recertification period are not significant enough to warrant the
increased risks associated with applicators who do not maintain an
ongoing level of competency in the use of RUPs.
    7. Request for comment. EPA specifically requests comment on the
following questions:
     Should EPA consider a different maximum recertification
period? If so, what period and why?

B. Recertification Requirements

    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 require
State, Tribal, and Federal agencies to require applicators to complete
a continuing education program that meets or exceeds specific standards
or to pass exams related to their certification(s) in order to be
recertified.
    2. Existing regulation. The current rule requires States to require
applicators to demonstrate ongoing competency as part of their State
plans. 40 CFR 171.8(a)(2). The rule has no requirements for the
recertification standards such as content or manner in which ongoing
competency is evaluated.
    3. Stakeholder information considered by EPA. In a survey of State
certification program personnel, CTAG found most States agreed that the
credibility of training presenters, programs, and recertification exams
should be subject to review and approval by the agency that assigns the
recertification program credits or oversees exams. Participants at the
2006 Worker Safety PREP noted that most States offer applicators the
option to take an exam for recertification if recertification is not
accomplished through accruing continuing education units by the
required deadline. Additionally, States noted that some applicator
categories have so few applicators or the substance of the categories
changes so infrequently that developing and updating training materials
may be cost-prohibitive for States or cooperative extension services;

therefore, States requested the option to offer or require retesting
for recertification (Ref. 33).
    State and Tribal participants at the 2006 Worker Safety PREP
generally supported having a requirement for the minimum number of
credits that must be earned by an applicator in a continuing education
program during the recertification period. Some States expressed
concern that minimum requirements established at the Federal level
could cause States with more stringent requirements to lower their
requirements. For example, if EPA required an applicator to earn 6
credits per category every 3 years, those States with higher
requirements (e.g., 12 credits per category) might face resistance from
their applicators. Conversely, they appreciated that a Federal standard
would make issuing and monitoring reciprocal certificates to
applicators less burdensome, because all States would meet a minimum
standard for recertification programs.
    4. Details of the proposal/rationale. The Agency proposes to
establish minimum standards for continuing education programs,
including: The minimum number of continuing education units (CEUs) that
must be earned by an applicator in order to be recertified in core and
each category; the standard length of a CEU; and a requirement for
applicators to earn at least half of the required CEUs in the 18 months
preceding expiration of the applicator's certification. States, Tribes,
and Federal agencies would be required to include a continuing
education program that meets or exceeds these standards as part of
their certification plan. EPA also proposes to allow States to require
recertification only by exam. The exam and its administration would
have to meet the standards outlined in Unit IX.
    EPA proposes to require that private applicator continuing
education programs require instruction in the general competency
standards as well as each relevant application method-specific
category. The more training applicators receive, the more likely they
are retain the substance of the training and apply it on the job. Under
EPA's proposal, a private applicator would need to earn a minimum of 6
CEUs of instruction that covers the content proposed as 40 CFR
171.105(a) every 3 years to maintain core certification. The CEUs must
be part of a continuing education program approved by the appropriate
State, Tribal, or Federal agency for recertification. To qualify for
recertification in the proposed application-method specific categories
of soil fumigation, non-soil fumigation, or aerial application, or in
the predator control category, a private applicator would need to earn
a minimum of an additional 3 CEUs specific to each relevant application
method that covers the content proposed as 40 CFR 171.105(b) and (c)
every 3 years. A commercial applicator would need to earn a minimum of
6 CEUs related to his or her core certification every 3 years to
maintain his or her core certification. For each category (pest control
and application method-specific) in which the applicator is certified,
he or she would need to obtain at least 6 CEUs specific to each
category every 3 years. For example, a commercial applicator certified
in agricultural pest control and aerial application would be required
to obtain 6 CEUs of core material to satisfy recertification
requirements for commercial core, as well as an additional 6 CEUs in
agricultural pest control and 6 CEUs in aerial application in order to
satisfy recertification requirements for maintaining his or her overall
certification in the appropriate categories.
    EPA proposes to allow applicators to earn CEUs in a program
administered by or approved by the certifying State, Tribal, or Federal
agency. The certifying authority's certification plan would need to
detail how it would review and approve content for the continuing
education program and how it would ensure that applicators satisfy the
necessary requirements. The certifying authority could either conduct
the continuing education program directly (some States refer to this
type of program as a workshop), or could approve continuing education
programs administered by cooperative extension services at State
universities, other States, or private training providers. To approve
the program, the State would have to ensure that the continuing
education program meets the competency requirements established for
commercial core certification, general private applicator
certification, or the specific category or application method-specific
category covered by the continuing education program.
    EPA also proposes to set 50 minutes of active training time as the
standard for a CEU. There is a wide range of time across States and
professions for what constitutes a CEU. A minimum standard of 50
minutes of education per CEU would be consistent with most State
standards. Setting a minimum standard for acceptable CEUs across all
States, Tribes, and Federal agencies will ensure a baseline level for
recertification programs that employ training and may facilitate
applicators earning credits for recertification in more than one State.
With a more standardized baseline for a CEU, States may be more likely
to approve or accept continuing education programs presented in other
States. Interstate collaboration for recertification would reduce the
burden on State lead agencies and educators to develop and present new
materials for each category. In addition, applicators certified in the
same category in more than one State could be able to earn CEUs in one
State and apply them to recertification in their other State of
certification, reducing the overall burden associated with
recertification in multiple States.
    EPA also proposes to require that the applicator earn a minimum of
one-half of the required CEUs during the 18 month period preceding the
expiration date of his or her certification. A more recently trained
applicator is more likely than less frequently trained applicators to
apply what he or she learned from the training on the job. This should
ensure that the applicator maintains an ongoing level of competence
throughout the period that the certification is valid. The proposal
would support applicators staying abreast of current information and
technology related to their category of pesticide application.
    EPA is also proposing to allow certifying authorities to require
applicators to pass exams relevant to their categories of certification
in order to be recertified. Exams are a reliable gauge of competency
and can be used to ensure that applicators continue to demonstrate an
appropriate level of competency.
    For a discussion of the requirement for verification of the
recertification candidate's identity, see Unit IX.
    The regulatory text for the proposed addition of recertification
standards would be located at 40 CFR 171.107(b).
    5. Costs. The estimated costs for this proposal and the proposal in
Unit XIV.A. are presented by impact to commercial applicators and
private applicators. The costs to the States are incorporated in each
section.
    i. Commercial applicators. EPA estimates that the proposed
requirement for commercial applicators to recertify would cost a total
of $6.5 million per year (Ref. 3). EPA estimated this cost based on an
applicator being required to complete 6 hours of training in core
competency standards and 6 hours of training for each category of
certification. The recertification costs include applicators
recertifying in the proposed application-method specific categories and
the new predator control categories. EPA estimates that State costs to
administer the proposed

recertification program for commercial applicators would be $39,000
because most States already have recertification programs in place and
would only need to adjust it to match the proposed regulatory
requirement (Ref. 3).
    ii. Private applicators. EPA estimates the cost of the proposed
requirement for private applicators to recertify at $16.8 million
annually (Ref. 3). EPA estimated this cost based on an applicator being
required to complete 6 hours of training in general private applicator
competency standards and 3 hours of training for each application
method-specific category of certification. The recertification costs
include applicators recertifying in the proposed application-method
specific categories and the new predator control categories. EPA
estimates that State costs to administer the proposed recertification
program for private applicators would be $11,000 because most States
already have a recertification program in place and would only need to
adjust it to match the proposed regulatory requirement (Ref. 3).
    6. Alternative options considered by EPA but not proposed. EPA
considered a range of continuing education requirements but does not
have a specific alternative proposal. EPA reviewed recertification and
continuing education requirements for several other types of
professional occupations and found wide variability in continuing
education requirements across States or organizations within a single
profession (e.g., nursing), and found little information to explain the
variation in requirements. Similarly, EPA reviewed the existing State
continuing education requirements for pesticide applicator
recertification and found that the requirements ranged from two up to
40 continuing education units per cycle, and cycles ranged from 1 to 5
years, but there was little or no information available to support why
a particular number of continuing education units was selected.
    7. Request for comment. EPA specifically requests comment on the
following questions:
     Is the proposed number of recertification CEUs too low or
too high? If so, please provide specific information on the number of
continuing education units that you believe should be required for
professional recertification and the rationale behind the number.
     Is EPA's proposal to require that the applicator earn a
minimum of one-half of the required CEUs during the 18 month period
preceding the expiration date of his or her certification clear? Is
there a way EPA could make the requirement clearer or easier to
understand? If so, please provide suggestions for how EPA could
structure the requirement without altering the substance.
     Should EPA reconsider the proposal to require that the
applicator earn a minimum of one-half of the required CEUs during the
18 month period preceding the expiration date of his or her
certification? If so, why?
     Should EPA consider a different time period for applicator
recertification? If so, please explain what period EPA should consider
and why.
     Should EPA require commercial and private applicators to
have the same recertification requirements for category
recertification? If so, why?
     Should EPA do more to harmonize requirements for
recertification to further facilitate reciprocity? Please describe what
actions EPA should take and how they would further facilitate
reciprocity.

XV. Revise State Certification Plan Requirements

    1. Overview. In order to clarify requirements for content,
submission and approval of State plans, raise the minimum standards for
State pesticide applicator certification programs, and update the
requirements for State plans, EPA proposes to revise the provisions of
the rule related to submission, approval, and maintenance of State
plans. Since the requirements for Tribal and Federal agency plans
reference the standards for State plans, the proposed changes would
also impact the requirements for Tribal and Federal agency plans.
    2. Existing regulation. The current provisions at 40 CFR 171.7 and
171.8 establish the requirements for the submission, approval and
maintenance of State plans. These sections of the rule set the content
of State plans and outline the specific regulatory provisions, legal
authorities, and components that States must have in order for EPA to
approve a State plan. An EPA-approved State plan allows the State to
certify and recertify RUP applicators.
    3. Details of the proposal/rationale. EPA proposes to revise the
provisions covering the submission, approval, and maintenance of State
plans. The revisions will cover: Revision of State plans to conform
with proposed changes; additional reporting and accountability
information; States' need to have both civil and criminal penalty
authority to enforce their State plans; recordkeeping requirements for
commercial applicators; recordkeeping requirements for RUP dealers;
standards for certification credentials; requirements for States'
recognition of certifications issued by other States (known as
reciprocal certification); and maintenance, modification, and
withdrawals of State plans.
    i. State plan modification to implement proposed changes. EPA's
proposal would add appropriate provisions to ensure that State plans
conform to new standards and requirements being proposed in other parts
of the rule. This includes proposed standards for the certification of
private and commercial applicators, recertification, and direct
supervision of noncertified applicators. States would continue to be
permitted to adopt, as they considered appropriate, the Federal
categories appropriate for their States, add subcategories under the
Federal categories, delete Federal categories not needed, and add
State-specific categories not reflected by the Federal categories.
    EPA considered several alternatives. First, EPA considered
requiring States to adopt all applicable Federal categories proposed as
40 CFR 171.101 and 171.105. At the present time, few States have
defined their certification categories to align exactly with the
Federal categories--many have either split existing Federal categories
into multiple categories or added a number of subcategories under
categories similar to the Federal categories. Some stakeholders believe
that requiring all certifying authorities to use the Federally-
established categories could benefit applicator mobility, stating that
if the standards for certification were consistent across States,
States would be able to more easily evaluate requests for reciprocal
certification. However, requiring States to adopt the Federal
categories would burden States and applicators, and would not
necessarily result in improved protection for applicators, the public,
or the environment. Because the Federal categories may be broad,
applicators may be required to learn material in areas not relevant to
their actual applications, potentially reducing protections.
Consequently, EPA expects that many States would still require
applicators to certify in their State-specific subcategories to ensure
specific competency. If a significant number of States continue to
require applicators to certify in State-specific subcategories, it
would defeat the goal of facilitating reciprocal certification. In this
scenario, requiring States to adopt the Federal categories would
increase the burden to the States to revise their certification systems
to accommodate the changes, and to applicators required to pass

another exam, without any clear benefit in either efficiency or
protection. Because there is little, if any, gain in protection from
this option, and because it would be a burden to States and
applicators, it is not proposed.
    EPA also considered subdividing the national pest category 7
(industrial, institutional, structural and health-related pest control)
into component parts. This category covers a range of specific
application types--for example, applications in food handling areas to
control insects and rodents, termite control in infested buildings, and
treatments to nursing homes and schools. Safe and effective
applications to these different sites require different skills and
knowledge. Subdividing the category at the Federal level would allow
the certification to focus on the competencies most relevant to
applicators in the subdivided categories. However, 47 States have
already created appropriate categories for their needs and their
applicators learn information relevant to their specific applications
and are being tested on that specific information. Because of the
State-specific divisions, there is little consistency in how the States
have subdivided the category. Retaining the category in its current
form and allowing States to adjust it as needed would avoid imposing an
increased burden on States to adjust their categories to a newly
developed Federal standard with little or no improvement in protection.
    For a discussion on EPA's proposal for applicator reciprocity,
please refer to Unit XV.3.vii.
    For standards for direct supervision of noncertified applicators,
EPA proposes to require States to adopt the proposed standards at 40
CFR 171.201 for commercial and/or private applicators that supervise
noncertified applicators. This would not require States to allow the
use of RUPs by noncertified applicators under the direct supervision of
certified applicators; States that choose to restrict use of RUPs to
certified applicators would be exempted from the requirement to adopt
the proposed standards as 40 CFR 171.201. These options would continue
to allow the States the flexibility to decide whether or not to allow
use of RUPs by noncertified applicators. EPA's criteria for approving
the registrations of RUPs are based, in part, on presumptions that any
uncertified applicators have at least the level of training mandated in
40 CFR 171.201. Therefore, EPA only proposes that States adopt EPA's
standards for noncertified applicators exactly, with the flexibility to
adopt additional standards at the State's discretion to address State-
specific issues.
    The proposed regulatory text would be located at 40 CFR 171.303(a)
and (b).
    ii. Program reporting and accountability. To reflect the proposed
changes to applicator certification categories and to ensure EPA
receives adequate information to monitor the State's implementation of
its certification plan, EPA proposes to require States to report the
information below to EPA annually. EPA is also proposing to require
Tribes and Federal agencies with their own certification plans to
submit similar relevant information to EPA.
     The numbers of new, recertified, and total applicators
holding a valid general private certification at the end of the last
12-month reporting period.
     For each application method-specific category specified in
40 CFR 171.105(c), the numbers of new, recertified, and total private
applicators holding valid certifications for the last 12-month
reporting period.
     The numbers of new, recertified, and total commercial
applicators holding a valid core and at least one category
certification at the end of the last 12-month reporting period.
     For each commercial applicator certification category
specified in 40 CFR 171.101(a), the numbers of new, recertified, and
total commercial applicators holding a valid certification in each of
those categories at the end of the last 12-month reporting period.
     For each application method-specific category specified in
40 CFR 171.101(b), the numbers of new, recertified, and total valid
certifications for the last 12 month reporting period.
     If a State has established subcategories within any of the
commercial categories, the report must include the numbers of new,
recertified, and total commercial applicators holding valid
certifications in each of the subcategories.
     A description of any modifications made to the approved
certification plan during the last 12-month reporting period that have
not been previously evaluated by EPA.
     A description of any proposed changes to the certification
plan that the State anticipates making during the next reporting period
that may affect the certification plan.
     The number and description of enforcement actions taken
for any violations of Federal or State laws and regulations involving
use of RUPs during the last 12-month reporting period.
     A narrative summary describing the misuse incidents or
enforcement activities related to use of RUPs during the last 12-month
reporting period, including specific information on the pesticide(s)
used, circumstances of the incident, nature of the violation, and
information on the applicator's certification. This section should
include a discussion of potential changes in policy or procedure to
prevent future incidents or violations.
    EPA considers these additional reporting elements necessary to
improve performance measurement and accountability for the applicator
certification program. Standardized data reporting requirements assist
in uniform program measurement, an important element of the 1993
Government Performance and Results Act (GPRA), Public Law 103-62,
August 3, 1993, 107 Stat 285. The limited requirements for, and the
wide variation in, the current State program reporting present
impediments to national program monitoring and management. Fair and
equitable assessment of State programs and the national program should
be based on the review of standardized reports. Uniform data collection
and submission would assist EPA in accurately measuring the success of
the program and would facilitate the development and use of program
measures to gauge program success. Areas requiring improvement and
targeted outreach to address problems could be identified during data
analysis.
    The proposed regulatory language for the program reporting would be
located at 40 CFR 171.303(c).
    iii. Civil and criminal penalty authority. The current rule is not
clear on whether States must have authority to impose both criminal and
civil penalty provisions for commercial and private applicators. EPA
has concerns that in the absence of either civil or criminal penalty
provisions, a State would not have an adequate range of enforcement
options and capabilities to respond appropriately to the wide range of
pesticide misuse situations that could arise. EPA proposes to revise
the regulation to expressly require that States have both civil and
criminal penalty provisions.
    The proposed regulatory language for civil and criminal penalty
authority would be located at 40 CFR 171.303(b)(6)(iii).
    iv. Commercial applicator recordkeeping. EPA proposes to clarify
what records commercial applicators must maintain. The current rule
mandates that State plans include requirements for certified commercial
applicators maintain for at least two years routine operational records
containing information on kinds,

amounts, uses, dates, and places of application of RUPs. 40 CFR
171.7(b)(1)(iii)(E). Under this proposal, commercial applicators would
be required to keep and maintain all of the following records for the
RUPs they apply:
     The name and address of the person for whom the
pesticide was applied.
     The location of the pesticide application.
     The size of the area treated.
     The crop, commodity, stored product, or site to
which the pesticide was applied.
     The time and date of the pesticide application.
     The brand or product name of the pesticide
applied.
     The EPA registration number of the pesticide
applied.
     The total amount of the pesticide applied.
     The name and certification number of the
certified applicator that made or supervised the application, and if
applicable, the name of any noncertified applicator(s) that made the
application under the direct supervision of the certified applicator.
     Records related to the supervision of
noncertified applicators working under the direct supervision of a
certified applicator described in Unit XI.
    This proposed recordkeeping is substantially similar to the
recordkeeping requirements established for private applicators under
the Food, Agriculture, Conservation, and Trade Act of 1990, Public Law
101-624, November 28, 1990, 104 Stat 3359, which is administered by
USDA. This proposal would ensure consistency between State
recordkeeping requirements for commercial applicators and existing
Federal recordkeeping requirements, which govern recordkeeping by
commercial applicators certified under EPA-administered certification
programs.
    The proposed regulatory language for commercial applicator
recordkeeping would be located at 40 CFR 171.303(b)(6)(vi).
    v. RUP dealer recordkeeping. EPA proposes to require States to have
provisions requiring RUP retail dealers to keep and maintain at each
individual dealership, for a period of at least two years, records of
each transaction where a RUP is distributed or sold by that dealership
to any person. Records of each such transaction must include all of the
following information:
     Name and address of the residence or principal place of
business of each person to whom the RUP was distributed or sold, or if
applicable, the name and address of the residence or principal place of
business of each noncertified applicator to whom the RUP was
distributed or sold for use by a certified applicator.
     The applicator's unique certification number on the
certification document presented to the dealer evidencing the valid
certification of the certified applicator authorized to purchase the
RUP; the State, Tribe or Federal agency that issued the certification
document; the expiration date of the certified applicator's
certification; and the categories in which the certified applicator is
certified.
     The product name and EPA registration number of the RUP(s)
distributed or sold in the transaction, and the State special local
need registration number on the label of the RUP if applicable.
     The quantity of the pesticide(s) distributed or sold in
the transaction.
     The date of the transaction.
    All 50 States currently have RUP dealer recordkeeping requirements;
EPA proposes this Federal standard to ensure consistency across the
States and to ensure all necessary information is collected. This
proposal would also ensure consistency between State recordkeeping
requirements for RUP dealers and existing Federal recordkeeping
requirements, which govern recordkeeping by RUP dealers that operate in
areas covered by EPA-administered certification programs.
    The proposed regulatory language for the proposed RUP dealer
recordkeeping requirement would be located at 40 CFR
171.303(b)(6)(vii).
    vi. Certified applicator credentials. The certification regulation
does not currently have requirements for what information States must
include on applicator certification documents. EPA proposes to require
States to issue appropriate credentials or documents verifying
certification of applicators, containing all of the following
information:
     The full name of the certified applicator.
     The certification, license, or credential number of the
certified applicator.
     The type of certification (private or commercial).
     The category(ies), including any application method-
specific category(ies) and subcategories of certification, in which the
applicator is certified, as applicable.
     The expiration date of the certification.
     A statement that the certification is based on a
certification issued by another State, Tribe or Federal agency, if
applicable, and the identity of that State, Tribe or Federal agency.
    It is reasonable to expect that requiring consistent information on
applicator certification across all certifying agencies would assist
States in evaluating certification documents presented by applicators
certified in another State, would assist dealers in reviewing
certification information, and would assist enforcement agents in
evaluating the applicator's certification document during an
inspection.
    The proposed regulatory text for applicator certification
credentials would be located at 40 CFR 171.303(a)(6).
    vii. Reciprocal applicator certification. The current provisions do
not require States to provide specific information about State
requirements and procedures for reciprocity. States have requested that
EPA take action to establish standards to allow reciprocal
certification between States and to standardize the process. Based on
the request by States and to facilitate the certification of
applicators working in more than one State, EPA proposes to require
State certification plans to specify whether (and if so, under what
circumstances) the State would certify applicators based, in whole or
in part, on the applicator having been certified by another State,
Tribe, or Federal agency. Under the proposed rule, such certifications
would be subject to all of the following conditions:
     A State may only rely on current, valid certifications
issued under an approved State, Tribal or Federal agency certification
plan, and may only rely on a certification issued by a State, Tribe or
Federal agency that issued its certification based on an independent
determination of competency without reliance on any other existing
certification or authority. For each category of certification that
will be accepted, the standards of competency in the State, Tribe or
Federal agency that originally certified the applicator must be
comparable to the standards of the accepting State.
     Any certification that is based, in whole or in part, on
the applicator having been certified by another State, Tribe or Federal
agency must terminate immediately if the applicator's original
certification terminates for any reason.
     Any State which chooses to certify applicators based, in
whole or in part, on the applicator having been certified by another
State, Tribe, or Federal agency, must implement a mechanism to ensure
the State will immediately terminate an applicator's certification if
the applicator's original certification terminates for any reason.

     The State issuing a certification based, in whole or in
part, on the applicator having been certified by another State, Tribe
or Federal agency must issue an appropriate credential or document in
accordance with the requirements of this section.
    The proposed regulatory text related to States issuing
certifications based on applicator certification credentials obtained
in other jurisdictions would be located at 40 CFR 171.303(a)(7).
    viii. State plan maintenance, modification, and withdrawal. EPA
proposes to replace the existing provisions related to maintenance,
modification, and withdrawals of State certification plans. The
proposed revisions would clarify the types of plan changes that
constitute substantial modifications and therefore require additional
review and approval by EPA. The proposed revisions would codify
existing interim program policy and guidance issued by EPA in 2006
(Ref. 52).
    The regulatory text for modification and withdrawal of State plans
will be located at 40 CFR 171.309.
    4. Costs. EPA estimates the proposed revisions to the State
certification plan requirements will include 3 costs: Revising State
requirements to meet EPA's proposed standards, updating State plans for
submission to and approval by EPA, and adding a requirement for dealers
to maintain records of RUP sales (Ref. 3). The current rule requires
States to require commercial applicators to keep records; the proposal
merely clarifies the content of the records and therefore is not
expected to result in costs to the applicator or States.
    EPA estimates that States would incur a one-time cost of about
$119,000 annually for the first two years to revise and finalize
pesticide applicator laws and regulations that meet or exceed EPA's
proposed requirement (Ref. 3). Once States have revised their laws and
regulations, they will need to draft and submit a revised plan for
applicator certification to EPA for approval. Since EPA already
requires States to update plans as appropriate and to report necessary
information to EPA annually, EPA estimates the cost of this process
would be about $4,000 annually for the first two years after
implementation across all States (Ref. 3).
    Finally, it is reasonable to expect that the requirement for RUP
dealers to maintain records of RUP sales will not impose any burden on
the regulated community. All States already require RUP applicators to
maintain such records. However, a few States may have to do additional
revisions to their laws and regulations to ensure the State
recordkeeping requirement mirrors the proposed Federal requirement.
There is no estimated cost associated with this proposal because all
States already require RUP dealers to maintain records of sales (Ref.
3).
    5. Alternative options considered by EPA but not proposed. EPA
considered requiring States to make available publically a list of all
applicators certified by the State. Under this alternative, such a list
could be made available electronically, e.g., via the internet. Such a
list could be used by the public to verify whether the pest control
operator hired to perform the application was certified. States already
maintain information on the persons who hold valid certifications.
States maintain the information in varying formats--some keep paper
files, while others maintain an electronic database that is updated in
real time as certifications are earned and expired. Some States have
chosen to publish the information on the internet. Some States may have
restrictions on publishing information online, but would make it
available upon request. Because the States do not have a uniform manner
to track and make available electronically the names of all certified
applicators, and the public may already have access to this information
in varying forms in each State, it is not necessary impose a
requirement at the Federal level.
    6. Request for comment. EPA specifically requests comment on the
following questions:
     EPA is not proposing to require States to adopt all
applicable Federal categories to address reciprocity between
jurisdictions, because it would burden States and applicators, and
protections may not be improved. Are there approaches to facilitate
reciprocity that would minimize burdens and disruption at the lead
agency level and improve protections? Please describe these approaches
and how they may be implemented.
     Should EPA require all States, Tribes, and Federal
agencies to adopt the same certification standards and to mandate
reciprocity between jurisdictions? Please describe benefits and
drawbacks to such a requirement.
     Are there benefits, that EPA has not considered, to
requiring States to adopt Federal certification categories? If so,
please explain the benefits and how they would impact competency
standards for national certification categories.
     Would the proposed reporting and recordkeeping
requirements impose unnecessary burden on States, farmers, small
businesses, or other entities? If so, who would bear unnecessary burden
and why?
     Should EPA consider requiring records to be retained for a
different period? If so, what how long should records be retained and
why?
     Are there other types of information that EPA should
consider collecting from States, RUP dealers, or commercial
applicators?
     Is there any other information related to reciprocal
certification that EPA should consider incorporating into the
regulation? If so, please indicate which information should be added or
deleted and why.
     Should EPA consider adding to or deleting from the
required elements of the applicator certification document? If so,
please indicate which information should be added or deleted and why.
     Should EPA consider requiring States to make available
publically a list of all applicators holding a valid certification? If
so, should the list be available electronically? Should the list be
updated in real time, or would periodic updates be acceptable? If
periodic updates are chosen, what period would be reasonable?
     Should EPA consider requiring certifying authorities to
require their commercial applicators to report incidents that would
meet the reporting criteria of 40 CFR 159.184 if known to the pesticide
registrant?

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

    1. Overview. In order to codify Agency policy on Federal agency
certification plans, EPA proposes to delete from the current regulation
the section on GAP (40 CFR 171.9) and to codify EPA's 1977 policy on
review and approval of Federal agency plans.
    2. Existing regulation. The certification rule covers GAP
certifications, outlining a process for certifying employees of Federal
agencies to use RUPs in the course of their duties under a government-
wide GAP. 40 CFR 171.9. The 1974 proposal (Ref. 61) included a special
process for certifying employees of Federal agencies, but the process
was not included in the final rule. EPA subsequently outlined a
proposed process for certifying employees of Federal agencies under a
government-wide GAP (Ref. 62). The GAP certification process was
included in the final revised rule (Ref. 24), but a GAP was never
developed or implemented by EPA or the Federal government. In 1977, EPA
announced a policy that provided an alternative approach for Federal
employee certification (Ref. 60). Under the 1977 policy, EPA allows
Federal agencies to

submit their own plans for the certification of RUP applicators; EPA
approves the Federal plans provided they meet or exceed EPA's
standards. In the 1977 policy, EPA noted that the standards for Federal
agency plans were to be essentially equal to or more stringent than
requirements for State plans. Four Federal agencies currently have EPA-
approved Federal agency plans. The Department of Defense (DOD) and USDA
have certification plans that were revised and approved in 2009. The
Departments of Energy (DOE) and the Interior (DOI) have plans that were
approved prior to 1990.
    3. Details of the proposal/rationale. EPA proposes to delete the
current text at 40 CFR 171.9. EPA proposes to codify the 1977 policy
covering Federal agency plans (Ref. 60), and to clarify the standards
that Federal agencies must meet. The proposed revisions include the
following requirements: Federal agencies must comply with all
applicable standards for certification, recordkeeping, and other
similar requirements for State/Tribal plans; Federal agencies must
ensure compliance with applicable State pesticide use laws and
regulations, including those pertaining to special certification
requirements and use reporting, when applying pesticides on State
lands; Federal agencies must comply with all applicable Executive
Orders; and Federal agencies must conform to standards established for
States related to maintenance of plans and annual reporting.
    The proposed regulatory language concerning Federal agency plans
will be located at 40 CFR 171.305.
    4. Costs. EPA estimates negligible burden associated with this
requirement (Ref. 3). Although Federal agencies with existing plans
would be required to revise and resubmit their certification plans to
be in compliance with the revised proposed rule resulting in some
administrative burden for these Federal agencies, EPA believes that the
administrative burden associated with plan revisions would not be
significant for two reasons. First, the four Federal agencies currently
administering certification plans appear to be the only Federal
agencies interested in certifying applicators and so this proposal will
not have a substantial impact on most Federal agencies. Second, Federal
agencies with existing certification plans have revised their plans to
address changing needs within their certification programs, so
revisions required by this proposal would not significantly increase
the burden above that which they already incur.
    5. Request for comment. EPA specifically requests comment on the
following questions:
     Is there any reason for EPA to retain the GAP provisions
in the current rule? If so, why?

XVII. Clarify Options for Establishing a Certification Program in
Indian Country

    1. Overview. In order to provide more workable applicator
certification options in Indian country, EPA proposes to revise the
mechanisms available to Tribes for certifying pesticide applicators.
    2. Existing regulation. The current rule provides three options for
applicator certification programs in Indian country: Tribes may utilize
State certification to certify applicators (requires concurrence by the
State(s) and an appropriate State-Tribal cooperative agreement); Tribes
may develop and implement a Tribal certification plan (requires Tribes
to develop and submit an appropriate Tribal certification plan to EPA
for approval); or EPA may administer a Federal certification plan for
applicators in Indian country, such as EPA's national plan for Indian
country (Ref. 1).
    Currently, only a few Tribes have been approved by EPA to
administer certification plans. In those areas of Indian country
without an EPA-approved State or Tribal certification plan in effect,
EPA administers a certification plan to ensure that RUPs are used only
by certified applicators or noncertified applicators working under
their direct supervision.
    3. Stakeholder information considered by EPA. Consistent with EPA's
Indian Policy and Tribal Consultation Policy, EPA engaged in a formal
consultation process with Tribes summarized in Unit XXII. (Ref. 63).
    4. Details of the proposal/rationale. EPA proposes to revise the
mechanisms for establishing applicator certification programs in Indian
country. EPA would revise the option where a Tribe relies on State
certification and the option for EPA-administered certification plans
in Indian country. EPA would also amend the requirements for Tribal-
implemented certification plans to require Tribal plans to incorporate
the proposed revisions to applicator certification standards.
    First, the proposal would revise the current option for Tribes to
rely on State certification by eliminating the requirement for Tribes
to enter into cooperative agreements with States. This option would be
replaced by an option to enter into agreements with EPA Regional
offices to establish certification programs in Indian country. The
proposed revisions would allow Tribes to enter into agreements with EPA
to recognize the certification of applicators who hold a certificate
issued under one or more specific EPA-approved State, Tribal or Federal
agency certification plans, without the need for State-Tribal
cooperative agreements and with little burden on States or Tribes. EPA
would retain relevant enforcement responsibilities in areas of Indian
country covered by a certification plan implemented in this manner.
    Second, EPA proposes to clarify that EPA can include multiple
Tribes and/or multiple geographic areas of Indian country under one
single EPA-administered plan. This option facilitates the
implementation of a nation-wide certification plan that would cover
applicators using RUPs in different, non-contiguous parts of Indian
country. This proposal is merely a clarification of the existing rule,
and EPA has already established a national plan for certification of
applicators in Indian country. EPA implemented its national plan for
Indian country in 2014 (Ref. 1). The EPA-administered plan serves those
areas of Indian country throughout the United States where no other
EPA-approved certification mechanism exists.
    Third, the proposal would update the requirements for Tribal plans
by requiring those Tribes that choose to manage their own certification
plan to adopt the new standards being proposed for State and Federal
agency certification plans in regard to initial certification and
recertification of private and commercial applicators and the training
and supervision of noncertified applicators who apply RUPs under the
direct supervision of a certified applicator. The proposal would also
eliminate current requirements for States to include in their State
certification plans references to any agreements with Tribes for
recognizing the States' certificates.
    The proposed revisions would ensure that Tribes are generally
subject to the same certification program standards applicable to
States, Federal agencies, and EPA-administered programs. However,
certain separate requirements would be included in the Indian country
provision relating to the exercise of criminal enforcement authority.
EPA recognizes that certain limitations exist regarding Tribes' ability
to exercise criminal enforcement authority. In such circumstances, it
is appropriate to retain primary criminal enforcement authority with
the Federal government and EPA has proposed requirements for Tribes and
EPA to

enter into relevant agreements regarding the exchange of potential
investigative leads. These requirements are similar to EPA's approach
to criminal enforcement authority in the context of other EPA rules
addressing Tribal programs under Federal environmental laws. See, e.g.,
40 CFR 49.8. The proposed revisions would enhance the ability of Tribal
programs to develop and implement certification plans and programs for
those Tribes that choose to manage their own certification plans, and
would provide practicable alternatives for those Tribes that do not.
The proposed revisions may require some Tribes with a current, EPA-
approved certification plan to make changes to Tribal laws,
regulations, or code. EPA intends to consider the potential impacts of
Tribal legislative changes and Tribal plan revision when establishing
effective dates for the final rule.
    The regulatory language for the proposed options for applicator
certification in Indian country would be located at 40 CFR 171.307.
    5. Costs. The costs associated with these changes should be
negligible because they primarily result in clarification of
requirements and policy, not in the imposition of substantial new
requirements or obligations on the part of Tribes (Ref. 3). EPA does
not believe the proposed revisions would place any unreasonable burden
on Tribes because they do not require Tribes to implement certification
programs. These proposed revisions would require existing Tribal
certification plans to be revised and resubmitted to EPA for review and
approval. EPA estimates the costs to these Tribes would be similar to
the costs to States for updating and submitting to EPA for approval a
revised certification plan. Because there are currently only four
Tribes with an EPA-approved certification plan the proposed changes to
certification mechanisms in Indian country should not result in a
significant impact on Tribal entities or programs as a whole.
    6. Request for comment. EPA specifically requests comment on the
following questions:
     Are there other mechanisms EPA should consider for
certification of RUP applicators in Indian country? If so, please
describe the additional mechanism(s), how they would be implemented,
and the benefit to Tribes, applicators, human health, and the
environment.

XVIII. Revise Provisions for EPA-Administered Plans

    1. Overview. To update requirements for EPA-administered plans to
conform with the proposed changes to the regulation, EPA proposes to
amend the section of the rule dealing with EPA-administered plans.
    2. Existing regulation. The current rule establishes requirements
for EPA-administered certification in States or areas of Indian country
without EPA-approved certification plans in place, including specific
standards for certification and recertification of pesticide
applicators. 40 CFR 171.11.
    3. Details of the proposal/rationale. EPA proposes to revise the
current section outlining the requirements for an EPA-administered
Federal certification plan to incorporate the proposed changes to State
certification plans related to RUP applicator certification,
recertification, and noncertified applicator qualifications, as well as
plan reporting and maintenance requirements. The rules governing EPA-
administered certification programs should be constructed in a way that
minimizes administrative burden on EPA and the regulated community and
reduces costs to taxpayers, while still providing EPA with the tools
necessary to protect human health and the environment. The proposed
revisions would make requirements for the certification and
recertification of RUP applicators and supervision of noncertified
applicators parallel to the requirements proposed for States, Tribes,
and other Federal agencies.
    The proposed regulatory language covering EPA-administered plans
would be located at 40 CFR 171.311.
    4. Costs. EPA estimates the costs associated with this proposal
would be negligible (Ref. 3). EPA currently administers two
certification plans--one for the Navajo Tribe (Ref. 2) and one for
certification in Indian country (Ref. 1). It is reasonable to expect
that the costs of updating these plans to conform to the proposed
changes would be relatively low.
    5. Request for comment. EPA specifically requests comment on the
following questions:
     Should EPA consider other revisions to the provisions for
EPA-administered plans? If so, please describe the additional
revision(s), how they would be implemented, and the benefit(s) to
applicators, human health, and the environment.

XIX. Revise Definitions and Restructure 40 CFR Part 171

A. Improved Definitions

    EPA proposes to revise the definitions in the certification
regulation to add several new definitions and to eliminate several
unnecessary definitions. EPA expects that improved definitions would
reduce the likelihood of misinterpretation and thereby improve
compliance and enforceability.
    These proposed revisions to the definitions adopt more widely used
and commonly accepted ``plain English'' language, and add clarity and
consistency to the rule. The proposed revisions to the definitions also
help address issues raised by State regulatory partners and other
program stakeholders. EPA does not believe the proposed revisions to
the definitions will add new regulatory requirements on the regulated
community or substantially increase regulatory burden.
    The revised and new definitions would be located at 40 CFR 171.3.
    1. Revised definitions. The Agency proposes to revise the following
existing definitions: ``compatibility'', ``dealership'', ``non-target
organism'', ``ornamental'', ``principal place of business'', and
``toxicity''.
    2. New definitions. The Agency also proposes to add the following
new definitions: ``application'', ``application method'', ``fumigant'',
``fumigation'', ``Indian country'', ``Indian Tribe'', ``noncertified
applicator'', ``personal protective equipment'', ``use'', and ``use-
specific instructions''.
    3. Definitions to be deleted. The Agency proposes to delete the
following existing definitions from 40 CFR part 171 because they are no
longer necessary as a result of other proposed revisions to the
existing rule or are already defined in FIFRA: ``Act'', ``Agency'',
``forest'', ``uncertified person'', and ``hazard''.
    4. Request for comment. EPA specifically requests comment on the
following questions:
     Are there other terms that EPA should consider adding,
clarifying, redefining, or eliminating from the rule? If so, please
provide detail about the term(s) and rationale for change.

B. Restructuring of 40 CFR Part 171

    In order to improve clarity and implement the principles of using
plain language in regulations, EPA proposes to reorganize the structure
of 40 CFR part 171. EPA expects the revised 40 CFR part 171 will be
easier to read and understand, improving compliance by applicators and
other program stakeholders.
    1. Existing 40 CFR part 171. At this time 40 CFR part 171 is a
single part with no subparts. The first sections (40 CFR 171.1 through
171.6) describe the standards for commercial and private applicators,
requirements for persons working under the direct supervision of a
certified applicator, definitions, and a

statement of purpose. The second half of the rule (40 CFR 171.7 through
171.11) describes the procedures for States, Tribes, Federal agencies,
and EPA to administer a certification program. The rule has a section
titled ``Government Agency Plan'' describing a plan covering the entire
Federal government that was not implemented. EPA has received feedback
that this section is difficult to understand and seems irrelevant.
    2. This proposal. The proposal would reorganize the rule into four
subparts: ``General Provisions'', ``Certification Requirements for
Applicators of Restricted Use Pesticides'', ``Supervision of
Noncertified Applicators'', and ``Certification Plans''. The General
Provisions section would include the sections on scope, definitions,
and effective date. The Certification Requirements for Applicators of
Restricted Use Pesticides section would include all standards for the
certification and recertification of commercial and private
applicators. The Supervision of Noncertified Applicators section would
include all relevant standards for the certified applicator and the
noncertified applicator using RUPs under his or her direct supervision.
The Certification Plans section would include requirements for States,
Tribes, and Federal agencies to submit and modify their certification
plans, as well as a description of an EPA-administered applicator
certification plan.
    EPA expects that the restructured rule will facilitate
understanding of the rule by applicators and authorized agencies
because it deletes obsolete provisions and uses clearer language.
    3. Alternative options considered by EPA but not proposed. EPA
considered two additional changes to the organization of the
regulation. First, EPA considered moving the paragraph titled
``Determination of Competency'' proposed as 40 CFR 171.103(a) to the
beginning of subpart B as an independent, introductory section. Second,
EPA considered moving the paragraph titled ``Examination Standards''
proposed as 40 CFR 171.103(b) to subpart D related to certification
plans. Keeping the standards related to determining competency and
administering competency exams in the same section as the specific
competency standards that applicators must meet is a more reasonable
organization of the regulation because these two sections are related
to how commercial applicator competency is determined. Therefore, EPA
does not propose the two changes discussed in this unit.
    4. Request for comment. EPA specifically requests comment on the
following questions:
     Is the restructuring clearer? Is it easier to read and
understand?
     Are there other ways that EPA could simplify or clarify 40
CFR part 171? If so, please describe.
     Should EPA consider alternate organizations of the
regulation? If so, please provide a proposal and rationale for
reorganization.

XX. Implementation

    EPA proposes to make the final rule effective 60 days after the
promulgated rule is published in the Federal Register. Compliance with
certain provisions of the rule would be delayed. Existing certification
plans could remain in effect for up to four years after the effective
date of the final rule. Beginning four years after the effective date
of the final rule, a State, Tribe, Federal agency, and EPA would only
be permitted to certify applicators of RUPs in accordance with a
certification plan that meets or exceeds all of the applicable
requirements of the final regulation and that has been approved by EPA
after the effective date of the rule.
    States, Tribes, and Federal agencies administering EPA-approved
certification plans would be required to submit amended certification
plans to EPA for approval within two years of the effective date of the
final rule. EPA intends to review and respond to all certification
plans submitted within 2 years of the effective date. This would allow
ample time for EPA, Tribes, Federal agencies, and State regulators time
to make the necessary changes to certification plans, and for these and
other stakeholders to implement the new certification procedures. EPA
expects that applicators may need to be certified in new categories and
noncertified applicators could need training to meet the new standard.
States, Tribes, and Federal agencies administering EPA-approved
certification plans would need to become familiar with the new
regulation and conduct outreach to the regulated community. Certified
applicators and trainers of noncertified applicators would have to
become familiar with the noncertified applicator training content,
ensure that they meet any eligibility requirements, and obtain training
materials if necessary. As resources permit and if the final rule
includes the relevant provisions from the proposal, EPA intends to
develop training materials for noncertified applicators working under
the direct supervision of a certified applicator and for certification
in a non-soil fumigation category. Materials currently exist that can
be modified to support general certification for private applicators,
and EPA has developed and distributed to States training materials for
aerial applicators and soil fumigation categories.
    To facilitate implementation, EPA plans to issue a guidance
document at the time the final rule is published, to provide assistance
to States, and to conduct outreach to potentially affected parties.
    EPA requests comment on the proposed implementation of the rule.
Specifically, EPA requests feedback on the following:
     Would States and Tribes be able to amend and submit
revised certification plans for EPA approval within 2 years of the
effective date of the final rule?
     If the proposed implementation schedule does not seem
reasonable, please provide specific comments on why the proposal is not
reasonable and provide specific suggestions of an alternate schedule
and why it would be reasonable.
     Would States, Tribes, and Federal agencies need additional
time after EPA approves the revised certification plan that meets or
exceeds the requirements of the final rule in order to bring certified
applicators into compliance with the new requirements? If so, how much
time would be needed? What activities would be conducted?
     Would the implementation schedule be reasonable if EPA
provided exams and training materials for the proposed additional
categories?
     What support would States, Tribes, and Federal agencies
require from EPA during the implementation of the provisions of the
final rule?
     If EPA evaluates the effectiveness and/or the impacts and
benefits of the rule, what timeframe should be used to conduct the
evaluation, e.g., should EPA begin a review after the rule is fully
implemented or a specific time period after full implementation? For
how long should EPA conduct the evaluation? Please provide additional
information on methodology that could be used to conduct any
evaluation.

XXI. References

    The following is a listing of the documents that are specifically
referenced in this rulemaking. The docket includes these documents and
other information considered by EPA. For assistance in locating these
other documents, please consult the person listed under FOR FURTHER
INFORMATION CONTACT.

    1. EPA. Final EPA Plan for the Federal Certification of
Applicators of Restricted Use Pesticides Within Indian Country;
Notice of Implementation. Notice. Federal Register (79 FR 7185,
February 6, 2014) (FRL-9904-18).
    2. EPA. Federal Plan for Certification of Restricted Use
Pesticide Applicators in Navajo Indian Country; Notice of
Implementation; and Announcement of Availability of Form to Request
Pesticide Applicator Certification in Navajo Indian Country. Notice.
Federal Register (72 FR 32648, June 13, 2007) (FRL-8078-9).
    3. EPA. Economic Analysis of Proposed Revisions to the
Applicator Certification Regulation. July 29, 2015.
    4. EPA. Pesticides; Agricultural Worker Protection Standard
Revision. Proposed Rule. Federal Register (79 FR 15444, March 19,
2014) (FRL-9395-8).
    5. EPA. Certification Plan and Reporting Database. http://cpard.wsu.edu/reports/menu.aspx.
    6. EPA. 1987-2004 Annual Certified Applicator Data. http://www.epa.gov/oppfead1/safety/applicators/data.htm.
    7. DOL. U.S. Bureau of Labor Statistics. Occupational Outlook
Handbook. 2010-11 Library Edition. Bulletin 2800. Washington, DC.
    8. EPA. OPP Report on Incidence Information: The Baseline. 2007.
    9. Harchelroad, F., et al. Treated vs Reported Toxic Exposures:
Discrepancies Between a Poison Control Center and a Member Hospital.
Veterinary and Human Toxicology, April 1990, Vol. 32, pp. 156-159.
    10. Chafee-Bahamon, C., et al. Patterns in Hospitals' Use of a
Regional Poison Information Center. American Journal of Public
Health. April 4, 1983. Vol. 73, pp. 396-400.
    11. Veltri, et al. Interpretation and Uses of Data Collected in
Poison Control Centres in the United States. Medical Toxicology and
Adverse Drug Experience, November-December 1987. Vol. 6, pp. 389-97.
    12. NIOSH. Data from the Sentinel Event Notification System for
Occupational Risk--Pesticides Program. 2014. http://wwwn.cdc.gov/niosh-survapps/sensor/.
    13. NIH. Agricultural Health Study. http://aghealth.nih.gov.
    14. Arthur, W., Bennett Jr., W., Stanush, P., and McNelly, T.
Factors That Influence Skill Decay and Retention: A Quantitative
Review and Analysis. Human Performance. 1998, Vol. 11, pp. 57-101.
    15. Calabro, K, Bright, K and Kouzekanani, K. Long-Term
Effectiveness of Infection Control Training among Fourth Year
Medical Students. Medical Education Online, Vol. 5, pp. 1-7.
    16. Lee, S-J., Mehler, L., Beckman, J., Diebolt-Brown, B.,
Prado, J., Lackovic, M., et al. Acute Pesticide Illnesses Associated
with Off-Target Pesticide Drift from Agricultural Applications.
Environmental Health Perspectives. 2011, Vol. 119, pp. 1162-1169.
    17. EPA. EPA. Chloropicrin, Dazomet, Metam Sodium/Potassium, and
Methyl Bromide Reregistration Eligibility Decisions; Notice of
Availability. Notice. Federal Register (73 FR 40871, July 16, 2008)
(FRL-8372-3).
    18. EPA. Review of Methyl Parathion Incident Reports. February
5, 1998.
    19. EPA. Office of the Inspector General. Result of Assessment
of Controls Over Emergency Removal Actions at Methyl Parathion
Sites. Report No. E1SFB7-06-0020-7400069. September 23, 1997.
    20. Casey, B.J., Jones, R.M. and Hare, T.A. The Adolescent
Brain. Annals of the New York Academy of Sciences. March 2008, pp.
111-126.
    21. HHS, PHS, CDC, NIOSH. National Institute for Occupational
Safety and Health (NIOSH) Recommendations to the U.S. Department of
Labor for Changes to Hazardous Orders. May 3, 2002.
    22. Cauffman, E., and Steinberg, L. (Im) maturity of Judgment in
Adolescence: Why Adolescents May Be Less Culpable Than Adults.
Behavioral Sciences and the Law. 2000, Vol. 18, pp. 741-760.
    23. EPA. Certification of Pesticide Applicators. 40 CFR part
171. Federal Register (39 FR 36446, October 9, 1974) (FRL-269.1).
    24. EPA. Submission and Approval of State Plans for
Certification of Commercial and Private Applicators of Restricted
Use Pesticides. Federal Register (40 FR 11698, March 12, 1975) (FRL-
340.6).
    25. EPA. Federal Certification of Pesticide Applicators in
States or Indian Reservations Where There is No Approved State or
Tribal Certification Plan in Effect. Final Rule. Federal Register
(43 FR 24834, June 8, 1978) (FRL-881-7).
    26. EPA. Certification of Pesticide Applicators; Expansion of
Recertification Time Period. Final Rule. Federal Register (48 FR
29854, June 29, 1983) (FRL-2338-8).
    27. EPA. Certification of Pesticide Applicators; Recordkeeping
and Reporting Requirements. Final Rule. Federal Register (48 FR
53972, November 29, 1983) (FRL-2402-7).
    28. EPA. Certification of Pesticide Applicator. Proposed Rule.
Federal Register (55 FR 46890, November 7, 1990) (FRL-2402-7).
    29. SFIREG. Report of the EPA/SFIREG Certification and Training
Task Force. August 1985.
    30. CTAG. Pesticide Safety for the 21st Century. 1999.
    31. EPA. Report on the National Assessment of the Pesticide
Worker Safety Program. May 6, 2005. http://www.epa.gov/oppfead1/safety/workshops.htm.
    32. EPA. Report on the National Assessment of EPA's Pesticide
Worker Safety Program. 2005.
    33. EPA. Pesticide Program Dialogue Committee Worker Safety
Regulation Change Subgroup, Summary of PREP and PPDC Comments.
Washington, DC. 2007.
    34. EPA, OMB, SBA. Small Business Advocacy Review Panel on EPA
Planned Revisions to Two Related Rules: Worker Protection Standard
for Agricultural Pesticides (RIN 2070-AJ22); and Certification of
Pesticide Applicators (RIN 2070-AJ20). Final Report. November 3,
2008.
    35. Calvert, G M, et al. Acute Pesticide-related Illnesses Among
Working Youths, 1988-1999. American Journal of Public Health. April
2003, Vol. 93, pp. 605-610.
    36. CTAG. Requiring Written Examinations for Approval of State
Certification Programs. 2003.
    37. EPA. Pesticide Applicator Certification in Indian Country.
http://www2.epa.gov/pesticide-applicator-certification-indian-country/training-private-applicators-indian-country.
    38. EPA. Chloropicrin Revised Risk Assessments; Notice of
Availability and Solicitation of Risk Reduction Options. Notice.
Federal Register (72 FR 24295, May 2, 2007) (FRL-8125-9).
    39. EPA. Amended Reregistration Eligibility Decision for
Dazomet. 2009.
    40. EPA. Amended Reregistration Eligibility Decision for the
Methyldithiocarbamate Salts (Metam-sodium, Metam-potassium) and
Methyl Isothiocyanate (MITC). 2009.
    41. EPA. Amended Reregistration Eligibility Decision for Methyl
Bromide. 2009.
    42. AAPCO. Letter to EPA Re: Registration Eligibility Decision
(RED) for Soil Fumigant Dockets. October 30, 2008.
    43. EPA. Pesticide Applicator Certification and Training for
Soil Fumigation Category/Subcategory. Last updated: November 2012.
http://www2.epa.gov/soil-fumigants/soil-fumigant-training-certified-applicators.
    44. NASDARF. Soil Fumigation Manual. 2012.
    45. NASDARF. Aerial Applicator's Manual. 2009.
    46. AAPCO. Letter to EPA. January 26, 2010. http://www.aapco.org/documents/FumigantLtr_Owens012610.pdf.
    47. Dwinell, Steven on behalf of SFIREG. Letter to EPA. December
23, 2010. http://www.aapco.org/documents/SFIREGtoBradburyKeigwin122310.pdf.
    48. AAPSE. Reregistration Eligibility Decision (RED) for Soil
Fumigant Dockets. Letter to EPA. October 29, 2008. http://aapse.ext.vt.edu/aapse/sites/default/files/AAPSE%20comments%20on%20fumigants%20RED.pdf.
    49. AAPSE. Letter to EPA. July 28, 2009. http://aapse.ext.vt.edu/aapse/sites/default/files/FINAL%20EPA_LabelMandatedTraining2008.pdf.
    50. EPA. Reregistration Eligibility Decision: Sodium
Fluoroacetate. EPA 738-R-95-025. September 1995.
    51. EPA. Reregistration Eligibility Decision: Sodium Cyanide.
EPA 738-R-94-020. September 1994.
    52. EPA. Interim National Program Guidance for EPA Regional
Offices on EPA's Pesticide Applicator Certification Program (40 CFR
part 171). July 2006.
    53. CTAG. Exam Administration and Security Procedures Manual.
National Association of State Departments of Agriculture Research
Foundation, 2006.
    54. CTAG. Positive Identification Requirement for Pesticide
Applicator Certification Exams. 2006.
    55. CTAG. Pesticide Applicator Recertification: Verifying
Attendance at Recertification Events. 2009.
    56. CTIA, The Wireless Association. Wireless Quick Facts. Last
updated: November 2013. http://www.ctia.org/your-wireless-life/how-wireless-works/wireless-quick-facts.
    57. CTAG. Minimum Age Requirement for Certification to Use
Restricted Use Pesticides (RUP). 2004.

    58. Masten, S., Foss, R., Marshall, S. Graduated Driver
Licensing Program Component Calibrations and Their Association with
Fatal Crash Involvement. Accident Analysis and Prevention. August
2013, Vol. 57, pp. 105-113.
    59. Williams, A. and Shults, R. Graduated Driver Licensing
Research, 2007-Present: A Review and Commentary. Journal of Safety
Research. April 2010, Vol. 41, 2, pp. 77-84.
    60. EPA. Federal Agency Certification of Federal Employees to
Apply Restricted Use Pesticides; Intent to Recognize Under Section 4
of the Federal Insecticide, Fungicide, and Rodenticide Act. Notice.
Federal Register (42 FR 41907, August 19, 1977) (FRL-779-7).
    61. EPA. Certification of Pesticide Applicators. Proposed Rule.
Federal Register (39 FR 6730, February 22, 1974) (FR Doc. 74-4266).
    62. EPA. Pesticide Programs; Submission and Approval of State
Plans for Certification of Commercial and Private Applicators.
Proposed Rule. Federal Register (40 FR 2528; January 13, 1975) (FRL-
320-4).
    63. EPA. Summary of Consultation with Tribes on the
Certification of Pesticide Applicators Regulation. 2010.
    64. EPA. Information Collection Request (ICR) for the
Certification of Pesticide Applicators (Proposed Rule). EPA ICR No.
2499.01 and OMB Control No. 2070-[NEW]. 2015.

XXII. FIFRA Review Requirements

    Under FIFRA section 25(a), EPA has submitted a draft of the
proposed rule to the Secretary of the Department of Agriculture, the
FIFRA Scientific Advisory Panel (SAP), and the appropriate
Congressional Committees. USDA provided comments on this proposed rule,
copies of which, along with EPA's responses, are located in the docket
for this rulemaking. The SAP waived its review of this proposal on
September 4, 2014.

XXIII. Statutory and Executive Order Reviews

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

    This action is a significant regulatory action because it may raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866 (58 FR 51735, October 4, 1993). Accordingly, EPA submitted the
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the docket. EPA prepared an economic analysis of the
potential costs and benefits associated with this action, which is
available in the docket and summarized in Unit III.B. (Ref. 3).

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have
been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et
seq. The Information Collection Request (ICR) document that the EPA
prepared has been assigned EPA ICR number 2499.01 (OMB Control No.
2070-NEW). You can find a copy of the ICR in the docket for this
proposed rule, and it is briefly summarized here (Ref. 64).
    The information collection activities related to the existing
certification regulation are already approved by OMB in an ICR titled
``Certification of Pesticide Applicators'' (EPA ICR No. 0155.10; OMB
Control No. 2070-0029). Therefore, EPA ICR number 2499.01 (OMB Control
No. 2070-NEW) only addresses the proposed changes to the certification
regulation. These include:
     Updating the information States, Tribes, and Federal
agencies report to EPA.
     Updating the process and requirements for modifying a
certification plan.
     Adding a provision for States to require recordkeeping by
RUP dealers.
     Adding specific requirements for noncertified applicator
qualification through training.
     Adding a provision for commercial applicators to maintain
records of noncertified applicator training.
    1. Respondents/affected entities. i. Certified applicators; private
and commercial. The number of applicators is based on the Certification
Plan and Reporting Database for the years 2008 to 2013 (CPARD, 2014),
there are 364,579 commercial applicators and 455,278 private
applicators.
    ii. Noncertified applicators under the direct supervision of
certified applicators. It is estimated that there are 947,275
noncertified applicators who apply RUPs under the direct supervision of
commercial certified applicators, and there are 81,678 noncertified
applicators under the direct supervision of private certified
applicators.
    iii. RUP dealers. EPA estimates that there are approximately 10,000
retail dealers. According to the Agricultural Retailers Association,
there are approximately 9,000 agricultural retailers in the United
States. Not all are licensed to sell RUPs. EPA estimates that there are
far fewer nonagricultural pesticide retailers licensed to sell RUPs,
given that RUPs are generally not labeled for use in residential and
other public areas, even by a certified applicator.
    iv. Authorized agencies. Authorized agencies are the entities that
are federally authorized to administer applicator certification plans
under 40 CFR part 171. Authorized agencies includes States,
territories, federally recognized Tribes and Federal agencies
authorized to operate certification programs. In addition to the 50
States, there are 4 plans for the US territories (Puerto Rico, DC, US
Virgin Islands, and Pacific Islands), 4 Tribal plans, and 5 approved
Federal agency certification plans. Federal agencies include DOD, DOE,
USDA APHISPPQ, USDA Forest Service (the 2 USDA plans are separate
plans), and DOI (the DOI plan covers 3 agencies within DOI BLM, BIA and
NPS, but no others). Wage rates vary according to the entity.
    2. Respondent's obligation to respond. Mandatory (7 U.S.C. 136-
136y, particularly sections 136a(d), 136i, and 136w).
    3. Estimated number of respondents. 1,749,265.
    4. Frequency of response. Rule familiarization will occur annually
for the first 3 years. Revising and submitting certification plans will
occur one time. Training of noncertified applicators will occur
annually. Recordkeeping of training of noncertified applicators working
under the direct supervision of commercial applicators will occur
annually. Recordkeeping of RUP sales will occur each time an RUP is
sold, which EPA estimates will be 39 times per year.
    5. Total estimated burden. 1,853,000 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
    6. Total estimated cost. $57,363,250 annualized capital or
operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9, and on
applicable collect instruments.
    Submit your comments on EPA's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs via email to
<EMAIL_ADDRESS>Attention: Desk Officer for the EPA.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after receipt, OMB must

receive comments no later than September 23, 2015. The EPA will respond
to any ICR-related comments in the final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under RFA, 5 U.S.C.
601 et seq. The small entities subject to the requirements of this
action are private applicators, commercial applicators, and
noncertified applicators using RUPs under their direct supervision. The
Agency has determined that for private applicators, average impacts of
the rule represent less than 1% of annual sales revenue for the average
small farm and even to small-small farms with sales of less than
$10,000. Impacts to the smallest farms, especially in high-impact
States, could exceed 2% of annual sales revenue but the number of farms
facing such impacts is small relative to the number of small farms
affected by the rule. For commercial applicators, average impacts of
the rule represent less than 0.1% of annual revenue for the average
small firm. The impacts are expected to be around 0.1% of annual
revenue even for the high cost scenarios. Details of this analysis are
presented in the Economic Analysis for this action (Ref. 3).
    Although EPA is not required by the RFA to convene a Small Business
Advocacy Review (SBAR) Panel because this proposal would not have a
significant economic impact on a substantial number of small entities,
EPA has nevertheless convened a panel to obtain advice and
recommendations from small entity representatives potentially subject
to this rule's requirements. A copy of the SBAR Panel Report is
included in the docket for this rulemaking (Ref. 34).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531 through 1538, and does not
significantly or uniquely affect small governments. The proposed rule
requirements would primarily affect certified applicators of RUPs. The
total estimated annualized cost of the proposed rule is $47.2 million
(Ref. 3).

E. Executive Order 13132: Federalism

    This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. However,
this action may be of significant interest to State governments.
Consistent with the EPA's policy to promote communications between the
EPA and State and local governments, EPA consulted with State officials
early in the process of developing this rulemaking to permit them to
have meaningful and timely input into its development. EPA worked
extensively with State partners when considering revisions to the
existing regulation and solicited feedback from States in a number of
ways, as discussed in Unit III. EPA carefully considered the input of
State partners during the development of this rulemaking in meetings
with State pesticide regulatory officials and with groups representing
State pesticide regulatory agencies. In the spirit of Executive Order
13132, EPA specifically solicits comment on this rulemaking from State
and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
would require Tribes that certify applicators to perform RUP
applications in Indian country to comply with the revised regulation.
EPA currently directly administers a national certification plan for
Indian country (Ref. 1) and has implemented a specific certification
plan for the Navajo Nation (Ref. 2). As proposed, this rule provides
Tribes with the option to develop and administer their own applicator
certification programs, to participate in the EPA-administered
applicator certification program for Indian country, or to enter into
an agreement with EPA regarding administration of an applicator
certification program. As explained in Unit XVII., EPA does not believe
the proposed revisions would place any unreasonable burden on Tribes
because the proposed rule does not require Tribes to implement
certification programs. There are currently only four Tribes with an
EPA-approved certification plan. The proposed rule would require
existing Tribal certification plans to be revised and resubmitted to
EPA for review and approval. The costs associated with the proposed
changes should be negligible because they primarily result in
clarification of requirements and policy, not the imposition of
substantial new obligations on the part of Tribes. EPA estimates the
costs to these Tribes would be similar to the costs to States for
updating and submitting to EPA for approval a revised certification
plan, and that they would not result in a significant impact on Tribal
entities or programs. Thus, Executive Order 13175 does not apply to
this action.
    Consistent with EPA's Policy on Consultation and Coordination with
Indian Tribes, EPA consulted with Tribal officials during the
development of this action. A summary of that consultation is provided
in the docket for this action (Ref. 63).
    EPA specifically solicits additional comment on this proposed
action from Tribal officials.

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

    This proposed rule is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997) because it is not an economically significant
regulatory action as defined by Executive Order 12866. However, it is
reasonable to expect that the environmental health or safety risks
addressed in this proposed rule may have a disproportionate effect on
children.
    The primary risk to children that is within the scope of this
rulemaking is exposure to RUPs during their work as applicators of
RUPs. The proposed rule is intended to minimize these exposures and
risks. By establishing a minimum age for persons to become a certified
applicator or to use RUPs as a noncertified applicator under the direct
supervision of a certified applicator, children would receive less
exposure to pesticides that may lead to chronic or acute pesticide-
related illness. In addition, the proposal expands training for
noncertified applicators to include topics that should also assist in
reducing potential risks to children from incidental pesticide
exposure, such as avoiding bringing pesticide residues home on
clothing.
    Like DOL's regulations that implement the FLSA, the proposed rule
seeks to regulate the ages at which children can apply pesticides. The
proposed rule would establish a minimum age of 18 for persons to become
certified to apply RUPs and to apply RUPs as noncertified persons under
the direct supervision of certified applicators. Since many RUPs
present heightened risks to harm human health relative to other
pesticides, EPA feels that they warrant special consideration. EPA
expects that the proposals to establish minimum ages would mitigate or
eliminate many risks faced by young applicators.

    Additional information on EPA's consideration of the risks to
children in development of this action can be found in Unit III.C.3.
and in the economic analysis for this action (Ref. 3).
    The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to
pesticides.

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

    This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because
it is not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, this rule is not likely to
have any adverse energy effects because it does not require any action
related to the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards that would
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272
note.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA believes that this proposed rule would not have
disproportionately high and adverse human health or environmental
effects on minority, low-income, or indigenous populations, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994),
because it increases the level of environmental protection for all
affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population.
    EPA engaged with stakeholders from impacted communities extensively
in the development of this rulemaking in order to seek meaningful
involvement of all parties. The Agency's efforts to address
environmental justice through this rulemaking were reviewed repeatedly
during the development of the rule and its supporting documents. The
proposed changes demonstrate EPA's commitment to improving the health
and safety of certified applicators and noncertified applicators using
RUPs under their direct supervision by changes such as adding
application method-specific categories, strengthening competency
standards for private applicators, adding training for noncertified
applicators using RUPs under the direct supervision of a certified
applicator, and establishing a minimum age for all persons using RUPs.

List of Subjects in 40 CFR Part 171

    Environmental protection, Administrative practice and procedure,
Certified applicator, Commercial applicator, Indian Country, Indian
Tribes, Noncertified applicator, Pesticides and pests, Private
applicator, Restricted use pesticides, Reporting and recordkeeping
requirements.

    Dated: August 5, 2015.
Gina McCarthy,
Administrator.
    For the reasons discussed in the preamble, the EPA proposes to
revise 40 CFR part 171 as follows:

PART 171--CERTIFICATION OF PESTICIDE APPLICATORS

Subpart A--General Provisions
Sec.
171.1 Scope.
171.3 Definitions.
171.5 Effective date.
Subpart B--Certification Requirements for Applicators of Restricted Use
Pesticides
171.101 Commercial applicator certification categories.
171.103 Standards for certification of commercial applicators.
171.105 Standards for certification of private applicators.
171.107 Standards for recertification of certified applicators.
Subpart C--Supervision of Noncertified Applicators
171.201 Requirements for direct supervision of noncertified
applicators by certified applicators.
Subpart D--Certification Plans
171.301 General.
171.303 Requirements for State certification plans.
171.305 Requirements for Federal agency certification plans.
171.307 Certification of applicators in Indian country.
171.309 Modification and withdrawal of certification plans.
171.311 EPA-administered applicator certification programs.

    Authority: 7 U.S.C. 136i and 136w.

Subpart A--General Provisions

Sec.  171.1  Scope.

    (a) This part establishes Federal standards for the certification
and recertification of applicators of restricted use pesticides. The
standards address the requirements for certification and
recertification of applicators using restricted use pesticides,
requirements for certified applicators supervising the use of
restricted use pesticides by noncertified applicators, requirements for
noncertified persons using restricted use pesticides under the direct
supervision of a certified applicator, and requirements for pesticide
applicator certification plans administered by States, Tribes and
Federal agencies.
    (b) A person is a certified applicator for purposes of the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136 et
seq., only if the person holds a certification issued pursuant to a
plan approved in accordance with this part and currently valid in the
pertinent jurisdiction. As provided in FIFRA section 12(a)(2)(F), it is
unlawful for any person to make available for use or to use any
pesticide classified for restricted use other than in accordance with
the requirements of this part.

Sec.  171.3  Definitions.

    Terms used in this part have the same meanings they have in FIFRA
and 40 CFR part 152. In addition, the following terms, when used in
this part, shall mean:
    Agricultural commodity means any plant, or part thereof, or animal,
or animal product, produced by a person (including, but not limited to,
farmers, ranchers, vineyardists, plant propagators, Christmas tree
growers, aquaculturists, floriculturists, orchardists, foresters, or
other comparable persons) primarily for sale, consumption, propagation,
or other use by man or animals.
    Application means the dispersal of a pesticide on, in, at, or
around a target site.
    Application method means the application of a pesticide using a
particular type of equipment, mechanism, or device, including, but not
limited to, ground boom, air-blast sprayer, wand, and backpack sprayer,
as well as methods such as aerial, chemigation, and fumigation.
    Application method-specific certification category means a defined
set of competencies related to the use of a specific application method
to apply restricted use pesticides.
    Applicator means any individual using a restricted use pesticide.
An applicator may be certified as a commercial or private applicator as
defined in FIFRA or may be a noncertified applicator as defined in this
part.
    Calibration means measurement of dispersal or output of application
equipment and adjustment of such equipment to establish a specific rate
of dispersal and, if applicable, droplet or

particle size of a pesticide dispersed by the equipment.
    Certification means a certifying authority's issuance, pursuant to
this part, of authorization to a person to use or supervise the use of
restricted use pesticides.
    Certifying authority means the Agency, or a State, Tribal, or
Federal agency that issues restricted use pesticide applicator
certifications pursuant to a certification plan approved by the Agency
under this part.
    Compatibility means the extent to which a pesticide can be combined
with other chemicals without causing undesirable results.
    Competent means having the practical knowledge, skills, experience,
and judgment necessary to perform functions associated with restricted
use pesticide application without causing unreasonable adverse effects,
where the nature and degree of competency required relate directly to
the nature of the activity and the degree of independent
responsibility.
    Dealership means any establishment owned or operated by a
restricted use pesticide retail dealer where restricted use pesticides
are distributed or sold.
    Fumigant means any pesticide product that is a vapor or gas, or
forms a vapor or gas upon application, and whose pesticidal action is
achieved through the gaseous or vapor state.
    Fumigation means the application of a fumigant.
    Host means any plant or animal on or in which another species of
plant or animal lives for nourishment, development, or protection.
    Indian country means:
    (1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation.
    (2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State.
    (3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
    Indian Tribe or Tribe means any Indian or Alaska Native Tribe,
band, nation, pueblo, village, or community included in the list of
Tribes published by the Secretary of the Interior pursuant to the
Federally Recognized Indian Tribe List Act.
    Mishap means an event that may adversely affect man or the
environment and that is related to the use or presence of a pesticide,
whether the event was unexpected or intentional.
    Non-target organism means any plant, animal or other organism other
than the target pests which a pesticide is intended to affect.
    Noncertified applicator means any person who is not certified in
accordance with this part to use or supervise the use of restricted use
pesticides in the pertinent jurisdiction, but who is using restricted
use pesticides under the direct supervision of a person certified as a
commercial or private applicator in accordance with this part.
    Ornamental means trees, shrubs, flowers, and other plantings
intended primarily for aesthetic purposes in and around habitations,
buildings and surrounding grounds, including, but not limited to,
residences, parks, streets, and commercial, industrial, and
institutional buildings.
    Personal protective equipment means devices and apparel that are
worn to protect the body from contact with pesticides or pesticide
residues, including, but not limited to, coveralls, chemical-resistant
suits, chemical-resistant gloves, chemical-resistant footwear,
respirators, chemical-resistant aprons, chemical-resistant headgear,
and protective eyewear.
    Practical knowledge means the possession of pertinent facts and
comprehension sufficient to properly perform functions associated with
application of restricted use pesticides, including properly responding
to reasonably foreseeable problems and situations.
    Principal place of business means the principal location, either
residence or office, where a person conducts a business of applying
restricted use pesticides. A person who applies restricted use
pesticides in more than one State or area of Indian country may
designate a location within a State or area of Indian country as its
principal place of business for that State or area of Indian country.
    Regulated pest means a particular species of pest specifically
subject to Tribal, State or Federal regulatory restrictions,
regulations, or control procedures intended to protect the hosts, man
and/or the environment.
    Restricted use pesticide means a pesticide that is classified for
restricted use under the provisions of FIFRA section 3(d).
    Restricted use pesticide retail dealer means any person who
distributes or sells restricted use pesticides to any person, excluding
transactions solely between persons who are pesticide producers,
registrants, wholesalers, or retail sellers, acting only in those
capacities.
    Toxicity means the property of a pesticide that refers to the
degree to which the pesticide and its related derivative compounds are
able to cause an adverse physiological effect on an organism as a
result of exposure.
    Use, as in ``to use a pesticide'' means any of the following:
    (1) Pre-application activities, including, but not limited to:
    (i) Arranging for the application of the pesticide.
    (ii) Mixing and loading the pesticide.
    (iii) Making necessary preparations for the application of the
pesticide, including, but not limited to, responsibilities related to
providing training, a copy of a label and use-specific instructions to
noncertified applicators, and complying with any applicable
requirements under 40 CFR part 170.
    (2) Applying the pesticide, including, but not limited to,
supervising the use of a pesticide by a noncertified applicator.
    (3) Post-application activities, including, but not limited to,
transporting or storing pesticide containers that have been opened,
cleaning equipment, and disposing of excess pesticides, spray mix,
equipment wash waters, pesticide containers, and other materials
contaminated with or containing pesticides.
    Use-specific instructions means the information and requirements
specific to a particular pesticide product or work site that are
necessary in order for an applicator to use the pesticide in accordance
with applicable requirements and without causing unreasonable adverse
effects.

Sec.  171.5  Effective date.

    This part is effective [60 days after the date of publication of
the final rule in the Federal Register]. Certification plans approved
by EPA before the effective date remain approved except as provided in
Sec. Sec.  171.301(b) and 171.309.

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

Sec.  171.101  Commercial applicator certification categories.

    (a) Pest control certification categories. Certification in any of
the pest control certification categories listed in this paragraph (a)
alone is not sufficient to lawfully use or supervise the use of
products intended to be applied using a method specified in paragraph
(b) of this section.

    (1) Agricultural pest control--(i) Crop pest control. This category
applies to commercial applicators who use or supervise the use of
restricted use pesticides in production of agricultural crops,
including but not limited to grains, vegetables, small fruits, tree
fruits, peanuts, tree nuts, tobacco, cotton, feed and forage crops
including, but not limited to, grasslands, and non-crop agricultural
lands.
    (ii) Livestock pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
on animals or to places on or in which animals are confined.
Certification in this category alone is not sufficient to authorize the
purchase, use, or supervision of use of products for predator control
listed in paragraph (a)(10) of this section.
    (2) Forest pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
in forests, forest nurseries and forest seed production.
    (3) Ornamental and turf pest control. This category applies to
commercial applicators who use or supervise the use of restricted use
pesticides to control pests in the maintenance and production of
ornamental plants and turf.
    (4) Seed treatment. This category applies to commercial applicators
using or supervising the use of restricted use pesticides on seeds in
seed treatment facilities.
    (5) Aquatic pest control. This category applies to commercial
applicators who use or supervise the use of any restricted use
pesticide purposefully applied to standing or running water, excluding
applicators engaged in public health related activities included in as
specified in paragraph (b)(8) of this section.
    (6) Right-of-way pest control. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
in the maintenance of roadsides, power-line, pipeline, and railway
rights-of-way, and similar areas.
    (7) Industrial, institutional, and structural pest control. This
category applies to commercial applicators who use or supervise the use
of restricted use pesticides in, on, or around the following: Food
handling establishments, packing houses, and food-processing
facilities; human dwellings; institutions, such as schools, hospitals
and prisons; and industrial establishments, including, but not limited
to, manufacturing facilities, warehouses, grain elevators, and any
other structures and adjacent areas, public or private, for the
protection of stored, processed, or manufactured products.
    (8) Public health pest control. This category applies to State,
Tribal, Federal or other governmental employees who use or supervise
the use of restricted use pesticides in public health programs for the
management and control of pests having medical and public health
importance. This category includes contractors as well as individuals
directly employed by a State, Tribal, Federal, or other government
agency for government-sponsored public health programs.
    (9) Regulatory pest control. This category applies to State,
Tribal, Federal, or other governmental employees who use or supervise
the use of restricted use pesticides in the control of regulated pests
but does not include individuals that use or supervise the use of
sodium cyanide in mechanical ejection devices or sodium fluoroacetate
in a protective collar for predator pest control. This regulatory pest
control category includes contractors and other individuals directly
employed by a State, Tribal, Federal, or other government agency for
government-sponsored regulatory pest control programs. Certification in
this category does not authorize the purchase, use, or supervision of
use of products for predator control listed in paragraph (a)(10) of
this section.
    (10) Predator pest control--(i) Sodium cyanide predator control.
This pest control category applies to commercial applicators who use or
supervise the use of sodium cyanide in a mechanical ejection device to
control regulated predators.
    (ii) Sodium fluoroacetate. This pest control category applies to
commercial applicators who use or supervise the use of sodium
fluoroacetate in a protective collar to control regulated predators.
    (11) Demonstration and research. This category applies to
individuals who demonstrate to the public the proper use and techniques
of application of restricted use pesticides or supervise such
demonstration and to persons conducting field research with pesticides,
and in doing so, use or supervise the use of restricted use pesticides.
This includes such individuals as extension specialists and county
agents, commercial representatives demonstrating restricted use
pesticide products, individuals demonstrating application or pest
control methods used in public or private programs, and State, Tribal,
Federal, commercial, and other persons conducting field research on or
involving restricted use pesticides. Certification in this category
requires concurrent certification in each pest control category
identified in paragraphs (a)(1) through (10) of this section for which
a person does demonstration or research involving the use or
supervision of the use of restricted use pesticides for the type of
pest control described in those categories, and in each application
method-specific category identified in paragraph (b) of this section
for which a person does demonstration or research involving the use or
supervision of the use of restricted use pesticides using an
application method described in those categories.
    (b) Application method-specific certification categories--(1) Soil
fumigation applications. This category applies to commercial
applicators who use or supervise the use of a restricted use pesticide
to fumigate soil. Certification in this application method-specific
category requires concurrent certification in each pest control
category identified in paragraphs (a)(1) through (10) of this section
for which a person intends to perform soil fumigation.
    (2) Non-soil fumigation applications. This category applies to
commercial applicators who use or supervise the use of a restricted use
pesticide to fumigate anything other than soil. Certification in this
application method-specific category requires concurrent certification
in each pest control category identified in paragraphs (a)(1) through
(10) of this section for which a person intends to perform non-soil
fumigation.
    (3) Aerial applications. This category applies to commercial
applicators who use or supervise the use of restricted use pesticides
applied by fixed or rotary wing aircraft. Certification in this
application method-specific category requires concurrent certification
in each pest control category identified in paragraphs (a)(1) through
(10) of this section for which a person intends to perform aerial
application.

Sec.  171.103  Standards for certification of commercial applicators.

    (a) Determination of competency. To be determined competent in the
use and handling of restricted use pesticides by a State, Tribe, or
Federal agency, a commercial applicator must meet the minimum age
requirement specified in paragraph (a)(1) of this section and receive a
passing score on a written examination that meets the standards
specified in paragraph (a)(2) of this section and any related
performance testing that is required by the State, Tribe, or Federal
agency. Examinations and any alternate methods employed by

the certifying authority to determine applicator competency must
include the core standards applicable to all categories (paragraph (c)
of this section), the standards applicable to each pest control
category in which an applicator seeks certification (paragraph (d) of
this section), and the standards for each application method-specific
category in which an applicator seeks certification (paragraph (e) of
this section), as provided in this section. Certification processes
must meet all of the following criteria:
    (1) Commercial applicator minimum age. A commercial applicator must
be at least 18 years old.
    (2) Examination standards. Examinations must conform to all of the
following standards:
    (i) The examination must be presented and answered in writing.
    (ii) The examination must be proctored by an individual designated
by the certifying authority and who is not seeking certification at any
examination session that he or she is proctoring. The proctor must do
all of the following:
    (A) Verify the identity and age of persons taking the examination
by checking identification and having examinees sign an examination
roster.
    (B) Monitor examinees throughout the examination period.
    (C) Instruct examinees in examination procedures before beginning
the examination.
    (D) Keep examinations secure before, during, and after the
examination period.
    (E) Allow only the examinees to access the examination, and allow
such access only in the presence of the proctor.
    (F) Ensure that examinees have no verbal or non-verbal
communication with anyone other than the proctor during the examination
period.
    (G) Ensure that no portion of the examination or any associated
reference materials described in paragraph (a)(2)(ii)(H) of this
section is copied or retained by any person other than a person
authorized by the certifying authority to copy or retain the
examination.
    (H) Ensure that examinees do not have access to reference materials
other than those that are approved by the certifying authority and
provided and collected by the proctor.
    (I) Review reference materials provided to examinees after the exam
is complete to ensure that no portion of the reference material has
been removed or destroyed.
    (J) Report to the certifying authority any examination
administration inconsistencies or irregularities, including but not
limited to cheating, use of unauthorized materials, and attempts to
copy or retain the examination.
    (K) Comply with any other requirements of the certifying authority
related to examination administration.
    (iii) The examination must be closed-book. No reference materials
may be used during the examination, except those that are approved by
the certifying authority and provided by the proctor.
    (iv) Each person seeking certification must present at the time of
examination valid, government-issued photo identification to the
certifying authority as proof of identity and age to be eligible for
certification.
    (v) The certifying authority must notify each examinee of the
results of his or her examination.
    (b) Additional methods of determining competency. In addition to
written examination requirements for determining competency, a
certifying authority may employ additional methods for determining
applicator competency, such as performance testing. Such additional
methods must be part of the certifying authority's Agency-approved
certification plan and must comply with the applicable standards in
paragraph (a) of this section.
    (c) Core standards for all categories of certified commercial
applicators. Persons seeking certification as commercial applicators
must demonstrate practical knowledge of the principles and practices of
pest control and proper and effective use of restricted use pesticides
by passing a written examination. Written examinations for all
commercial applicators must address all of the following areas of
competency:
    (1) Label and labeling comprehension. Familiarity with pesticide
labels and labeling and their functions, including all of the
following:
    (i) The general format and terminology of pesticide labels and
labeling.
    (ii) Understanding instructions, warnings, terms, symbols, and
other information commonly appearing on pesticide labels and labeling.
    (iii) Understanding that it is a violation of Federal law to use
any registered pesticide in a manner inconsistent with its labeling.
    (iv) Understanding when a certified applicator must be physically
present at the site of the application based on labeling requirements.
    (v) Understanding labeling requirements for supervising
noncertified applicators working under the direct supervision of a
certified applicator.
    (vi) Understanding that applicators must comply with all use
restrictions and directions for use contained in pesticide labels and
labeling, including being certified in the certification category and
application method-specific category appropriate to the type and site
of the application.
    (vii) Understanding the meaning of product classification as either
general or restricted use and that a product may be unclassified.
    (viii) Understanding and complying with product-specific
notification requirements.
    (2) Safety. Measures to avoid or minimize adverse health effects,
including all of the following:
    (i) Understanding the terms ``acute toxicity'' and ``chronic
toxicity,'' as well as the long-term effects of pesticides.
    (ii) Understanding that a pesticide's risk is a function of
exposure and the pesticide's toxicity.
    (iii) Recognition of likely ways in which dermal, inhalation and
oral exposure may occur.
    (iv) Common types and causes of pesticide mishaps.
    (v) Precautions to prevent injury to applicators and other
individuals in or near treated areas.
    (vi) Need for, and proper use of, protective clothing and personal
protective equipment.
    (vii) Symptoms of pesticide poisoning.
    (viii) First aid and other procedures to be followed in case of a
pesticide mishap.
    (ix) Proper identification, storage, transport, handling, mixing
procedures, and disposal methods for pesticides and used pesticide
containers, including precautions to be taken to prevent children from
having access to pesticides and pesticide containers.
    (3) Environment. The potential environmental consequences of the
use and misuse of pesticides, including the influence of all of the
following:
    (i) Weather and other indoor and outdoor climatic conditions.
    (ii) Types of terrain, soil, or other substrate.
    (iii) Presence of fish, wildlife, and other non-target organisms.
    (iv) Presence of pollinators.
    (v) Drainage patterns.
    (4) Pests. The proper identification and effective control of
pests, including all of the following:
    (i) Common features of pest organisms and characteristics of damage
needed for pest recognition.
    (ii) Recognition of relevant pests.

    (iii) Pest development, biology, and behavior as it may be relevant
to problem identification and control.
    (5) Pesticides. Characteristics of pesticides, including all of the
following:
    (i) Types of pesticides.
    (ii) Types of formulations.
    (iii) Compatibility, synergism, persistence, and animal and plant
toxicity of the formulations.
    (iv) Hazards and residues associated with use.
    (v) Factors that influence effectiveness or lead to problems such
as pesticide resistance.
    (vi) Dilution procedures.
    (6) Equipment. Application equipment, including all of the
following:
    (i) Types of equipment and advantages and limitations of each type.
    (ii) Use, maintenance, and calibration procedures.
    (7) Application methods. Selecting appropriate application methods,
including all of the following:
    (i) Methods used to apply various formulations of pesticides,
solutions, and gases.
    (ii) Knowledge of which application method to use in a given
situation and when certification in an application method-specific
category is required in accordance with paragraph (c) of this section.
    (iii) Relationship of application and placement of pesticides to
proper use, unnecessary or ineffective use, and misuse.
    (iv) Prevention of drift and pesticide loss into the environment.
    (8) Laws and regulations. Knowledge of all applicable State,
Tribal, and Federal laws and regulations.
    (9) Responsibilities of supervisors of noncertified applicators.
Knowledge of the responsibilities of certified applicators supervising
noncertified applicators, including all of the following:
    (i) Understanding and complying with requirements in Sec.  171.201
for certified commercial applicators who supervise noncertified
applicators using restricted use pesticides.
    (ii) Requirements to keep records of pesticide safety training for
noncertified applicators using restricted use pesticides under the
direct supervision of a certified applicator.
    (iii) Providing use-specific instructions to noncertified
applicators using restricted use pesticides under the direct
supervision of a certified applicator.
    (iv) Explaining appropriate State, Tribal, and Federal laws and
regulations to noncertified applicators working under the direct
supervision of a certified applicator.
    (10) Professionalism. Understanding the importance of all of the
following:
    (i) Maintaining chemical security for restricted use pesticides.
    (ii) How to communicate information about pesticide exposures and
risks with the public and their clientele.
    (iii) Appropriate product stewardship for certified applicators.
    (d) Specific standards of competency for each pest control category
of commercial applicators. Commercial applicators must demonstrate
practical knowledge of the principles and practices of pest control and
proper and effective use of restricted use pesticides for each pest
control category for which they intend to apply restricted use
pesticides through written examinations. The minimum competency
standards for each category of pest control are listed in paragraphs
(d)(1) through (10) of this section. Examinations for each pest control
category certification listed in Sec.  171.101(a) must be based on the
standards of competency specified in paragraphs (d)(1) through (11) of
this section and examples of problems and situations appropriate to the
particular category in which the applicator is seeking certification.
    (1) Agricultural pest control--(i) Plant. Applicators must
demonstrate practical knowledge of crops, grasslands, and non-crop
agricultural lands and the specific pests of those areas on which they
may be using restricted use pesticides. The importance of such
competency is amplified by the extensive areas involved, the quantities
of pesticides needed, and the ultimate use of many commodities as food
and feed. The required knowledge includes pre-harvest intervals,
restricted entry intervals, phytotoxicity, potential for environmental
contamination such as soil and water problems, non-target injury, and
other problems resulting from the use of restricted use pesticides in
agricultural areas. The required knowledge also includes the potential
for phytotoxicity due to a wide variety of plants to be protected, for
drift, for persistence beyond the intended period of pest control, and
for non-target exposures.
    (ii) Animal. Applicators applying pesticides directly to animals
must demonstrate practical knowledge of such animals and their
associated pests. The required knowledge includes specific pesticide
toxicity and residue potential, and the hazards associated with such
factors as formulation, application techniques, age of animals, stress,
and extent of treatment.
    (2) Forest pest control. Applicators must demonstrate practical
knowledge of types of forests, forest nurseries, and seed production
within the jurisdiction of the certifying authority and the pests
involved. The required knowledge includes the cyclic occurrence of
certain pests and specific population dynamics as a basis for
programming pesticide applications, the relevant organisms causing harm
and their vulnerability to the pesticides to be applied, how to
determine when pesticide use is proper, selection of application method
and proper use of application equipment to minimize non-target
exposures, and appropriate responses to meteorological factors and
adjacent land use. The required knowledge also includes the potential
for phytotoxicity due to a wide variety of plants to be protected, for
drift, for persistence beyond the intended period of pest control, and
for non-target exposures.
    (3) Ornamental and turf pest control. Applicators must demonstrate
practical knowledge of pesticide problems associated with the
production and maintenance of ornamental plants and turf. The required
knowledge includes the potential for phytotoxicity due to a wide
variety of plants to be protected, for drift, for persistence beyond
the intended period of pest control, and for non-target exposures.
Because of the frequent proximity of human habitations to application
activities, applicators in this category must demonstrate practical
knowledge of application methods which will minimize or prevent hazards
to humans, pets, and other domestic animals.
    (4) Seed-treatment. Applicators must demonstrate practical
knowledge including recognizing types of seeds to be treated, the
effects of carriers and surface active agents on pesticide binding and
germination, the hazards associated with handling, sorting and mixing,
and misuse of treated seed, the importance of proper application
techniques to avoid harm to non-target organisms such as pollinators,
and the proper disposal of unused treated seeds.
    (5) Aquatic pest control. Applicators must demonstrate practical
knowledge of the characteristics of various water use situations, the
potential for adverse effects on non-target plants, fish, birds,
beneficial insects and other organisms in the immediate aquatic
environment and downstream, and the principles of limited area
application.
    (6) Right-of-way pest control. Applicators must demonstrate
practical knowledge of the types of environments (terrestrial and
aquatic) traversed by

rights-of-way, techniques to minimize non-target exposure runoff,
drift, and excessive foliage destruction, and recognition of target
pests. The required knowledge also includes the potential for
phytotoxicity due to a wide variety of plants and pests to be
controlled, for drift, for persistence beyond the intended period of
pest control, and for non-target exposures.
    (7) Industrial, institutional, and structural pest control.
Applicators must demonstrate a practical knowledge of industrial,
institutional and structural pests, including recognizing those pests
and signs of their presence, their habitats, their life cycles,
biology, and behavior as it may be relevant to problem identification
and control. Applicators must demonstrate practical knowledge of types
of formulations appropriate for control of industrial, institutional
and structural pests, and methods of application that avoid
contamination of food, minimize damage to and contamination of areas
treated, minimize acute and chronic exposure of people and pets, and
minimize environmental impacts of outdoor applications.
    (8) Public health pest control. Applicators must demonstrate
practical knowledge of pests that are important vectors of disease,
including recognizing the pests and signs of their presence, their
habitats, their life cycles, biology and behavior as it may be relevant
to problem identification and control. The required knowledge also
includes how to minimize damage to and contamination of areas treated,
acute and chronic exposure of people and pets, and non-target
exposures.
    (9) Regulatory pest control. Applicators must demonstrate practical
knowledge of regulated pests, applicable laws relating to quarantine
and other regulation of pests, and the potential impact on the
environment of restricted use pesticides used in suppression and
eradication programs. They must demonstrate knowledge of factors
influencing introduction, spread, and population dynamics of regulated
pests.
    (10) Predator pest control. Applicators must demonstrate practical
knowledge of mammalian predator pests, including recognizing those
pests and signs of their presence, their habitats, their life cycles,
biology, and behavior as it may be relevant to problem identification
and control.
    (i) Sodium cyanide. Applicators must demonstrate comprehension of
all relevant laws and regulations applicable to the use of mechanical
ejection devices for sodium cyanide, including the restrictions on the
use of sodium cyanide products ordered by the EPA Administrator and
published in the Federal Register (40 FR 44726, September 29, 1975)
(FRL 436-3). Applicators must also demonstrate practical knowledge and
understanding of all of the specific use restrictions for sodium
cyanide devices, including safe handling and proper placement of the
capsules and device, proper use of the antidote kit, notification to
medical personnel before use of the device, conditions of and
restrictions on when and where devices can be used, requirements to
consult U.S. Fish and Wildlife Service maps before use to avoid
affecting endangered species, maximum density of devices, provisions
for supervising and monitoring applicators, required information
exchange in locations where more than one agency is authorized to place
devices, and specific requirements for recordkeeping, monitoring, field
posting, proper storage, and disposal of damaged or used sodium cyanide
capsules.
    (ii) Sodium fluoroacetate. Applicators must demonstrate
comprehension of all relevant laws and regulations applicable to the
use of sodium fluoroacetate products, including the restrictions on the
use of sodium fluoroacetate products ordered by the EPA Administrator
and published in the Federal Register (49 FR 4830, February 8, 1984)
(FRL 2520-6). Applicators must also demonstrate practical knowledge and
understanding of the specific use restrictions for sodium fluoroacetate
in the livestock protection collar, including where and when sodium
fluoroacetate products can be used, safe handling and placement of
collars, and practical treatment of sodium fluoroacetate poisoning in
humans and domestic animals. Applicators must also demonstrate
practical knowledge and understanding of specific requirements for
field posting, monitoring, recordkeeping, proper storage of collars,
disposal of punctured or leaking collars, disposal of contaminated
animal remains, vegetation, soil, and clothing, and reporting of
suspected and actual poisoning, mishap, or injury to threatened or
endangered species, human, domestic animals, or non-target wild
animals.
    (11) Demonstration pest control. Applicators demonstrating the safe
and effective use of restricted use pesticides to other applicators and
the public must demonstrate practical knowledge of the potential
problems, pests, and population levels reasonably expected to occur in
a demonstration situation and the effects of restricted use pesticides
on target and non-target organisms. In addition, they must demonstrate
competency in each pest control category applicable to their
demonstrations.
    (e) Specific standards of competency for each application method-
specific certification category of commercial applicators. In order to
apply a restricted use pesticide using any of the application methods
identified in this paragraph, a commercial applicator must first obtain
the appropriate application method-specific certification as provided
in this paragraph. This requirement is in addition to the requirements
of paragraphs (c), (d), and (e) of this section. The competency
standards for each application method-specific certification category
are specified in paragraphs (e)(1) through (3) of this section.
    (1) Soil fumigation application. Commercial applicators performing
soil fumigation applications of restricted use pesticides must
demonstrate practical knowledge of the pest problems and pest control
practices associated with performing soil fumigation applications,
including all the following:
    (i) Label and labeling comprehension. Familiarity with the
pesticide labels and labeling for products used to perform soil
fumigation, including all of the following:
    (A) Labeling requirements specific to soil fumigants.
    (B) Fumigant applicators, fumigant applicator tasks, and the safety
information that certified applicators must provide to noncertified
applicators using fumigants under their direct supervision.
    (C) Entry-restricted periods for different tarped and untarped