consideration of pollinators in applicator competency standards, see
Unit VI. In response to the commenter's suggestion that the proposed
requirement for private applicators to demonstrate knowledge of
specific agricultural pests would be burdensome, EPA has revised the
private applicator competency standards under the ``pest'' heading in
the final rule. EPA has replaced the proposed requirements with the
following: ``(4) Pests. The proper identification and effective control
of pests, including all of the following: (i) The importance of
correctly identifying target pests and selecting the proper pesticide
product(s) for effective pest control. (ii) Verifying that the labeling
does not prohibit the use of the product to control the target
pest(s).'' Further, EPA has deleted the provision in the proposal that
would have required private applicators to demonstrate knowledge of
specific pests of agricultural commodities. EPA does not intend these
standards to determine which pests private applicators must be able to
identify; rather, the standards in the final rule are intended to
ensure that private applicators understand how to identify pests
properly and how to use pesticides to control those pests. Each
certifying authority has discretion to include identification of
specific pests in the jurisdiction-specific private applicator
competency standards. These general standards balance EPA's need to
establish federal standards to ensure users of RUPs are competent with
certifying authorities' needs to maintain flexibility to tailor
certification

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

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

B. Strengthen Private Applicator Competency Gauge

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

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

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

C. Eliminate Non-Reader Certification for Private Applicators

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

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

VI. Pollinator Issues in Private and Commercial Competency Standards

A. Existing Rule and Proposal

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

B. Final Rule

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

C. Comments and Responses

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

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

VII. Establish Additional Categories for Commercial and Private
Applicators

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

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

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

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

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

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

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

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

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

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

A. Existing Rule and Proposal

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

B. Final Rule

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

C. Comments and Responses

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

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

IX. Security and Effectiveness of Exam and Training Administration

A. Overview and General Comments

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

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

B. Closed-Book Examinations

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

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

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

C. Proctor Requirements

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

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

D. Verification of Identity

    1. Existing rule and proposal. The existing rule does not have a
requirement for verification of the identity of persons seeking
certification or recertification. EPA proposed to add a requirement for
those seeking certification or recertification to present a government-
issued photo identification at the time of the examination or training
session. EPA requested comment on whether it should consider allowing
exceptions to the requirement for candidates to present identification,
and if so, under what circumstances. EPA also sought examples of how
such exceptions could be implemented.
    2. Final rule. The final rule requires both private and commercial
applicators seeking certification or recertification by examination to
present identification at the time they take the examination. In
addition, certifying authorities must also verify the identity of
private applicators seeking initial certification through training. The
final rule requires that the candidates present a government-issued
photo identification or other comparably reliable form of
identification authorized by the certifying agency; certifying agencies
have discretion to determine what forms of identification are
appropriate for their jurisdiction.
    In the final rule, EPA has revised the proposed requirement for
verifying the identity of participants for recertification. Under the
final rule, certifying authorities must specify their identification
requirements and procedures for verifying the identities of those
seeking certification or recertification in their certification plans.
The final rule does not require private or commercial applicators
attending continuing education or training sessions for recertification
to present a government-issued photo identification or comparably
reliable identification authorized by the certifying authority.
Instead, the final rule requires certifying authorities to ensure that
any continuing education course or event relied upon for
recertification include a process to verify applicators' successful
completion of the program. This performance standard includes verifying
the applicator's identity in some way as well as verifying their
successful completion of the program.
3. Comments and Responses
    Comments. Many commenters agreed with EPA's proposal to require
positive verification of an individual's identity with a government-
issued photo-identification at the time of examination. Some commenters
agreed with EPA's proposal to require verification of an individual's
identity at the time of examination, provided certifying authorities
are given the flexibility to determine what is considered acceptable
documentation. Of those States requesting that EPA include some measure
of flexibility in the requirement for identification, a few cited the
need to be able to accommodate religious or other groups that do not
allow the use of government-issued photo identification. One commenter
suggested that EPA revise the term ``government-issued'' to
``photographic'' or ``verifiable'' as a way of offering States and
applicators more options. One commenter suggested that some citizens
might not have a government-issued ID. As an alternative, the commenter
suggested EPA could require States to have a procedure as part of their
certification plans to accommodate candidates and applicators lacking a
government-issued photo identification, but not specify in the federal
rule what it is. Another commenter proposed that EPA clearly specify
that positive identification for purposes of registration for training
and testing, and granting of certifications may include any document or
combination of documents that satisfy proper completion of the U.S.
Citizenship and Immigration Services (USCIS) employment eligibility
verification documentation, or the USCIS Form I-9.
    Some commenters expressed the concern that the requirement for
positive verification of identity would be overly burdensome and
unnecessary for recertification training sessions. Some of these
commenters anticipated potential issues and additional costs for
sponsors of large courses, conferences, or workshops with large numbers
of individuals in attendance. They argued that certifying authorities