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

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

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.

    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,

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

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

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

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:

     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

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

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

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

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

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,

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

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

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

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