[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)]
[Rules and Regulations]
[Pages 952-1050]
[FR Doc No: 2016-30332]

Vol. 82

Wednesday,

No. 2

January 4, 2017

Part III

Environmental Protection Agency

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40 CFR Part 171

Pesticides; Certification of Pesticide Applicators; Final Rule

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

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

Pesticides; Certification of Pesticide Applicators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Kevin Keaney, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington DC 20460-
0001; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. What is the Agency's authority for taking this action?

    This action is issued under the authority of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y,
particularly sections 136a(d), 136i, and 136w.

B. What is the purpose of the regulatory action?

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

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

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

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

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

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

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                Category                             Description             Location in the  economic analysis
----------------------------------------------------------------------------------------------------------------
Monetized Benefits Avoided acute          $13.2 to $24.3 million/year from  Chapter 4.4.
 pesticide incidents.                      avoided acute pesticide
                                           incidents, not adjusted for
                                           underreporting of pesticide
                                           incidents.
Qualitative Benefits....................   Willingness to pay to    Chapter 4.2 & 4.5.
                                           avoid acute effects of
                                           pesticide exposure beyond cost
                                           of treatment and loss of
                                           productivity.
                                           Reduced latent effect
                                           of avoided acute pesticide
                                           exposure.
                                           Reduced chronic effects
                                           from lower chronic pesticide
                                           exposure to workers, handlers,
                                           and farmworker families,
                                           including a range of illnesses
                                           such as Non-Hodgkins lymphoma,
                                           prostate cancer, Parkinson's
                                           disease, lung cancer, chronic
                                           bronchitis, and asthma.
                                           Reduced harm to
                                           wildlife and non-target crops.
Total Costs.............................  $31.3 million/year..............  Chapter 3.5.
Costs to Private Applicators............  483,000 impacted; $8.6 million/   Chapter 3.5.
                                           year; average $25 per
                                           applicator.
Costs to Commercial Applicators.........  421,000 impacted; $16.2 million/  Chapter 3.5.
                                           year; average $46 per
                                           applicator.
Costs to States and Other Jurisdictions.  68 impacted; $6.5 million/year..  Chapter 3.5.

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

II. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you apply RUPs.
You may also be potentially affected by this action if you are: A
person who uses RUPs under the direct supervision of a certified
applicator; a State, Tribe, or Federal agency who administers a
certification program for pesticides applicators or a pesticide safety
educator; or other person who provides pesticide safety training for
pesticide applicator certification or recertification. The following
list of North American Industrial Classification System (NAICS) codes
is not intended to be exhaustive, but rather provides a guide to help
readers determine whether this document applies to them. Potentially
affected entities may include:
     Agricultural Establishments (Crop Production) (NAICS code
111).
     Nursery and Tree Production (NAICS code 111421).
     Agricultural Pest Control and Pesticide Handling on Farms
(NAICS code 115112).
     Crop Advisors (NAICS codes 115112, 541690, 541712).
     Agricultural (Animal) Pest Control (Livestock Spraying)
(NAICS code 115210).
     Forestry Pest Control (NAICS code 115310).
     Wood Preservation Pest Control (NAICS code 321114).
     Pesticide Registrants (NAICS code 325320).
     Pesticide Dealers (NAICS codes 424690, 424910, 444220).
     Research & Demonstration Pest Control, Crop Advisor (NAICS
code 541710).
     Industrial, Institutional, Structural & Health Related
Pest Control (NAICS code 561710).
     Ornamental & Turf, Rights-of-Way Pest Control (NAICS code
561730).
     Environmental Protection Program Administrators (NAICS
code 924110).
     Governmental Pest Control Programs (NAICS code 926140).

B. What action is the Agency taking?

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

currently certified applicator who is not certified to use RUPs in the
category of the application. The final rule requires noncertified
applicators to receive annual training or to satisfy the requirements
adopted by the certifying authority as part of the certification plan.
    The supervising applicator is required to verify that noncertified
applicators have satisfied the necessary requirements and must have
access to the records documenting that the qualification requirement
has been satisfied. The final rule requires that a certified applicator
supervising noncertified applicators be certified in each category
relevant to the supervised application, to provide noncertified
applicators access to a copy of the labeling for the RUPs used, and to
ensure that a means for immediate communication between the supervising
applicator and noncertified applicators under his or her direct
supervision is available.
    Certifying authorities have the option to adopt the standards for
noncertified applicators outlined in the rule, establish alternative
requirements for noncertified applicators that meet or exceed the
standards in the rule, and/or prohibit the use of RUPs under the
supervision of a private or commercial applicator.
    5. Minimum age. The final rule requires commercial and private
applicators to be at least 18 years old. The final rule requires
noncertified applicators using RUPs under the direct supervision of
commercial applicators to be at least 18 years old. The final rule
requires noncertified applicators using RUPs under the direct
supervision of private applicators to be at least 18 years old, except
that those under the direct supervision of a certified private
applicator who is an immediate family member must be at least 16 years
old provided that certain conditions are met. The final rule includes a
definition for ``immediate family'' that mirrors the definition in the
WPS, which was revised in 2015.
    6. Indian country certification. The final rule offers three
options for certification for applicators in Indian country. A Tribe
may choose to allow persons holding currently valid certifications
issued under one or more specified State, Tribal, or Federal agency
certification plans to apply RUPs within the Tribe's Indian country,
develop its own certification plan for certifying private and
commercial applicators, or take no action, in which case EPA may, in
consultation with the Tribe(s) affected, implement an EPA-administered
certification plan within the Tribe's Indian country. EPA currently
administers a Federal certification program covering Indian country not
otherwise covered by a certification plan (Ref. 3) as well as a
certification program specifically for Navajo Indian country (Ref. 4).
    7. State, Tribal, Federal agency, and EPA-administered
certification plans. The final rule updates the requirements for
submission, approval, and maintenance of State, Tribal, and Federal
agency certification plans. The final rule deletes the section on
Government Agency Plans (GAP) and codifies existing policy on review
and approval of Federal agency certification plans. The final rule
updates requirements for EPA-administered plans.

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

    EPA estimates the total annualized cost of the rule at $31.3
million (Ref. 1). EPA notes that these costs are the incremental costs
of complying with the new requirements in the revised rule, not the
total costs of administering certification programs. Certifying
authorities that administer certification programs would bear
annualized costs of about $6.5 million. The upfront costs of revisions
to certification plans and programs, including revising laws,
regulations, and policies, developing new certification categories and
updating tracking databases, are estimated to be about $3.8 million;
ongoing administration of exams or trainings for the new certification
and recertification requirements would cost an estimated $2.7 million
annually. The annual cost to private applicators would be about $8.6
million, or about $25 per year per private applicator. The estimated
annual cost to commercial applicators would be $16.2 million, or about
$46 per commercial applicator per year. Many of the firms in the
affected sectors are small businesses, particularly in the agricultural
sector. EPA concludes that there would not be a significant impact on a
substantial number of small entities. The impact to the average small
farm is anticipated to be less than 1% of annual sales while the
impacts to small commercial pest control services are expected to be
around 0.1% of annual gross revenue. Given the modest increases in per-
applicator costs, EPA also concludes that the final rule will not have
a substantial effect on employment.
    EPA acknowledges that there is uncertainty in the cost estimates.
EPA's cost analysis is generally based on a conservative methodology
that tends to overestimate the cost of the rule, as explained in
Chapter 3 of the Economic Analysis (Ref. 1). However, because of
uncertainties in the estimation, some costs estimated in its the
Economic Analysis may be underestimated. The estimated cost of $31.3
million is the best and most reasonable estimate of the total
annualized costs of the final rule. However, even if EPA has
underestimated the costs or overestimated the quantified benefits of
this rule, consideration of the qualitative benefits of the rule leads
EPA to conclude that the total benefits would outweigh the costs. These
qualitative benefits include reduced chronic illness to applicators
from repeated RUP exposure, and benefits to the public from better
protections from RUP exposure when occupying treated buildings or
outdoor spaces, consuming treated food products, and when near areas
where RUPs have been applied. The qualitative benefits also include
reduced impact on water and non-target plants and animals from
misapplication.
    The final rule will improve the pesticide applicator certification
and training program substantially. Trained and competent applicators
are more likely to apply pesticide products without causing
unreasonable adverse effects and to use RUPs properly to achieve the
intended results than applicators who are not adequately trained or
properly certified. In addition to core pesticide safety and practical
use concepts, certification and training assures that applicators
possess critical information on a wide range of environmental issues,
such as endangered species, water quality, worker protection, and
protecting non-target organisms. Pesticide safety education helps
applicators improve their abilities to avoid pesticide misuse, spills,
and harm to non-target organisms.
    The benefits of the final rule accrue to certified and noncertified
applicators, the public, and the environment. EPA estimates the
quantified value of the 157 to 198 acute illnesses from RUP exposure
per year that could be prevented by the rule to be between $13.2
million and $24.3 million per year (Ref. 1).
    To arrive at the number of incidents possibly preventable by the
rule, EPA reviewed pesticide incident cases reported to the Sentinel
Event Notification System for Occupational Risk (SENSOR) database,
maintained by the Centers for Disease Control and Prevention's National
Institute for Occupational Safety and Health (NIOSH). SENSOR covers all
occupational injuries and has a specific component for pesticides
(SENSOR-

Pesticides). EPA evaluated incidents reported to SENSOR-Pesticides from
2008-2011 that involved a pesticide ingredient commonly associated with
RUPs. EPA initially identified 478 possible unintentional cases
involving RUPs, but 81 were removed from consideration, leaving 397
cases. The removed cases included incidents including soil fumigants,
as well as cases not relevant to the rule. EPA removed the incidents
involving soil fumigants because the Agency has implemented chemical-
specific mitigation measures aimed at addressing incidents involving
these products. For the remaining 397 cases, EPA was able to identify
the proximate causes of the exposure causing the incident using the
pesticide incident reports from SENSOR-Pesticides including with the
assigned prevention codes and additional information where available,
such as from California's Pesticide Illness Surveillance Program. EPA
reviewed the narrative description of these cases, the information
identified in the SENSOR-Pesticide database and additional information
from the state if it was available for the cause of the incident, and
determined whether the rule included provisions intended to prevent or
mitigate such incidents. EPA categorized the incidents as
``preventable'', ``possibly preventable,'' or ``not preventable'' based
on whether they were within the intended scope of the rule. EPA's
estimates of the benefits of the rule are based on the cases that were
categorized as ``preventable'' or ``possibly preventable.'' In order to
make sure EPA was not overestimating the expected benefits of the rule,
other incidents were categorized as ``not preventable'' if there was
not enough information to determine if the incident would have been
prevented by the rule changes, if compliance with the rule would not
have prevented the incident, or if the incident was not relevant to the
rule. EPA classified 202 incidents as ``preventable'', meaning there
was a clear link between the application/applicator and the adverse
effect, and the information demonstrated an error by the applicator or
applicator incompetency that the rule is intended to prevent or
mitigate. EPA classified 73 incidents as ``possibly preventable'',
meaning there was a clear link between the application/applicator and
the effect and an applicator error was possible, but the available
information did not identify any specific applicator errors that the
rule is intended to prevent or mitigate. EPA removed from consideration
32 incidents related to the use of paraquat because the Agency plans to
implement specific mitigation measures to address issues with the use
of this product. This approach could underestimate the benefits of the
rule, because the final paraquat mitigation measures are not yet known,
and because preventable accidents involving paraquat are likely
indicative of wider problems with RUP storage and use that may be
prevented by the rule changes.
    After excluding the paraquat cases, the soil fumigant cases, and
the not relevant cases, there were 366 incidents determined to be
relevant to the rule. The review of the SENSOR-Pesticides data
identified 196 cases that were ``preventable'' under the changes to the
rule, and another 51 cases were ``possibly preventable''. These cases
include incidents involving RUPs that were registered by EPA at the
time of the incident but have since been cancelled, because EPA
believes they are indicative of the types of incidents that may occur
with other RUPs, including those that may not have been registered
during this time period. Accordingly, these incidents reasonably
reflect the kinds of incidents expected to be mitigated by the
certification rule. Given 366 incidents determined to be relevant to
the rule, including those without enough information to determine
whether the incident could be prevented, EPA concluded that 54 percent
of RUP incidents would be preventable through the rule changes and an
additional 14 percent would be possibly preventable. The changes to the
rule are expected to improve applicator competency in areas reasonably
expected to reduce recent RUP incidents by 54 to 68 percent, and this
range was used as the basis for the quantification of benefits. Some
commenters believe a lower percentage of incidents would be preventable
by the rule changes. If EPA has mischaracterized some incidents as
preventable, then the quantified benefits would be lower than
estimated. Conversely, if EPA has mischaracterized some incidents as
not preventable, then the quantified benefits would be higher than
estimated.
    However, EPA recognizes that the benefits estimate is biased
downward by an unknown degree. First, pesticide incidents, like many
illnesses and accidents, are underreported because sufferers may not
seek medical care, cases may not be correctly diagnosed, and correctly
diagnosed cases may not be filed to the central reporting database.
Also, many symptoms of pesticide poisoning, such as fatigue, nausea,
rash, dizziness, and diarrhea, may be confused with other illnesses and
may not be reported as related to pesticide exposure. Studies estimate
that underreporting of pesticide exposure ranges from 20% to 95% (Refs.
5, 6, 7, 8, 9, 10, and 11). EPA included underreporting of pesticide
incidents as a factor in the sensitivity analysis of the potential
benefits of the final rule (Ref. 1), but based its estimate of the
benefits on the rule on figures unadjusted for underreporting.
    EPA's approach to estimating the quantitative benefits of the rule
only measures avoided medical costs and lost wages, not the willingness
to pay to avoid possible symptoms due to pesticide exposure, which
could be substantially higher. Many of the negative health impacts
associated with agricultural pesticide application are borne by
agricultural workers and handlers, a population that more acutely feels
the impact of lost work time on their incomes and family health. An
increase in the overall level of competency for certified applicators
and noncertified applicators working under their direct supervision
would also be beneficial to people who work, play, or live in areas
treated with RUPs, such as agricultural workers, neighbors of
agricultural fields, and consumers whose homes are treated. Under-
trained and underqualified pesticide applicators may not be aware
immediately of the potential impacts to their own health or the health
of those who live or work around areas where RUPs are applied, and
therefore may not independently adopt measures protective of themselves
or others, necessitating intervention by the government to ensure these
populations are adequately protected.
    It is reasonable to expect that the qualitative benefits of the
rule are more substantial. Although EPA is not able to measure the full
benefits that accrue from reducing chronic exposure to pesticides,
well-documented associations between pesticide exposure and certain
cancer and non-cancer chronic health effects exist in peer-reviewed
literature. See the Economic Analysis for this rule for a discussion of
the peer-reviewed literature (Ref. 1). The final rule requirements for
strengthened competency standards for private applicators, expanded
training/qualification for noncertified applicators, additional
certification categories, a minimum age for all persons using RUPs, and
appropriate certification options in Indian country will lead to an
overall reduction in the number of human health incidents related to
acute and chronic pesticide exposure and environmental contamination
from improper or misapplication of pesticides. Overall, the weight of
evidence supports the

conclusion that the final rule requirements will result in long-term
health benefits to certified and noncertified applicators, as well as
to the public and the environment.
    It is reasonable to expect that the final rule will benefit the
environment and public health. The final rule enhances private
applicator competency standards to include information on protecting
the environment during and after application, such as avoiding
contamination of water supplies. The requirement to ensure that all
applicators continue to demonstrate their competency to use RUPs
without unreasonable adverse effect should better protect the public
from RUP exposure when occupying treated buildings or outdoor spaces,
consuming treated food products, and when near areas where RUPs have
been applied. The Economic Analysis for this final rule includes a
qualitative discussion of 68 incidents from 2009 through 2013 where
applicator errors while applying RUPs damaged crops or killed fish,
bird, bees, or other animals (Ref. 1). The final rule is expected to
reduce misapplication, and thereby improve environmental quality
through cleaner water and less impact on non-target plants and animals.
    In addition, the final rule specifically mitigates risks to
children. The final rule establishes a minimum age of 18 for certified
applicators (private and commercial) and noncertified applicators
working under the direct supervision of commercial applicators. The
final rule establishes a minimum age of 18 for noncertified applicators
using RUPs under the direct supervision of private applicators, with a
limited exception requiring noncertified applicators under the
supervision of private applicators who are members of their immediate
family to be at least 16 years old, provided certain conditions are
met. Since children's bodies are still developing, they may be more
susceptible to risks associated with RUP application and therefore will
benefit from strengthened protections. In addition, research has shown
that children may not have developed fully the capacity to make
decisions and to weigh risks properly (Refs. 12, 13, 14, 15). Proper
application of RUPs is essential to protect the safety of people who
work, visit, or live in or near areas treated with RUPs, people who eat
food that has been treated with RUPs, and people and animals who depend
on an uncontaminated water supply, as well as the safety of the
applicator him or herself. Therefore, it is reasonable to expect that
restricting certification to persons over 18 years old, with a limited
exception, will better protect both the applicators and those who may
be affected negatively by improper or misapplication.
    Children also suffer the effects of RUP exposure from residential
applications and accidental ingestion. Exposure from residential
applications can occur when RUPs are applied in areas where children
live, attend school, or visit. Accidental ingestion occurs when
children get access to an RUP that has been improperly stored (e.g.,
transferred to an unmarked container or left accessible to the public)
(Ref. 16). The final rule requires pesticide safety training for
noncertified applicators, strengthens competency standards for private
applicators, and requires all applicators to demonstrate continued
competency to use RUPs. These changes will remind applicators about
core principles of safe pesticide use and storage, reducing the
likelihood that children would experience these types of RUP exposures.
Thus, the final rule should reduce children's exposure to RUPs and
contamination caused by improper application of pesticides.

III. Introduction and Procedural History

    Broadly defined, a pesticide is any agent used to kill or control
undesired insects, weeds, rodents, fungi, bacteria, or other organisms.
See 7 U.S.C. 136(t) & (u). Chemical pest control plays a major role in
modern agriculture and has contributed to dramatic increases in crop
yields for most field, fruit and vegetable crops. Additionally,
pesticides ensure that the public is protected from health risks, such
as West Nile Virus, Lyme disease, Zika, and the plague, and help manage
invasive plants and organisms that pose significant harm to the
environment. Pesticides are also used to ensure that housing and
workplaces are free of pests, and to control microbial agents in health
care settings. EPA's obligation under FIFRA is to register only those
pesticides that do not cause unreasonable adverse effects to human
health or the environment. EPA is committed to protecting against these
potential harms and to ensure access to a safe and adequate food supply
in the United States.
    FIFRA requires EPA to consider the benefits of pesticides as well
as the potential risks. This consideration does not override EPA's
responsibility to protect human health and the environment; rather,
where a pesticide's use provides benefits, EPA must ensure that the
product can be used without posing unreasonable adverse effects to
human health or the environment. Some pesticides that are valuable to
society but that might cause unreasonable adverse effects to human
health or the environment if applied by inexperienced users are
classified for restricted use (known as RUPs). Certified applicators
have the knowledge, experience, and skills to understand and reliably
follow the precise and often complex risk mitigation measures specified
on the RUP labeling. Certification serves to ensure competency of
applicators to use these RUPs, and therefore to protect the applicator,
persons working under the direct supervision of the applicator, the
general public, and the environment through judicious and appropriate
use of RUPs.
    Applicator certification enables the registration of pesticides
that otherwise could not be registered, allowing the use of RUPs for
pest management in agricultural production, building and other
structural pest management, turf and landscape management, forestry,
public health, aquatic systems, food processing, stored grain, and
other areas.
    The certification rule, which sets standards for applicators using
RUPs, is 40 years old and has not had major revisions since 1978. For
over 25 years, EPA has been engaging with stakeholders to improve the
certification of applicators and improve the existing certification
rule. See Unit IV.B. The changes in today's final rule (revising the
certification rule) focus on five main objectives:
     Ensure that certified applicators are and remain competent
to use RUPs without unreasonable adverse effects.
     Ensure that noncertified applicators receive adequate
information and supervision to protect themselves and to ensure they
use RUPs without posing unreasonable adverse effects.
     Set standards for States, Tribes, and Federal agencies to
administer their own certification programs.
     Protect human health and the environment from risks
associated with use of RUPs.
     Ensure the continued availability of RUPs used for public
health and pest control purposes.
    The proposed changes were issued for public comment on August 24,
2015 (Ref. 17). After 150 days, the comment period closed on January
22, 2016. EPA received over 700 unique comments on the proposed rule.
Commenters represented a range of stakeholders and co-regulators,
including certifying authorities, organizations representing States and
Tribes, university extension programs, growers and grower
organizations, pesticide applicators and

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

IV. Context, Considerations, and Reasons for This Rulemaking

A. Context for This Rulemaking

    1. Statutory authority. FIFRA, 7. U.S.C. 136 et seq., was signed
into law in 1947 and established a framework for the regulation of
pesticide products, requiring them to be registered by the Federal
government before sale or distribution in commerce. Amended in 1972 by
the Federal Environmental Pesticide Control Act, FIFRA broadened
federal pesticide regulatory authority in several respects, notably by
making it unlawful for anyone to use any registered product in a manner
inconsistent with its labeling, 7 U.S.C. 136i(a)(2)(G), and limiting
the sale and use of RUPs to certified applicators and those under their
direct supervision. 7 U.S.C. 136i(a)(2)(F). The amendments provided
civil and criminal penalties for violations of FIFRA. 7 U.S.C. 136l.
The new and revised provisions augmented EPA's authority to protect
humans and the environment from unreasonable adverse effects of
pesticides.
    As a general matter, in order to obtain a registration for a
pesticide under FIFRA, the applicant must demonstrate that the
pesticide satisfies the statutory standard for registration, section
3(c)(5) of FIFRA. 7 U.S.C. 136a(c)(5). That standard requires, among
other things, that the pesticide performs its intended function without
causing ``unreasonable adverse effects on the environment.'' The term
``unreasonable adverse effects on the environment'' takes into account
the economic, social, and environmental costs and benefits of the use
of any pesticide and includes any unreasonable risk to man or the
environment. 7 U.S.C. 136(bb). This standard requires a finding that
the risks associated with the use of a pesticide are justified by the
benefits of such use, when the pesticide is used in compliance with the
terms and conditions of registration, or in accordance with commonly
recognized practices. See Defenders of Wildlife v. EPA, 882 F.2d 1294,
1298-99 (8th Cir. 1989) (describing FIFRA's required balancing of risks
and benefits).
    A pesticide product may be unclassified, or it may be classified
for restricted or for general use. Non-RUPs (i.e., general use or
unclassified pesticides) generally have a lower toxicity than RUPs and
so pose less potential to harm humans or the environment. The general
public can buy and use non-RUPs without special permits or training.
    Where EPA determines that a pesticide product would not meet these
registration criteria if unclassified or available for general use, but
could meet the registration criteria if applied by experienced,
competent applicators, EPA classifies the pesticide for restricted use
only by certified applicators. 7 U.S.C. 136a(d)(1). Generally, EPA
classifies a pesticide as restricted use if its toxicity exceeds one or
more human health toxicity criteria or based on other standards
established in regulation. EPA may also classify a pesticide as
restricted use if it meets certain criteria for hazards to non-target
organisms or ecosystems, or if EPA determines that a product (or class
of products) may cause unreasonable adverse effects on human health
and/or the environment without such restriction. The restricted use
classification designation must be prominently placed on the top of the
front panel of the pesticide product labeling.
    The risks associated with products classified as RUPs require
additional regulatory restrictions to ensure that when used they do not
cause unreasonable adverse effects on human health or the environment.
However, RUPs can be used without unreasonable adverse effects by
properly competent and equipped applicators closely following labeling
instructions. These products may only be applied by certified
applicators who have demonstrated competency in the safe application of
pesticides, including the ability to read and understand the complex
labeling requirements, or persons working under their direct
supervision. FIFRA requires EPA to develop standards for certification
of applicators, 7 U.S.C. 136i(a)(1), and allows States to certify
applicators under a certification plan approved by EPA. 7 U.S.C.
136i(a)(2).
    Provisions limiting EPA's authority with respect to applicator
certification include 7 U.S.C. 136i(a)(1), (c), and (d); 7 U.S.C. 136w-
5; and 7 U.S.C. 136(2)(e)(4). Section 136i(a)(1) of FIFRA prohibits EPA
from requiring private applicators to take an exam to establish
competency in the use of pesticides under an EPA-administered
certification program, or from requiring States to impose an exam
requirement as part of a State plan for certification of applicators.
    Section 136i(c) of FIFRA directs EPA to make instructional
materials on Integrated Pest Management (IPM) available to individuals,
but it prohibits EPA from establishing requirements for instruction or
competency determination on IPM. EPA makes IPM instructional materials
available to individual users through the National Pesticide Applicator
Certification Core Manual, which is used directly or as a model by many
States. Additionally, EPA has developed and implemented a variety of
programs to inform pesticide applicators about the principles and
benefits of IPM. These include the EPA's IPM in Schools Program, the
Pesticide Environmental Stewardship Program (PESP), and the Strategic
Agricultural Initiative (SAI) Grant Program, as well as several other
efforts. The Agency will continue to place a high priority on
initiatives and programs that promote IPM practices. For additional
information about the range of programs and activities, visit the
Office of Pesticide Programs PESP Web page on the EPA Web site at:
https://www.epa.gov/pesp.
    Section 136i(d) of FIFRA prohibits EPA from requiring private
applicators to keep records or file reports in connection with
certification requirements. However, private applicators must keep
records of RUP applications containing information substantially
similar to that which EPA requires commercial applicators to maintain
pursuant to Department of

Agriculture (USDA) regulations at 7 CFR 110.3.
    Section 136w-5 of FIFRA prohibits EPA from establishing training
requirements for maintenance applicators (certain applicators of non-
agricultural, non-RUPs) or service technicians.
    FIFRA's definition of ``under the direct supervision of a certified
applicator'' allows noncertified applicators to apply RUPs under the
direct supervision of a certified applicator even though the certified
applicator may not be physically present at the time and place the
pesticide is applied. 7 U.S.C. 136(e)(4). EPA can, on a product-by-
product basis and through the pesticide's labeling, require application
of an RUP only by a certified applicator.
    2. EPA's regulation of pesticides. In order to protect human health
and the environment from unreasonable adverse effects that might be
caused by pesticides, EPA has developed and implemented a rigorous
process for registering and re-evaluating pesticides. The registration
process begins when a manufacturer submits an application to register a
pesticide. The application must contain (or cite to) required test
data, including information on the pesticide's chemistry, environmental
fate, toxicity to humans and wildlife, and potential for human
exposure. The Agency also requires a copy of the proposed labeling,
including directions for use, and appropriate warnings.
    Once an application for a new pesticide product is received, EPA
conducts an evaluation, which includes a detailed review of scientific
data to determine the potential impact on human health and the
environment. EPA considers the risk assessments and results of any peer
review, and evaluates potential risk management measures that could
mitigate any risks that are at or above EPA's level of concern. Risk
management measures could include, among other things, classifying the
pesticide as restricted use, limitations on the use of the pesticide,
or requiring the use of engineering controls.
    In the registration process, EPA evaluates the proposed use(s) of
the pesticide to determine whether it would cause adverse effects on
human health, non-target species, and the environment. FIFRA requires
that EPA balance the benefits of using a pesticide against the risks
from that use.
    If the application for registration does not contain evidence
sufficient for EPA to determine that the pesticide meets the FIFRA
registration criteria, EPA communicates to the applicant the need for
more or better refined data, labeling modifications, or additional use
restrictions. Once the applicant has demonstrated that a proposed
product meets the FIFRA registration criteria and--if the use would
result in residues of the pesticide on food or feed--a tolerance or
exemption from the requirement of a tolerance under the Federal Food,
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et seq., is available,
EPA approves the registration subject to any risk mitigation measures
necessary to achieve that approval. EPA devotes significant resources
to crafting the terms and conditions of each pesticide registration to
ensure that each pesticide product meets the FIFRA requirement that
pesticides not cause unreasonable adverse effects to the public and the
environment.
    Part of EPA's pesticide regulation and evaluation process is
determining whether a pesticide should be classified for restricted
use. As discussed in Unit II.A., EPA classifies products as RUPs when
they would cause unreasonable adverse effects on the environment, the
applicator, or the public without additional restrictions beyond the
labeling requirements. 7 U.S.C. 136a(d)(1)(C). EPA maintains a list of
active ingredients with uses that have been classified as restricted
use at 40 CFR 152.175. In addition, EPA periodically publishes an ``RUP
Report'' that lists RUP products' registration number, product name,
status, registration status, company name, and active ingredients
(https://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report). EPA has classified about 900 pesticide products as RUPs,
which is about 5% of all registered pesticide products. EPA does not
have reliable data on the relative usage of RUPs versus non-RUPs.
    When EPA approves a pesticide, the labeling specifies the risk
mitigation measures required by EPA. Potential risk mitigation measures
include requiring certain engineering controls, such as use of closed
systems for mixing pesticides and loading them into application
equipment to reduce potential exposure to those who handle pesticides;
establishing conditions on the use of the pesticide by specifying
certain use sites, maximum application rates or maximum number of
applications; and limiting the use of the product to certified
applicators (i.e., prohibiting application of an RUP by a noncertified
applicator working under the direct supervision of a certified
applicator. Since users must comply with the directions for use and use
restrictions on a product's labeling, EPA uses the labeling to
establish and convey mandatory requirements for how the pesticide must
be used to protect the applicator, the public, and the environment from
pesticide exposure.
    Under FIFRA, EPA is required to review periodically the
registration of pesticides currently registered in the United States.
The 1988 FIFRA amendments required EPA to establish a pesticide
reregistration program. Reregistration was a one-time comprehensive
review of the human health and environmental effects of pesticides
first registered before November 1, 1984 to make decisions about these
pesticides' future use. The Food Quality Protection Act of 1996 (FQPA)
amendments to FIFRA require that EPA establish, through rulemaking, an
ongoing ``registration review'' process of all pesticides at least
every 15 years. The final rule establishing the registration review
program was signed in August 2006 (40 CFR 155, subpart C). The purpose
of both re-evaluation programs is to review all pesticides registered
in the United States to ensure that they continue to meet current
safety standards based on up-to-date scientific approaches and relevant
data.
    Pesticides reviewed under the reregistration program that met
current scientific and safety standards were declared ``eligible'' for
reregistration. The results of EPA's reviews are summarized in
Reregistration Eligibility Decision (RED) documents. The last RED was
completed in 2008. Often before a pesticide could be determined
``eligible,'' certain risk reduction measures had to be put in place.
For a number of pesticides, measures intended to reduce exposure to
certified applicators and pesticide handlers were needed and are
reflected on pesticide labeling. Where necessary to address
occupational risk concerns, REDs include mitigation measures such as:
Voluntary cancellation of the product or specific use(s); limiting the
amount, frequency or timing of applications; prohibiting particular
application methods; classifying a product or specific use(s) as for
restricted use; requiring the use of specific personal protective
equipment (PPE); establishing specific restricted entry intervals; and
improving use directions.
    Rigorous ongoing education and enforcement are needed to ensure
that these mitigation measures are appropriately implemented in the
field. The framework provided by the certification rule and associated
programs are critical for ensuring that the improvements brought about
by reregistration and registration review are realized in the field.
For example, the requirement for applicators to demonstrate continued
competency, or

to renew their certifications periodically, is one way to educate
applicators about changes in product labeling to ensure they continue
to use RUPs in a manner that will not harm themselves, the public, or
the environment. The changes to the final rule are designed to enhance
the effectiveness of the existing regulatory structure.
    In summary, EPA's pesticide reregistration and registration reviews
assess the specific risks associated with particular chemicals and
ensure that the public and environment do not suffer unreasonable
adverse effects from the products containing those pesticide chemicals.
EPA implements the risk reduction and mitigation measures that result
from the pesticide reregistration and registration review programs
through individual pesticide product labeling.
    3. Certification rule. The certification rule is intended to ensure
that persons using or supervising the use of RUPs are competent to use
these products without causing unreasonable adverse effects to human
health or the environment and to provide a mechanism by which States,
Tribes, and Federal agencies can administer their own programs to
certify applicators of RUPs as competent. FIFRA distinguishes three
categories of persons who might apply RUPs:
     Commercial applicators. ``Commercial applicator'' is
defined at 7 U.S.C. 136(e)(3). This group consists primarily of those
who apply RUPs for hire, including applicators who perform agricultural
pest control, structural pest control, lawn and turf care, and public
health pest control.
     Private applicators. ``Private applicator'' is defined at
7 U.S.C. 136(e)(2). This group consists primarily of farmers or
agricultural growers who apply RUPs to their own land to produce an
agricultural commodity.
     Noncertified applicators. A noncertified applicator is a
person who uses RUPs under the direct supervision of a certified
applicator. The phrase ``under the direct supervision of a certified
applicator'' is defined at 7 U.S.C. 136(e)(4).
    The existing certification rule establishes requirements for
submission and approval of State plans for the certification of
applicators. Consistent with the provisions of FIFRA (7 U.S.C.
136i(a)(2)) and the State plan requirements in the existing rule,
programs for the certification of applicators of RUPs are currently
implemented by all States and most territories. (As used in FIFRA, the
term State means a State, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the
Pacific Islands, and American Samoa; the term State has the same
meaning in this final rulemaking.) Certification programs are also
carried out by four other Federal agencies under approved Federal
agency plans. In addition, EPA has approved plans for four Tribes. EPA
also directly administers a national certification plan for Indian
country (Ref. 3) and has implemented a specific certification plan for
the Navajo Nation (Ref. 4). The States, Tribes, and Federal agencies
certify applicators in accordance with their EPA-approved certification
plans (Ref. 18).
    The existing certification rule establishes competency standards
for persons seeking to become certified as private or commercial
applicators. For a person to become certified as a private applicator,
he or she must either pass an exam covering a general set of
information related to pesticide application and safety or qualify
through a non-exam option administered by the certifying authority. For
a person to become certified as a commercial applicator, he or she must
pass at least two exams--one covering the general or ``core''
competencies related to general pesticide application and environmental
safety and an exam related to each specific category in which he or she
intends to apply pesticides. The existing certification rule lists 10
categories of certification for commercial applicators: Agricultural
pest control--plant; agricultural pest control--animal; forest pest
control; ornamental and turf pest control; seed treatment; aquatic pest
control; right-of-way pest control; industrial, institutional,
structural and health related pest control; public health pest control;
regulatory pest control; and demonstration and research pest control.
40 CFR 171.3(b). (Note: Documents from EPA and other certifying
authorities sometimes refer to 11 categories of certification, counting
the two subcategories under agricultural pest control as individual
categories.) Although EPA only requires certification of applicators
who use RUPs, most States require all commercial ``for hire''
applicators to be certified, regardless of whether they plan to use
RUPs or only non-RUPs. Once the applicator completes the necessary
requirements, the certifying authority issues to the applicator a
certification valid for a set period of time, ranging from 1-6 years
depending on the State, Tribe, or Federal agency that provides the
certification.
    The existing regulation requires States to implement a
recertification process to ensure that applicators maintain ongoing
competency to use pesticides safely and properly. 40 CFR 171.8(a)(2).
However, the existing rule does not have requirements regarding the
frequency, content, or standards for applicator recertification.
States, Tribes and Federal agencies have established varying
requirements for applicators to be recertified, such as attending a
full-day workshop, earning a specific number of CEUs, or passing
written exams. Applicators who do not complete the recertification
requirements in the established period no longer hold a valid
certification and cannot use RUPs after their certification expires.
    Under the existing certification rule, noncertified applicators
(i.e., persons using RUPs under the direct supervision of certified
applicators, must receive general instructions and be able to contact
their supervisor in the event of an emergency). The rule does not have
specific training requirements, a limit on the distance between the
supervisor and noncertified applicator, or a restriction on the number
of noncertified applicators that one certified applicator can
supervise.

B. Considerations for Improving the Certification Rule

    1. Regulatory history. The Agency proposed the existing
certification rule in 1974. EPA finalized sections covering applicator
competency standards and noncertified applicator requirements (40 CFR
171.1 through 171.6) in 1974 (Ref. 19), followed by sections outlining
State plan submission and review and certification in Indian country
(40 CFR 171.7 through 171.10) in 1975 (Ref. 20), and the requirements
for EPA-administered plans (40 CFR 171.11) in 1978 (Ref. 21). Since
1978, EPA has made minor amendments to the rule, such as requiring
dealer recordkeeping and reporting under EPA-implemented plans and
establishing standards for EPA-administered plans (Refs. 22 and 23).
    In 1990, EPA proposed amendments to the certification rule that
included provisions for establishing private applicator categories,
adding categories for commercial applicators, revising applicator
competency standards, establishing criteria and levels of supervision
for the use of an RUP by a noncertified applicator, criteria for
approving State noncertified applicator training programs, establishing
recertification requirements for private and commercial applicators,
and eliminating the exemption for non-

reader certification (Ref. 24). EPA took comments on the proposal but
did not finalize it due to constraints on EPA's resources.
    Because no major revision has been made to this federal regulation
in almost 40 years, States have taken the lead in revising and updating
standards for certification and recertification. Many States updated
their certification programs based on EPA's 1990 proposal. Others have
amended their programs to address changes in technology or other
aspects of pesticide application. As a result, the State requirements
for certification of applicators are highly varied and most States go
well beyond the existing Federal requirements for applicator
certification. This situation has created an uneven regulatory
landscape and problems in program consistency that complicate
registration decisions, inhibit certifying authorities from accepting
as valid certifications issued by other certifying authorities, and
hinder EPA's ability to develop national program materials that meet
the needs of all States.
    2. Stakeholder engagement. In 1996, stakeholders from the Federal
and State governments and cooperative extension programs formed the
Certification and Training Assessment Group (CTAG) to assess the
current status of and provide direction for Federal and State pesticide
applicator certification programs. CTAG's mission is to develop and
implement proposals to strengthen Federal, State and Tribal pesticide
certification and training programs, with the goal of enhancing the
knowledge and skills of pesticide users. Pesticide certification and
training programs are run primarily by State government programs and
cooperative extension service programs from State land grant
universities, so these stakeholders provide valuable insight into the
needs of the program.
    In 1999, CTAG issued a comprehensive report, ``Pesticide Safety in
the 21st Century'' (Ref. 25), which recommended improvements for State
and Federal pesticide applicator certification programs, including how
to strengthen the certification rule. The report suggests that EPA
update the core training requirements for private and commercial
applicators, establish a minimum age for applicator certification, set
standards for a recertification or continuing education program,
facilitate the ability of applicators certified in one State to work in
another State without going through the whole certification process
again, and strengthen protections for noncertified applicators working
under the direct supervision of a certified applicator (Ref. 25).
    Around the same time as CTAG issued its report, EPA initiated the
National Assessment of the Pesticide Worker Safety Program (the
National Assessment), an evaluation of its pesticide worker safety
program (pesticide applicator certification and agricultural worker
protection) (Ref. 27). The National Assessment engaged a wide array of
stakeholder groups in public forums to discuss among other things, the
CTAG recommendations and other necessary improvements to EPA's
pesticide applicator certification program. In 2005, EPA issued the
``Report on the National Assessment of EPA's Pesticide Worker Safety
Program'' (Ref. 27), which included many recommendations for rule
revisions to improve the applicator certification program. The various
individual opinions expressed and suggestions made during the course of
the assessment centered on a few broad improvement areas: The expansion
and upgrade of applicator and worker competency and promotion of safer
work practices, improved training of and communication with all
pesticide workers, increased enforcement efforts and improved training
of inspectors, training of health care providers and monitoring of
pesticide incidents, and finally, program operation, efficiency and
funding (Ref. 27). Suggestions specific to certification of applicators
included improving standards for noncertified applicators working under
the direct supervision of certified applicators, establishing a minimum
age for applicator certification, requiring all applicators to pass an
exam to become certified, and facilitating reciprocity between States
for certification of applicators (Ref. 27). While EPA addressed some of
the recommendations through grants, program guidance, and other
outreach, others could only be accomplished by rulemaking.
    During the initial stages of the framing of this proposal, EPA's
Federal advisory committee on pesticide issues, the Pesticide Program
Dialogue Committee (PPDC), formed a workgroup in 2006 to provide
feedback to EPA on different areas for change to the certification rule
and the WPS. The workgroup had over 70 members representing a wide
range of stakeholders. EPA shared with the workgroup suggestions for
regulatory change identified through the National Assessment and
solicited comments. The workgroup convened for a series of meetings and
conference calls to get more information on specific parts of the
regulation and areas where EPA was considering change, and provided
feedback to EPA. The workgroup focused on evaluating possible changes
under consideration by EPA by providing feedback from each member's or
organization's perspective. Comments from the PPDC workgroup members
have been compiled into a single document and posted in the docket
(Ref. 28).
    EPA convened a Small Business Advocacy Review (SBAR) Panel on
potential revisions to the certification rule and the WPS in 2008. The
SBAR Panel was convened under section 609(b) of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 609(b). As part of the SBAR Panel's
activities, EPA consulted with a group of Small Entity Representatives
(SERs) from small businesses and organizations that could be affected
by the potential revisions. EPA provided the SERs with information on
potential revisions to both rules and requested feedback on the
proposals under consideration. EPA asked the SERs to offer alternate
solutions to the potential proposals presented to provide flexibility
or to decrease economic impact for small entities while still
accomplishing the goal of improved safety (Ref. 29).
    Specific to the certification rule, the SERs provided feedback on
requirements for the minimum age of pesticide applicators and
protections for noncertified applicators working under the direct
supervision of a certified applicator. The SERs' responses were
compiled in an Appendix to the final Panel Report and posted in the
docket (Ref. 29). EPA considered input from the SERs as part of the
evaluation of available options for this rulemaking and SER feedback is
discussed where relevant in this preamble.
    Consistent with EPA's Indian Policy and Tribal Consultation Policy,
EPA's Office of Pesticide Programs conducted a consultation on the
proposed rulemaking with Tribes. The consultation was carried out via a
series of scheduled conference calls with Tribal representatives to
inform them about potential regulatory changes, especially areas that
could affect Tribes. EPA also informed the Tribal Pesticide Program
Council (TPPC) about the potential changes to the regulation (Ref. 30).
    In addition to formal stakeholder outreach, EPA held numerous
meetings at the request of various stakeholders to discuss concerns and
suggestions in detail.
    3. Public comments on the proposal. EPA received over 700 distinct
comments on the proposed changes (Ref. 17). Commenters represented
program stakeholders and regulators,

including State pesticide regulatory agencies, pesticide safety
education programs (university extension programs), farm bureaus,
associations, nonprofit organizations, certified applicators,
applicator associations and growers.
    Many comments from State regulatory agencies and pesticide safety
education programs provide details describing intricacies of their
certification programs and how the proposal would impact them. Comments
cover all areas of the proposal, but the areas of the proposal that
received the most critical comments include recertification and
equivalency, impact on applicators of non-RUPs, reciprocity,
establishing a minimum age of 18 for certified and noncertified
applicators, unfunded mandates, implementation timing, and EPA's
Economic Analysis of the proposed changes.
    During the public comment period, EPA met with stakeholders
individually and as organizations to discuss the proposal. EPA met with
States through the AAPCO workgroup formed to respond to the proposal,
as well as through other State organization meetings. At the request of
the Small Business Administration's Office of Advocacy, EPA provided an
overview of the proposal to interested small business representatives.
    EPA has included a summary of most comments received and EPA's
responses in this document. EPA has also prepared a separate document
summarizing comments not included in this document and EPA's responses
(Ref. 2).
    4. Children's health protection. Executive Order 13045 (62 FR
19885, April 23, 1997) and modified by Executive Order 13296 (68 FR
19931, April 18, 2003) requires Federal agencies to identify and assess
environmental health risks that may disproportionately affect children.
Children who apply pesticides face risks of exposure. A 2003 study
identified 531 children under 18 years old with acute occupational
pesticide-related illnesses over a 10-year period (Ref. 23). This study
raised concerns for chronic impacts: ``Because [the] acute illnesses
affect young people at a time before they have reached full
developmental maturation, there is also concern about unique and
persistent chronic effects'' (Ref. 31). Although the study is not
limited to RUPs, its findings indicate the potential risk to children
from working with and around pesticides.
    The Fair Labor Standard Act's (FLSA) child labor provisions, which
are administered by DOL, permit children to work at younger ages in
agricultural employment than in non-agricultural employment. Children
under 16 years old are prohibited from doing hazardous tasks in
agriculture, including handling or applying acutely toxic pesticides.
29 CFR 570.71(a)(9). DOL has established a general rule, applicable to
most industries other than agriculture, that workers must be at least
18 years old to perform hazardous jobs. 29 CFR 570.120.
    Research has shown differences in the decision making of
adolescents and adults that leads to the conclusion that adolescent
applicators may take more risks than those who are adults. Behavioral
scientists note that responsible decision making is more common in
young adults than adolescents: ``Socially responsible decision making
is significantly more common among young adults than among adolescents,
but does not increase appreciably after age 19. Adolescents, on
average, scored significantly worse than adults did, but individual
differences in judgment within each adolescent age group were
considerable. These findings call into question recent assertions,
derived from studies of logical reasoning, that adolescents and adults
are equally competent and that laws and social policies should treat
them as such'' (Ref. 15). Decision-making skills and competency differ
between adolescents and adults. While research has focused on decision
making of juveniles in terms of legal culpability, the research
suggests similar logic can be applied to decision making for pesticide
applications.
    In sum, children applying RUPs--products that require additional
care when used to ensure they do not cause unreasonable adverse effects
on people or the environment--may be at a potentially higher risk of
pesticide exposure and illness. The elevated risk to the adolescent
applicators, in addition to adolescents' not fully developed decision-
making abilities, warrant careful consideration of the best ways to
protect them. It is reasonable to expect that the revised regulation
will mitigate or eliminate many of the risks faced by adolescents
covered by this rule.
    5. Retrospective regulatory review. On January 18, 2011, President
Obama issued Executive Order 13563 (76 FR 3821, January 21, 2011), to
direct each Federal agency to develop a plan, consistent with law and
its resources and regulatory priorities, under which the agency would
periodically review its existing significant regulations to determine
whether any such regulations should be modified, streamlined, expanded,
or repealed so as to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.
The Executive Order also enumerates a number of principles and
directives to guide agencies as they work to improve the Nation's
regulatory system.
    In developing its plan for the periodic retrospective review of its
regulations, EPA sought public input on the design of EPA's plan, as
well as stakeholder suggestions for regulations that should be the
first to undergo a retrospective review (76 FR 9988, February 23,
2011). EPA issued the final plan, titled ``Improving Our Regulations:
Final Plan for Periodic Retrospective Reviews of Existing
Regulations,'' in August 2011 (http://www.epa.gov/regdarrt/retrospective/documents/eparetroreviewplan-aug2011.pdf). The existing
certification rule was nominated for retrospective review as part of
the public involvement process in 2011. In EPA's final plan, EPA
committed to review the existing certification rule to determine how to
clarify requirements and modify potentially redundant or restrictive
requirements, in keeping with Executive Order 13563.
    The results of EPA's review, which included identified
opportunities for improving the existing regulation, were incorporated
into this rulemaking effort. EPA expects revised regulation to achieve
the benefits outlined in Section II.C. For a summary of the benefits,
see the table in Unit I.D. and the discussion of costs and benefits of
the final rule in Unit II.C.

C. Reasons for This Rulemaking

    1. Reasons for regulatory change. The certification rule must be
updated to ensure that the certification process adequately prepares
and ensures the continued competency of applicators to use RUPs.
Several factors prompted EPA to propose changes to the existing rule:
The changing nature of pesticide labeling, risks associated with
specific methods for applying pesticides, adverse human health and
ecological incidents, inadequate protections for noncertified
applicators of RUPs, an uneven regulatory landscape, and outdated and
obsolete provisions in the rule related to the administration of
certification programs by Tribes and Federal agencies.
    i. The changing nature of pesticide labeling. As discussed in Unit
IV.A., EPA uses a rigorous process to register pesticides. EPA has also
implemented the pesticide reregistration program and the registration
review program to review registered pesticides periodically

to ensure they continue to meet the necessary standard. As a result of
these ongoing evaluations, risk-based labeling changes are occurring
more frequently than they were when the certification rule was first
issued. Changes address, among other topics, pesticide product
formulation and packaging, application methods, types of personal
protective equipment, and environmental concerns, such as the need to
protect pollinators. Pesticides that present greater risks generally
have more detailed risk mitigation measures, which can make the
pesticide labeling more complex. For pesticides classified as RUPs, it
is essential that applicators stay abreast of the changes to the
labeling and understand the risk mitigation measures, because if the
products are not used according to their labeling, they may cause
unreasonable adverse effects to the applicator, the public or the
environment. EPA's registration decisions assume that the applicator
follows all labeling instructions; when the labeling is followed, RUPs
can be used without unreasonable adverse effects. The current
regulation requires that applicators demonstrate continued competency
to use RUPs, but does not specify the length of the certification
period or standards for recertification and establishes only very basic
competencies for private applicators. EPA must ensure that certified
applicators demonstrate and maintain an understanding of how to use
RUPs in a manner that will not cause unreasonable adverse effects so
that EPA can continue to register RUPs. Therefore, EPA is establishing
a 5-year certification period, criteria for recertification programs,
and specifying in more detail the competency standards for private
applicators.
    ii. Specific application methods that require additional applicator
competency. RUPs are applied using a variety of application methods.
Some methods of application may require the applicator to have
additional specific competencies to perform these applications in a way
that minimizes risk to the applicator, bystander, and the environment.
Spray applications, particularly spraying pesticides from an aircraft,
may result in off-target drift of the pesticide. For example, a study
estimates that 37% to 68% of acute pesticide-related illnesses in
agricultural workers are caused by spray drift, including both ground-
based and aerial spray applications (Ref. 32). In the 2008 REDs for
soil fumigants (Ref. 33), EPA identified risks that required additional
training for soil fumigant applicators, and specified labeling
amendments requiring additional training in addition to the existing
requirement for the applicator to be certified. The soil fumigant REDs
also acknowledged that a specific certification category requiring
demonstration of competency by passing a written exam related to
applying fumigants to soil would be an acceptable alternative risk
mitigation measure. EPA must ensure that applicators are competent to
use RUPs in a manner that will not cause unreasonable adverse effects.
Therefore, EPA is adding to the regulation categories for commercial
and private applicators performing aerial application, soil fumigation,
and non-soil fumigation.
    iii. Adverse human health and ecological incidents. Much has
changed over the last 40 years related to use of RUPs--pesticide
product formulation and labeling, application methods, types of
personal protective equipment, and environmental concerns. EPA is
updating the regulation to address these and other changes affecting
applicators of RUPs. In addition to the hundreds of potentially
avoidable acute health incidents related to RUP exposure reported each
year (Ref. 16), several major incidents have occurred that demonstrate
that a single or limited misapplication of an RUP can have widespread
and serious effects.
    In one of the most significant pesticide misuse cases from the mid-
1990s, there was widespread misuse of the RUP methyl parathion, an
insecticide used primarily on cotton and other outdoor agricultural
crops, to control pests indoors. The improper use of this product by a
limited number of applicators across several States led to the
widespread contamination of hundreds of homes, significant pesticide
exposures and adverse health effects for hundreds of homeowners and
children, and clean-up costs of millions of dollars (Refs. 34 and 35).
The incident resulted in one of the most significant and widespread
pesticide exposure cases in EPA's history. In another incident, an
applicator using the RUP aluminum phosphide caused the death of 2 young
girls and made the rest of the family ill (see, e.g., http://www.justice.gov/archive/usao/ut/news/2011/bugman%20plea.pdf and http://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm?action=3&prosecution_summary_id=2249). In 2015, improper use
of methyl bromide in the Virgin Islands caused serious injury and long-
term hospitalization of a four people (see, e.g., https://www.justice.gov/opa/pr/terminix-companies-agree-pay-10-million-applying-restricted-use-pesticide-residences-us). Also in 2015,
fumigation with sulfuryl fluoride that did not follow proper procedures
caused serious injury to a young boy (see, e.g., https://www.justice.gov/usao-sdfl/pr/fumigation-company-and-two-individuals-pled-guilty-connection-illegal-pesticide). Finally, several severe
health incidents have resulted from the public getting access to RUPs
that were unlawfully transferred into different containers (in one
case, a soda bottle) that did not have the necessary labeling (Ref. 1).
    In addition to human health incidents from RUP exposure, there are
instances where use of RUPs has had negative impacts on the
environment. Although data on the damage associated ecological
incidents are difficult to capture, EPA has identified a number of
incidents of harm to fish and aquatic animals, birds, mammals, bees,
and crops that could be prevented under the revised certification rule
(Ref. 1). See the Economic Analysis for this rule for more information
on human health and ecological incidents stemming from RUP use (Ref.
1).
    In light of the incidents discussed above, EPA is updating the
certification rule to ensure that RUPs can continue to be used without
posing unreasonable adverse effects to human health or the environment.
EPA's decision to register products as restricted use rests in part on
an assumption that applicators will be sufficiently competent and
professional that they can be relied upon to make responsible choices
and properly follow all labeling instructions. When labeling
instructions are followed, RUPs can be used without unreasonable
adverse effects. EPA expects the revised rule to reduce human health
and environmental incidents related to RUP use by strengthening the
standards of competency for certified applicators, training
noncertified applicators on pesticide safety, and establishing a
maximum certification period and criteria for recertification programs.
These changes will be provide better assurance that certified
applicators and those under their supervision will generally have a
higher level of competency, and therefore more carefully follow
pesticide labeling instructions and take proper care to prevent harm.
    iv. Inadequate protection for noncertified applicators of RUPs. The
existing rule does not require noncertified applicators using RUPs to
receive specific instruction on how to protect themselves, their
families, other

persons and the environment from pesticide exposure. Although little
demographic data exists on this group, in industries including but not
limited to agriculture and ornamental plant production, the profile of
the population appears to be similar to that of agricultural pesticide
handlers under the WPS. Both groups are permitted to mix, load, and
apply pesticides with proper guidance from their employer or
supervisor. Agricultural handlers under the WPS only use pesticides in
the production of agricultural commodities; noncertified applicators
may use pesticides in any setting not prohibited by the labeling. In
order to mix, load or apply RUPs, however, all noncertified persons,
including agricultural handlers, must be working under the direct
supervision of a certified applicator. Many noncertified applicators
work far from their supervisor, and exercise considerable independence.
Although these noncertified applicators do not need to have the same
level of competency as the supervising certified applicator, they
nevertheless must be sufficiently competent to use RUPs in a manner
that will not cause unreasonable adverse effects to themselves, the
public, or the environment. The existing certification rule does not
have specific standards on which noncertified applicators must receive
instruction in order to prepare them to use RUPs. EPA identified six
incidents from 2006 to 2010 where noncertified applicators experienced
high severity health impacts from working with RUPs (Ref. 1). These
adverse health effects were largely due to the noncertified
applicators' lack of understanding about the risks posed by the RUPs
they were applying, proper application procedures and techniques, and
labeling instructions.
    Under the WPS, agricultural handlers must receive training that
covers, among other topics, hazards associated with pesticide use;
format and meaning of pesticide labeling; and proper pesticide use,
transportation, storage, and disposal. 40 CFR 170.230(c)(4) and
170.501(c)(2). Agricultural handlers also must have access to the
product labeling and any other information necessary to make the
application without causing unreasonable adverse effects. EPA revised
the WPS in 2015 to, among other changes, add content for agricultural
handler training that covers proper use and removal of PPE and specific
information on fitting and wearing respirators to ensure agricultural
handlers are protected adequately and understand how to follow all
relevant labeling provisions (Ref. 36).
    Like agricultural handlers, some noncertified applicators may face
challenges, such as not speaking or reading English that could put them
at greater risk of pesticide exposure. They may bear risks from
occupational pesticide exposure because they work with and around
pesticides on a daily basis, language and literacy barriers may make
effective training and hazard communication challenging, and economic
hardship may make them reluctant to question instructions. Under the
principles of environmental justice, EPA recognizes the need to reduce
the disproportionate burden or risk carried by this population.
    Noncertified applicators must receive adequate instruction on
understanding and following pesticide labeling to ensure that RUPs are
used in a manner that will not cause unreasonable adverse effects to
human health or the environment. Additionally, noncertified applicators
must have sufficient information in order to protect themselves,
others, and the environment before, during, and after pesticide
applications. Because of the similar risks faced by agricultural
handlers under the WPS and noncertified applicators under the
certification rule, EPA has strengthened the standards for noncertified
applicators to include provisions comparable to the agricultural
handler training requirements under the revised WPS and to ensure that
the training is provided in a manner that the noncertified applicators
understand, including through audiovisual materials or a translator if
necessary.
    v. Uneven regulatory landscape. EPA assumes a minimum standard
level of competency of RUP applicators as part of the pesticide
registration and ongoing review processes, and registers RUPs based on
the minimum standard of competency. States, however, may adopt
additional requirements as long as they meet the minimum standards
established by EPA. The standards for exams and private applicator
competency standards in the existing rule lack sufficient specificity
sufficient to ensure an acceptable level of competency. The lack of
specificity in the existing rule has resulted in States adopting
differing standards, some of which do not match EPA's expectation
regarding the minimum level of competency of a certified applicator.
    For example, in 2006, EPA issued guidance on its interpretation of
exams in the existing rule. The guidance notes that EPA interprets any
exam administered to gauge applicator competency as being a proctored,
closed-book, written exam (Ref. 37). However, not all State
certification programs are consistent with this interpretation; several
States determine applicator competency based on open-book exams where
candidates are allowed to bring in their own reference materials. EPA
is concerned that this process compromises exam security. EPA has
revised the existing rule to incorporate elements of the 2006 guidance
and to clarify its expectations regarding administration of
certification exams and training programs to ensure that the process
for determining competency meets a standard national baseline.
    The existing certification rule lists five points on which a person
much demonstrate competency to become a private applicator. While these
points cover the main topics that EPA expects an applicator to master
before being certified to use RUPs, they do not cover in detail the
necessary competencies for a person to use RUPs without causing
unreasonable adverse effects. EPA must ensure that private applicators
use RUPs competently. Commercial applicators must demonstrate core
competency in pesticide use, such as reading and understanding the
labeling, calculating application rates, wearing and caring for PPE,
how to handle spills and other emergencies, and avoiding environmental
contamination from pesticide use, as well as competency in specific
categories of application. Private and commercial applicators have
access to the same RUPs, and EPA expects that they should have
comparable levels of competency related to understanding and following
pesticide labeling. Almost 90% of States have adopted specific
standards of competency for private applicators that are comparable to
the core standards for commercial applicators. Those States that have
not adopted such standards for private applicators may be certifying
applicators who do not meet the level of competency that EPA believes
is necessary to use RUPs. To address this situation, the final rule
includes more specific standards of competency for private
applicators--the revised standards include many concepts from the
commercial core standards as well as competencies necessary to use RUPs
in agricultural production.
    vi. Outdated and obsolete rule provisions. The existing
certification rule has one section regarding Tribal programs that is
outdated and one section on government agency certification programs
that is not necessary. The existing rule provides three options for
applicator certification

programs in Indian country. Consultation with Tribes raised an issue
with one of the existing options because it calls for Tribes that
chooses to utilize a State certification program and rely on State
certifications to obtain concurrence from the relevant States and to
enter into a documented State-Tribal cooperative agreement. This option
has led to questions about jurisdiction and the appropriate exercise of
enforcement authority for such programs in Indian country. EPA has
revised this option to allow Tribes to administer programs based on
certifications issued by a State, a separate Tribe, or a Federal agency
by entering into an agreement with the appropriate EPA Regional office.
This will allow Tribes to enter into agreements with EPA to recognize
the certification of applicators who hold a certificate issued under an
EPA-approved certification plan without the need for State-Tribal
cooperative agreements. The agreement between the Tribe and the EPA
Regional office will address appropriate implementation and enforcement
issues.
    The existing rule includes a provision for a Government Agency
Plan, a certification program that would cover all Federal government
employees using RUPs. No such plan was developed or implemented by EPA
or any other Federal agency. Subsequently, EPA issued a policy that
allows each Federal agency to submit its own plan to certify its own
employees to apply RUPs. Four Federal agencies have EPA-approved
certification plans. To streamline the rule and codify the existing
policy, EPA has deleted the existing section on a Government Agency
Plan and replaced it with requirements consistent with the existing
policy on Federal agency certification plans.
    2. Surveillance data. i. Incident monitoring. Incident monitoring
programs have informed EPA's understanding of common types of pesticide
exposures and their outcomes. In 2007, EPA released a report detailing
the coverage of all pesticide incident reporting databases considered
by EPA (Ref. 38). When developing the proposed changes to the
certification rule, EPA consulted three major databases for information
on pesticide incidents involving applicator errors while using RUPs.
    To identify deaths and high severity incidents associated with use
of RUPs, EPA consulted its Incident Data System (IDS). IDS is
maintained by EPA's Office of Pesticide Programs (OPP) and incorporates
data submitted by registrants under FIFRA section 6(a)(2), as well as
other incidents reported by others directly to EPA. EPA's adverse
effects reporting rule at 40 CFR part 159 allows the aggregation of
individual events in some circumstances, meaning an incident with
negative impacts to a number of individuals (e.g., persons, livestock,
birds, pollinators) could be reported as a single incident. In addition
to incidents involving human health, IDS also collects information on
claims of adverse effects from pesticides involving plants and animals
(wild and domestic), as well as detections of pesticides in water. EPA
used this information to identify incidents involving the use of RUPs
that have ecological effects. While IDS reports may be broad in scope,
the system does not consistently capture detailed information about
incident events, such as occupational exposure circumstances or medical
outcome, and the reports are not necessarily verified or investigated.
    The second database, SENSOR-Pesticides, is maintained by NIOSH and
covers pesticide-related occupational injuries. EPA uses SENSOR-
Pesticides to monitor trends in occupational health related to acute
exposures to pesticides, to identify emerging pesticide problems, and
to build and maintain State surveillance capacity. SENSOR-Pesticides is
a State-based surveillance system with 12 State participants. The
program collects most poisoning incident cases from:
     State workers' compensation claims when reported by
physicians.
     State Departments of Agriculture.
     Poison Control Centers (PCCs).
    A State SENSOR-Pesticides contact specialist follows up with
workers and obtains medical records to verify symptoms, circumstances
surrounding the exposure, severity, and outcome. SENSOR-Pesticides
captures incidents only when the affected person has two or more
symptoms. Using a standardized protocol and case definitions, SENSOR-
Pesticides coordinators enter the incident interview description
provided by the worker, medical report, and physician into the SENSOR
data system. SENSOR-Pesticides has a severity index, based partly on
poison control center criteria, to assign illness severity in a
standardized fashion. SENSOR-Pesticides provides the most comprehensive
information on occupational pesticide exposure, but its coverage is not
nationwide and a majority of the data come from California and
Washington State. Since 2009, SENSOR has been including information
about how the incidents may have been prevented.
    The third database, the American Association of Poison Control
Centers, maintains the National Poison Data System (NPDS), formerly the
Toxic Effects Surveillance System. NPDS is a computerized information
system with geographically-specific and near real-time reporting. While
the main mission of PCCs is helping callers respond to emergencies, not
collecting specific information about incidents, NPDS data help
identify emerging problems in chemical product safety. Hotlines at 61
PCCs nationwide are open 24 hours, every day of the year. There are
many bilingual PCCs in predominantly Spanish speaking areas. Hotlines
are staffed by toxicology specialists to provide poisoning information
and clinical care recommendations to callers with a focus on triage to
give patients appropriate care. Using computer assisted data entry,
standardized protocols, and strict data entry criteria, local callers
report incidents that are recorded locally and updated in summary form
to the national database. Since 2000, nearly all calls in the system
are submitted in a computer-assisted interview format by the 61
certified PCCs, adhering to clinical criteria designed to provide a
consistent approach to evaluating and managing pesticide and drug
related adverse incidents. Information calls are tallied separately and
not counted as incidents. The NPDS system covers nearly the entire
United States and its territories, but the system is clinically
oriented and not designed to collect detailed information about the
circumstances causing the incident. Additionally, NPDS does not capture
EPA pesticide registration numbers, a critical element for identifying
the specific product and whether it was an RUP.
    It is very likely that these databases significantly undercount the
actual number of pesticide adverse effect incidents. Three studies
showing undercounting of poison control data indicate the magnitude of
the problem. The studies each focus on a specific region and compare
cases reported to poison control with those poisonings for which there
are hospital records. In all three cases, the studies indicate a
substantial underreporting of poisoning incidents to poison control,
especially related to pesticides (Refs. 13, 14, and 15).
    Underreporting of pesticide incidents is a challenge for all
available data sources for a number of reasons. Symptoms of acute
pesticide poisoning are often vague and mimic symptoms with other
causes, leading to incorrect diagnoses, and chronic effects are
difficult to identify and track. There may not be enough information to
determine if the adverse effects noted

were in fact the result of pesticide exposure and not another
contributing factor because many incident reports lack useful
information such as the exact product that was the source of the
exposure, the amount of pesticide involved, or the circumstances of the
exposure. The demographics of the populations that typically work with
or around pesticides also contribute to underreporting of incidents. A
more complete discussion of the underreporting and its effect on
pesticide incident reporting is located in the Economic Analysis for
this proposal (Ref. 1).
    The data available do provide a snapshot of the illnesses faced by
those applying RUPs and others impacted by the application and the
likely avenues of exposure. Review of these data sources shows that
certified applicators continue to face avoidable occupational pesticide
exposure and in some instances cause exposures to others. EPA notes
that RUPs can be used in a manner that does not cause unreasonable
adverse effects when labeling directions for use are carefully
followed. Deaths and illnesses from applicator errors involving RUPs
occur for a variety of reasons, including misuse of pesticides in or
around homes, faulty application and/or personal protective equipment,
failure to confirm a living space is empty before fumigating, or
unknowing persons accidentally ingesting an RUP that was improperly put
in a beverage container. Common reasons for ecological incidents
include failure to follow labeling directions, inattention to weather
patterns at the time of application, and application equipment
malfunction (Ref. 1). Generally, EPA's analysis showed that many of the
reported incidents could be prevented with strengthened requirements
for initial and ongoing applicator competency (certification and
recertification), improved training for noncertified applicators
working under the direction of a certified applicator, and knowledge of
proper techniques for using specific methods to apply pesticides (Ref.
1).
    ii. Agricultural Health Study. The National Institutes of Health
(National Cancer Institute and National Institute of Environmental
Health Sciences) and EPA have sponsored the Agricultural Health Study
since 1994. This long-term, prospective epidemiological study collects
information from farmers who are certified applicators in Iowa and
North Carolina to learn about the effects of environmental,
occupational, dietary, and genetic factors on the health of the
farmers, pesticide applicators, and their families. The study design
involves gathering information over many years about the pesticide
applicator and his or her family's health, occupational practices,
lifestyle, and diet through mailed questionnaires and individual
interviews. See http://aghealth.nih.gov.
    The Agricultural Health Study includes approximately 52,000 private
applicators, 32,000 spouses of private applicators, and 5,000
commercial applicators. All applicators participating in the study are
certified (or licensed) in every State in which they work and in each
category in which they make applications. All participants were healthy
before enrolling in the study, allowing the researchers to consider a
number of variables such as pesticide use, lifestyle, and diet.
    The Agricultural Health Study is observational and considers a
variety of factors including, but not limited to, pesticide use and
exposure. Therefore, establishing a link between a specific health
outcome and pesticide exposure can be difficult. However, it is
possible to demonstrate statistical associations between a certain
activity and an outcome. Using the information collected, the
investigators working on the Agricultural Health Study have produced a
number of articles relevant to the health and safety of pesticide
applicators. See http://aghealth.nih.gov/news/publications.html. For
instance, publications include information on characteristics of
farmers who experience high pesticide exposure events and potential
links between pesticide use and chronic health effects.
    EPA considers the information from the Agricultural Health Study
when appropriate, such as during a chemical reassessment. The data also
provide information on applicator practices that lead to exposures,
some of which EPA plans to address through the changes in this
rulemaking.
    3. Demographics. The profile of certified applicators of RUPs has
shifted over time. The U.S. continues to move away from small
agricultural production and more individuals seek professional pest
control to address issues in their home or workplace. In 1987, around
1.2 million applicators held a certification, almost 80% of which were
private applicators, and 20% of which were commercial applicators (Ref.
39). By 2015, the total number of certified applicators decreased to
around 938,000 (Ref. 18). The respective proportions of private and
commercial applicators changed more significantly--private applicators
account only for 53% of the total certified applicator population and
commercial applicators now make up about 47%.
    In contrast to private applicators, who per FIFRA may only apply
RUPs for the production of agricultural commodities on land owned by
the applicator or the applicator's employer (with minor exception),
commercial applicators work in a diverse array of situations.
Commercial applicators apply RUPs in agricultural production,
residential pest control, mosquito spraying for public health
protection, industrial and food processing facilities, treating weeds
along roadside and railroad rights of way, fumigating rail cars and
buildings, maintaining lawns and other ornamental plantings, and
controlling weeds and algae in waterways through pesticide application.
Specific information on applicators across all industries or in each
certification category is difficult to find and summarize. However, the
broad trends indicate a decrease in agricultural applicators and an
increase in urban and public health pest control.
    Since publication of the 1974 certification rule, pesticide usage
and reliance on hired pest control applicators have increased. The U.S.
Bureau of Labor Statistics expects that ``employment of pest control
workers [will] grow by 15 percent between 2008 and 2018, . . .
[because] more people are expected to use pest control services as
environmental and health concerns and improvements in the standard of
living convince more people to hire professionals, rather than attempt
pest control work themselves'' (Ref. 40).
    4. Summary of the final rule. Units II. and III. describe the
stakeholder engagement and reports highlighting the need to update the
certification rule. In addition to stakeholder recommendations and
public comments, EPA is revising the regulation to address State
variability and to support EPA registration decisions. Each of these
reasons for updating the rule are discussed in Unit IV.
    As noted in Unit III., EPA has not updated the certification rule
substantially in almost 40 years. However, many States have adopted
updated standards for certification and recertification. As a result,
State requirements for certification of applicators are highly varied.
    If certification does not represent a uniform degree of competence,
this diversity also could compromise EPA's ability to determine
confidently that use of a pesticide product by certified applicators
will not cause unreasonable adverse effects. In order to retain or
expand the number and types of pesticides available to benefit
agriculture, public health, and other

pest control needs, EPA is raising the Federal standards for applicator
competency. By adopting strengthened and additional competency
standards, the rule will provide assurance that certified applicators
and noncertified applicators under their direct supervision are
competent to use RUPs in a manner that will not cause unreasonable
adverse effects. In the absence of such assurance, EPA would have had
to seek label amendments imposing other use limitations that could be
more burdensome to users, or even cancel certain uses.
    Units V. to XX. describe the most significant of the changes to the
existing regulation. Each discussion is generally structured to
provide, where appropriate:
     A concise statement of the existing rule and proposed
change.
     The final revised requirements.
     A summary of the comments received.
     EPA's responses to the comments received.

V. Private Applicator Certification

A. Private Applicator Competency Standards

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

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