricted use product 
statement, how to identify when the labeling requires the certified 
applicator to be physically present during the use of the pesticide, 
and information on personal protective equipment.
    (xvi) Need for, and appropriate use and removal of, personal 
protective equipment.
    (xvii) How to recognize, prevent, and provide first aid treatment 
for heat-related illness.
    (xviii) Safety requirements for handling, transporting, storing, 
and disposing of pesticides, including general procedures for spill 
cleanup.
    (xix) Environmental concerns such as drift, runoff, and wildlife 
hazards.
    (xx) Restricted use pesticides may be used only by a certified 
applicator or by a noncertified applicator working under the direct 
supervision of a certified applicator.
    (xxi) The certified applicator's responsibility to provide to each 
noncertified applicator instructions specific to the site and pesticide 
used. These instructions must include labeling directions, precautions, 
and requirements applicable to the specific use and site, and how 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) might increase or decrease the risk of adverse effects. The 
certified applicator must provide these instructions in a manner the 
noncertified applicator can understand.
    (xxii) The certified applicator's responsibility to ensure that 
each noncertified applicator has access to the applicable product 
labeling at all times during its use.
    (xxiii) The certified applicator's responsibility to ensure that 
where the labeling of a pesticide product requires that personal 
protective equipment be worn for mixing, loading, application, or any 
other use activities, each noncertified applicator has clean, labeling-
required personal protective equipment in proper operating condition 
and that the personal protective equipment is worn and use correctly 
for its intended purpose.
    (xxiv) The certified applicator's responsibility to ensure that 
before each day of use equipment used for mixing, loading, 
transferring, or applying pesticides is in proper operating condition 
as intended by the manufacturer, and can be used without risk of 
reasonably foreseeable adverse effects to the noncertified applicator, 
other persons, or the environment.
    (xxv) The certified applicator's responsibility to ensure that a 
means to immediately communicate with the certified applicator is 
available to each noncertified applicator using restricted use 
pesticides under his or her direct supervision.
    (e) Recordkeeping. (1) Commercial applicators must create or verify 
the existence of records documenting that each noncertified applicator 
has the qualifications required in paragraph (c) of this section. For 
each noncertified applicator, the records must contain the information 
appropriate to the method of qualification as provided in paragraphs 
(e)(1)(i) through (e)(1)(iv).
    (i) If the noncertified applicator was trained in accordance with 
paragraph (c)(1) of this section, the record must contain all of the 
following information:

[[Page 1042]]

    (A) The noncertified applicator's printed name and signature.
    (B) The date the training requirement in paragraph (c) of this 
section was met.
    (C) The name of the person who provided the training.
    (D) The title or a description of the training provided.
    (ii) If the noncertified applicator was trained as an agricultural 
handler under 40 CFR 170.501 in accordance with paragraph (c)(2) of 
this section, the record must contain all of the information required 
at 40 CFR 170.501(d)(1).
    (iii) If the noncertified applicator qualified by satisfying the 
requirements established by the certifying authority, as described in 
paragraph (c)(3) of this section, the record must contain the 
information required by the certifying authority.
    (iv) If the noncertified applicator is a certified applicator who 
is not certified to perform the type of application being conducted or 
not certified in the jurisdiction where the use will take place, as 
described in paragraph (c)(4) of this section, the record must include 
all of the following information:
    (A) The noncertified applicator's name.
    (B) The noncertified applicator's certification number.
    (C) The expiration date of the noncertified applicator's 
certification.
    (D) The certifying authority that issued the certification.
    (2) The commercial applicator must create or verify the existence 
of the record containing the information in paragraph (e)(1) of this 
section before allowing the noncertified applicator to use restricted 
use pesticides under his or her direct supervision.
    (3) The commercial applicator supervising any noncertified 
applicator must have access to records documenting the information 
required in paragraph (e)(1) of this section at the commercial 
applicator's principal place of business for two years from the date 
the noncertified applicator used the restricted use pesticide.
    (f) Exceptions. The requirements in Sec.  171.201(a) through (e) of 
this part 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.

0
11. Subpart D is added to part 171 to read as follows:

Subpart D--Certification Plans

Sec.
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 approval of certification 
plans.
171.311 EPA-administered applicator certification programs.


Sec.  171.301  General.

    (a) Jurisdiction. A certification issued under a particular 
certifying authority's certification plan is only valid within the 
geographical area specified in the certification plan approved by the 
Agency.


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 approved by the Agency. The State 
certification plan must meet all of the following requirements:
    (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 certification plan must specify which of the 
certification categories listed in Sec.  171.101 will be included in 
the plan.
    (i) A State certification plan may omit any unneeded certification 
categories.
    (ii) A State certification plan may designate subcategories within 
the categories described in Sec. Sec.  171.101 and 171.105(b) through 
(f) as it deems necessary.
    (iii) A State certification plan may include additional 
certification categories not covered by the existing Federal categories 
described in Sec. Sec.  171.101 and 171.105(b)-(f).
    (iv) A State certification plan may combine the categories 
described in Sec.  171.101(m) through (n) into a single general 
fumigation category for commercial applicators.
    (v) A State certification plan may combine the categories described 
in Sec.  171.105(d) through (e) into a single general fumigation 
category for private applicators.
    (3) For each of the categories adopted pursuant to paragraph (b)(1) 
of this section, the State certification 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, except as provided in paragraph 
(a)(4) of this section.
    (4) A State may adopt a limited use category for commercial 
applicators. A limited use category covers a small number of commercial 
applicators engaged in a use that does not clearly fit within any of 
the commercial applicator categories specified pursuant to paragraph 
(b)(2) of this section, and allows only the use of a limited set of 
restricted use pesticides by specific application methods. A State 
adopting a limited use category must include all of the following in 
its certification plan:
    (i) A definition of the limited use category, specifying the 
restricted use pesticide(s), use sites, and specific application 
methods permitted.
    (ii) An explanation of why it is not practical to include the 
limited use within any of the commercial applicator categories 
specified pursuant to paragraph (b)(2) of this section.
    (iii) A requirement that candidates for certification in a limited 
use category pass the written examination covering the core standards 
at Sec.  171.103(c) and demonstrate practical knowledge of the 
principles and practices of pest control and proper and effective use 
of restricted use pesticide(s) covered by the limited use category.
    (iv) Specific competency standards for the limited use category.
    (v) The process by which applicators must demonstrate practical 
knowledge of the principles and practices of pest control and proper 
and effective use of the restricted use pesticides authorized under the 
limited use category based on the competency standards identified in 
paragraph (a)(4)(iv) of this section. This does not have to be 
accomplished by a written examination.
    (vi) A description of the recertification standards for the limited 
use category and how those standards meet or exceed the standards 
prescribed by the Agency under Sec.  171.107.
    (vii) A description of the limited use certification credential. 
The credential must clearly state that the applicator is only 
authorized to purchase and use the specific restricted use pesticide(s) 
identified in that credential.
    (5) The State certification plan must include standards for 
certification examinations that meet or exceed the standards prescribed 
by the Agency under Sec.  171.103(a)(2), including a description of any 
alternative identification that a State will authorize in addition to a 
valid, government-issued photo identification.

[[Page 1043]]

    (6) The State certification plan must include standards for the 
recertification of applicators of restricted use pesticides that meet 
or exceed those standards prescribed by the Agency under Sec.  171.107.
    (7) The State certification plan must include standards for the 
direct supervision of noncertified applicators by certified private and 
commercial applicators of restricted use pesticides that meet or exceed 
those standards prescribed by the Agency under Sec.  171.201, or must 
state that use by noncertified applicators is not permitted.
    (8) The State certification plan must describe the credentials or 
documents the State certifying authority will issue to each certified 
applicator verifying certification.
    (9) A State may waive any or all of the procedures specified in 
Sec.  171.103, Sec.  171.105, and Sec.  171.107 of this part when 
certifying applicators in reliance on valid current certifications 
issued by another State, Tribal, or Federal agency under an EPA-
approved certification plan. 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 under an approved State, Tribal or Federal agency certification 
plan.
    (ii) The State has examined the standards of competency used by the 
State, Tribe, or Federal agency that originally certified the 
applicator and has determined that, for each category of certification 
that will be accepted, they are comparable to its own standards.
    (iii) Any State that chooses to certify applicators based, in whole 
or in part, on the applicator having been certified by another State, 
Tribe, or Federal agency, must include in its plan a mechanism that 
allows the State to terminate an applicator's certification upon 
notification that the applicator's original certification terminates 
because the certificate holder has been convicted under section 14(b) 
of FIFRA or has been subject to a final order imposing a civil penalty 
under section 14(a) of FIFRA.
    (iv) 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.
    (b) Contents of an application 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.
    (2) The application for Agency approval of a State certification 
plan must contain satisfactory documentation that the State standards 
for the certification of commercial applicators meet or exceed those 
standards prescribed by the Agency under Sec. Sec.  171.101 and 
171.103. Such documentation must include one of the following:
    (i) A statement that the State has adopted the same standards for 
certification of commercial applicators prescribed by the Agency under 
Sec. Sec.  171.101 and 171.103 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 of commercial 
applicators prescribed by the Agency under Sec. Sec.  171.101 and 
171.103. If the State selects this option, the application for Agency 
approval of a State certification plan must include all of the 
following:
    (A) A list and detailed description of all the categories and 
subcategories to be used for certification of commercial applicators in 
the State and a citation to the specific State laws and/or regulations 
demonstrating that the State has adopted such categories and 
subcategories.
    (B) A list and detailed description of all of the standards for 
certification of 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 categories or 
subcategories established by a State must be included in the 
application for Agency approval of a State plan and must clearly 
describe the standards the State will use to determine if the 
applicator has the necessary competency.
    (C) A description of the State's commercial applicator 
certification examination standards and an explanation of how they meet 
or exceed the standards prescribed by the Agency under Sec.  
171.103(a)(2).
    (3) The application for Agency approval of a State certification 
plan must contain satisfactory documentation that the State standards 
for the certification of private applicators meet or exceed those 
standards prescribed by the Agency under Sec.  171.105. Such 
documentation must include a statement that the State has adopted its 
own standards that meet or exceed the standards for certification of 
private applicators of restricted use pesticides prescribed by the 
Agency under Sec.  171.105. The application for Agency approval of a 
State certification plan must include all of the following:
    (i) A list and detailed description of all the categories and 
subcategories to be used for certification of private applicators in 
the State and a citation to the specific State laws and/or regulations 
demonstrating that the State has adopted such categories and 
subcategories.
    (ii) A list and detailed description of all of the standards for 
certification of private 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 categories or 
subcategories established by a State must be identified in the 
application for Agency approval of a State plan and the application 
must clearly describe the standards the State will use to determine if 
the applicator has the necessary competency.
    (iii) If private applicator certification is based upon written 
examination, a description of the State's private applicator 
certification examination standards and an explanation of how those 
meet or exceed the standards prescribed by the Agency under Sec.  
171.103(a)(2).
    (iv) If private applicator certification is based upon training, an 
explanation of how the quantity, content, and quality of the State's 
training program ensure that a private applicator demonstrates the 
level of competency required Sec.  171.105 for private applicators, 
addressing, at the minimum, all of the following factors:
    (A) The quantity of training required to become certified as a 
private applicator.
    (B) The content that is covered by the training and how the State 
ensures that required content is covered.
    (C) The process the State uses to approve training programs for 
private applicator certification.
    (D) How the State ensures the ongoing quality of the training 
program for private applicator certification.
    (4) 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

[[Page 1044]]

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 State certification plan must include all of the 
following:
    (i) A list and detailed description of all of the State standards 
for recertification of private and commercial applicators, including 
the elements described in Sec.  171.303(b)(4)(ii) through (iv), and a 
citation of the specific State laws and/or regulations demonstrating 
that the State has adopted such standards.
    (ii) The certification period, which may not exceed five years.
    (iii) If recertification is based upon written examination, a 
description of the State's process for reviewing, and updating as 
necessary, the written examination(s) to ensure that the written 
examination(s) evaluates whether a certified applicator demonstrates 
the level of competency required by Sec.  171.103 for commercial 
applicators or Sec.  171.105 for private applicators.
    (iv) If recertification is based upon continuing education, an 
explanation of how the quantity, content, and quality of the State's 
continuing education program ensures that a certified applicator 
continues to demonstrate the level of competency required by Sec.  
171.103 for commercial applicators or Sec.  171.105 for private 
applicators, including but not limited to:
    (A) The quantity of continuing education required to maintain 
certification.
    (B) The content that is covered by the continuing education program 
and how the State ensures the required content is covered.
    (C) The process the State uses to approve continuing education 
courses or events, including information about how the State ensures 
that any continuing education courses or events verify the applicator's 
successful completion of the course or event.
    (D) How the State ensures the ongoing quality of the continuing 
education program.
    (5) 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 may include one or more of the following as 
applicable:
    (i) A statement that the State has adopted 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.
    (iii) A statement that the State has adopted standards for direct 
supervision of noncertified applicators by certified private and/or 
commercial applicators that meet or exceed the standards prescribed by 
the Agency under Sec.  171.201, a citation of the specific State laws 
and/or regulations demonstrating that the State has adopted such 
standards, and an explanation of how the State standards meet or exceed 
the standards prescribed by the Agency under Sec.  171.201.
    (6) The application for Agency approval of a State certification 
plan must include all of the following:
    (i) A written statement by the Governor of the State designating a 
lead agency responsible for administering the State certification plan. 
The lead agency will serve as the central contact point for the Agency. 
The State certification plan must identify the primary point of contact 
at the lead agency responsible for administering the State 
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 State certification plan, the application for 
Agency approval of a State plan must identify all such agencies and 
organizations and list the functions to be performed by each, including 
compliance monitoring and enforcement responsibilities. The application 
for Agency approval of a State plan must indicate how these functions 
will be coordinated by the lead agency to ensure consistency of the 
administration of the State certification plan.
    (ii) A written opinion from the State attorney general or from the 
legal counsel of the State lead agency that states that the lead agency 
and other cooperating agencies have the legal authority necessary to 
carry out the State certification plan.
    (iii) A listing of the qualified personnel that the lead agency and 
any cooperating agencies or organizations have to carry out the State 
certification plan. The list must include the number of staff, job 
titles, and job functions of such personnel of the lead agency and any 
cooperating organizations.
    (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 State 
certification plan.
    (v) A document outlining the State's proposed approach and 
anticipated timeframe for implementing the State certification plan 
after EPA approves the State certification plan.
    (7) The application for Agency approval of a State certification 
plan must include a complete copy of all State laws and regulations 
relevant to the State certification plan. In addition, the application 
for Agency approval of a State 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, falsification of any records required to be maintained by 
the certified applicator, a criminal conviction under section 14(b) of 
FIFRA, a final order imposing civil penalty under section 14(a) of 
FIFRA, and conclusion of a State enforcement action for violations of 
State laws or regulations relevant to the State certification plan.
    (ii) Provisions for reviewing, and where appropriate, suspending or 
revoking an applicator's certification based on any of the grounds 
listed in the plan pursuant to paragraph (b)(7)(i) of this section, 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 State certification plan.
    (iii) Provisions for assessing criminal and civil penalties for 
violations of State laws or regulations relevant to the State 
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

[[Page 1045]]

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(e).
    (vii) Provisions requiring restricted use pesticide retail dealers 
to record and maintain at each individual dealership, for the period of 
at least two 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 category(ies) in which the 
applicator is certified relevant to the pesticide(s) sold.
    (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 
agree to submit the following reports to the Agency in a manner and 
containing the information that the Agency requires:
    (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 general private applicator certifications and 
recertifications issued during the last 12 month reporting period, and 
total number of applicators holding a valid general private applicator 
certification at the end of the last 12 month reporting period.
    (ii) For each private applicator category specified in the 
certification plan, the numbers of new certifications and 
recertifications issued during the last 12 month reporting period, and 
the total number holding valid certifications in each category at the 
end of the last 12 month reporting period.
    (iii) The numbers of new commercial applicator certifications and 
recertifications issued during the last 12 month reporting period, and 
the total number of applicators certified in at least one commercial 
applicator certification category at the end of the last 12 month 
reporting period.
    (iv) For each commercial applicator certification category or 
subcategory specified in the certification plan, the numbers of new 
certifications and recertifications issued during the last 12 month 
reporting period, and the total number of commercial applicators 
holding a valid certification in each category or subcategory at the 
end of the last 12 month reporting period.
    (v) 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).
    (vi) 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.
    (vii) A summary of enforcement activities related to the use of 
restricted use pesticides during the last 12 month reporting period.
    (2) Any other reports reasonably required by the Agency in its 
oversight of restricted use pesticides.


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 
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 certification plan must list and describe 
the categories of certification from the certification categories 
listed in Sec.  171.101 that will be included in the plan except that:
    (i) A Federal agency certification plan may omit any unneeded 
certification categories.
    (ii) A Federal agency certification plan may designate 
subcategories within the categories described in Sec.  171.101 as it 
deems necessary.
    (iii) A Federal agency certification plan may include additional 
certification categories not covered by the existing Federal categories 
described in Sec.  171.101.
    (iv) A Federal agency certification plan may combine the categories 
described in Sec.  171.101(m) through (n) into a single general 
fumigation category for commercial applicators.
    (4) For each of the categories adopted pursuant to paragraph (b)(1) 
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, except as provided at paragraph (a)(5) of this 
section.
    (5) A Federal agency may adopt a limited use category for 
commercial

[[Page 1046]]

applicators. A limited use category covers a small number of 
applicators engaged in a use that does not clearly fit within any of 
the categories in Sec.  171.101, and allows only the use of a limited 
set of restricted use pesticides by specific application methods. A 
Federal agency adopting a limited use category must include all of the 
following in its certification plan:
    (i) A definition of the limited use category, specifying the 
restricted use pesticide(s), use sites, and specific application 
methods permitted.
    (ii) An explanation of why it is not practical to include the 
limited use category in any of the categories in Sec.  171.101.
    (iii) A requirement that candidates for certification in a limited 
use category pass the written examination covering the core standards 
at Sec.  171.103(c) and demonstrate practical knowledge of the 
principles and practices of pest control and proper and effective use 
of restricted use pesticide(s) covered by the limited use category.
    (iv) Specific competency standards for the limited use category.
    (v) The process by which applicators must demonstrate practical 
knowledge of the principles and practices of pest control and proper 
and effective use of restricted use pesticides covered by the limited 
use category based on the competency standards identified in paragraph 
(a)(5)(iv) of this section. This does not have to be accomplished by a 
written examination.
    (vi) A description of the recertification standards for the limited 
use category and how those standards meet or exceed the standards 
prescribed by the Agency under Sec.  171.107.
    (vii) A description of the limited use certification credential. 
The credential must clearly state that the applicator is only 
authorized to purchase and use the specific restricted use pesticide(s) 
identified in that credential.
    (6) The Federal agency standards for certification examinations 
must meet or exceed the standards prescribed by the Agency under Sec.  
171.103(a)(2), including a description of any alternative 
identification that the Federal agency will authorize in addition to a 
valid, government-issued photo identification.
    (7) 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.
    (8) The Federal agency 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.
    (9) The Federal agency certification plan must describe the 
credentials or documents the Federal agency will issue to each 
certified applicator verifying certification of applicators.
    (10) A Federal agency may waive any or all of the procedures 
specified in Sec.  171.103, Sec.  171.105, and Sec.  171.107 of this 
part when certifying applicators in reliance on valid current 
certifications issued by another State, Tribal, or Federal agency under 
an EPA-approved certification plan. The Federal agency certification 
plan must explain whether, and if so, 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)(9).
    (b) Contents of an application 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.
    (2) The application for Agency approval of a Federal agency 
certification plan must contain satisfactory documentation that the 
Federal agency standards for certification of commercial applicators 
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 application for Agency 
approval of a Federal agency certification plan must include all of the 
following:
    (A) A list and detailed description of all the categories and 
subcategories to be used for certification of 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 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 describe the standards the Federal 
agency will use to determine if the applicator has the necessary 
competency.
    (C) A description of the Federal agency's certification examination 
standards and an explanation of how those meet or exceed the standards 
prescribed by the Agency under Sec.  171.103(a)(2).
    (3) The application for Agency approval of a Federal agency plan 
must contain satisfactory documentation that the Federal agency 
standards for recertification of commercial applicators of restricted 
use pesticides meet or exceed the standards for recertification 
prescribed by the Agency under Sec.  171.107. Such documentation must 
include a statement that the Federal agency 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 Federal agency certification plan must include all 
of the following:
    (i) A list and detailed description of all the standards for 
recertification adopted by the Federal agency.
    (ii) The certification period, which may not exceed five years.
    (iii) If recertification is based upon written examination, a 
description of the Federal agency's process for reviewing, and updating 
as necessary, the written examination(s) and to ensure that the written 
examination(s) evaluate whether a commercial applicator demonstrates 
the level of competency required by Sec.  171.103.
    (iv) If recertification is based upon continuing education, an 
explanation of how the quantity, content and quality of the Federal 
agency's continuing education program ensure that a commercial 
applicator continues to demonstrate the level of competency required by 
Sec.  171.103 for commercial applicators, including but not limited to, 
all of the following:
    (A) The quantity of continuing education required to maintain 
certification.
    (B) The content that is covered by the continuing education program 
and how the Federal agency ensures the relevant content is covered.
    (C) The process the Federal agency uses to approve continuing 
education training courses or events, including information about how 
the Federal agency ensures that any continuing education courses or 
events verify the commercial applicator's successful completion of the 
course or event.
    (D) How the Federal agency ensures the ongoing quality of the 
continuing education program.

[[Page 1047]]

    (4) The application for Agency approval of a Federal agency 
certification plan must contain satisfactory documentation that the 
Federal agency standards for direct supervision of noncertified 
applicators by commercial applicators meet or exceed those standards 
prescribed by the Agency under Sec.  171.201. Such documentation may 
include one or more of the following as applicable:
    (i) A statement that the Federal agency has adopted the standards 
for direct supervision of noncertified applicators by commercial 
applicators prescribed by the Agency under Sec.  171.201.
    (ii) A statement that the Federal agency prohibits noncertified 
applicators from using restricted use pesticides under the direct 
supervision of commercial applicators.
    (iii) A statement that the Federal agency has adopted standards for 
direct supervision of noncertified applicators by commercial 
applicators that meet or exceed the standards prescribed by the Agency 
under Sec.  171.201 and an explanation of how the Federal agency 
standards meet or exceed the standards prescribed by the Agency under 
Sec.  171.201.
    (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)(7), the Federal agency may use 
administrative controls inherent in the employer-employee relationship 
to accomplish the objectives of Sec.  171.303(b)(7). 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)(7)(vi).
    (c) 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 or subcategory specified in the Federal agency 
certification plan, 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) 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).
    (4) 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.
    (5) A summary of enforcement activities related to use of 
restricted use pesticides by applicators certified by the Federal 
agency during the last 12 month reporting period.
    (d) The application for Agency approval of a Federal agency 
certification plan must include a commitment by the Federal agency to 
submit any other reports reasonably required by the Agency in its 
oversight of the use of restricted use pesticides.
    (e) If applicators certified under the Federal agency plan will 
make any applications of restricted use pesticides in areas that are 
not subject to exclusive federal jurisdiction, the application for 
Agency approval of a Federal agency certification plan must meet all of 
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 areas that are not subject to exclusive federal 
jurisdiction, including any substantive State or Tribal standards in 
regard to qualifications for commercial 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 in an area not subject to exclusive 
federal jurisdiction.
    (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 in an area not subject to exclusive federal 
jurisdiction.


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) of this section must 
consist of a written agreement between the Tribe and the relevant EPA 
Region(s) that contains 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 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

[[Page 1048]]

compliance monitoring under and enforcement of the plan, including all 
of the following:
    (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 each separate agreement 
and the respective roles, responsibilities, and relevant authorities of 
those parties.
    (2) To the extent that an Indian Tribe is precluded from exercising 
criminal enforcement authority, the Federal government will exercise 
primary criminal enforcement authority in regard to a certification 
plan 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 
precluded from exercising relevant criminal enforcement authority. 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(b)(6)(iii) 
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 exercising 
criminal enforcement authority, the Federal government will exercise 
primary criminal enforcement authority in regard to a certification 
plan 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 
precluded from exercising relevant criminal enforcement authority 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 approval of certification 
plans.

    (a) Modifications to approved certification plans. A State, Tribe, 
or Federal agency may make modifications to its approved certification 
plan, 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 plan 
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. Substantial modifications include the 
following:
    (i) Addition or deletion of a mechanism for certification and/or 
recertification.
    (ii) Establishment of a new private applicator category, 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.
    (4) Agency decision. The Agency shall make a written determination 
regarding the modified certification plan's compliance with the 
requirements of this part. The Agency shall give the certifying 
authority submitting a certification plan notice and opportunity for an 
informal hearing before rejecting the plan. The Agency's approval may 
be subject to reasonable terms and conditions. If the Agency approves 
modifications to a certification plan, that approval shall specify a 
schedule for implementation of the modified certification plan.
    (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

[[Page 1049]]

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, 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 in each category and 
subcategory, 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 in categories 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.  171.307(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.  
171.303 and Sec.  171.307(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, 
an applicator's certification issued under an EPA-administered plan, if 
the Agency finds that the applicator has been convicted under FIFRA 
section 14(b), has been subject to a final order imposing a civil 
penalty under FIFRA section 14(a), 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 FIFRA 
section 3(d) and any regulations promulgated thereunder.
    (iii) Refused to keep and maintain any records required pursuant to 
this section.
    (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 FIFRA 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 an 
applicator's certification, the Agency will:
    (i) Notify the applicator of all of the following:
    (A) The legal and factual 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 applicator may become 
certified or recertified.
    (D) Any additional conditions the Agency may impose.
    (ii) Provide the applicator an opportunity to request an informal 
hearing prior to final Agency action to deny, revoke or modify the 
certification, and the opportunity to offer written statements of 
facts, explanations, comments, and arguments relevant to the proposed 
action.
    (3) If a hearing is requested by an applicator pursuant to 
paragraph (e)(2)(ii) of this section, the Agency will appoint an 
attorney in the Agency as Presiding Officer to conduct an informal 
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) of 
this section shall do all of the following:
    (i) Conduct a fair, orderly and impartial hearing, without 
unnecessary delay.

[[Page 1050]]

    (ii) Provide such procedural opportunities as the Presiding Officer 
may deem necessary to a fair and impartial hearing.
    (iii) Consider all relevant evidence, explanation, comment and 
argument properly submitted.
    (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 FIFRA section 16.
    (5) If the Agency determines that the public health, interest or 
welfare warrants immediate action to suspend the certified applicator's 
certification during the course of the procedures specified in 
paragraphs (e)(2) through (e)(4) of this section, 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 must be issued at the same 
time the suspension notice is issued.
    (6) 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).
    (7) Any notice, decision or order issued by the Agency under 
paragraph (e) of this section, and any documents and information 
considered by the Presiding Officer in issuing an order under paragraph 
(e)(4)(iv) of this section, shall be available to the public except as 
otherwise provided by FIFRA section 10 or by 40 CFR part 2. Any 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 FIFRA section 10 or under 40 CFR part 2.
    (f) Restricted use pesticide retail 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 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 two 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 category(ies) in which the 
certified applicator is certified relevant to the pesticide(s) sold.
    (iii) The product name and EPA registration number of the 
restricted use pesticide(s) distributed or sold in the transaction, 
including any 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 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 FIFRA section 14, or 18 U.S.C. 1001.

[FR Doc. 2016-30332 Filed 1-3-17; 8:45 am]
BILLING CODE 6560-50-P