resulting in different standards and levels of protection across the
country. EPA reviewed the categories related to application methods
adopted by the States and other stakeholders. According to data from
2013, 32 States (Alaska, California, Connecticut, Florida, Georgia,
Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New
Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania,
South Carolina, Texas, Utah, Vermont, Virginia, Wisconsin, Wyoming)
require commercial applicators to be certified for aerial application
and 1 State (Wisconsin) requires the same for private applicators. For
soil fumigation, 16 States (California, Connecticut, Delaware, Florida,
Idaho, Illinois, Minnesota, Nebraska, New York, North Carolina, Ohio,
Oregon, Pennsylvania, Virginia, Washington, Wisconsin) require
commercial applicators to obtain a specific certification and 10 States
(Hawaii, Idaho, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania,
Washington, Wisconsin, Virginia) have a similar requirement for private
applicators. Finally, for non-soil fumigation, 41 States (Alabama,
Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia,

Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland,
Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Texas, Utah, Virginia, Washington State, West
Virginia, Wisconsin, Wyoming) mandate that commercial applicators be
certified in this specific category to conduct non-soil fumigation
applications and 8 States (Arizona, Iowa, Minnesota, Nevada, North
Dakota, Ohio, Pennsylvania, Utah) have a similar requirement for
private applicators.
    The 2008 REDs for soil fumigants acknowledged the elevated risks
(Ref. 17). As a result of these risks, EPA required additional training
for soil fumigant applicators through labeling amendments. The decision
also acknowledged that a specific certification category requiring
demonstration of competency by passing a written exam related to
applying fumigants to soil would be an acceptable alternative risk
mitigation measure. Several States have opted to require applicators to
be certified in a specific soil fumigation category. As chemicals are
reviewed as part of the ongoing registration review program, risks
associated with individual pesticides may be addressed through labeling
requirements for additional training or competency.
    4. Details of the proposal/rationale. The Agency proposes to
establish three application method-specific certification categories
for private and commercial applicators: Soil fumigation, non-soil
fumigation, and aerial. Based on the discussions with States and review
of existing State-adopted categories, EPA proposes these categories
because EPA has concluded that these categories of use for RUPs may
cause unreasonable adverse effects without additional regulation. These
types of RUP application require specialized skills and present unique
risks, such that it is reasonable and appropriate for private and
commercial applicators to acquire or demonstrate the pertinent
knowledge and skills before being certified to apply RUPs in any of
these three categories. For commercial applicators, certification in
any of the application method-specific categories would only be
available to persons certified in a relevant pest control category as
described in proposed 40 CFR 171.101(a). Private applicators would need
to satisfy the general competency standards described in Unit VI in
order to qualify for additional certification in an application method-
specific category.
    Pesticide application and agriculture both are becoming
increasingly specialized. Improper use of application equipment may
lead to increased risks to the health of the applicator, workers, the
environment, and the public. Additionally, certain categories of
pesticides, including fumigants, pose an inherently higher risk of
acute injury or death if the applicator does not understand and follow
the labeling. These increased risks can be mitigated by requiring
applicators to demonstrate a more specific set of competencies relative
to certain application methods.
    Soil fumigation is a complicated process, and involves highly toxic
pesticide products that can cause acute, severe injury to the
applicator, handler, bystanders, or the environment if not used
properly. Given the increased potential for harm to human health and
the environment, EPA proposes to establish soil fumigation categories
for private and commercial applicators. Under the re-registration
decisions for the soil fumigants (Refs. 38, 39, 40 and 41), additional
soil fumigation-specific training is required for applicators certified
to use RUPs registered for use as soil fumigants due to their increased
potential for harm. Because there was no generally applicable
requirement or standard of competence for soil fumigation, EPA required
each registrant to develop and implement a soil fumigant training
program. In discussing this approach with States, EPA recognized that
an applicator certification category specific to soil fumigation with a
single, uniform set of criteria would be less burdensome than requiring
separate, registrant-sponsored trainings for each soil fumigation
product. States have requested that EPA consider requiring all
applicators using soil fumigants to be certified in a single, soil
fumigation category in lieu of each product's labeling requirement for
registrant-sponsored training (Ref. 42). The labeling for soil
fumigants provides the option for applicators to qualify to purchase
and use these products either by attending the registrant training
specified on the labeling for each specific chemical or by being
certified in a soil fumigation category that covers all active
ingredients and meets the competency standards approved by EPA.
Recognizing the potential risks from soil fumigants and the importance
of applicator competency, EPA worked with State regulators, cooperative
extension personnel, soil fumigant applicators, and industry to develop
a training manual and exam item bank (database of questions related to
soil fumigation that can be used on a certification exam) that States
can use for certification of applicators performing soil fumigation
(Refs. 43 and 44).
    Under the proposal, commercial applicator certification in the soil
fumigation category would require the applicator to demonstrate
competency in soil fumigation by passing a written exam and to hold
concurrent certification in each of the pest control categories in
which he or she intends to conduct this type of application, e.g.,
agricultural pest control--plant; ornamental and turf pest control;
forest pest control; right-of-way pest control; regulatory pest
control; or demonstration and research. Private applicator
certification in soil fumigation would require the applicator to
demonstrate competency by passing a written exam or completing a
training program covering the proposed competency standards for soil
fumigation (proposed at 40 CFR 171.105(c)(1)) in addition to holding a
valid general private applicator certification.
    Other (non-soil) types of fumigation require different techniques
and training than soil fumigation, but have similar potential to harm
the applicator, the environment, and the public. For example, although
fumigation of a shipping container requires different application
equipment, monitoring strategy, and mitigation of environmental
concerns than soil fumigation, both types of fumigation can cause
acute, severe injury to the applicator, handler, bystanders, or the
environment if not conducted properly. Given the high potential for
harm to human health and the environment, EPA proposes to add non-soil
fumigation application method-specific certification categories for
private and commercial applicators. Commercial applicator certification
in the non-soil fumigation category would require the applicator to
demonstrate competency in non-soil fumigation by passing a written exam
and to hold concurrent certification in each of the pest control
categories in which he or she intends to conduct this type of
application, e.g., agricultural pest control--plant; forest pest
control; ornamental and turf pest control; seed treatment; aquatic pest
control; industrial, institutional, structural, and health-related pest
control; public health pest control; regulatory pest control; or
demonstration and research. Private applicator certification in non-
soil fumigation would require the applicator to demonstrate competency
by passing a written exam or completing a training

program covering the proposed competency standards for non-soil
fumigation (proposed at 40 CFR 171.105(c)(2)) in addition to holding a
valid general private applicator certification.
    Applying pesticides with a plane or helicopter poses a unique set
of risks and challenges to the applicator, bystanders, and the
environment. There is heightened concern for spray drift, elevated
potential for off-target applications and bystander exposure, and an
increased need for application equipment to be calibrated accurately.
Aerial applicators are required to comply not only with EPA regulations
for the application of pesticides, but also Federal Aviation
Administration requirements for pilots making applications using an
aircraft at 14 CFR part 137. Recognizing the potential risks and the
importance of applicator competency when performing aerial
applications, EPA worked with State regulators, cooperative extension
personnel, aerial applicators, and industry to develop a training
manual and exam item bank that States can use for certification of
aerial applicators (Ref. 45). The unique challenges posed by this
application method warrant establishing aerial application categories
for private and commercial applicators. Accordingly, in order for a
commercial applicator to make aerial applications of RUPs, the
commercial applicator would be required to demonstrate competency in
aerial application by passing a written exam and to hold concurrent
certification in each of the pest control categories in which he or she
intends to conduct aerial application, e.g., agricultural pest
control--plant; ornamental and turf pest control; forest pest control;
aquatic pest control; right-of-way pest control; public health pest
control; demonstration and research; or regulatory pest control.
Private applicator certification in aerial application would require
the applicator to demonstrate competency by passing a written exam or
completing a training program covering the proposed competency
standards for aerial application (proposed at 40 CFR 171.105(c)(3)) in
addition to holding a valid general private applicator certification.
    Requirements for general private applicator certification in each
of the aforementioned application method-specific categories would
parallel the certification requirements proposed in Unit VI.B. Private
applicators would be required to either pass a written exam or complete
a training program for each application method-specific category that
covers the proposed competency standards and is approved by the
certifying authority. A person who does not have a general private
applicator certification would not be eligible for certification in any
of the application method-specific categories. These additional
categories of certification would provide a measure of assurance that
the private applicator has the specialized knowledge of application
methods, equipment, and the characteristics of the pesticides pertinent
to a specific category to use the pesticide without generally causing
unreasonable adverse effects.
    The regulatory text for the proposed commercial applicator
application method-specific categories would be located at 40 CFR
171.101(b). The regulatory text for the proposed private applicator
application method-specific categories would be located at 40 CFR
171.105(c).
    5. Costs. The cost estimates are broken out by each category for
private and commercial applicators (Ref. 3). As discussed in Unit
VI.B., EPA plans to support the development of exams and manuals for
the proposed application-method specific categories, which should
reduce the overall burden to States associated with this proposal. EPA
has already developed and made available to State certification
agencies free of charge training manuals and exam item banks for the
aerial and soil fumigation categories. States that elect to use the
EPA-developed materials would incur minimal development costs; however,
the costs below reflect the full estimated cost to States and do not
include EPA assistance in developing exams and manuals. EPA expects the
actual costs to States would be lower (Ref. 3).
    i. Private applicators. EPA estimates the cost of adding a private
aerial category to be about $2,000 annually, which reflects the
aggregate cost to all affected private aerial applicators (Ref. 3). The
low cost to applicators reflects the number of existing private
applicators certified in aerial application and the low estimated
number of new private applicators seeking aerial certification. The
costs to States to develop and administer exams or training for
certification would be about $108,000 annually for the first 2 years of
implementation (Ref. 3). Most of this cost would be borne within the
first two years to develop the exams and recognizes that nationally
developed materials will be available for States to adapt for their own
programs.
    EPA estimates that adding a soil fumigation category for private
applicators would not result in any additional cost to private
applicators. The labeling for soil fumigation products already requires
applicators to either participate in registrant training for each
product or to be certified in a State soil fumigation category.
    EPA estimates that the cost of adding a non-soil fumigation
category for private applicators to be about $78,000 annually, which
reflects the aggregate cost to all affected private applicators
conducting non-soil fumigation (Ref. 3). The estimate represents the
private applicators' opportunity cost of time spent in training or
preparing for and taking the certification exam.
    EPA estimates that the costs to States to develop and administer
exams or training for certification in the soil and non-soil fumigation
categories would be $197,000 annually for the first 2 years of
implementation.
    ii. Commercial applicators. EPA estimates the cost of adding an
aerial category for commercial applicators to be about $98,000
annually, which reflects the aggregate cost to all affected commercial
aerial applicators (Ref. 3). The low cost to applicators reflects the
number of States that already require commercial applicators to obtain
a specific certification to perform aerial application and the
relatively low number of applicators that seek certification in an
aerial category each year. The cost to States to develop a
certification exam for this category would be about $39,000 annually
for the first 2 years after implementation (Ref. 3).
    EPA estimates that adding a soil fumigation category for commercial
applicators would not result in any additional cost to commercial
applicators (Ref. 3). The labeling for soil fumigation products already
requires applicators to either participate in registrant training for
each product or to be certified in a State soil fumigation category.
    EPA estimates the cost of adding a non-soil fumigation category for
commercial applicators to be about $131,000 annually, which reflects
the cost to all affected commercial applicators conducting non-soil
fumigation (Ref. 3). Many States already require commercial applicators
to be certified in either general fumigation, soil fumigation, or
another type of fumigation. However, the cost to add this category is
higher than for other commercial applicator categories proposed because
most States do not already have categories for both soil and non-soil
fumigation.
    The costs to States to develop non-soil fumigation certification
exams would be about $30,000 per year for the first 2 years following
implementation (Ref. 3).

    6. Alternative options considered by EPA but not proposed. The
Agency considered six alternatives to the proposed requirement.
    i. Specify a certain number of training hours for private
applicator certification in these categories. EPA considered requiring
private applicators to complete a specific number of hours of training
(either 4 or 8 hours) or to pass an exam in order to become certified
in an application method-specific category. As discussed above in Unit
VI.B., it is not clear that a mandatory minimum length for private
applicator certification training programs would not ensure specific
competency.
    ii. Continue to rely on label-specific risk mitigation to address
elevated risks associated with certain application methods. EPA
considered relying on imposing risk mitigation measures through
labeling, limiting the use of high risk products or higher risk
application methods. This approach would be implemented on a case-by-
case basis and not directly linked to pesticide applicator
certification programs. The Agency learned that applicators, States,
and cooperative extension service programs did not support this
approach and faced significant burdens when this approach was used to
regulate soil fumigants (Refs. 46, 47, 48 and 49). Based on the adverse
reaction and impact to States, as well as the need to promote
applicator competency and national consistency, EPA decided not to
propose this option. It is reasonable to expect that adding categories
at the Federal level to cover many types of pesticides applied by
specific mechanisms would be more efficient than imposing similar but
not identical requirements on each pesticide label.
    iii. Consolidate soil fumigation and non-soil fumigation into a
single fumigation category. To reduce the burden on State certification
authorities and applicators who perform both types of fumigation
applications, EPA considered proposing a single general fumigation
concurrent category instead of separate soil and non-soil fumigation
concurrent categories. The knowledge and skills necessary to perform
soil fumigation and non-soil fumigation differ substantially. In
addition, there are significant differences in risks to the applicator
and environmental concerns between the two methods for applying
fumigants. The reregistration decisions on the soil fumigants
highlighted the specific use conditions and risk mitigation measures
necessary to apply soil fumigants without unreasonable adverse effects,
not necessary restrictions for applications of all fumigants. Combining
these related categories may reduce the burden on certifying agencies
and on some applicators; however, applicators who perform only soil
fumigation or only non-soil fumigation would receive less instruction
specific to their particular application method and more instruction
than they wish on a method for which they may have no use. In order to
ensure that applicators have a level of competency in the applicable
application method proportional to the potential risk, EPA decided not
to propose a general fumigation category.
    iv. Add application method-specific standards as subcategories
under the existing commercial applicator categories. EPA considered
adding the categories discussed in this Unit as subcategories under the
applicable existing commercial applicator pest control categories. For
example, a person seeking to perform aerial application to agricultural
fields and forests, and for mosquito control would have to take an
aerial exam specific to each of these categories. This would require
creating subcategories under almost every pest control category. An
applicator would have to be certified not only in each relevant pest
control category, but also in a subcategory under each in order to use
a specific application method. Application method-specific
certification requirements as proposed are expected to impose a lower
burden on applicators seeking certification, e.g., one aerial method-
specific certification exam rather than separate aerial subcategory
exams under agricultural plant, forest, and aquatic pest control. The
competency necessary to employ a specific application method, i.e.,
soil fumigation, non-soil fumigation, or aerial pest control, does not
appear to vary substantially based on where the application occurs. For
example, an applicator performing soil fumigation needs to know the
same techniques and safety measures whether doing it in for a field
crop or for ornamental pest control. Therefore, EPA decided not to
propose the application method-specific certification as subcategories
under the commercial applicator pest control categories.
    v. Add an application method-specific category for chemigation.
Chemigation, i.e., application of pesticides through irrigation
systems, has a higher potential for environmental contamination if not
conducted properly and poses additional risks to the applicator or
those working under the applicator's direct supervision due to the
nature of the equipment. Chemigation can contaminate ground and
drinking water that flow directly into a water supply, if uncalibrated
equipment causes application over the rate specified on the labeling,
or improperly maintained equipment leaks treated water from the
chemigation system. Applicators need to be knowledgeable about the
equipment specific to chemigation necessary to prevent contamination of
groundwater, including but not limited to anti-backflow devices,
injection pumps, storage tanks, safety valves, anti-pollution devices,
and calibration devices. In addition, applicators should be
knowledgeable about the risks, benefits, and necessary precautions
associated with chemigation in order to protect themselves before,
during, and after the application. EPA considered adding an application
method-specific category to perform chemigation; however, very few
States have added a specific category for this application method and
very few incidents involving this application method have been reported
to EPA. Absent more persuasive evidence that chemigation is causing
adverse effects that could be mitigated through a demonstration of
competency by applicators who use this application method, EPA is not
proposing this as an application method-specific category at this time.
    vi. Add a ``limited use'' category. EPA considered adding a
category for commercial applicators who would be certified for limited
uses of specific RUP pesticides or in niche application scenarios. For
example, some States require applicators to be certified to perform
sewer line root control, wood treatment, biocide use in hydraulic
fracturing (commonly called ``fracking''), or use of horse
sterilization products. These types of applications require use of a
single product or very limited set of products and specific application
techniques. Frequently, the industry in which these applications are
made (e.g., fracking) provides training to applicators on proper use of
the product(s) and other specific information related to use in the
specific situation. However, applicators often have to be certified by
taking the core exam, a category exam (e.g., industrial, institutional,
structural, and health-related pest control), and an additional exam
for the limited use subcategory (e.g., sewer line root control),
although they will only be performing specific applications and using a
few products. This places a substantial burden on applicators to
demonstrate competency related to types of applications they will not
perform. It also places a burden on States to maintain an
infrastructure to

address the needs of niche applicator populations.
    Some States have developed and updated exams and training programs
in these limited use categories that have fewer than 10 certified
applicators. Other States handle limited use applicators differently.
They require commercial applicators to pass the core exam,
demonstrating competency in basic environmental safety; reading,
understanding, and following pesticide labeling; calculating
application rates; and other general application techniques. The State
relies on the industry to provide the necessary training related to the
limited use. The State clearly marks on the applicator's certification
credential that the applicator is only certified for the purchase and
use of a limited subset of products, not all RUPs. States that follow
the second approach described above note they are confident that
applicators are prepared to conduct applications in a manner that will
protect themselves, the public, and the environment.
    EPA considered adding a ``limited use'' category for commercial
applicators that would allow States and applicators to reduce the
burden associated with maintaining certification categories for few
applicators performing specific applications. Commercial applicators
must demonstrate competency in core and for the specific category in
which they intend to use RUPs. To address the need for category-
specific certification for applicators performing ``limited use''
applications of RUPs, EPA considered three options, other than a
category-specific exam. First, the applicator could be required to
comply with industry-provided training or certification requirements as
specified on the product labeling. This is similar to the requirements
for people who treat water using chlorine gas--the labeling requires
the applicator to use the product in accordance with a manual from The
Chlorine Institute that details proper use of the product and safety
procedures. Second, the applicator could be required to hold applicable
State or Federal professional credentials in addition to passing the
core exam. For example, a plumber performing sewer line root control
who uses a specific RUP as part of his services could be required to
pass the core exam and to hold a State-issued plumbing license to
demonstrate his competency to use the specific RUP safely in the
limited circumstance. Third, the applicator could demonstrate
competency as required by a specific product's labeling. For example,
the labeling for sodium fluoroacetate (Compound 1080 used in livestock
protection collars) details specific competency standards that the
applicator must meet to use the product; certifying authorities that
allow use of this product must develop a specific certification
category that covers the labeling-based requirements.
    A commercial applicator seeking certification in a limited use
category would be required to demonstrate competency by passing the
core exam and satisfying one of the category-specific methods described
in this Unit. The applicator's certification would be limited only to
the specific uses related to his certification. EPA would require that
the certifying authority ensure that any certification documentation,
e.g., a license, clearly note the limited set of RUPs available for
purchase and use by an applicator certified in a limited use category.
    EPA is actively seeking additional information from States,
applicators, and industry on the value of a limited use category and
will consider any public comments received in deciding whether to
include this type of category in the final rule.
    7. Request for comment. EPA specifically requests comment on the
following questions:
     Would the proposed categories adequately establish
competency for the specified application methods?
     Should EPA consider adding or deleting any of the proposed
private applicator application method-specific certification
categories? If so, which category(ies) and why?
     Please provide feedback on the proposed competency
standards for private applicators in each of the application method-
specific categories. Do the proposed standards contain sufficient
detail? Are there any elements of these types of application that are
not covered adequately?
     Should EPA consider adding or deleting any of the proposed
commercial applicator application method-specific certification
categories? If so, which category(ies) and why?
     Should EPA require that commercial applicators be
certified in one or more pest control categories in order to be
certified in one of the application method-specific certification
categories? If so, please specify which other categories should be
considered prerequisites for each application method-specific
certification (in addition to those proposed) and explain why.
     Should EPA add an application method-specific
certification category for chemigation? If so, why? Please provide any
data about chemigation that would support the addition of a chemigation
certification category.
     Should EPA consider adding any categories (not application
method-specific) for commercial applicators? If so, which category(ies)
and why?
     Please provide feedback on adding a ``limited use''
category for commercial applicators. Would the proposed options for
category-specific demonstrations of competency for limited use
certification minimize burden on applicators and State certification
authorities while ensuring that RUPs are applied in a manner that would
not cause unreasonable adverse effects on human health or the
environment? Are there other options for offering a limited use
certification for certain RUPs that EPA has not considered? If so,
please describe.
     Please provide any relevant information on how the
regulation could best balance flexibility and uniformity of the
certification categories used in different jurisdictions.
     Are the competencies necessary to treat bee hives
adequately covered in the agricultural pest control--animal category?
If not, please explain why this category does not ensure that
applicators are competent to use RUPs to treat bee hives and provide
alternatives to ensure that applicators are competent to use RUPs in
this manner.
     What were the impacts of EPA's decision to make soil
fumigants restricted use on state certification programs and on the
number of certified applicators? Would states expect a similar impact
if the proposed application method-specific categories are included in
the final rule?
     For entities that have already developed certification
requirements for persons using soil fumigants, please provide a
description of the costs incurred.

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

    1. Overview. In order to address the specific risks and competency
requirements associated with the use of predator control products and
to formalize the existing labeling-based requirements for specific
certification to use these products, EPA proposes to add categories for
both private and commercial applicators to use two mammalian predator
control methods: Sodium fluoroacetate (Compound 1080 used in livestock
protection collars) and sodium cyanide in an M-44 device.
    2. Existing regulation. The existing regulation does not have
categories for

the use of sodium fluoroacetate in livestock protection collars or
sodium cyanide in an M-44 device. Registration decisions for these
products have established specific competency standards and require
applicators to be competent in how to use the products properly (Refs.
50 and 51).
    3. Stakeholder information considered by EPA. Sodium fluoroacetate
is a highly acutely toxic predacide used to control coyotes that prey
on sheep and goats. Currently registered end-use products are injected
into the rubber reservoirs of livestock protection collars (LPC). These
collars are strapped to the throats of sheep or goats. Coyotes
attempting to attack livestock wearing LPCs are likely to puncture the
LPCs and be fatally poisoned by sodium fluoroacetate as a result.
Sodium fluoroacetate is highly toxic to humans and to non-target
mammals. No antidote exists for sodium fluoroacetate.
    Sodium cyanide dispensed through an M-44 device is another highly
toxic predacide that poses extreme risks to humans and non-target
mammals. M-44 is an ejector device used to dispense sodium cyanide as a
single dose poison to control predators of livestock, poultry, or
Federally-designated threatened or endangered species, or those that
are vectors of communicable diseases. EPA has registered this product
for use in pastures, range land, and forests, only by trained and
certified applicators under the direct supervision of a government
agency.
    4. Details of the proposal/rationale. EPA proposes to establish
predator control categories for commercial applicators and private
applicators, codifying the current standards of competency outlined in
the specific registration decisions for each of these pesticides. Based
on the extreme risks posed by the use of sodium fluoroacetate in
livestock protection collars and sodium cyanide dispensed through M-44
devices, EPA only grants registrations to State, Tribal, and Federal
agencies. EPA's existing registrations of these products prohibit their
use except by applicators who meet certain criteria. Each registration
decision outlines specific competencies the applicator must demonstrate
and the process that must be used to certify applicators of these
products. EPA is adding specific categories to the rule to codify the
competency standards established by the products' labeling and to
facilitate the adoption of a certification category in areas where
these products are used.
    The predator control categories for commercial applicators will be
located at 40 CFR 171.101(a)(10) and the categories for private
applicators will be located at 40 CFR 171.105(b).
    5. Costs. EPA estimates that this proposal will not impose any
additional costs because the labeling requirements of sodium
fluoroacetate and sodium cyanide predator control products already
establish competency standards and require specific certification to
use these products (Ref. 3). It is reasonable to expect that the costs
associated with this proposal are de minimus because it merely codifies
in the regulation the requirement already imposed through the products'
labeling.
    6. Request for comment. EPA requests comment on the proposed
addition of pest control categories for certification to use sodium
fluoroacetate in livestock protection collars and sodium cyanide
dispensed through an M-44 device.

IX. Establish Requirements To Ensure Security and Effectiveness of Exam
and Training Administration

    1. Overview. In order to address concerns that administration of
pesticide applicator exams and trainings currently affords opportunity
for cheating or fraud, and to maintain the integrity of exams, EPA
proposes to add requirements for those seeking certification or
recertification to present identification at the time of the exam or
training session. EPA also proposes to codify the existing policy that
all certification exams be closed book and proctored (Ref. 52).
    2. Existing regulation. The rule establishes that commercial
applicators must demonstrate competence by passing written exams, and
as appropriate, through performance testing. 40 CFR 171.4(a). Private
applicators may demonstrate competency through a written or oral exam,
or other method established by the State and approved by EPA. 171.5(b).
The rule does not have requirements for verification of the identity of
persons seeking certification or recertification or for exams to be
proctored.
    3. Stakeholder information considered by EPA. States have varying
requirements for exams because there are no minimum standards for exam
development and administration. Some States place a priority on
developing content-relevant exams and administering them in a secure
manner, while other States allow candidates to bring notes and manuals
into the exam which may undermine the competency determination process.
EPA is aware of at least one situation in which a State offered a
practice test in the study materials and administered exactly the same
exam for certification. In cases where exam security is not
implemented, the integrity of the entire certification process can be
compromised.
    CTAG recognized the gap in security in the applicator certification
program and developed the Exam Administration and Security Procedures
Manual (Ref. 53). This document recommends practical ways for States to
ensure the integrity of their applicator certification exams, including
establishing chain of custody requirements, treating exam booklets and
answer sheets as controlled documents, proctoring exams, implementing
security requirements such as checking all booklets for missing pages
before releasing exam candidates, and not allowing candidates to bring
in or remove scratch paper from the exam room. States invest
significant resources in developing and administering exams for
applicator certification. A breach in security, such as a person taking
an exam booklet from the test site or copying questions and answers on
scratch paper and sharing them with others, compromises the exam's
integrity and could require the State to invest substantial resources
to develop another exam. Many States have consulted CTAG's document to
incorporate elements of exam security into their certification
programs.
    States have recognized the need to ensure that the candidate
pursuing certification by exam or training or attending a
recertification session is the person seeking or currently holding a
certification. CTAG recommended that EPA require positive
identification of candidates for pesticide certification exams before
the exam is issued and before any credentials are issued, noting that
the lack of such a requirement ``calls into question the integrity of
the entire certification system and provides opportunity for abuse''
(Ref. 54). CTAG suggests that States that do not currently ask for any
form of identification before administering exams review their
policies, regulations, and laws and consider adopting a mechanism to
verify the identification of all individuals taking their exams. CTAG
also recommended that States verify the identity of certified
applicators attending recertification training sessions (Ref. 55).
    Based on an EPA review of State program data, 36 States require
persons seeking commercial certification to present identification
prior to taking the exam and 27 States have a similar requirement for
private applicators seeking certification through an exam or training.
Similarly, 22 States require

commercial applicators to present identification at recertification
training sessions or exams, and 29 States require the same for private
applicators (Ref. 3). Many States seem to recognize the importance of
maintaining the integrity of the pesticide applicator certification and
recertification programs, evidenced by the number of States that have
adopted a requirement to verify the identity of candidates.
    States have raised the need for a standard definition of closed-
book exams to ensure that certifying authorities using EPA-developed
exams or sharing a State-developed exam with another State have
confidence that the exam administration would meet a consistent
security standard. CTAG recommended that EPA require States using the
EPA-developed exams to agree to administer them as closed-book exams,
meaning the candidate cannot bring in any materials, e.g., study
manuals, notebooks, or scrap paper. Any materials necessary, apart from
non-memory calculators and writing utensils, e.g., scratch paper or
reference pesticide labeling, would be provided by the proctor and
collected at the end of the exam. CTAG believes this would help
preserve the integrity of the exam process and give confidence that the
security of EPA-developed exams is not compromised by varying
administration standards across States.
    4. Details of the proposal/rationale. The Agency proposes to
require that applicator certification exams for initial certification
and recertification be closed book, proctored, and that the identity of
each test taker be verified. The identity of the applicant must also be
verified where the State or other agency certifies or recertifies
applicators based on training rather than an exam. EPA considers these
requirements essential elements of the certification process because
exams and training programs are the means used to assure that those who
are seeking to become certified have adequate training and experience
to use RUPs without causing unreasonable adverse effects. It is also
reasonable to expect that these security requirements would give States
confidence that exams are administered consistently across the country
in such a way to ensure their integrity.
    The Agency proposes to require that exams be ``closed book,'' that
is, the test taker would not be allowed to use any materials, for
example notes or study guides, other than the materials provided by the
test administrator during the exam. EPA is proposing this requirement
for two reasons. First, a closed-book exam provides a more reliable
gauge of the individual test taker's competency because the outcome
depends more directly on the test taker's personal knowledge and
understanding than does an exam where the test-taker may refer to his
or her own notes or other study aids. Second, limitations on outside
materials reduce the likelihood of test takers copying questions and
removing them from the exam room to share with subsequent test takers.
Implementing closed-book exams is one step towards improving exam
security and the competency of certified applicators.
    EPA proposes to require that proctors:
     Verify the identity and age of persons taking the exam by
checking identification as required under the proposed rule and have
examinees sign an exam roster.
     Monitor examinees throughout the exam period.
     Instruct examinees in exam procedures before beginning the
exam.
     Keep exams secure before, during, and after the exam
period.
     Allow only examinees to access the exam and allow such
access only in the presence of the proctor.
     Ensure that examinees have no verbal or non-verbal
communication with anyone other than the proctor during the exam
period.
     Ensure that no copies of the exam or any associated
reference materials are made and/or retained by examinees.
     Ensure that examinees do not have access to reference
materials other than those that are approved by the certifying
authority and provided by the proctor.
     Review reference materials provided to examinees when the
exam is complete, to ensure that no portion of the reference material
has been removed or destroyed.
     Report to the certifying authority any exam administration
inconsistencies or irregularities, including but not limited to
cheating, use of unauthorized materials, and attempts to copy or retain
the exam.
     Comply with any other instructions required by the
certifying authority related to exam administration.
    EPA proposes to prohibit a proctor from seeking certification at
any exam session that he or she is proctoring. Where applicator exams
require use of resource materials (for example, requiring the candidate
to identify pests based on depictions of plant damage, interpret
specific labels, or demonstrate other skills or abilities beyond the
core requirements), the proctor would provide the necessary materials
(e.g., sample labeling, reference books) and collect them after the
exam is completed.
    Finally, EPA proposes a requirement for States to ensure that test
or training administrators verify the identity of persons seeking
initial applicator certification and recertification. Many
organizations and institutions require a person taking a test for
possible employment to present valid, government-issued photo
identification. It is important that pesticide applicator candidates
are required to present valid photo identification when they sit for
the exam, receive their credentials, and purchase RUPs. This
requirement would help to ensure that the person who takes the exam is
the same person who receives the certification, which could help
prevent a candidate from sending a more qualified or prepared person to
take the exam under his name, and to verify that the candidate meets
the minimum age requirement. See Units XII. and XIII. Preventing abuse
of the exam process is necessary to ensure the integrity of the exams
and that certified applicator credentials are issued only to those who
are qualified and certified as competent. Without such assurance,
classification for restricted use offers an uncertain level of
protection.
    If finalized, the requirements for initial certification
administration security would be located at 40 CFR 171.103(a) for
commercial applicators and at 40 CFR 171.105(e) for private
applicators. The requirement for recertification administration
security would be located at 40 CFR 171.107(b).
    5. Costs. Not all States or applicators would be expected to incur
costs to implement the aforementioned proposals. For those that do, EPA
expects the incremental costs to come into compliance would be minimal
(Ref. 3). Many States already check identification at initial
certification events and already have proctors for some sessions. The
aspects of a secure exam--written, closed-book, proctored, and
requiring positive identification of the candidate--would provide the
benefit of maintaining the credibility of the certification program, as
well as to filter out unqualified candidates.
    6. Alternative options considered by EPA but not proposed. EPA
considered imposing only a requirement to verify the identity of the
initial certification and recertification candidates and not codifying
the existing policy that requires exams to be proctored and closed
book. A requirement to verify a certification or recertification
candidate's identity implemented independently of other exam security
requirements could lead to a potential improvement because by verifying
that the candidates are the same person seeking the certification,
false

attendance at training and exam sessions should decrease. It is also
more likely that credentials would be issued to the same candidate that
demonstrated competency. However, it is reasonable to expect that the
additional burden of implementing closed-book, proctored exams would
have substantial additional benefits by ensuring the security of the
exams, reducing burden on certifying authorities to update exams after
security breaches, and limiting instances where candidates taking an
exam can cheat. It is reasonable to expect that the potential benefits
of requiring proctored, closed-book exams are sufficient to justify the
burden.
    7. Request for comment. EPA requests comments on the following:
     Should EPA consider allowing an exception to the
requirement for candidates to present a government-issued photo
identification? If so, under what circumstances? Please provide
examples of how an exception could be implemented.
     Should EPA consider any other requirements to improve the
security and integrity of applicator certification and recertification
exams? If so, please describe.

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

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

    1. Overview. To improve the protection of noncertified applicators
and to reduce the chance for RUP applications to cause unreasonable
adverse effects, EPA proposes to require that noncertified applicators
working under the direct supervision of a certified applicator receive
annual training that covers pesticide labeling, safety precautions,
application equipment and techniques, environmental concerns, health
effects of pesticide exposure, decontamination, emergency response, and
protection of the applicator and the applicator's family. The Agency
also proposes exemptions to this training requirement for persons
qualified as a trained handler under the WPS or who have passed the
core exam covering general standards of competency for commercial
applicators, and to require periodic retraining or retesting.
    2. Existing regulation. FIFRA section 2(e)(4) provides that a
noncertified applicator using an RUP must be competent and working
under the direction of a certified applicator. The certified applicator
must be available when needed but does not need to be present
physically at the application.7 U.S.C. 136(e)(4). The regulation
establishes: General requirements for the certified applicator to
demonstrate a practical knowledge of Federal and State supervisory
requirements; that when the certified applicator will not be present
during application, he or she must provide instruction to the
noncertified applicator, including instructions for proper pesticide
applications and how to contact the certified applicator if necessary;
and that certain labeling-specific restrictions require the certified
applicator to be physically present for the application. 40 CFR
171.2(a)(28) and 171.6.
    3. Stakeholder information considered by EPA. The need to upgrade
the requirements for the supervision of a noncertified applicator by
the certified applicator was a major recommendation of the SFIREG 1985
Taskforce report (Ref. 29). The Taskforce concluded that the existing
requirements at 40 CFR 171.6 are general in nature and have resulted in
some instances where supervision of the noncertified applicator is
conducted from locations far removed from the application site. The
issue has also been raised to EPA by the PPDC Worker Safety Workgroup
and by States at the Pesticide Regulatory Education Program (PREP),
which provides an avenue for information sharing between States and EPA
about pesticide regulatory issues and programs (Ref. 33). While some
States have imposed more stringent supervision requirements or
eliminated the option for application of RUPs by noncertified
applicators under the direct supervision of a certified applicator,
other States' standards are similar to the existing requirement at 40
CFR 171.6.
    4. Details of the proposal/rationale. EPA proposes to enhance
protections for noncertified applicators, i.e., those who use RUPs
under the direct supervision of a certified applicator, and to ensure
that RUPs are used in a manner that does not pose unreasonable adverse
effects to the applicator, bystanders, or the environment by: Expanding
the training content, offering alternatives to the training
requirement, and requiring periodic retraining.
    i. Expanding training content. Noncertified applicators have a
similar work profile to agricultural handlers under the WPS (40 CFR
part 170); both are permitted to mix, load, and apply pesticides with
proper guidance from their employer or supervisor. In order to mix,
load or apply RUPs, however, all noncertified persons, including
agricultural handlers, must be working under the direct supervision of
a certified applicator. Agricultural handlers must receive training
that covers self-protection; hazards associated with pesticide use;
format and meaning of pesticide labeling; protection from take home
exposure to family members; proper pesticide use, transportation,
storage, and disposal; and protections required under the WPS. 40 CFR
170.230(c)(4). In addition, agricultural handlers must be provided a
copy of the labeling and any other information necessary to make the
application without causing unreasonable adverse effects. The existing
part 171 regulation does not require that noncertified applicators
receive similar training before applying RUPs under the direct
supervision of a certified applicator.
    To foster a level of competency appropriate to the responsibilities
of noncertified applicators who apply RUPs under the direct supervision
of a certified applicator and comparable to the competency currently
required of agricultural pesticide handlers, EPA proposes to add the
following training requirements for noncertified applicators:
    a. Training on information, techniques, and equipment that
noncertified applicators need to protect themselves, other people, and
the environment before, during, and after making a pesticide
application, including all of the following:
     Format and meaning of information contained on pesticide
labels and in labeling, including safety information, such as
precautionary statements about human health hazards, and hazards of
pesticides resulting from toxicity and exposure, including acute and
chronic effects, delayed effects, and sensitization.
     Routes by which pesticides can enter the body.
     Signs and symptoms of common types of pesticide poisoning.
     Emergency first aid for pesticide injuries or poisonings.
     How to obtain emergency medical care.
     Routine and emergency decontamination procedures.
     Need for, and appropriate use of, personal protective
equipment.
     Prevention, recognition, and first aid treatment of heat-
related illness associated with the use of personal protective
equipment.
     Safety requirements for handling, transporting, storing,
and disposing of pesticides, including general procedures for spill
cleanup.
     Environmental concerns such as drift, runoff, and wildlife
hazards.

    b. Training on all of the following elements, which noncertified
applicators need to protect their families from pesticides:
     Warnings against taking pesticides or pesticide containers
home.
     Washing and changing work clothes before physical contact
with family.
     Washing work clothes separately from the family's clothes
before wearing them again.
     Heightened precautions required to protect children and
pregnant women.
    c. Training on how to report suspected pesticide illness to the
appropriate State agency. The proposed training requirements would
promote the competence of noncertified applicators who apply RUPs under
the direct supervision of a certified applicator by improving their
understanding of pesticide labeling, application methods, self-
protection, risk mitigation, and general pesticide safety principles.
It is reasonable to expect that an understanding of this information,
together with the specific instructions for each application from a
certified applicator, would provide noncertified applicators with an
adequate level of competency to use RUPs without causing unreasonable
adverse effects, consistent with the FIFRA requirement that
noncertified applicators be competent.
    ii. Offering alternatives to the training requirement. In addition
to the training proposed in Unit X.A.4.i., EPA proposes to offer two
alternative mechanisms for establishing the competency of noncertified
applicators who apply RUPs under the direct supervision of a certified
applicator: Demonstrating that the noncertified applicator has met the
handler training requirements of the WPS (40 CFR 170.230 of the current
WPS or 40 CFR 170.201(c) of the proposed revisions to the WPS) or
passing the exam on core standards of competency for certified
commercial applicators (currently 40 CFR 171.4(b)).
    As mentioned in this unit, noncertified applicators working on
agricultural establishments and agricultural pesticide handlers have
similar job responsibilities. The proposed training for noncertified
applicators mirrors the proposed training for agricultural pesticide
handlers, except it does not include specific requirements of the WPS.
Including a provision in the rule to allow noncertified applicators to
meet the training requirement by following the training outlined in
this rule or that outlined in the WPS could reduce the burden on
noncertified applicators, certified applicators, agricultural pesticide
handlers, and agricultural employers by allowing them to provide
substantially similar training to the same audience once, rather than
twice, to comply with both regulations. EPA estimates that almost two-
thirds of the noncertified applicators under the direct supervision of
private applicators will receive WPS training but very few noncertified
applicators under the direct supervision of commercial applicators
would be covered by WPS training provisions.
    The second alternative mechanism, requiring noncertified
applicators to pass a written exam covering the core standards of
competency for commercial applicators, would also establish an adequate
level of competency for noncertified applicators. The commercial
applicator core competency standards outlined at 40 CFR 171.4(b) of the
existing regulation cover label and labeling comprehension, proper
application, potential environmental risks, characteristics of
pesticides, application equipment and techniques, and laws and
regulations. The content of these core competency standards encompasses
the proposed noncertified applicator training content. In some
situations, it may be easier or more convenient to allow a noncertified
applicator to qualify by taking the core exam than to complete the
noncertified applicator training. For example, a person who has taken
and passed the core exam and failed the category exam, which generally
has a lower pass rate, would not be certified as a commercial
applicator but would have demonstrated sufficient competency to apply
RUPs under the direct supervision of a certified applicator. Allowing
such a person to qualify as a noncertified applicator based on passing
the core exam rather than requiring that he or she undergo another
training program would reduce the potential burden on noncertified
applicators and their employers without sacrificing protection of the
noncertified applicators, the public, or the environment.
    iii. Requiring periodic retraining. EPA proposes to implement a
requirement to refresh the qualifications of noncertified applicators.
Noncertified applicators who qualified through a training program,
either as proposed under 171.201(d) or as a handler under the WPS,
would be required to undergo retraining annually. Noncertified
applicators who recertify by passing the commercial applicator core
exam would be required to requalify every 3 years. The proposed
training requirement for noncertified applicators who would apply RUPs
under the direct supervision of a certified applicator is comparable to
the training required for agricultural pesticide handlers. EPA has
proposed a requirement under the WPS for handlers to receive pesticide
safety training annually. EPA will ensure that the final requirements
for noncertified applicator training under the certification rule are
consistent with the final requirements for WPS handler training where
applicable. It is reasonable to expect that noncertified applicators
must maintain an ongoing level of competency similar to that required
of certified applicators. However, neither of the options to qualify by
attending a training program requires passing a written exam or
attending a training course covering the proposed enhanced competency
standards for private applicators. Therefore, the proposed noncertified
applicator training programs would not provide the same assurance of
competency as the certification process for commercial and private
applicators. For these reasons, it is reasonable to expect that
noncertified applicators who qualify through training should receive
training every year rather than every 3 years as proposed for the
recertification of certified private and commercial applicators.
    States require certified applicators to demonstrate continued
competency through recertification programs; noncertified applicators
who establish competency must also demonstrate that they maintain a
level of competency to apply pesticides without unreasonable adverse
effects. An annual training requirement would be consistent with the
proposed training interval for agricultural handlers (Ref. 4), thereby
decreasing the burden on agricultural employers to track two training
timeframes. Additionally, studies have shown that training participants
begin to forget the content of the training almost immediately, that
often 90% or less of the training is remembered at 1 year after
training, and that knowledge from training on skills and decision
making deteriorates more quickly than information from training on
repetitive physical tasks (Ref. 14). Further, studies have demonstrated
the effectiveness of periodic retraining on retention of the knowledge
necessary to implement self-protective measures (Ref. 15).
    Noncertified applicators who qualify through passing the core exam
for commercial applicators would be required to requalify every 3
years. Passing the core exam provides an assurance of competency
similar to that required of certified applicators. Therefore, it is
reasonable to expect that noncertified applicators who pass the core
exam would maintain their

competency on the topics covered for a similar length of time as
commercial applicators. EPA is proposing a requirement for all
certified applicators to renew their credentials every 3 years.
    The regulatory text related to these proposals would be located at
40 CFR 171.201(c) and (d).
    5. Costs. Because noncertified applicators working under the direct
supervision of commercial applicators and private applicators have
different wage rates, the costs are presented separately for
noncertified applicators working under the direct supervision of a
commercial applicator and for noncertified applicators working under
the direct supervision of a private applicator (Ref. 3).
    i. Noncertified applicators working under the direct supervision of
a commercial applicator. EPA estimates the cost of the proposed
requirement to require noncertified applicators to either complete the
proposed training, be handlers under the WPS, or pass the core exam
would be about $6.6 million per year for noncertified applicators
working under the direct supervision of a commercial applicator (Ref.
3).
    ii. Noncertified applicators working under the direct supervision
of a private applicator. EPA estimates the cost of the proposed
requirement to require noncertified applicators to either complete the
proposed training, be handlers under the WPS, or pass the core exam
would be about $639,000 per year for noncertified applicators working
under the direct supervision of a private applicator (Ref. 3).
    6. Alternative options considered by EPA but not proposed. EPA
considered four alternatives to this proposal.
    i. Allow States to determine noncertified applicator training
content. EPA considered allowing each State to determine what training
or qualifications are appropriate for noncertified applicators, rather
than adhering to the standard established in this proposal. For
example, some States have specific requirements for noncertified
applicators to be qualified, such as through an apprenticeship program,
or completing a State-developed training program or minimum number of
hours of privately-provided training. Although the State programs with
various requirements may adequately ensure the competency of
noncertified applicators, allowing States to adopt varying standards
would result in classification for restricted use providing differing
levels of protection from State to State. In order to ensure that RUPs
are used by competent persons in a way that would not cause
unreasonable adverse effects, it is necessary for noncertified
applicators to receive instruction that covers a specific set of basic
competency information. The consistent minimum standard would not be
met if States adopted their own programs that did not meet or exceed
the standards proposed by EPA.
    EPA recognizes that State programs may adequately prepare a
noncertified applicator to use pesticides effectively and without
unreasonable adverse effect on human health or the environment.
However, under the proposed option, States can modify existing programs
to ensure they cover the content and requirements of the proposed
standard and do not need a specific exception. If the State training
program provides instruction on the training requirements listed above,
the supervising certified applicator would still be required to verify
that the noncertified applicators working under his or her direct
supervision have received the training. The proposed option balances
flexibility for States to adopt more stringent standards with the need
to ensure that noncertified applicators meet a consistent standard of
competency.
    ii. Require all noncertified applicators to pass the core exam. EPA
considered requiring all noncertified applicators to pass the core exam
for commercial applicator certification. The current requirements
concerning the core exam for commercial applicators covers all the
topics that would help ensure general knowledge of pesticide
application by noncertified applicators.
    The Agency decided against proposing a requirement that
noncertified applicators demonstrate competence only by taking the core
exam for commercial applicators because in some instances, that
requirement may impose additional burden on the certified applicators
and the noncertified applicators. Some noncertified applicators may
have a more difficult time preparing for and passing a written exam
than meeting training requirements. Although noncertified applicators
may be able to demonstrate their competency to make applications
without unreasonable adverse effects with proper supervision, some
noncertified applicators may have literacy and language issues that
would stand in the way of passing a written exam. By limiting a
noncertified applicator's options for demonstrating competence to
passing a written exam, the number of noncertified applicators
available could decrease because fewer people would qualify. A decrease
in the number of noncertified applicators available would increase
costs because certified applicators would be required to perform the
applications themselves. In addition, States would have to administer
approximately five times the current number of exams, increasing their
administrative burden.
    EPA decided not to propose this option because it would impose a
significant burden on noncertified applicators, the supervising
certified applicators, and the States, and the benefits associated with
the alternate options do not appear to justify the burden.
    iii. Establish different standards for noncertified applicators
working under the direct supervision of commercial and private
applicators. EPA considered establishing separate standards for
noncertified applicators under the direct supervision of commercial and
private applicators. Under this alternative, noncertified applicators
working under the direct supervision of a private applicator would be
required to complete the proposed training or the training for handlers
under the proposed revisions to the WPS (Ref. 4). EPA considers this to
be the minimum level of training that could reasonably be expected to
prevent unreasonable adverse effects associated with the use of RUPs.
EPA considered requiring a higher level of training for noncertified
applicators working under the direct supervision of a commercial
applicator; specifically, EPA considered requiring them to pass the
core exam for certified applicators as described in the alternate
option discussed in this unit.
    EPA decided not to propose this alternative for two reasons. First,
EPA does not believe there is a significant difference in the risks
faced by, or posed by, a noncertified applicator under the direct
supervision of a private applicator and a noncertified applicator under
the direct supervision of a commercial applicator. As the risks appear
to be the same, the same level of training seems appropriate. Second,
having a single standard would allow noncertified applicators to work
for both commercial and private applicators without having to meet
different standards.
    iv. Implement longer retraining interval. Lastly, EPA considered
requiring all noncertified applicators to be retrained using the same
timeframes as certified applicator recertification (currently proposed
as every 3 years, see Unit XIV.). However, commercial applicators are
required to demonstrate their competency through a written exam; the
more rigorous standard establishes a higher level of confidence in
commercial applicators' knowledge and ability to protect themselves,
the public, and the environment. Training is a less reliable indicator
of competency

than passing an exam and knowledge from training deteriorates rapidly
(Refs.14 and 15). EPA recognizes a distinction between the noncertified
applicators that qualify through training and those that qualify
through an exam. That distinction and EPA's confidence in the exam
process prompted EPA to reject the option to establish the same
requalification timeframe for all noncertified applicators parallel to
the recertification period for certified applicators.
    7. Request for comment. EPA requests specific feedback on the
following:
     Should EPA allow States to adopt noncertified applicator
training programs different than what EPA proposes? If so, please
explain why, and how portability of the varied programs might be
addressed.
     Should EPA require States to adopt the proposed
noncertified applicator training program and allow States to add other
qualifications or requirements?
     Should EPA require noncertified applicators to receive
training specifically on avoiding harm to pollinators? If so, please
explain what additional information should be included in the training
and why.
     Are there other points that EPA should include in the
noncertified applicator training outlined in the proposal? If so, what
points should be added and why?
     Should EPA consider a single requalification interval for
all noncertified applicators, regardless of their method of
qualification, i.e., should EPA consider requiring noncertified
applicators who qualify by passing the core exam to requalify annually,
or for those who qualify by training to requalify every 3 years? Please
explain why.
     Please provide any available data on or sources of
information for the number of noncertified applicators who apply RUPs
under the direct supervision of commercial and private applicators.

B. Establish Qualifications for Training Providers

    1. Overview. In order to ensure that noncertified applicators
receive training that communicates the nature of their work and the
potential risks of pesticide exposure in a manner they understand, EPA
proposes to require that noncertified applicator training be provided
by a currently certified applicator, a State-designated trainer of
certified applicators, or a person who has completed a train-the-
trainer course under the WPS.
    2. Existing regulation. The rule has no requirement for training
and therefore, no restrictions on who may provide training to
noncertified applicators.
    3. Stakeholder information considered by EPA. Stakeholders,
including the PPDC, State associations, and CTAG, have noted the
similar work profiles between WPS handlers and noncertified applicators
working on agricultural establishments. They recommended that
noncertified applicator trainers have similar qualifications to WPS
handler trainers because of the importance of conveying information
related to safe pesticide use, understanding labeling requirements, and
how to contact the employer in the event of an emergency.
    4. Details of the proposal/rationale. EPA proposes to allow
noncertified applicators to receive training from an applicator with a
valid certification issued under 40 CFR part 171, a State-designated
trainer of certified applicators, or a person who has completed a
pesticide safety train-the-trainer program under the WPS, 40 CFR part
170. Given the elevated risks associated with applying RUPs, it is
critical to have a high level of confidence in the competence of those
who will make applications. Commercial applicators have to pass a
written exam to demonstrate their competency. The qualifications of the
trainer become more important where the competency of noncertified
applicators is established through training rather than through passing
a written exam. It is important to have the information presented by
trainers who are knowledgeable about pesticide safety requirements.
    Certified applicators supervising noncertified applicators have
knowledge of the information necessary to ensure that applications are
made effectively and without unreasonable adverse effects and
commercial applicators have passed an exam demonstrating their
competency. The core standards of competency for both private and
commercial applicators would cover supervising noncertified applicators
using RUPs, including how to convey information about proper
application techniques, understanding the labeling, and contacting the
supervisor if necessary. In addition, the competency standards would
cover communicating with noncertified applicators in a manner they
understand. State designated trainers, mainly cooperative extension
service pesticide safety educators and county agents, have expertise in
educating adult populations about how to conduct pesticide applications
and the risks associated with pesticide exposure. Lastly, trainers who
have undergone a train-the-trainer program have learned techniques to
effectively transfer information on application techniques, risks of
exposure, and other necessary information required to protect
agricultural handlers before, during, and after application. EPA
anticipates that most people likely to be training noncertified
applicators would already be within one of the aforementioned
categories of qualified trainers.
    The regulatory text related to this proposal would be located at 40
CFR 171.201(d)(2).
    5. Costs. EPA expects this proposal to have negligible cost.
Certified applicators are qualified as trainers by virtue of their
certification and would not incur any additional costs to be qualified
under this proposal (Ref. 3). EPA assumes most training would be
provided by certified applicators to noncertified applicators working
under their direct supervision. Therefore, EPA does not believe many
people who are not already certified applicators would seek to be
qualified trainers under this proposal. Allowing State-designated
trainers of applicators and those who have completed a WPS pesticide
safety train-the-trainer program would provide flexibility to the
certified applicators and offer a variety of options to ensure
noncertified applicators are trained.

C. Establish Qualifications for Certified Applicators Supervising
Noncertified Applicators

    1. Overview. In order to ensure that noncertified applicators do
not apply RUPs in a manner that would cause unreasonable adverse
effects, EPA proposes to establish specific requirements for the
supervising applicator.
    2. Existing regulation. The current regulation requires supervising
certified applicators to demonstrate a practical knowledge of Federal
and State supervisory requirements related to the application of RUPs
by noncertified applicators. 40 CFR 171.6(a). In addition, the current
rule requires the availability of the certified applicator and the
hazard of the situation to be directly related. 40 CFR 171.6(a). For
certain products, the labeling requires the applicator to be on-site
for the application or prohibits application by noncertified
applicators even under the direct supervision of a certified
applicator. Wherever noncertified applicators are applying RUPs under
the direct supervision of a certified applicator, the existing
regulation requires the certified applicator provide verifiable
instruction to the noncertified

applicator, which includes detailed guidance for applying the pesticide
properly, and provisions for contacting the certified applicator in the
event that he or she is needed. 40 CFR 171.6.
    3. Stakeholder information considered by EPA. States indicated
overall support for establishing qualifications for certified
applicators supervising noncertified applicators; however they noted
that some limitations would be impractical or difficult to enforce
(Ref. 33). For example, States noted that they would not be able to
verify whether the supervising applicator was within a certain distance
or time of the noncertified applicator conducting the application, and
it would be impossible to note how many noncertified applicators were
working under the direct supervision of a certified applicator at one
time (Ref. 33). The SBAR panel recommended that EPA require
``communication capability between certified applicators and those
under their supervision during RUP applications'' (Ref. 34).
    4. Details of the proposal/rationale. EPA proposes to require that
certified applicators who supervise noncertified applicators to be
certified in the category of the supervised application in order to
protect the noncertified applicator and the environment from risks
associated with insufficient supervision or qualification. EPA proposes
to require that certified applicators ensure that noncertified
applicators under their direct supervision have satisfied one of the
qualification methods discussed in Unit X.B. For specific applications,
EPA proposes to require the certified applicator to provide a copy of
all applicable labeling to each noncertified applicator for each
supervised application; ensure that means are available for immediate
communication between the certified applicator and the noncertified
applicators working under their direct supervision; provide specific
instructions related to each application, including the site-specific
precautions and how to use the equipment; and explain and comply with
all labeling restrictions.
    It is critical that the supervising applicator be competent in the
specific types of application that he or she is supervising, know the
requirements related to application of RUPs by noncertified
applicators, and ensure that noncertified applicators are competent. It
is reasonable to expect that many supervising applicators currently
provide instruction to the noncertified applicators under their
supervision and are certified in the appropriate category. The proposed
change would codify more precise requirements to ensure that
supervising certified applicators are prepared adequately to supervise
specific types of applications and to provide the appropriate
protections to noncertified applicators.
    EPA proposes to add a requirement for the certified applicator to
provide a copy of the labeling to noncertified applicators applying
RUPs under his or her supervision. Providing the product labeling to
noncertified applicators is important for several reasons. First,
product labeling communicates critical information to the pesticide
user on how to use and apply the product. The labeling contains use
directions, health and safety information, and instructions for proper
storage and disposal. By law, users must follow the use instructions on
the labeling for registered products. Second, in the event that the
noncertified applicator cannot contact the supervising applicator, the
labeling contains critical information that the noncertified applicator
or a literate person nearby could consult in order to understand
special use restrictions, make a proper application, or respond in the
event of a spill or accident, including providing proper medical
treatment. Third, the WPS requires employers to provide handlers access
to the product labeling during handling activities in order to provide
protections parallel to those provided under the Occupational Safety
and Health Act (OSHA). OSHA requires that persons with hazardous
chemicals in their work area receive information in the form of labels,
training, and access to safety data sheets (SDSs). Label and SDSs must
always be available; training must take place at the time of the
employee's initial assignment and when new hazardous chemicals are
introduced into the work area. Fourth, noncertified applicators have
similar job responsibilities to agricultural pesticide handlers under
the WPS and have an equal need for labeling information. For these
reasons, it is important to make the labeling available to all
noncertified applicators working with RUPs, even if some may not be
able to read or understand the labeling.
    Communication between the supervising applicator and the
noncertified applicator is critical if the noncertified applicator has
a question before application or encounters an emergency situation
related to the misapplication. The current rule requires provisions for
contacting the certified applicator, but it is very general and
provides no assurance of timely contact. The intent of the existing
provision was to enable communication between the supervising
applicator and the noncertified applicator throughout the application
process. Telecommunications options have improved dramatically over the
last 35 years, and the proposed requirement to ensure means are
available for immediate communication would take advantage of those
changes to more fully accomplish the intent of the original provision.
Requiring means to be available for immediate communication would allow
flexibility for the supervising applicator; if the certified and
noncertified applicator are working at the same location, means for
immediate communication could be speaking to one another directly. In
the event the noncertified applicator is using RUPs under the direct
supervision of a certified applicator when the certified applicator is
not present, means of immediate communication could include cellular
phones or two-way radios, among other mechanisms.
    The regulatory text related to this proposal would be located at 40
CFR 171.201(b).
    5. Costs. EPA assumes that the current requirement to provide
detailed guidance for applying the pesticide properly and the proposed
requirement to provide application-specific instructions are
substantially similar and will not result in a significant increase in
the cost of compliance (Ref. 3).
    EPA estimates the cost for ensuring means for immediate
communication are available would be negligible because according to
CTIA--The Wireless Association, as of December 2012, wireless
penetration in the United States was 102% (the number of wireless
subscriptions divided by the U.S. population) (Ref. 56).
    6. Alternative options considered by EPA but not proposed. EPA
considered different application-specific requirements for supervising
applicators, including a requirement for the supervising applicator to
keep noncertified applicators within their line of sight or to be on
site during applications, a limit on the number of noncertified
applicators that could be supervised at one time, or a limit on the
distance between the certified applicator and the noncertified
applicators.
    EPA may limit who may apply RUPs and the type of supervision
required on a product-by-product basis. Some RUP labeling requires
certified applicators to keep noncertified applicators within their
line of sight during applications. EPA considered requiring line of
sight supervision wherever noncertified applicators are applying RUPs
under the

direct supervision of a certified applicator. For example, labeling for
fumigant products requires the supervising applicator to be on site
because of the significant danger to the applicator if not used
properly. However, a universal requirement that certified applicators
keep noncertified applicators in their line of sight or to be on site
during application would be inconsistent with 7 U.S.C. 136(e)(4), which
allows use of RUPs even if the certified applicator providing direct
supervision is not on site at the time of application.
    EPA considered establishing a limit on the number of noncertified
applicators that a certified applicator could supervise for each
application of RUPs, e.g., 10 noncertified applicators could use RUPs
under the direct supervision of a certified applicator at any specific
time. Limiting the number of noncertified applicators using RUPs under
the direct supervision of a certified applicator could better ensure
that the applications are conducted in a manner that would not cause
unreasonable adverse effects to the applicator, the public, or the
environment. EPA does not have information on the maximum number of
noncertified applicators that a certified applicator could supervise
without causing unreasonable adverse effects. There may be limits on
the capability of a certified applicator to supervise noncertified
applicators using RUPs, but the limits seem circumstantial. For
example, a certified applicator supervising the application of RUPs
through backpack sprayers on a single agricultural establishment may be
able to supervise many noncertified applicators without causing
unreasonable adverse effects. However, a certified applicator
supervising noncertified applicators fumigating a warehouse with RUPs
may not be able to supervise other applications of RUPs at the same
time in a safe manner.
    EPA chose not to propose a limit on the number of noncertified
applicators that can use RUPs under the direct supervision of a
certified applicator. EPA regulates specific risks related to the use
of RUPs on a product by product basis, including limiting or
restricting the use of RUPs by noncertified applicators. The certified
applicator is liable for all applications conducted under his or her
supervision. To become certified, applicators must demonstrate
competency in conducting and supervising applications in a manner that
will not result in adverse effects to human health or the environment.
It is reasonable to expect that the certified applicator will generally
recognize the limits of his or her capacity to appropriately supervise
multiple noncertified applicators. It is reasonable to expect that the
combination of certified applicators' competency in making and
supervising applications of RUPs, product-specific limitations on the
use of RUPs by noncertified applicators, combined with the proposed
requirement that the supervising applicator ensure that a mechanism for
communication between certified applicators and noncertified
applicators using RUPs under their direct supervision, would adequately
protect the noncertified applicator, the public, and the environment.
Recognizing that EPA has insufficient data to support a limit on the
number of noncertified applicators that can be supervised by a
certified applicator or data to establish the number if a limit is
required, EPA is soliciting additional information related to this
option.
    EPA also considered proposing a maximum physical distance or travel
time between the certified applicator and noncertified applicator using
RUPs under his or her direct supervision. For instance, the certified
applicator would have to be within X yards or Y minutes of the
noncertified applicator. This option would make it more likely that the
certified applicator could physically reach the noncertified applicator
within a reasonable timeframe in the event assistance was needed. Time-
based and distance-based limitations would have different impacts in
urban and rural areas--in a city, the certified applicator might take
an hour to get to an application site within 5 miles, whereas in a
rural area, the applicator could cover the same distance in a few
minutes. EPA does require the supervising certified applicator to be on
site when certain RUPs are used by noncertified applicators. These
restrictions are imposed on a product by product basis. EPA does not
have sufficient information on a specific time or distance between
certified applicators and noncertified applicators using RUPs under
their direct supervision that would make meaningful reductions in the
overall risk of adverse effects from RUP use by noncertified
applicators. Rather than set an arbitrary time or distance, EPA chose
to propose a requirement for the certified applicator to ensure a
mechanism for the supervisor and noncertified applicator using RUPs
under his or her direct supervision to be in immediate communication.
It is reasonable to expect that ensuring that noncertified applicators
are able to immediately contact their supervisors in the event of a
spill, emergency, or question about the application would reduce the
potential for unreasonable adverse effects from RUP application by
noncertified applicators.
    7. Request for comment. EPA requests specific comment on the
following:
     Would supervising certified applicators and noncertified
applicators rely on cell phones rather than two-way radios as a means
to ensure immediate communication?
     Please provide any additional information that would
assist EPA in more accurately estimating the cost associated with this
proposal.
     Should EPA consider other qualifications for supervising
applicators? If so, what qualifications and why?
     Should EPA require certified applicators to be within a
certain distance or time of the noncertified applicators using RUPs
under their direct supervision? Please explain why. If so, what
distance or time should EPA require?
     Should EPA limit the number of noncertified applicators
that a certified applicator can supervise? Please explain why. If so,
how should EPA select the maximum number?

XI. Expand Commercial Applicator Recordkeeping To Include Noncertified
Applicator Training

    1. Overview. In order to facilitate inspectors' ability to verify
that noncertified applicators have been trained in accordance with the
rule, EPA proposes to require commercial applicators to maintain
records of noncertified applicator training for two years.
    2. Existing regulation. The current rule does not require any
person to keep records of the information or training provided to
noncertified applicators.
    3. Details of the proposal/rationale. EPA proposes to require
commercial applicators to maintain records of noncertified applicators'
training. The proposed recordkeeping requirement includes: The trained
noncertified applicator's printed name, and signature; the date of the
training; the name of the person who provided the training; and the
supervising commercial applicator's name. It is reasonable to expect
that requiring commercial applicators to maintain records of
noncertified applicators' training would increase the likelihood that
the noncertified applicators will be trained in accordance with the
proposed requirements. In addition, records can help ensure that
noncertified applicators meet the proposed minimum age requirement.
Records are

a key component of an effective enforcement program. EPA is not
proposing to require commercial applicators to document the
qualifications of noncertified applicators who satisfy the requirement
of 40 CFR 171.201(c) as agricultural handlers or by having passed the
core exam. The WPS already requires agricultural employers to maintain
records of pesticide safety training provided to handlers. It is
reasonable to expect that certifying authorities would be able to
verify whether a noncertified applicator has passed the core exam.
    FIFRA prohibits EPA from issuing regulations that require private
applicators to maintain records. Therefore, EPA is not proposing to
make the recordkeeping requirements outlined in this Unit apply to
private applicators. Nevertheless, private applicators still would be
subject to the proposed requirements for ensuring that noncertified
applicators under their direct supervision have met the proposed
training requirements. In the absence of training records maintained by
private applicators, EPA would gauge compliance with the training
requirement during routine compliance inspections. The inspector could
question noncertified applicators regarding the content of the training
and the labeling of any products being applied. If the noncertified
applicators' answers are not consistent with the content of the
required training and the labeling of any products being applied, it
may support a presumption that the private applicator has failed to
adequately comply with the noncertified applicator training
requirement. Where private applicators keep records, either on their
own initiative or in response to State, Tribal, or local requirements,
that are sufficient to verify compliance with the requirements for
training and supervising noncertified applicators, EPA expects that it
would ordinarily rely on such records to assess compliance, rather than
evaluating individual noncertified applicators.
    The regulatory text related to this proposal would be located at 40
CFR 171.201(e).
    4. Costs. EPA estimates the cost of the proposal to require
commercial applicators to maintain records of the training provided to
noncertified applicators working under their direct supervision for 2
years would be $324,000 annually (Ref. 3).
    5. Alternative options considered by EPA but not proposed. EPA
considered requiring the training record to include the noncertified
applicator's date of birth. The Department of Homeland Security (DHS)
requires every employer to have a completed I-9 form for every
employee. The I-9 form already requires employers to obtain and keep
records on a number of pieces of information about the employee to
verify employability, including the employee's date of birth. The
employer must retain the I-9 form for inspection by DHS or other
federal agencies. Rather than impose a duplicative requirement for
recordkeeping on employers, EPA chose not to propose a requirement for
the training record to include the noncertified applicators date of
birth.
    6. Request for comment. EPA requests specific comment on the
following:
     Should EPA consider requiring the commercial applicator to
provide a copy of the training record to the noncertified applicator?
What would be the value of this record to the noncertified applicator
and subsequent employers? Should EPA require the record to be provided
to all noncertified applicators as a matter of course or only to those
noncertified applicators who request such documentation from the
certified applicator?
     Should EPA consider requiring commercial applicators to
maintain records of noncertified applicator training for a different
length of time? If so, for how long should training records be
maintained and why?
     Should EPA consider requiring commercial applicators to
document the noncertified applicator's qualification regardless of the
method used to qualify? Should EPA require commercial applicators to
document the WPS training or core exam? If so, why?

XII. Establish a Minimum Age for Certified Applicators

    1. Overview. In order to reduce the risks of exposure to
applicators, bystanders, the public, and the environment, EPA proposes
to establish a minimum age of 18 for any person to become certified as
a private or commercial applicator.
    2. Existing regulation. The rule has no age restrictions for
certified applicators.
    3. Stakeholder information considered by EPA. Stakeholders
including Farmworker Justice, Migrant Clinicians Network, EPA's
Children's Health Protection Advisory Committee, members of the PPDC
workgroup, and State regulatory agencies recommended establishing a
minimum age for pesticide applicators.
    In 2002, CTAG surveyed State lead agencies for pesticide applicator
certification. Responses were provided from 49 States, with 30 States
implementing a minimum age for commercial applicators and 27 States
establishing a minimum age for private applicators. The commercial
applicator minimum ages were 16 (6 States) and 18 (24 States); the
private applicator minimum ages ranged from 15 to 18 (15 years, 1
State; 16 years, 10 States; 17 years, 1 State; 18 years, 15 States)
(Ref. 57). CTAG also evaluated State support of a minimum age
requirement for applicator certification. Ninety-eight percent of the
respondents supported such a requirement. Twenty-six States supported a
minimum age of 18, 12 States supported a minimum age of 16, and the
remainder did not respond with a specific age or provided different
required minimum ages, depending on type of certification (Ref. 57).
    As of 2013, 35 States had implemented a minimum age of 18 for
commercial applicators and 8 States had implemented a minimum age of 16
for commercial applicators. For private applicators, 16 States
established a minimum age of 18, 1 State established a minimum age of
17, and 17 States established a minimum age of 16 (Ref. 3).
    The SBAR panel recommended that EPA consider a minimum age of 18
for commercial and private applicator certification, with an exception
allowing private applicators working on a farm owned by an immediate
family member (as defined in the WPS at 40 CFR part 170) to be
certified at 16 years old (Ref. 34). The SERs (including pesticide
applicators, farmers, and other business owners) consulted by the panel
had varying recommendations regarding minimum age.
    For commercial applicators, SERs mainly suggested a minimum age of
18, noting that the minimum age for a pilot license is 18 so it would
not impact aerial applicators and that ``one cannot understand the
concept of safe and accurate application until age 18.'' Other SERs
suggested that the minimum age should be 16 for children of farmers,
that the minimum age should not exceed 14, and that there should be no
minimum age--only a requirement to pass a written test (Ref. 34).
    For private applicators, recommendations ranged from no minimum age
to a minimum age of 18. Two SERs suggested that there should be no
minimum age, with one suggesting that children be certified as private
applicators when they pass a test. Three representatives suggested a
minimum age of 16. One SER suggested a minimum age of 18 (Ref. 34). Two
SERs noted that establishing a minimum age would require farm owners to
hire certified applicators, increasing the cost of RUP applications
(Ref. 34).

    DOL has established a general rule, applicable to non-agricultural
employment, that workers must be at least 18 years old to perform
hazardous jobs. 29 CFR 570.120. For example, those under the age of 18
may not perform most tasks in manufacturing or mining industries;
communications or public utilities; construction or repair; in
transporting people or property; and in warehousing and storage. The
FLSA establishes a minimum age of 16 for youth in agriculture engaged
in occupations deemed hazardous by the Secretary of Labor. 29 U.S.C.
213(c)(2). This includes persons handling toxicity category I and II
pesticides in agriculture. 29 CFR 570.71(a)(9). By regulation, DOL
prohibits youth under the age of 16 engaged in nonagricultural
employment from any work involving pesticides unless employed by a
parent or someone standing in place of the parent. 29 CFR 570.32.
    4. Details of the proposal/rationale. EPA proposes to establish a
minimum age of 18 for persons to become certified as commercial and
private applicators.
    Aside from any increased risks that adolescents may suffer from
pesticide exposures, adolescents generally lack the experience and
judgment to avoid or prevent unnecessary exposure. A study conducted by
the National Institutes of Health (NIH) also demonstrates that because
their brains are still developing, adolescents may have trouble
balancing risk-reward decision-making and goal-oriented decision-making
(Ref. 21). Although adolescents may understand the possible
consequences of their actions, they are more likely to make decisions
based upon their initial emotional responses, which will often lead
them to make suboptimal choices (Ref. 20). Additionally, adolescents
are less likely to be aware of their rights and how to recognize
hazards in the workplace (Ref. 20).
    Pesticide applicators must exercise good judgment and responsible
behavior to best protect themselves and others as they work with these
potentially toxic materials. Research has shown differences in the
decision making of adolescents and adults that reasonably supports the
conclusion that applicators who are children may take more risks than
those who are adults. Behavioral scientists note that responsible
decision making is more common in young adults than adolescents:
``socially responsible decision making is significantly more common
among young adults than among adolescents, but does not increase
appreciably after age 19. Adolescents, on average, scored significantly
worse than adults did, but individual differences in judgment within
each adolescent age group were considerable. These findings call into
question recent assertions, derived from studies of logical reasoning,
that adolescents and adults are equally competent and that laws and
social policies should treat them as such'' (Ref. 22). Decision-making
skills and competence differ between adolescents and adults. A NIOSH
compilation of studies demonstrates ``[y]outh are at increased risk of
injury from lack of experience. Inexperienced workers are unfamiliar
with the requirements of work, are less likely to be trained to
recognize hazards, and are commonly unaware of their legal rights on
the job. Developmental factors--physical, cognitive, and
psychological--may also place them at increased risk'' (Ref. 21). While
some research has focused on decision-making of adolescents in terms of
legal culpability, the findings on decision-making skills and
competence can be applied reasonably to pesticide application.
    Society has established 18 as the age of majority in many
circumstances, and research has shown that by 18 years old, most people
have developed a level of competence that makes responsible decision
making more likely. For example, persons must wait until they are 18 to
vote, join the military, use tobacco, and give medical consent. For the
one major exception to 18 as the age of majority, issuance of driver's
licenses, States have recognized the increased risks associated with
new, immature drivers. Forty-nine States have established a graduated
driver's license program, under which the young drivers do not get full
rights and independence upon passing the necessary tests; rather they
get limited privileges that expand over time to result in full rights
and independence when they reach 17 or 18 years old. Overall, this
approach has resulted in fewer accidents by teenage drivers between 16
and 18 years old (Refs. 58 and 59). Society does not entrust
individuals with the right to conduct some high risk activities until
they have met a certain age because the risk of harm to the underage
person and others is too great. Pesticide application presents
comparable risks, with the potential for significant harm to the
applicator, the public, and the environment.
    In addition to differences between adolescents and adults in terms
of decision-making ability, children may be more susceptible to
pesticides because their physiological systems are developing, and that
development may be altered by pesticide exposure. Most pesticides
classified as RUPs are so classified based on an increased potential
for acute harm to human health. A level of exposure to RUPs considered
safe for an adult may not be safe for a child.
    EPA expects that restricting certification to persons 18 years of
age or older would prevent children from being exposed while performing
and supervising application activities and protect other persons and
the environment from misapplication due to children's poor judgment or
inadequate decision-making skills. EPA's proposal would harmonize the
age requirements for pesticide applicators with the minimum age
requirements for workers performing hazardous jobs in other industries.
    The regulatory text for these provisions would be located at 40 CFR
171.103(a)(1) for commercial applicators and at 40 CFR 171.105(d) for
private applicators.
    5. Costs. EPA separates the cost of establishing a minimum age for
commercial and private applicators in this unit.
    i. Commercial applicators. EPA estimates the cost of establishing a
minimum age of 18 for commercial applicators would be $294,000 per year
(Ref. 3). The costs would reflect the difference in the wage rates
between commercial applicators who are 18 years or older and those who
are younger in States that do not currently have a minimum age of 18
(Ref. 3). As discussed in this unit, many States already have a
requirement that certified applicators must be at least 18 years old.
    ii. Private applicators. EPA estimates the cost of establishing a
minimum age of 18 for private applicators would be $174,000 per year
(Ref. 3). The costs would reflect the difference in the wage rates
between private applicators who are 18 years or older and those who are
younger in States that do not currently have a minimum age of 18.
    6. Alternative options considered by EPA but not proposed. EPA
considered two alternatives: Allowing flexibility in the minimum age of
18 for applicators on a family farm, and establishing a minimum age of
16 for commercial and private applicators.
    EPA took into account the recommendation of the SBAR panel that EPA
consider a minimum age of 18 for commercial and private applicator
certification, with an exception allowing private applicators working
on a farm owned by an immediate family member (as defined in the WPS at
40 CFR part 170) to be certified at 16 years old (Ref. 34). This option
would allow flexibility for earlier certification for private
applicators working on farms owned by immediate family members;
however, it

provides a different level of protection for private and commercial
applicators and to those who would be impacted by their applications of
RUPs. EPA's primary concern is the protection of human health and the
environment from pesticide hazards; the SBAR panel alternative does not
adequately protect a vulnerable segment of the population, youths 16
and 17 years old. It also puts at risk neighbors, bystanders, and the
environment. RUPs pose greater potential for unreasonable adverse
effects if they are misused than do other pesticides. Persons younger
than 18 may possess less maturity and good judgement than adults, and
they may be careless in making applications. It is reasonable to expect
that there would be additional risk to the applicator, the public, and
the environment from RUP applications by persons younger than 18, and
despite the benefit of flexibility offered by a reduced minimum age on
family owned enterprises, EPA does not consider that flexibility
justified in light of the associated risks.
    The second alternative considered by EPA was to set a minimum age
of 16 for persons to become certified as commercial or private
applicators. This option would require fewer States to incorporate the
new requirement because most States have a minimum age of at least 16.
Under this alternative, States could adopt or retain a requirement for
a higher minimum age. In addition, a minimum age of 16 would match the
requirements of the FLSA for handling or applying products in toxicity
category I and II in agricultural employment and the minimum age for
handlers under the proposed changes to the WPS (Ref. 4). However, this
option would provide significantly less protection to the applicator,
the public, and the environment. Moreover, this option could create a
scenario in which a minor could be directing the actions of an adult by
supervising the application of RUPs. States have noted that it can be
difficult to take enforcement actions against minors. Under this
scenario, States may have no recourse if the pesticide was misapplied
by the noncertified applicator because responsibility ultimately rests
with the certified applicator, in this case, a minor. Certified
applicators use RUPs, pesticides with a higher potential for harming
human health and the environment, and must possess an appropriate level
of competence, maturity and decision-making skills to ensure these
products are used safely. Therefore, EPA does not believe that the
difference in cost between the proposed option and this alternative
justifies the associated risk to youth applicators, the public, and the
environment.
    7. Request for comment. EPA specifically requests comment on the
following questions:
     Are there alternatives that have not been
considered that would improve protections for adolescent certified
applicators using RUPs, either those under 16 or 18 years old, while
allowing flexibility for pesticide use for agriculture?
     What would be the impact on State programs of establishing
a minimum age of either 16 or 18 for certified applicators? What would
be the impact on pesticide application businesses?
     Are there additional benefits or burdens associated with
establishing a minimum age of 16 or 18 for certified applicators? If
so, please provide data to support either position.
     Would this proposal have an impact on training programs
for adolescents? If so, please describe the impact.
     Is there a need for an exemption from the minimum age
requirement for persons working on a farm owned by their immediate
family members? If so, how widespread is this need and what are its
economic impacts? What criteria should EPA consider if it creates such
an exemption, e.g., size of the farm, specific familial relationship,
whether a family member/owner is also a certified applicator? Should
EPA use the same criteria established for the exemption for owners and
their immediate family members under the WPS (see 40 CFR 170.104(a) and
170.204(a))?

XIII. Establish a Minimum Age for Noncertified Applicators Working
Under the Direct Supervision of Certified Applicators

    1. Overview. EPA proposes to require that noncertified applicators
who use RUPs under the direct supervision of a certified applicator be
at least 18 years old. EPA expects this change would result in reduced
risks to children and improved competency in the use of RUPs, resulting
in reduced exposure to noncertified applicators, bystanders, and the
environment.
    2. Existing WPS regulations. The current rule does not establish a
minimum age for noncertified applicators.
    3. Stakeholder information considered by EPA. As of 2013, 16 States
had implemented a minimum age of 18 for noncertified applicators under
the direct supervision of commercial applicators and 4 States had
implemented a minimum age of 16 for noncertified applicators under the
direct supervision of commercial applicators. For private applicators,
5 States established a minimum age of 18 and 2 States established a
minimum age of 16. Two States prohibit use of RUPs by noncertified
applicators, eliminating the option for use of RUPs under the direct
supervision of a certified applicator (Ref. 3).
    The SBAR panel recommended that EPA consider a minimum age of 18
for noncertified applicators working under the direct supervision of
commercial applicators and a minimum age of 16 for noncertified
applicators working under the direct supervision of private applicators
(Ref. 34). The SERs consulted by the panel provided varied
recommendations. One SER recommended that EPA adopt a minimum age of 16
for persons working in an apprentice program, but prohibit these
noncertified applicators from working alone (i.e., supervising
applicator not present at the site of application). Another SER
suggested a minimum age of 18 because ``one cannot understand the
concept of safe and accurate application until age 18.'' A third SER
suggested that EPA not establish a minimum age because establishments
applying RUPs need to use family members. Finally, one SER supported
EPA's adoption of either a requirement for training for noncertified
applicators or a requirement for certified applicators to be present
for applications made under their direct supervision (Ref. 34). EPA
also considered the information discussed in Unit XII.3.
    4. Details of the proposal/rationale. EPA proposes to establish a
minimum age of 18 for noncertified applicators using RUPs under the
direct supervision of certified applicators. The proposed age
restriction would include a requirement for commercial applicators
supervising the noncertified applicator to record the training and the
birth date of any noncertified applicator using RUPs under their direct
supervision.
    EPA considered the rationale discussed in Unit XII.4. in developing
this proposal. As discussed in the previous section, research shows the
differences in the decision-making of adolescents and adults leads to
the conclusion that noncertified applicators who are adolescents may
take more risks than those who are adults. The use of RUPs presents
demonstrable risks of significant harm to the applicator, the public,
and the environment, and these risks are significantly influenced by
the user's judgment and decision-making skills. Requiring noncertified
applicators to be 18 years of age or older would prevent youth under 18
from being exposed while using RUPs under the supervision of a
certified applicator

and would reduce risks to other persons and the environment from
misapplication owing to users' poor judgment or decision-making skills.
This proposal would also align with society's general trend toward
increasing the ages at which persons are eligible to do certain things
that present recognized risks, such as purchasing alcohol or becoming a
licensed driver.
    Because noncertified applicators use RUPs, their activities entail
a heightened level of risk that requires maturity and good decision-
making skills if unreasonable adverse effects are to be avoided.
Therefore, it is reasonable to expect that establishing a minimum age
of 18 for noncertified applicators would improve protections from
misapplication of RUPs to applicators, the public, and the environment.
    The regulatory text establishing a minimum age for noncertified
applicators would be located at 40 CFR 171.201(b)(5).
    5. Costs. EPA separated the cost for establishing a minimum age of
18 for noncertified applicators working under the direct supervision of
commercial applicators and for those under the direct supervision of
private applicators in this unit.
    i. Noncertified applicators working under the direct supervision of
commercial applicators. EPA estimates the cost of requiring
noncertified applicators working under the direct supervision of
commercial applicators to be 18 would be $12.8 million per year (Ref.
3). The costs reflect the difference in the wage rates between these
noncertified applicators who are 18 years or older and those who are
younger.
    ii. Noncertified applicators working under the direct supervision
of private applicators. EPA estimates the cost of requiring
noncertified applicators working under the direct supervision of
private applicators to be 18 would be $1.1 million per year (Ref. 3).
The costs reflect the difference in the wage rates between these
noncertified applicators who are 18 years or older and those who are
younger.
    For a complete discussion of the estimated costs of the proposals
and alternatives, see the economic analysis for this proposal (Ref. 3).
    EPA cannot quantify the benefits associated with this proposal
(Ref. 3). However, it is reasonable to expect that this proposal would
improve the health of adolescent noncertified applicators, as well as
other bystanders and the environment. As discussed in Units XII. and
XIII., adolescents' judgment is not fully developed. It is reasonable
to expect that restricting adolescents' ability to handle pesticides
would lead to less exposure potential for the noncertified applicators
themselves, and less potential for misapplication that could cause
negative impacts on other persons nearby, and the environment.
    6. Alternative options considered but not proposed. EPA considered
two alternatives: Proposing a minimum age of 16 for all noncertified
applicators using RUPs under the direct supervision of commercial and
private applicators, and proposing a minimum age of 18 for all
noncertified applicators using RUPs under the direct supervision of a
certified applicator with an exception for noncertified applicators
working under the direct supervision of a private applicator on a farm
owned by an immediate family member.
    Establishing a minimum age of 16 for noncertified applicators would
roughly align with the DOL's age restrictions related to pesticide
handling. It would also correspond with the proposed minimum age of 16
for pesticide handlers under the WPS that EPA is considering. Finally,
this alternative would give noncertified applicators the opportunity to
gain knowledge and experience about the proper use of RUPs at a younger
age while working under the direct supervision of a certified
applicator. EPA recognizes similarities between noncertified
applicators and handlers under the WPS. However, noncertified
applicators use RUPs, products that pose a higher risk of harm to human
health and the environment if not used properly. For this reason, it is
critical that those who use RUPs, even with proper supervision, have
developed the necessary maturity and decision-making skills to use the
products in a manner that avoids unreasonable adverse effects to
themselves, other persons, and the environment. EPA does not believe
that harmonizing the minimum age for noncertified applicators with the
proposed minimum age for handlers under the WPS and the Department of
Labor's requirements would offer benefits sufficient to justify the
increased potential risk from improper use of an RUP by a noncertified
applicator who is not at least 18 years old.
    The SBAR panel recommended that EPA consider a minimum age of 18
for commercial and private applicator certification, with an exception
allowing private applicators working on a farm owned by an immediate
family member (as defined at 40 CFR 170.2) to be certified at 16 years
old (Ref. 34). EPA considered adopting a similar requirement for
noncertified applicators or establishing a minimum age of 18 for those
working under the direct supervision of commercial applicators and 16
years old for those working under the direct supervision of private
applicators. These options would allow flexibility for earlier
certification on family-owned farms or for private applicators;
however, they would provide a different level of protection to
noncertified applicators working under the direct supervision of
private and commercial applicators. A noncertified applicator is likely
to have less experience and knowledge than a certified applicator. A
person younger than 18 may also have less maturity and good judgement.
It is reasonable to expect that it is more likely that there would be
additional risk to the applicator, the public, and the environment from
RUP applications by noncertified persons younger than 18, and despite
the benefit of flexibility offered by a reduced minimum age on family
owned enterprises, EPA does not consider that flexibility justified in
light of the associated risks.
    7. Request for comment. EPA specifically requests comment on the
following questions:
     Are there alternatives that have not been
considered that would improve protections for adolescent noncertified
applicators using RUPs under the direct supervision of a certified
applicator, either those under 16 or 18 years old, while allowing
flexibility for pesticide use for agriculture?
     What would be the impact on State programs of establishing
a minimum age of either 16 or 18 for noncertified applicators? What
would be the impact on pesticide application businesses?
     Are there additional benefits or burdens with establishing
a minimum age of 16 or 18 for noncertified applicators? If so, please
provide data to support either position.
     Would this proposal have an impact on training programs
for adolescents? If so, please describe the impact.
     Would it be possible for EPA to include in the final rule
exceptions to the proposed minimum age requirement for persons
participating in adolescent vocational training programs and high
school educational programs, where persons who do not meet the minimum
age work under the direct supervision of certified applicators, while
ensuring that adolescents, others, and the environment are protected
adequately? If so, explain how EPA could ensure adequate protections.
Please suggest a framework for such an exemption.

XIV. Establish a National Certification Period and Standards for
Recertification

A. National Recertification Period

    1. Overview. To ensure certified applicators maintain core
competencies and keep pace with the changing technology of pesticide
application, and to ensure that the public, environment and applicators
are protected from misapplication and misuse, EPA proposes to establish
a maximum certification period of 3 years. This would require all
applicators to renew their certification, i.e., recertify, at least
every 3 years.
    2. Existing regulation. The current rule requires States to ensure
applicators maintain a continuing level of competency and ability to
apply pesticides safely and properly as part of their State plans. 40
CFR 171.8(a)(2). The rule requires that under plans administered by
EPA, commercial applicators must be recertified every 3 years and
private applicators must be recertified every four years. 40 CFR
171.11. A policy applicable to Federal agency plans directs Federal
agencies to include in their certification plans a requirement for
applicators to recertify every 3 years (Ref. 60). There are no
corresponding regulatory requirements or policies establishing a
maximum certification period under State and Tribal certification
plans.
    3. Stakeholder information considered by EPA. CTAG, SFIREG, State
regulatory agencies and members of the PPDC workgroup all requested
that EPA establish a standard maximum certification period. State and
Tribal participants at the 2006 Worker Safety PREP generally supported
the proposed 3-year maximum certification period, though States with 5-
year periods expressed concerns for the potential impacts to their
programs (Ref. 33).
    States' requirements for frequency of applicator certification
range from 1 year to 6 years. In a survey of State requirements, EPA
determined that 31 States already have a certification period of 3
years or fewer for commercial applicators. Twenty-five States already
require recertification every 3 years or fewer for private applicators
(Ref. 5).
    4. Details of the proposal/rationale. EPA proposes that all
pesticide applicator certifications be valid for no more than 3 years.
This proposal corresponds with the existing requirements for commercial
applicators under EPA-administered plans and Federal agency plans.
    Ensuring the ongoing competency of applicators of RUPs is crucial
in preventing unreasonable adverse effects when RUPs are used.
Applicators must be knowledgeable about changing technology, product
reformulations, new labeling and regulatory requirements, and other
essential labeling information. Applicators also must be reminded about
personal safety and basic application principles. To ensure ongoing
competency, it is necessary to require renewal of an applicator's
certification within a specific period. The more frequently applicators
receive training, the more likely they are retain the substance of the
training and apply it on the job. Studies show that information
retained from training sessions declines significantly within a year
(Refs. 14 and 15). However, preparing for and demonstrating competency
by passing an exam requires a higher level of preparation and a more
reliable demonstration of the competencies needed. Therefore, it is
reasonable to believe that allowing certified applicators to renew
their certifications over a slightly longer period would not adversely
impact human health and the environment. EPA already requires
applicators under an EPA-administered plan to recertify every 3 years
and it is reasonable to extend this requirement to all applicators
certified under any plan approved by EPA.
    It is reasonable to expect that requiring all applicators certified
by States, Tribes and Federal agencies to be recertified at least every
3 years would set an acceptable minimum standard for continued
competency in the applicator certification program.
    The regulatory text for this proposal would be located at 40 CFR
171.107(a).
    5. Costs. EPA estimated the cost of this proposal in conjunction
with the proposal to establish requirements for recertification
programs. See Unit XIV.B. The cost of this proposal is provided in
combination with the cost of the proposal for recertification
requirements in Unit XIV.B.5.
    6. Alternative options considered by EPA but not proposed. EPA
considered proposing a maximum certification period of 5 years for
private and commercial applicators. As discussed in this unit, learned
knowledge diminishes over time (Refs. 14 and 15). EPA must ensure that
applicators maintain ongoing competency to protect themselves, other
persons, and the environment from unreasonable adverse effects from RUP
exposure. It is reasonable to expect that applicators retain less
knowledge over a 5 year recertification period than they would over a 3
year recertification period, thereby increasing the potential risk
posed by applicators who do not maintain an ongoing level of
competency. EPA estimates that the difference in cost between a 3 year
and 5 year recertification would be negligible. For these reasons, it
is reasonable to expect that the potential small cost savings
associated with a 5 year recertification period instead of a 3 year