[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51355-51422]
[FR Doc No: 2015-19988]

Vol. 80

Monday,

No. 163

August 24, 2015

Part II

 Environmental Protection Agency

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40 CFR Part 171

 Pesticides; Certification of Pesticide Applicators; Proposed Rule

Federal Register / Vol. 80 , No. 163 / Monday, August 24, 2015 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 171

[EPA-HQ-OPP-2011-0183; FRL-9931-83]
RIN 2070-AJ20

Pesticides; Certification of Pesticide Applicators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing changes to the existing regulation concerning
the certification of applicators of restricted use pesticides (RUPs) in
response to extensive stakeholder review of the regulation and its
implementation since 1974. EPA's proposed changes would ensure the
Federal certification program standards adequately protect applicators,
the public, and the environment from risks associated with use of RUPs.
The proposed changes are intended to improve the competency of
certified applicators of RUPs, increase protection for noncertified
applicators of RUPs operating under the direct supervision of a
certified applicator through enhanced pesticide safety training and
standards for supervision of noncertified applicators, and establish a
minimum age requirement for certified and noncertified applicators. In
keeping with EPA's commitment to work more closely with Tribal
governments to strengthen environmental protection in Indian country,
certain changes are intended to provide more practical options for
establishing certification programs in Indian country.

DATES: Comments must be received on or before November 23, 2015.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0183, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC) (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001. In addition, please mail a copy of your comments on the
information collection provisions to the Office of Information and
Regulatory Affairs, Office of Management and Budget, ATTN: Desk Officer
for EPA, 725 17th St. NW., Washington, DC 20503.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.

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

I. Executive Summary

A. Does this action apply to me?

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

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

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

C. What action is the Agency taking?

    The proposed rule would revise the existing Certification of
Pesticide Applicators (certification) rule at 40 CFR part 171 to
enhance the following: Private applicator competency standards, exam
and training security standards, standards for noncertified applicators
working under the direct supervision of a certified applicator, Tribal
applicator certification, and State, Tribal, and Federal agency
certification plans. The proposed rule would revise the existing
certification rule at 40 CFR part 171 to add: Application method-
specific categories of certification for commercial and private
applicators, predator control categories for commercial and private
applicators, recertification standards and interval, and minimum age
for certified applicators and noncertified applicators working under
direct supervision.
    1. Private applicator competency standards. The proposed rule would
clarify the standards of competency a private applicator must meet in
order to be certified. The proposed rule would expand the private
applicator competency standards to include the general standards of
competency for commercial applicators (also known as ``core''
competency), standards generally applicable to pesticide use in
agriculture, and specific related regulations relevant to private
applicators, such as the Worker Protection Standard (WPS) (40 CFR part
170). The proposed rule also would amend the options for determining
private applicator competency by requiring the applicator to complete a
training program or to pass a written exam that covers the specific
competency standards.
    2. Application method-specific categories of certification for
commercial and private applicators. The proposed rule would require
that commercial and private applicators who apply pesticides aerially
or by fumigation demonstrate competency to make these types of
applications. The proposal would add categories for aerial

application, soil fumigation, and non-soil fumigation.
    3. Recertification standards and interval. The proposed rule would
require that commercial and private applicators demonstrate continued
competency to use RUPs every 3 years by either passing written exams
for each certification they hold or completing specific training in a
continuing education program administered by the certifying authority.
Commercial applicators would be required to demonstrate continued
competency in the core standards and each category in which they intend
to maintain their certification. Private applicators would be required
to demonstrate continued general competency and competency in each
relevant application method-specific category in which they intend to
maintain their certification.
    4. Standards for noncertified applicators working under the direct
supervision. The proposed rule would include several new requirements
to ensure that noncertified applicators are competent to use RUPs under
the supervision of a certified applicator. In order for noncertified
applicators to work under the direct supervision of a certified
applicator they would have to complete specific training as outlined in
the proposed rule, complete training required for handlers under the
WPS, or pass the exam covering general standards of competency for
commercial pesticide applicators (``core exam''). Noncertified
applicators who qualify by satisfying the training requirement under
the proposed rule or the training required for handlers under the WPS
would be required to renew their qualification after a year;
noncertified applicators who qualify by passing the core exam would
need to renew their qualification after 3 years. Noncertified
applicators can renew their qualifications using any of these same
options. All applicators would be required to ensure noncertified
applicators have met these qualifications and commercial applicators
would be required to maintain records of the noncertified applicators'
qualifications. The proposal would require a certified applicator
supervising noncertified applicators to be certified in each category
in which he or she supervises applications, to provide to the
noncertified applicators a copy of the labeling for the RUPs used, and
to ensure that a means for immediate communication between the
supervising applicator and noncertified applicators under his or her
direct supervision is available.
    5. Minimum age. The proposed rule would require commercial and
private applicators to be at least 18 years old and noncertified
applicators using RUPs under the direct supervision of certified
applicators to be at least 18 years old.
    6. Indian country certification. The proposed rule would offer
three options for certification for applicators in Indian country. A
Tribe may choose to allow persons holding currently valid
certifications issued under one or more specified State or Federal
agency certification plans to apply RUPs within the Tribe's Indian
country, develop its own certification plan for certifying private and
commercial applicators, or take no action, in which case EPA may, in
consultation with the Tribe(s) affected, implement an EPA-administered
certification plan. EPA currently administers a Federal certification
program covering Indian country not otherwise covered by a
certification plan (Ref. 1) as well as a certification program
specifically for Navajo Indian country (Ref. 2).
    7. State, Tribal, and Federal agency certification plans. The
proposed rule would update the requirements for submission, approval,
and maintenance of State, Tribal, and Federal agency certification
plans. The proposed rule would delete the section on Government Agency
Plans (GAP) and would codify existing policy on review and approval of
Federal agency certification plans.

D. Why is the Agency taking this action?

    The Agency is proposing revisions to the existing certification
regulation at 40 CFR part 171 in order to reduce occupational pesticide
exposure and the incidence of related illness among certified
applicators, noncertified applicators working under their direct
supervision, and agricultural workers, and to ensure that when used
according to their labeling, RUPs do not cause unreasonable adverse
effects to applicators, workers, the public, or the environment.
Discussions with State regulatory partners and key stakeholders over
many years, together with EPA's review of incident data, have led EPA
to identify several shortcomings in the current regulation that should
be addressed, including:
     Absence of a minimum age for certified pesticide
applicators and noncertified applicators working under their direct
supervision.
     Absence of standards or a time period for ensuring that
certified pesticide applicators maintain continued competency.
     Lack of certification standards for specific types of
pesticide application (aerial and fumigation) that may pose risks to
applicators, bystanders, and the environment if not performed
correctly.
     Vague standards for evaluating the competency of private
applicators to use RUPs.
     Incomplete protections for persons applying pesticides
under the direct supervision of a certified applicator.
     Inconsistent national program for applicator certification
that hinders applicators' ability to work in different states without
duplicative burden and inhibits EPA's ability to develop certification
and training materials that can be used nationally.
     Limited options for establishing applicator certification
programs in Indian country.
     Incomplete information incorporated into the regulation
about certification of applicators by Federal agencies.
    A detailed discussion about the rationale for the proposed rule and
EPA's regulatory objectives are provided in Units III. and VI. through
XX. The proposed changes would offer targeted improvements that are
reasonably expected to reduce risk to applicators, workers, the public,
and the environment and improve applicator certification programs'
operational efficiencies. EPA expects the proposed changes would:
     Improve competency of private and commercial applicators
and noncertified applicators using RUPs under their direct supervision.
     Provide more uniform competency among certified
applicators across the nation, thereby assuring the effectiveness of
restricted use registration as a risk management tool.
     Protect applicators, workers, the public, and the
environment from unreasonable adverse effects from the use of RUPs.
     Ensure that applicators are competent to use high-risk
application methods.
     Ensure applicators' ongoing competency to use RUPs.
     Protect children by establishing a minimum age for
commercial, private, and noncertified applicators.
     Improve human health and environmental protection in
Indian country.
     Clarify and streamline requirements for States, Tribes,
and Federal agencies to administer their own certification programs.

E. What are the estimated impacts of this action?

    EPA has prepared an economic analysis (EA) of the potential costs
and impacts associated with this rulemaking (Ref. 3). This analysis,
which is available in the docket, is discussed in more detail in Unit
III., and is briefly

summarized here. The following chart provides a brief outline of the
costs and impacts of this proposed rule.

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                Category                           Description                            Source
----------------------------------------------------------------------------------------------------------------
Monetized Benefits Avoided acute         $80.5 million/year after         EA Chapter 6.5.
 pesticide incidents.                     adjustment for underreporting
                                          of pesticide incidents.
Qualitative Benefits...................  Willingness to pay to avoid      EA Chapter 6.4 & 6.6.
                                          acute effects of pesticide
                                          exposure beyond cost of
                                          treatment and loss of
                                          productivity.
                                          Reduced latent effect
                                          of avoided acute pesticide
                                          exposure.
                                          Reduced chronic
                                          effects from lower chronic
                                          pesticide exposure to workers,
                                          handlers, and farmworker
                                          families, including a range of
                                          illnesses such as Non-Hodgkins
                                          lymphoma, prostate cancer,
                                          Parkinson's disease, lung
                                          cancer, chronic bronchitis,
                                          and asthma.
Total Costs............................  $47.2 million/year.............  EA Chapter 5.
Costs to Private Applicators...........  490,000 impacted; $19.5 million/ EA Chapter 5 & 5.6.
                                          year; average $40 per
                                          applicator.
Costs to Commercial Applicators........  414,000 impacted; $27.4 million/ EA Chapter 5 & 5.6.
                                          year; average $66 per
                                          applicator.
Costs to States and Other Jurisdictions  63 impacted; $359,000/year.....  EA Chapter 5.
Small Business Impacts.................  No significant impact on a       EA Chapter 5.7.
                                          substantial number of small
                                          entities.
                                          The rule may affect
                                          over 800,000 small farms that
                                          use pesticides, although about
                                          half are unlikely to apply
                                          restricted use pesticides.
                                          Impact less than 0.1%
                                          of the annual revenues for the
                                          average small entity.
Impact on Jobs.........................  The rule will have a negligible  EA Chapter 5.6.
                                          effect on jobs and employment.
                                          Most private and
                                          commercial applicators are
                                          self-employed.
                                          Incremental cost per
                                          applicator represents from 0.3
                                          to 0.5 percent of the cost of
                                          a part-time employee.
----------------------------------------------------------------------------------------------------------------

II. Background

A. Regulatory Framework

    This unit discusses the legal framework within which EPA regulates
the safety of those who apply RUPs as certified applicators and
noncertified applicators working under the direct supervision of
certified applicators, as well as of the general public and the
environment.
    1. FIFRA. FIFRA, 7. U.S.C. 136 et seq., was signed into law in 1947
and established a framework for the regulation of pesticide products,
requiring them to be registered by the Federal government before sale
or distribution in commerce. Amended in 1972 by the Federal
Environmental Pesticide Control Act, FIFRA broadened Federal pesticide
regulatory authority in several respects, notably by making it unlawful
for anyone to use any registered product in a manner inconsistent with
its labeling, 7 U.S.C. 136i(a)(2)(G), and limiting the sale and use of
RUPs to certified applicators and those under their direct supervision.
7 U.S.C. 136i(a)(2)(F). The amendments provided civil and criminal
penalties for violations of FIFRA. 7 U.S.C. 136l. The new and revised
provisions augmented EPA's authority to protect humans and the
environment from unreasonable adverse effects of pesticides.
    As a general matter, in order to obtain a registration for a
pesticide under FIFRA, an applicant must demonstrate that the pesticide
satisfies the statutory standard for registration, section 3(c)(5) of
FIFRA. 7 U.S.C. 136a(c)(5). That standard requires, among other things,
that the pesticide performs its intended function without causing
``unreasonable adverse effects on the environment.'' The term
``unreasonable adverse effects on the environment'' takes into account
the economic, social, and environmental costs and benefits of the use
of any pesticide and includes any unreasonable risk to man or the
environment. 7 U.S.C. 136(bb). This standard requires a finding that
the risks associated with the use of a pesticide are justified by the
benefits of such use, when the pesticide is used in compliance with the
terms and conditions of registration or in accordance with commonly
recognized practices. See Defenders of Wildlife v. Administrator, EPA,
882 F.2d 1294, 1298-99 (8th Cir. 1989) (describing FIFRA's required
balancing of risks and benefits).
    A pesticide product may be unclassified, or it may be classified
for restricted or for general use. Unclassified and general use
pesticides generally have a lower toxicity than RUPs and so pose less
potential to harm humans or the environment. The general public can buy
and use unclassified and general use pesticides without special permits
or restrictions.
    Where EPA determines that a pesticide product would not meet these
registration criteria if unclassified or available for general use, but
could meet the registration criteria if applied by experienced,
competent applicators, EPA classifies the pesticide, or particular uses
of the pesticide, for restricted use only by certified applicators. 7
U.S.C. 136a(d)(1). Generally, EPA classifies a pesticide as restricted
use if its toxicity exceeds one or more human health toxicity criteria
or based on other standards established in regulation. EPA may also
classify a pesticide as restricted use if it meets certain criteria for
hazards to non-target organisms or ecosystems, or if EPA determines
that a product (or class of products) may cause unreasonable adverse
effect on human health and/or the environment without such restriction.
The restricted use classification designation must be prominently
placed on the top of the front panel of the pesticide product labeling.
    The risks associated with products classified as RUP require
additional controls to ensure that when used they do not cause
unreasonable adverse effects on human health or the environment.
However, RUPs can be used safely when labeling instructions are
followed. These products may only be applied by certified applicators
or persons working under their direct supervision who have demonstrated
competency in the safe application of pesticides, including the ability
to read and understand the complex labeling requirements. FIFRA
requires EPA to develop standards for certification of applicators (7
U.S.C. 136i(a)(1)) and allows States to certify applicators under a
certification plan submitted to and approved by EPA. 7 U.S.C.
136i(a)(2).
    Provisions limiting EPA's authority with respect to applicator
certification

include 7 U.S.C. 136i(a)(1), (c), and (d); 7 U.S.C. 136w-5; and 7
U.S.C. 136(2)(e)(4). Section 136i(a)(1) of FIFRA prohibits EPA from
requiring private applicators to take an exam to establish competency
in the use of pesticides under an EPA certification program, or from
requiring States to impose an exam requirement as part of a State plan
for certification of applicators.
    Section 136i(c) of FIFRA instructs EPA to make instructional
materials on Integrated Pest Management (IPM) available to individuals,
but it prohibits EPA from establishing requirements for instruction or
competency determination on IPM. EPA makes IPM instructional materials
available to individual users through the National Pesticide Applicator
Certification Core Manual, which is used directly or as a model by many
States. Additionally, EPA has developed and implemented a variety of
programs in other areas of the pesticide program to inform pesticide
applicators about the principles and benefits of IPM. These include the
EPA's IPM in Schools Program, the Pesticide Environmental Stewardship
Program (PESP), and the Strategic Agricultural Initiative (SAI) Grant
Program, as well as several other efforts. The Agency will continue to
place a high priority on initiatives and programs that promote IPM
practices. For additional information about the range of programs and
activities, visit the Office of Pesticide Programs PestWise Web page on
the EPA Web site at: http://www.epa.gov/pesp/about/index.html.
    Section 136i(d) of FIFRA prohibits EPA from requiring private
applicators to keep records or file reports in connection with
certification requirements. However, private applicators must keep
records of RUP applications containing information substantially
similar to that which EPA requires commercial applicators to maintain
pursuant to USDA regulations at 7 CFR 110.3.
    Section 136w-5 of FIFRA prohibits EPA from establishing training
requirements for maintenance applicators (certain applicators of non-
agricultural, non-RUPs) or service technicians.
    FIFRA section 2(e)(4)'s definition of ``under the direct
supervision of a certified applicator'' allows noncertified applicators
to apply RUPs under the direct supervision of a certified applicator
even though the certified applicator may not be physically present at
the time and place the pesticide is applied. EPA can, on a product-by-
product basis and through the pesticide's labeling, require application
of an RUP only by a certified applicator.
    2. Pesticide registration. In order to protect human health and the
environment from unreasonable adverse effects that might be caused by
pesticides, EPA has developed and implemented a rigorous process for
registering and re-evaluating pesticides. The registration process
begins when a manufacturer submits an application to register a
pesticide. The application must contain required test data, including
information on the pesticide's chemistry, environmental fate, toxicity
to humans and wildlife, and potential for human exposure. The Agency
also requires a copy of the proposed labeling, including directions for
use, and appropriate warnings.
    Once an application for a new pesticide product is received, EPA
conducts an evaluation, which includes a detailed review of scientific
data to determine the potential impact on human health and the
environment. The Agency considers the risk assessments and results of
any peer review, and evaluates potential risk management measures that
could mitigate risks above EPA's level of concern. Risk management
measures could include, among other things, classifying the pesticide
as restricted use, limitations on the use of the pesticide or requiring
the use of engineering controls.
    In the decision-making process, EPA evaluates the proposed use(s)
of the pesticide to determine whether it would cause adverse effects on
human health, non-target species, and the environment. FIFRA requires
that EPA balance the benefits of using a pesticide against the risks
from that use.
    If the application for registration does not contain evidence
sufficient for EPA to determine that the pesticide meets the FIFRA
registration criteria, EPA communicates to the applicant the need for
more or better refined data, labeling modifications, or additional use
restrictions. Once the applicant has demonstrated that a proposed
product meets the FIFRA registration criteria and--if the use would
result in residues of the pesticide on food or feed--a tolerance or
exemption from the requirement of a tolerance under the Federal Food,
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et seq., is available,
EPA approves the registration subject to any risk mitigation measures
necessary to achieve that approval. EPA devotes significant resources
to the regulation of pesticides to ensure that each pesticide product
meets the FIFRA requirement that pesticides not cause unreasonable
adverse effects to the public and the environment.
    Part of EPA's pesticide regulation and evaluation process is
determining whether a pesticide should be classified as for restricted
use. As discussed in Unit II.A., EPA classifies products as RUPs when
they would cause unreasonable adverse effects on the environment, the
applicator, or the public when used according to the labeling
directions and without additional restrictions. 7 U.S.C. 136a(d)(1)(C).
EPA maintains a list of active ingredients with uses that have been
classified as restricted use at 40 CFR 152.175. In addition, EPA
periodically publishes an ``RUP Report'' that lists RUP products'
registration number, product name, status, registration status, company
name, and active ingredients (http://www.epa.gov/opprd001/rup/). EPA
has classified about 900 pesticide products as RUPs, which is about 5%
of all registered pesticide products. EPA does not have data on the
relative usage of RUPs versus general use or unclassified pesticides.
    When EPA approves a pesticide, the labeling reflects the risk
mitigation measures required by EPA. The potential risk mitigation
measures include requiring certain engineering controls, such as use of
closed systems for mixing pesticides and loading them into application
equipment to reduce potential exposure to those who handle pesticides;
establishing conditions on the use of the pesticide by specifying
certain use sites, maximum application rate or maximum number of
applications; or limiting the use of the product to certified
applicators (i.e., prohibit application of an RUP by a noncertified
applicator working under the direct supervision of a certified
applicator) to protect users, the public, and the environment against
risks associated with misapplication by unqualified or incompetent
applicators. Since users must comply with the directions for use and
use restrictions on a product's labeling, EPA uses the labeling to
establish and convey mandatory requirements for how the pesticide must
be used to protect the applicator, the public, and the environment from
pesticide exposure.
    3. Pesticide Reregistration and Registration Review. Under FIFRA,
EPA is required to review periodically the registration of pesticides
currently registered in the United States. The 1988 FIFRA amendments
required EPA to establish a pesticide reregistration program.
Reregistration was a one-time comprehensive review of the human health
and environmental effects of pesticides first registered before
November 1, 1984 to make decisions

about these pesticides' future use. The Food Quality Protection Act of
1996 (FQPA) amendments to FIFRA require that EPA establish, through
rule making, an ongoing ``registration review'' process of all
pesticides at least every 15 years. The final rule establishing the
registration review program was signed in August 2006. The purpose of
both re-evaluation programs is to review all pesticides registered in
the United States to ensure that they continue to meet current safety
standards based on up-to-date scientific approaches and relevant data.
    Pesticides reviewed under the reregistration program that met
current scientific and safety standards were declared ``eligible'' for
reregistration. The results of EPA's reviews are summarized in
Reregistration Eligibility Decision (RED) documents. The last RED was
completed in 2008. Often before a pesticide could be determined
``eligible,'' certain risk reduction measures had to be put in place.
For a number of pesticides, measures intended to reduce exposure to
certified applicators and pesticide handlers were needed and are
reflected on pesticide labeling. To address occupational risk concerns,
REDs include mitigation measures such as: Voluntary cancellation of the
product or specific use(s); limiting the amount, frequency or timing of
applications; imposing other application restrictions; classifying a
product or specific use(s) as for restricted use; requiring the use of
specific personal protective equipment (PPE); and establishing specific
restricted entry intervals; and improving use directions.
    Under the registration review program, EPA will review each
registered pesticide at least every 15 years to determine whether it
continues to meet the FIFRA standard for registration. Pesticides
registered before 1984 were reevaluated initially under the
reregistration program. These pesticides also are subject to
registration review.
    Rigorous ongoing education and enforcement are needed to ensure
that these mitigation measures are appropriately implemented in the
field. The framework provided by the pesticide applicator certification
regulation and associated training programs are critical for ensuring
that the improvements brought about by reregistration and registration
review are realized in the field. For example, the requirement for
applicators to demonstrate continued competency, or to renew their
certifications periodically, is one way to educate applicators about
changes in product labeling to ensure they continue to use RUPs in a
manner that will not harm themselves, the public, or the environment.
The changes being proposed are designed to enhance the effectiveness of
the existing structure.
    In summary, EPA's pesticide reregistration and registration reviews
assess the specific risks associated with particular chemicals and
ensure that the public and environment do not suffer unreasonable
adverse effects from the risks. EPA implements the risk reduction and
mitigation measures that result from the pesticide reregistration and
registration review programs through individual pesticide product
labeling.
    4. Related rulemaking. EPA also issued proposed amendments to the
WPS (Ref. 4). Since 40 CFR parts 170 and 171, along with other
components of the pesticide program, work together to reduce and
prevent unreasonable adverse effects from pesticides, EPA's experience
with the proposed amendments to 40 CFR part 170 significantly informs
its effort to amend the current certification rule at 40 CFR part 171.

B. Overview of Certified Applicator Information

    1. Existing Certification of Pesticide Applicators Rule. The
certification regulation is intended to ensure that persons using or
supervising the use of RUPs are competent to use these products without
causing unreasonable adverse effects to human health or the environment
and to provide a mechanism by which States, Tribes, and Federal
agencies can administer their own programs to certify applicators of
RUPs as competent. FIFRA distinguishes three categories of persons who
might apply RUPs:
     Commercial applicators. ``Commercial
applicator'' is defined at 7 U.S.C. 136(e)(3). This group consists
primarily of those who apply RUPs for hire, including applicators who
perform agricultural pest control, structural pest control, lawn and
turf care, and public health pest control.
     Private applicators. ``Private applicator'' is
defined at 7 U.S.C. 136(e)(2). This group consists primarily of farmers
or agricultural growers who apply RUPs to their own land to produce an
agricultural commodity.
     Noncertified applicators. A noncertified
applicator is a person who uses RUPs under the direct supervision of a
certified applicator. The phrase ``under the direct supervision of a
certified applicator'' is defined at 7 U.S.C. 136(e)(4).
    The current certification regulation establishes requirements for
submission and approval of State plans for the certification of
applicators. Consistent with the provisions of FIFRA section 11(a)(2)
and the State plan requirements in the current rule, programs for the
certification of applicators of RUPs are currently implemented by each
of the fifty States. The certification programs are conducted by the
States and Tribes in accordance with their State or Tribal
certification plans, which are approved by the EPA Administrator and
filed with EPA after approval. (Ref. 5) In some cases, certification
programs are also carried out by other Federal agencies under approved
Federal agency plans or by EPA under EPA-administered plans. In
addition to the 50 State-implemented plans, EPA has approved plans for
3 territories, 4 Federal agencies, and 4 Tribes. EPA also 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 used in FIFRA, the term State means a State, the District
of Columbia, the Commonwealth of Puerto Rico, The Virgin Islands, Guam,
the Trust Territory of the Pacific Islands, and American Samoa; the
term State will have the same meaning in this proposed rulemaking.
    The current certification regulation establishes competency
standards for persons seeking to become certified as private or
commercial applicators. For a person to become certified as a private
applicator, he or she must either pass an exam covering a general set
of information related to pesticide application and safety or qualify
through a non-exam option administered by the certifying authority. For
a person to become certified as a commercial applicator, he or she must
pass at least two exams--one covering the general or ``core''
competencies related to general pesticide application and environmental
safety and an exam related to each specific category in which he or she
intends to apply pesticides. The current certification rule lists 10
categories of certification for commercial applicators: Agricultural
pest control--plant; agricultural pest control--animal; forest pest
control; ornamental and turf pest control; seed treatment; aquatic pest
control; right-of-way pest control; industrial, institutional,
structural and health related pest control; public health pest control;
regulatory pest control; and demonstration and research pest control.
40 CFR 171.3(b). (Note: EPA and other certifying authorities may
sometimes refer to 11 categories of

certification if the two subcategories under agricultural pest control
are counted as individual categories.) Although EPA only requires
certification of applicators who use RUPs, most States require all
commercial ``for hire'' applicators to be certified, regardless of
whether they plan to use RUPs. Once the applicator completes the
necessary requirements, the certifying authority issues to the
applicator a certification valid for a set period of time, ranging from
1-6 years depending on the State, Tribe, or Federal agency that
provides the certification.
    The current regulation requires States to implement a
recertification process to ensure that applicators maintain ongoing
competency to use pesticides safely and properly. 40 CFR 171.8(a)(2).
However, the current rule does not have a requirement for the
frequency, content, or standards for applicator recertification.
States, Tribes and Federal agencies have established varying
requirements for applicators to be recertified, such as attending a
full-day workshop, earning a specific number of ``continuing education
units,'' or passing written exams. Applicators who do not complete the
recertification requirements in the established period no longer hold a
valid certification and cannot use RUPs after their certification
expires.
    Under the current certification regulation, noncertified
applicators, i.e., persons using RUPs under the direct supervision of
certified applicators, must receive general instructions and be able to
contact their supervisor in the event of an emergency. The rule does
not have specific training requirements, a limit on the distance
between the supervisor and noncertified applicator, or a restriction on
the number of noncertified applicators that one certified applicator
can supervise.
    An overview of the development of the certification rule and the
process leading to this proposal appear in Unit IV.
    2. Applicator demographics. The profile of certified applicators of
RUPs has shifted over time. The U.S. is moving away from small
agricultural production and more individuals seek professional pest
control to address issues in their home or workplace. In 1987, around
1.2 million applicators held a certification, almost 80% of which were
private applicators, and 20% of which were commercial applicators (Ref.
6). In 2013, the total number of certified applicators decreased to
just over 900,000 (Ref. 5). The respective proportions of private and
commercial applicators changed more significantly--private applicators
account only for 53% of the total certified applicator population and
commercial applicators now make up about 47%.
    Applicators work in a diverse array of situations including
agricultural production, residential pest control, mosquito spraying
for public health protection, treating weeds along roadside and
railroad rights of way, fumigating rail cars and buildings, maintaining
lawns and other ornamental plantings, and controlling weeds and algae
in waterways through pesticide application. Specific information on
applicators across all industries or in each certification category is
difficult to find and summarize. However, the broad trends indicate a
decrease in agricultural applicators and an increase in urban and
public health pest control.
    Since publication of the original rule, pesticide usage and
reliance on hired pest control applicators have increased. The U.S.
Bureau of Labor Statistics expects that ``employment of pest control
workers [will] grow by 15 percent between 2008 and 2018, . . .
[because] more people are expected to use pest control services as
environmental and health concerns and improvements in the standard of
living convince more people to hire professionals, rather than attempt
pest control work themselves'' (Ref. 7).
    3. Incident data and general information.
    i. Incident Databases. Incident monitoring programs have informed
EPA's understanding of common types of pesticide exposures and their
outcomes. In 2007, EPA released a report detailing the coverage of all
pesticide incident reporting databases considered by EPA (Ref. 8). When
developing the proposed changes to the certification rule, EPA
consulted three major databases for information on pesticide incidents
involving applicator errors while using RUPs.
    To identify deaths and high severity incidents associated with use
of RUPs, EPA consulted its Incident Data System (IDS). IDS is
maintained by EPA's Office of Pesticide Programs (OPP) and incorporates
data submitted by registrants under FIFRA section 6(a)(2), as well as
other incidents reported directly to EPA. FIFRA allows the aggregation
of individual events in some circumstances, meaning an incident with
negative impacts to a number of individuals (persons, livestock, birds,
pollinators) and/or the environment could be reported as a single
incident. In addition to incidents involving human health, IDS also
collects information on claims of adverse effects from pesticides
involving plants and animals (wild and domestic), as well as detections
of pesticide in water. EPA uses this information to identify incidents
involving the use of RUPs that have ecological effects. While IDS
reports may be broad in scope, the system does not consistently capture
detailed information about incident events, such as occupational
exposure circumstances or medical outcome, and the reports are not
necessarily verified or investigated.
    The second database, the Sentinel Event Notification System for
Occupational Risk (SENSOR), is maintained by the Centers for Disease
Control and Prevention's National Institute for Occupational Safety and
Health (NIOSH). SENSOR covers all occupational injuries and has a
specific component for pesticides (SENSOR-Pesticides). EPA uses SENSOR-
Pesticides to monitor trends in occupational health related to acute
exposures to pesticides, to identify emerging pesticide problems, and
to build and maintain State surveillance capacity. SENSOR-Pesticides is
a State-based surveillance system with 12 State participants. The
program collects most poisoning incident cases from:
     U.S. Department of Labor (DOL) workers' compensation
claims when reported by physicians.
     State Departments of Agriculture.
     Poison control centers.
    A State SENSOR-Pesticides contact specialist follows up with
workers and obtains medical records to verify symptoms, circumstances
surrounding the exposure, severity, and outcome. SENSOR-Pesticides
captures incidents only when the affected person has two or more
symptoms. Using a standardized protocol and case definitions, SENSOR-
Pesticides coordinators enter the incident interview description
provided by the worker, medical report, and physician into the SENSOR
data system. SENSOR-Pesticides has a severity index, based partly on
poison control center criteria, to assign illness severity in a
standardized fashion. SENSOR-Pesticides provides the most comprehensive
information on occupational pesticide exposure, but its coverage is not
nationwide and a majority of the data come from California and
Washington State. Since 2009, SENSOR has been including information
about how the incidents may have been prevented.
    The third database, the American Association of Poison Control
Centers maintains the National Poison Data System (NPDS), formerly the
Toxic

Effects Surveillance System (TESS). NPDS is a computerized information
system with geographically-specific and near real-time reporting. While
the main mission of Poison Control Centers (PCC) is helping callers
respond to emergencies, not collecting specific information about
incidents, NPDS data help identify emerging problems in chemical
product safety. Hotlines at 61 PCCs nationwide are open 24 hours every
day of the year. There are many bilingual PCCs in predominantly Spanish
speaking areas. Hotlines are staffed by toxicology specialists to
provide poisoning information and clinical care recommendations to
callers with a focus on triage to give patients appropriate care. Using
computer assisted data entry, standardized protocols, and strict data
entry criteria, local callers report incidents that are retained
locally and updated in summary form to the national database. Since
2000, nearly all calls in the system are submitted in a computer-
assisted interview format by the 61 certified PCCs, adhering to
clinical criteria designed to provide a consistent approach to
evaluating and managing pesticide and drug related adverse incidents.
Information calls are tallied separately and not counted as incidents.
The NPDS system covers nearly the entire United States and its
territories, but the system is clinically oriented and not designed to
collect detailed occupational incident data. Additionally, NPDS does
not capture EPA pesticide registration numbers, a critical element for
identifying the specific product and whether it was an RUP.
    Three studies showing undercounting of poison control data indicate
the magnitude of the problem. The studies each focus on a specific
region and compare cases reported to poison control with those
poisonings for which there are hospital records. In all three cases,
the studies indicate a substantial underreporting of poisoning
incidents to poison control, especially related to pesticides (Refs. 9,
10 and 11). Underreporting of pesticide incidents is a challenge for
all available data sources for a number of reasons.
    Symptoms of acute pesticide poisoning are often vague and mimic
symptoms with other causes, leading to incorrect diagnoses, and chronic
effects are difficult to identify and track. The demographics of the
populations that typically work with or around pesticides also
contribute to underreporting of incidents. There may not be enough
information to determine if the adverse effects noted were in fact the
result of pesticide exposure and not another contributing factor
because many incident reports lack useful information such as the exact
product that was the source of the exposure, the amount of pesticide
involved, or the circumstances of the exposure. A more complete
discussion of the underreporting and its effect on pesticide incident
reporting is located in the Economic Analysis for this proposal (Ref.
3).
    The data available do provide a snapshot of the illnesses faced by
those applying RUPs and others impacted by the application and the
likely avenues of exposure. Review of these data sources shows that
certified applicators continue to face avoidable occupational pesticide
exposure and in some instances cause exposures to others. EPA notes
that RUPs can be used safely when labeling directions for use are
carefully followed. Deaths and illnesses from applicator errors
involving RUPs occur for a variety of reasons, including misuse of
pesticides in or around homes, faulty application and/or personal
protective equipment, failure to confirm a living space is empty before
fumigating, or unknowing persons accidentally ingesting an RUP that was
improperly put in a beverage container. Common reasons for ecological
incidents include failure to follow labeling directions, inattention to
weather patterns at the time of application, and faulty application
equipment (Ref. 12). Generally, reports on the data note that many of
the incidents could be prevented with strengthened requirements for
initial and ongoing applicator competency (certification and
recertification), improved training for noncertified applicators
working under the direction of a certified applicator, and knowledge of
proper techniques for using specific methods to apply pesticides (Ref.
12).
    ii. Agricultural Health Study. The National Institutes of Health
(National Cancer Institute and National Institute of Environmental
Health Sciences) and EPA have sponsored the Agricultural Health Study
since 1994. This long-term, prospective epidemiological study collects
information from farmers who are certified applicators in Iowa and
North Carolina to learn about the effects of environmental,
occupational, dietary, and genetic factors on the health of the
farmers, pesticide applicators, and their families. The study design
involves gathering information over many years about the pesticide
applicator and his or her family's health, occupational practices,
lifestyle, and diet through mailed questionnaires and individual
interviews (Ref. 1).
    The Agricultural Health Study includes approximately 52,000 private
applicators, 32,000 spouses of private applicators, and 5,000
commercial applicators. All applicators participating in the study are
certified (or licensed) in every State in which they work and in each
category in which they make applications. All participants were healthy
before enrolling in the study, allowing the researchers to consider a
number of variables such as pesticide use, lifestyle, and diet.
    The Agricultural Health Study is observational and considers a
variety of factors including, but not limited to, pesticide use and
exposure. Therefore, establishing a link between a specific health
outcome and pesticide exposure can be difficult. However, it is
possible to demonstrate statistical associations between a certain
activity and an outcome. Using the information collected, the
investigators working on the Agricultural Health Study have produced a
number of articles relevant to the health and safety of pesticide
applicators. See http://aghealth.nih.gov/news/publications.html. For
instance, publications include information on characteristics of
farmers who experience high pesticide exposure events and potential
links between pesticide use and chronic health effects.
    EPA considers the information from the Agricultural Health Study
when appropriate, such as during a chemical reassessment. The data also
provide information on applicator practices that lead to exposures,
some of which EPA plans to address through the changes proposed in this
rulemaking.

III. Rationale and Objectives for This Action

A. Reasons for the Proposed Action

    Broadly defined, a pesticide is any agent used to kill or control
undesired insects, weeds, rodents, fungi, bacteria, or other organisms.
Chemical pest control plays a major role in modern agriculture and has
contributed to dramatic increases in crop yields for most field, fruit
and vegetable crops. Additionally, pesticides ensure that the public is
protected from health risks, such as West Nile Virus, Lyme disease, and
the plague, and help manage invasive plants and organisms that pose
significant harm to the environment. Pesticides are also used to ensure
that housing and workplaces are free of pests, and to control microbial
agents in health care settings. EPA's obligation under FIFRA is to
register only those pesticides that do not cause unreasonable adverse
effects to human health or the environment. EPA is

committed to protecting against these potential harms and to ensure
access to a safe and adequate food supply in the United States.
    FIFRA requires EPA to consider the benefits of pesticides as well
as the potential risks. This consideration does not override EPA's
responsibility to protect human health and the environment; rather,
where a pesticide's use provides benefits, EPA must ensure that the
product can be used without posing unreasonable adverse effects to
human health or the environment. Some pesticides may pose unreasonable
adverse effects to human health or the environment without strict
adherence to precise and often complex mitigation measures specified on
the pesticide labeling--EPA classifies these products as restricted
use. To ensure that the necessary measures are followed, EPA requires
an additional level of precaution--these pesticides may be applied only
by applicators who are certified or by noncertified applicators working
under the direct supervision of a certified applicator. Certification
serves to ensure competency of applicators to use these restricted
products, and therefore to protect the applicator, persons working
under the direct supervision of the applicator, the general public, and
the environment through judicious and appropriate use of RUPs.
    Applicator certification enables the registration of pesticides
that otherwise could not be registered, allowing the use of RUPs for
pest management in agricultural production, building and other
structural pest management, turf and landscape management, forestry,
public health, aquatic systems, food processing, stored grain, and
other areas.
    The certification regulation, which sets standards for applicators
using RUPs, is 40 years old and has not been updated significantly
since it was finalized. In conjunction with various non-regulatory
programs, the certification regulation requirements are intended to
reduce unreasonable adverse effects from application of RUPs to
applicators, bystanders, the public, and the environment. The
certification regulation provisions are meant to:
     Ensure that certified applicators are and remain competent
to use RUPs without unreasonable adverse effects.
     Ensure that noncertified applicators receive adequate
information and supervision to protect themselves and to ensure they
use RUPs without posing unreasonable adverse effects.
     Set standards for States, Tribes, territories, and Federal
agencies to administer their own certification programs.
     Protect human health and the environment from risks
associated with use of RUPs.
     Ensure the continued availability of RUPs used for public
health and pest control purposes.
    Within these five areas, EPA evaluated the costs and benefits of
alternative requirements and is proposing a set of requirements that,
in combination, is expected to achieve substantial benefits at minimum
cost.
    The certification regulation must be updated to ensure that the
certification process adequately prepares and ensures the continued
competency of applicators to use RUPs. Several factors prompted EPA to
propose changes to the current rule: The changing nature of pesticide
labeling, risks associated with specific methods for applying
pesticides, adverse human health and ecological incidents, inadequate
protections for noncertified applicators of RUPs, an uneven regulatory
landscape, and outdated and obsolete provisions in the rule related to
the administration of certification programs by Tribes and Federal
agencies.
    1. The changing nature of pesticide labeling. As discussed above,
EPA uses a rigorous process to register pesticides. EPA has also
implemented the pesticide reregistration program and the registration
review program to review registered pesticides periodically to ensure
they continue to meet the necessary standard. As a result of these
ongoing evaluations, labeling for pesticides changes with some
frequency to incorporate risk mitigation measures that allow the
pesticide to continue to be used safely. Changes address, among other
topics, pesticide product formulation and packaging, application
methods, types of personal protective equipment, and environmental
concerns, such as the need to protect pollinators. In addition, EPA
conducts risk assessments that result in more detailed risk mitigation
measures, which can make the pesticide labeling more complex. For
pesticides classified as RUPs, it is essential that applicators stay
abreast of the changes to the labeling and understand the risk
mitigation measures, because if the products are not used according to
their labeling, they may cause harm to the applicator, the public or
the environment. EPA's registration decisions assume that the
applicator follows all labeling instructions; when the labeling is
followed, RUPs can be used safely. The current regulation requires that
applicators demonstrate continued competency to use RUPs, but does not
specify the length of the certification period or standards for
recertification. The more frequently applicators receive training, the
more likely they are retain the substance of the training and apply it
on the job. Studies show that information retained from training
sessions declines significantly within a year (Refs. 14 and 15). EPA
must ensure that certified applicators demonstrate and maintain an
understanding of how to use RUPs in a manner that will not cause
unreasonable adverse effects so that EPA can continue to register RUPs.
Therefore, EPA is proposing changes to the regulation that would
establish a certification period and standards for applicator
recertification.
    2. Risks associated with specific application methods. RUPs are
applied using a variety of application methods. Some methods of
application may pose a higher risk to the applicator, bystander, and
the environment if not performed correctly. Spray applications,
particularly spraying pesticides from an aircraft, may result in off-
target drift of the pesticide. For example, a recent study estimates
that 37% to 68% of acute pesticide-related illnesses in agricultural
workers are caused by spray drift, including both ground-based and
aerial spray applications (Ref. 16). EPA also recognized risks
associated with performing soil fumigation in the 2008 REDs for soil
fumigants (Ref. 17). As a result of these risks, EPA required
additional training for soil fumigant applicators through labeling
amendments on top of the existing requirement for the applicator to be
certified. The decision also acknowledged that a specific certification
category requiring demonstration of competency by passing a written
exam related to applying fumigants to soil would be an acceptable
alternative risk mitigation measure. EPA must ensure that applicators
are competent to perform specific types of applications that may pose
higher risks if not performed correctly. Therefore, EPA is proposing
changes to the regulation to require applicators to demonstrate
competency to apply RUPs using specific application methods.
    3. Adverse human health and ecological incidents. Much has changed
over the last 40 years related to use of RUPs--pesticide product
formulation and labeling, application methods, types of personal
protective equipment, and environmental concerns, such as the need to
protect pollinators. The regulation needs to be updated to address
these and other changes affecting applicators of RUPs. In

addition to the hundreds of potentially avoidable acute health
incidents related to RUP exposure reported each year (Ref. 5), several
major incidents have occurred that demonstrate that a single or limited
misapplication of an RUP can have widespread and serious effects.
    In one of the most significant cases from the mid-1990s, there was
widespread misuse of the RUP methyl parathion, an insecticide used
primarily on cotton and other outdoor agricultural crops, to control
pests indoors. The improper use of this product by a limited number of
applicators across several States led to the widespread contamination
of hundreds of homes, significant pesticide exposures and human health
effects for hundreds of homeowners and children, and a clean-up cost of
millions of dollars (Refs. 18 and 19). The incident resulted in one of
the most significant and widespread pesticide exposure cases in EPA's
history. In another incident, an applicator using the RUP aluminum
caused the death of 2 young girls and made the rest of the family ill
(see, e.g., http://www.justice.gov/archive/usao/ut/news/2011/bugman%20plea.pdf and http://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm?action=3&prosecution_summary_id=2249).
Finally, several severe health incidents have resulted from the public
getting access to RUPs that have been put into different containers,
e.g., transferred to a soda bottle or a sandwich bag, that do not have
the necessary labeling (Ref. 3).
    In addition to human health incidents from RUP exposure, there are
instances where use of RUPs has had negative impacts on the
environment. Although data on the damage associated ecological
incidents are difficult to capture, EPA has identified a number of
incidents of harm to fish and aquatic animals, birds, mammals, bees,
and crops that could be prevented by the proposed changes to the
certification rule (Ref. 3). See the economic assessment for this rule
for more information on human health and ecological incidents stemming
from RUP use (Ref. 3).
    In light of the incidents discussed above, EPA has determined to
update the certification rule to ensure that RUPs can continue to be
used without posing unreasonable adverse effects to human health or the
environment. EPA's decision to register products as restricted use
rests in part on an assumption that applicators will follow all
labeling instructions. When labeling instructions are followed, RUPs
can be used safely. EPA expects the proposed rule to reduce human
health and environmental incidents related to RUP use by strengthening
the standards of competency for certified applicators, improving
training for noncertified applicators, and establishing a maximum
certification period and standards for recertification training. These
changes would ensure that applicators and those under their supervision
more carefully follow pesticide label instructions, take proper care to
prevent harm, and generally have a higher level of competency.
    4. Inadequate protection for noncertified applicators of RUPs.
Noncertified applicators using RUPs receive little instruction on how
to protect themselves, their families, other persons and the
environment from pesticide exposure. Although little demographic data
exists on this group, in industries including but not limited to
agriculture and ornamental plant production, the profile of the
population appears to be similar to that of agricultural pesticide
handlers under the WPS. Both groups are permitted to mix, load, and
apply pesticides with proper guidance from their employer or
supervisor. Agricultural handlers under the WPS only use pesticides in
the production of agricultural commodities; noncertified applicators
may use pesticides in any setting not prohibited by the labeling. In
order to mix, load or apply RUPs, however, all noncertified persons,
including agricultural handlers, must be working under the direct
supervision of a certified applicator and are protected under the
certification rule. These noncertified applicators must be competent to
use RUPs in a manner that will not cause unreasonable adverse effects
to themselves, the public, or the environment. The existing
certification rule does not have specific standards on which
noncertified applicators must receive instruction in order to prepare
them to use RUPs. EPA identified six incidents from 2006 to 2010 where
noncertified applicators experienced high severity health impacts from
working with RUPs (Ref. 3). These adverse health effects were largely
due to the noncertified applicators' lack of understanding about the
risks posed by the RUPs they were applying, proper application
procedures and techniques, and labeling instructions.
    Under the WPS, agricultural handlers must receive training that
covers, among other topics, hazards associated with pesticide use;
format and meaning of pesticide labeling; and proper pesticide use,
transportation, storage, and disposal. 40 CFR 170.230(c)(4).
Agricultural handlers also must be provided a copy of the labeling and
any other information necessary to make the application without causing
unreasonable adverse effects. EPA is proposing additional content under
the WPS for agricultural handler training that covers proper use and
removal of PPE and specific information on fitting and wearing
respirators to ensure agricultural handlers are protected adequately
and understand how to follow all relevant labeling provisions (Ref. 4).
    Like agricultural handlers, some noncertified applicators may face
challenges, such as not speaking or reading English. They may bear
risks from occupational pesticide exposure because they work with and
around pesticides on a daily basis, and language and literacy barriers
may make effective training and hazard communication challenging. Under
the principles of environmental justice, EPA recognizes the need to
reduce the disproportionate burden or risk carried by this population.
    Noncertified applicators must receive adequate instruction on
understanding and following pesticide labeling to ensure that RUPs are
used in a manner that will not cause unreasonable adverse effects to
human health or the environment. Additionally, noncertified applicators
must have sufficient information in order to protect themselves,
others, and the environment before, during, and after pesticide
applications. Because of the similar risks faced by agricultural
handlers under the WPS and noncertified applicators under the
certification rule, EPA proposes to strengthen the standards for
noncertified applicators to include relevant provisions from the
proposed agricultural handler training under the WPS and to ensure that
the training is provided in a manner that the noncertified applicators
understand, including through audiovisual materials or a translator if
necessary.
    5. Uneven regulatory landscape. EPA assumes a minimum standard
level of competency of RUP applicators as part of the pesticide
registration and ongoing review processes, and registers RUPs based on
the minimum standard of competency. States, however, may adopt
additional requirements as long as they meet the minimum standards
established by EPA. Two areas of the rule related to assessing
applicator competency lack specificity sufficient to ensure the minimum
level of competency: Standards for exams and private applicator
competency standards. The lack of specificity in the rule has resulted
in States adopting differing standards, some of which do not match
EPA's expectation regarding

the minimum level of competency of a certified applicator.
    In 2007, EPA issued guidance on its interpretation of exams in the
rule. The guidance notes that EPA interprets any exam administered to
gauge applicator competency as being a proctored, closed-book, written
exam. EPA has become aware, however, that not all State certification
programs reflect this interpretation; several States have certification
processes that allow open-book, written exams for determining
applicator competency. EPA is concerned that open-book exams allow a
lower standard for the process of determining and assuring competency
than intended when EPA established the requirement for exams in the
regulation. EPA proposes to codify the 2007 guidance and to clarify its
expectations regarding administration of certification exams and
training programs to ensure that the process for determining competence
meets a standard national baseline.
    The certification rule lists five points on which a person much
demonstrate competency to become a private applicator. While these
points cover the main topics that EPA expects an applicator to master
before being certified to use RUPs, they do not cover in detail the
necessary competencies for a person to use RUPs without causing
unreasonable adverse effects. EPA must ensure that private applicators
use RUPs competently. Commercial applicators must demonstrate
competency in core pesticide use, such as reading and understanding the
labeling, calculating application rates, wearing and caring for PPE,
how to handle spills and other emergencies, and avoiding environmental
contamination from pesticide use, as well as in specific categories of
application. Private and commercial applicators have access to the same
RUPs and EPA expects that they have the same level of competency.
Almost 90% of States have adopted specific standards of competency for
private applicators that are comparable to the core standards for
commercial applicators. Those States that have not adopted such
standards for private applicators may be certifying applicators who do
not meet the level of competency that EPA believes is necessary to use
RUPs. To address this problem, EPA proposes to make the standards of
competency for private applicators more specific--the proposed
standards include many concepts from the commercial core standards as
well as competencies necessary to use RUPs in agricultural production.
    6. Outdated and obsolete rule provisions. The certification rule
has one section regarding Tribal programs that is outdated and one
section on government agency certification programs that is not
necessary. The current rule provides three options for applicator
certification programs in Indian country. Consultation with Tribes
raised an issue with one of the current options because it calls for
Tribes that chooses to utilize a State certification program and rely
on State certifications to obtain concurrence from the relevant States
and to enter into a documented State-Tribal cooperative agreement. This
option has led to questions about jurisdiction and the appropriate
exercise of enforcement authority for such programs in Indian country.
EPA proposes to revise this option to allow Tribes to administer
programs based on certifications issued by a State, a separate Tribe,
or a Federal agency by entering into an agreement with the appropriate
EPA Regional office. This would allow Tribes to enter into agreements
with EPA to recognize the certification of applicators who hold a
certificate issued under an EPA-approved certification plan without the
need for State-Tribal cooperative agreements. The agreement between the
Tribe and the EPA Regional office would address appropriate
implementation and enforcement issues.
    The current rule includes a provision for a GAP, a certification
program that would cover all Federal government employees using RUPs.
No such plan was developed or implemented by EPA or any other Federal
agency. Subsequently, EPA issued a policy that allows each Federal
agency to submit its own plan to certify RUP applicators. Four Federal
agencies have EPA-approved certification plans. To streamline the rule
and codify the existing policy, EPA proposes to delete the current
section on GAP and replace it with requirements from the existing
policy on Federal agency certification plans.

B. Regulatory Objectives

    Through this proposal EPA seeks to have those responsible for
making pesticide use decisions and applying RUPs and those who benefit
from the availability of these products to internalize the effects of
their decisions. By strengthening certification standards, adding
categories for application methods that present high risk of exposure,
establishing recertification standards, and requiring specific training
for noncertified applicators, EPA proposes to put the responsibility to
ensure that RUPs are used in a manner to avoid unreasonable adverse
effects on the parties who are most able to control the situation. This
would minimize the externalities, undesirable or unintended
consequences of decisions that result in negative consequences for
other parties, in this case bystanders, the public, and the
environment.
    EPA estimates the total annualized cost of the rule at $47.2
million (Ref. 3). States and other jurisdictions that administer
certification programs would bear annualized costs of about $359,000,
but States would incur most of these costs immediately after the rule
is finalized to modify their programs to correspond with the proposed
changes to the Federal regulation. The annual cost to private
applicators would be about $19.5 million, or about $40 per year per
private applicator. The estimated annual cost to commercial applicators
would be $27.4 million, or about $66 per commercial applicator per
year. Many of the firms in the affected sectors are small businesses,
particularly in the agricultural sector. EPA concludes that there would
not be a significant impact on a substantial number of small entities.
The impact to the average small farm is anticipated to be less than 1%
of annual sales while the impacts to small commercial pest control
services are expected to be around 0.1% of annual gross revenue. Given
the modest increases in per-applicator costs, EPA also concludes that
the proposed rule would not have a substantial effect on employment.
    The rule changes proposed by EPA would improve the pesticide
applicator certification and training program substantially. Trained
and competent applicators are more likely to apply pesticide products
without causing unreasonable adverse effects and to use RUPs properly
to achieve the intended results than applicators who are not adequately
trained or properly certified. In addition to core pesticide safety and
practical use concepts, certification and training assures that
certified applicators possess critical information on a wide range of
environmental issues such as endangered species, water quality, worker
protection, and protecting non-target organisms, such as pollinators.
Pesticide safety education helps applicators improve their abilities to
avoid pesticide misuse, spills and harm to non-target organisms.
    The benefits of the proposed rule accrue to certified and
noncertified applicators, the public, and the environment. EPA
estimates the quantified value of the 638 to 762 acute illnesses from
RUP exposure per year that could be prevented by the rule to be between
$20.1 million and $20.5 million per year (Ref. 3). However, EPA

recognizes that the estimate is biased downward by an unknown degree.
First, pesticide incidents, like many illnesses and accidents, are
underreported because sufferers may not seek medical care, cases may
not be correctly diagnosed, and correctly diagnosed cases may not be
filed to the central reporting database. Also, many symptoms of
pesticide poisoning, such as fatigue, nausea, rash, dizziness, and
diarrhea, may be confused with other illnesses and may not be reported
as related to pesticide exposure. Studies estimate that underreporting
of pesticide exposure ranges from 20% to 75% (Refs. 9, 10 and 11). If
only 25% of pesticide poisonings are reported, the quantified estimated
benefits of the rule would be about $80.5 million annually (Ref. 3).
    EPA's approach to estimating the quantitative benefits of the
proposal only measures avoided medical costs and lost wages, not the
willingness to pay to avoid possible symptoms due to pesticide
exposure, which could be substantially higher. Many of the negative
health impacts associated with agricultural pesticide application are
borne by agricultural workers and handlers, a population that more
acutely feels the impact of lost work time on their incomes and family
health. An increase in the overall level of competency for certified
applicators and noncertified applicators working under their direct
supervision would also be beneficial to people who work, play, or live
in areas treated with RUPs, such as agricultural workers, neighbors of
agricultural fields, and consumers whose homes are treated.
Undertrained and under qualified pesticide applicators may not be aware
immediately of the potential impacts to their own health or the health
of those who live or work around areas where RUPs are applied, and
therefore may not independently adopt measures to increase the safety
of themselves or others, necessitating intervention by the government
to ensure these populations are adequately protected.
    It is reasonable to expect that the qualitative benefits of the
rule are more substantial. Although EPA is not able to measure the full
benefits that accrue from reducing chronic exposure to pesticides,
well-documented associations between pesticide exposure and certain
cancer and non-cancer chronic health effects exist in peer-reviewed
literature. See the economic assessment for this proposal for a
discussion of the peer-reviewed literature (Ref. 3). The proposals for
strengthened competency standards for private applicators, expanded
training for noncertified applicators, additional application method-
specific certification categories, a minimum age for all persons using
RUPs, and appropriate certification options in Indian country would
lead to an overall reduction in the number of human health incidents
related to chronic pesticide exposure and environmental contamination
from improper or misapplication of pesticides. Overall, the weight of
evidence suggests that the proposed requirements would result in long-
term health benefits to certified and noncertified applicators, as well
as to bystanders and the public.
    It is reasonable to expect that the proposed rule would benefit the
environment and the food supply. The proposed changes enhance private
applicator competency standards to include information on protecting
the environment during and after application, such as protecting
pollinators and avoiding contamination of water supplies. The proposal
to ensure that all applicators continue to demonstrate their competency
to use RUPs without unreasonable adverse effect should better protect
the public from RUP exposure when occupying treated buildings or
outdoor spaces, consuming treated food products, and when near areas
where RUPs have been applied. The economic assessment for this proposal
includes a qualitative discussion of 68 incidents from 2009 through
2013 where applicator errors while applying RUPs damaged crops or
killed fish, bird, bees, or other animals (Ref. 3). The environment
should also be better protected from misapplication, which can result
in cleaner water and less impact on non-target plants and animals.
    In addition, the proposed changes to the certification regulation
specifically mitigate risks to children. The proposal would implement a
minimum age of 18 for certified applicators and noncertified
applicators working under their direct supervision. Since children's
bodies are still developing, they may be more susceptible to risks
associated with RUP application and therefore would benefit from
strengthened protections. In addition, research has shown that children
may not have developed fully the capacity to make decisions and to
weigh risks (Refs. 20, 21 and 22). Proper application of RUPs is
essential to protect the safety of people who work, visit, or live in
or near areas treated with RUPs, people who eat food that has been
treated with RUPs, people and animals who depend on an uncontaminated
water supply, as well as the safety of the applicator him or herself.
Therefore, it is reasonable to expect that restricting certification to
persons over 18 years old would better protect both the applicators and
those who may be affected negatively by improper or misapplication.
    Children also suffer the effects of RUP exposure from residential
applications and accidental ingestion. Accidental ingestion occurs when
children get access to an RUP that has been improperly stored, e.g.,
transferred to an unmarked container or left accessible to the public
(Ref. 12). The proposed changes improve training for noncertified
applicators, strengthen competency standards for private applicators,
and require all applicators to demonstrate continued competency to use
RUPs. These changes would remind applicators about core principles of
safe pesticide use and storage, reducing the likelihood that children
would experience these types of RUP exposures. Thus, the proposed
changes may reduce children's exposure to RUPs and contamination caused
by improper application of pesticides.
    In the almost 4 decades since implementing the certification
regulation, EPA has learned from the Pesticide Program Dialogue
Committee, Certification and Training Assessment Group (CTAG), National
Assessment of the Pesticide Worker Safety Program, meetings with State
regulators, and other stakeholder interaction, that the national
applicator certification program needs improvements, some of which can
only be accomplished through rulemaking. This proposal reflects EPA's
commitment to pay particular attention to the health of children and
environmental justice concerns.

C. Considerations for Improving the Certification of Applicators Rule

    1. Regulatory history. The Agency proposed the existing
certification rule in 1974. EPA finalized sections covering applicator
competency standards and noncertified applicator requirements (40 CFR
171.1 through 171.6) in 1974 (Ref. 23), followed by sections outlining
State plan submission and review and certification in Indian country
(40 CFR 171.7 through 171.10) in 1975 (Ref. 24), and the requirements
for EPA-administered plans (40 CFR 171.11) in 1978 (Ref. 25). Since
1978, EPA has made minor amendments to the rule, such as requiring
dealer recordkeeping and reporting under EPA-implemented plans and
establishing standards for EPA-administered plans (Refs. 26 and 27).
    In 1990, EPA proposed amendments to the certification regulation
that included provisions for establishing private applicator
categories, adding

categories for commercial applicators, revising applicator competency
standards, establishing criteria and levels of supervision for the use
of a RUP by a noncertified applicator, criteria for approving State
noncertified applicator training programs, establishing recertification
requirements for private and commercial applicators, and eliminating
the exemption for non-reader certification (Ref. 28). EPA took comments
on the proposal but did not finalize it due to constraints on EPA's
resources.
    Because no major revision has been made to this Federal regulation
in almost 40 years, State programs have taken the lead in revising and
updating standards for certification and recertification. Many States
updated their certification programs based on EPA's 1990 proposal.
Others have amended their programs to address changes in technology or
other aspects of pesticide application. As a result, the State
requirements for certification of applicators are highly varied and
most States go beyond the existing Federal requirements for applicator
certification. This situation has created an uneven regulatory
landscape and problems in program consistency that complicate
registration decisions, inhibit State-to-State reciprocity (i.e.,
recognition of other State certifications as valid), and hinder EPA's
ability to develop national program materials that meet the needs of
all States.
    2. Stakeholder Engagement. In 1985, a taskforce was formed by EPA
and the State-FIFRA Issues Research and Evaluation Group (SFIREG) to
review existing certification programs and policies to determine what,
if any, actions should be taken to improve the certification program.
The taskforce included representatives from EPA, USDA, State
cooperative extension services, and State lead agencies for pesticide
regulation. The taskforce issued the Report of the EPA/SFIREG
Certification and Training Task Force in August 1985 (Ref. 29), which
identified areas in need of improvement and made specific
recommendations for improvement. The taskforce noted the growing
complexity and technological advancements in pesticides and pesticide
use practices, especially in the agricultural community. Further, the
taskforce recognized proper pesticide use as a growing issue under
broader environmental concerns, such as groundwater protection,
endangered species protection, worker protection, chronic toxicity,
pesticide disposal, and pesticide residues in the food supply (Ref.
29). The agricultural and commercial applicator communities were
becoming aware of these issues and as a consequence sought increased
and specialized training. Based on the identified issues and action in
the applicator community, the taskforce suggested that EPA upgrade the
competency requirements for private and commercial agricultural
applicators.
    The taskforce's recommendations included adding additional
categories ``for certain use and application methods which require more
stringent attention [such as] Compound 1080, certain fumigants, or
aerial application'' (Ref. 29). In addition, the taskforce recommended
strengthening the training for noncertified applicators working under
the direct supervision of a certified applicator and requiring
commercial applicators to retain records of the training (Ref. 29). It
suggested that EPA add dealer requirements for recordkeeping about
sales of RUPs and make private applicator competency standards closer
to the general commercial applicator competency standards. Lastly, the
report discussed the need for a standard recertification period and
``sufficient standardization of training and the process of
certification renewal to facilitate interstate commerce'' (Ref. 29).
    EPA proposed amendments to the certification regulation in 1990
(Ref. 28), based in part on the taskforce's report (Ref. 29). However,
the proposed rule was not finalized and the taskforce's recommendations
were not implemented at the Federal level. While many States adopted
new regulations meeting or exceeding the proposed standards contained
in the 1990 proposal, other States chose to retain their standards
until EPA revised the Federal certification regulation. Some States
sought to avoid potential conflicts with Federal regulations that had
not been finalized, while other States were bound by laws or
regulations that prohibited the State's standards from being more
restrictive than Federal standards.
    In 1996, stakeholders from the Federal and State governments and
cooperative extension programs formed CTAG to assess the current status
of and provide direction for Federal and State pesticide applicator
certification programs. CTAG's mission is to develop and implement
proposals to strengthen Federal, State and Tribal pesticide
certification and training programs, with the goal of enhancing the
knowledge and skills of pesticide users. Pesticide certification and
training programs are run primarily by State government programs and
cooperative extension service programs from State land grant
universities, so these stakeholders provide valuable insight into the
needs of the program.
    In 1999, CTAG issued a comprehensive report, Pesticide Safety in
the 21st Century (Ref. 30), which recommended improvements for State
and Federal pesticide applicator certification programs, including how
to strengthen the certification regulation. The report suggests that
EPA update the core training requirements for private and commercial
applicators, establish a minimum age for applicator certification, set
standards for a recertification or continuing education program,
facilitate the ability of applicators certified in one State to work in
another State without going through the whole certification process
again, and strengthen protections for noncertified applicators working
under the direct supervision of a certified applicator (Ref. 30).
    Around the same time as CTAG issued its report, EPA initiated the
National Assessment of the Pesticide Worker Safety Program (the
National Assessment), an evaluation of its pesticide worker safety
program (pesticide applicator certification and agricultural worker
protection) (Ref. 31). The National Assessment engaged a wide array of
stakeholder groups in public forums to discuss among other things, the
CTAG recommendations and other necessary improvements to EPA's
pesticide applicator certification program. In 2005, EPA issued the
Report on the National Assessment of EPA's Pesticide Worker Safety
Program (Ref. 32), which included many recommendations for rule
revisions to improve the applicator certification program. The various
individual opinions and suggestions made during the course of the
assessment centered on a few broad improvement areas: The expansion and
upgrade of applicator and worker competency and promotion of safer work
practices, improved training of and communication with all pesticide
workers, increased enforcement efforts and improved training of
inspectors, training of health care providers and monitoring of
pesticide incidents, and finally, program operation, efficiency and
funding (Ref. 32). Suggestions specific to certification of applicators
included improving standards for noncertified applicators working under
the direct supervision of certified applicators, establishing a minimum
age for applicator certification, requiring all applicators to pass an
exam to become certified, and facilitating reciprocity between States
for certification of applicators (Ref. 32). While EPA addressed some of
the recommendations through grants,

program guidance, and other outreach, others could only be accomplished
by rulemaking.
    During the initial stages of the framing of this proposal, EPA's
Federal advisory committee, the Pesticide Program Dialogue Committee
(PPDC), formed a workgroup in 2006 to provide feedback to EPA on
different areas for change to the certification regulation and the WPS.
The workgroup had over 70 members representing a wide range of
stakeholders. EPA shared with the workgroup suggestions for regulatory
change identified through the National Assessment and solicited
comments. The workgroup convened for a series of meetings and
conference calls to get more information on specific parts of the
regulation and areas where EPA was considering change, and provided
feedback to EPA. The workgroup focused on evaluating possible changes
under consideration by EPA by providing feedback from each member's or
organization's perspective. Comments from the PPDC workgroup members
have been compiled into a single document and posted in the docket
(Ref. 33).
    EPA convened a Small Business Advocacy Review (SBAR) Panel on
potential revisions to the certification rule and the WPS in 2008. The
SBAR Panel was convened under section 609(b) of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 609(b). As part of the SBAR Panel's
activities, EPA consulted with a group of Small Entity Representatives
(SERs) from small businesses and organizations that could be affected
by the potential revisions. EPA provided the SERs with information on
potential revisions to both rules and requested feedback on the
proposals under consideration. EPA asked the SERs to offer alternate
solutions to the potential proposals presented to provide flexibility
or to decrease economic impact for small entities while still
accomplishing the goal of improved safety (Ref. 34).
    Specific to the certification rule, the SERs provided feedback on
requirements for the minimum age of pesticide applicators and
protections for noncertified applicators working under the direct
supervision of a certified applicator. The SERs' responses were
compiled in an Appendix to the final Panel Report and posted in the
docket (Ref. 34). EPA considered input from the SERs as part of the
evaluation of available options for this rulemaking and SER feedback is
discussed where relevant in this preamble.
    Consistent with EPA's Indian Policy and Tribal Consultation Policy,
EPA's Office of Pesticide Programs conducted a consultation with
Tribes. The consultation was carried out via a series of scheduled
conference calls with Tribal representatives to inform them about
potential regulatory changes, especially areas that could affect
Tribes. EPA also informed the Tribal Pesticide Program Council (TPPC)
about the potential changes to the regulation.
    In addition to formal stakeholder outreach, EPA held numerous
individual stakeholder meetings as requested to discuss concerns and
suggestions in detail. Stakeholders requesting meetings included the
National Association of State Departments of Agriculture (NASDA), the
American Association of Pesticide Safety Educators (AAPSE), the
Association of American Pesticide Control Officials (AAPCO), the
Association of Structural Pest Control Regulatory Officials (ASPCRO),
Crop Life America, and others.
    3. Children's health protection. Executive Order 13045 (62 FR
19885, April 23, 1997) and modified by Executive Order 13296 (68 FR
19931, April 18, 2003) requires Federal agencies to identify and assess
environmental health risks that may disproportionately affect children.
Children who apply pesticides face risks of exposure. A 2003 study
identified 531 children under 18 years old with acute occupational
pesticide-related illnesses over a 10-year period (Ref. 35). The same
study raised concerns for chronic impacts: ``because [the] acute
illnesses affect young people at a time before they have reached full
developmental maturation, there is also concern about unique and
persistent chronic effects'' (Ref. 35). Although the study is not
limited to RUPs, its findings indicate the potential risk to children
from working with and around pesticides.
    The Fair Labor Standard Act's (FLSA) child labor provisions, which
are administered by DOL, permit children to work at younger ages in
agricultural employment than in non-agricultural employment. Children
under 16 years old are prohibited from doing hazardous tasks in
agriculture, including handling or applying acutely toxic pesticides.
29 CFR 570.71(a)(9). DOL has established a general rule, applicable to
most industries other than agriculture, that workers must be at least
18 years old to perform hazardous jobs. 29 CFR 570.120.
    Research has shown differences in the decision making of
adolescents and adults that leads to the conclusion that applicators
that are children may take more risks than those who are adults.
Behavioral scientists note that responsible decision making is more
common in young adults than adolescents: ``socially responsible
decision making is significantly more common among young adults than
among adolescents, but does not increase appreciably after age 19.
Adolescents, on average, scored significantly worse than adults did,
but individual differences in judgment within each adolescent age group
were considerable. These findings call into question recent assertions,
derived from studies of logical reasoning, that adolescents and adults
are equally competent and that laws and social policies should treat
them as such'' (Ref. 22). Decision-making skills and competence differ
between adolescents and adults. While research has focused on decision
making of juveniles in terms of legal culpability, the research
suggests similar logic can be applied to decision making for pesticide
application.
    In sum, children applying RUPs--products that require additional
care when used to ensure they do not cause unreasonable adverse effects
on people or the environment--may be at a potentially higher risk of
pesticide exposure and illness. The elevated risk to the adolescent
applicators, in addition to adolescents' not fully developed decision-
making abilities, warrant careful consideration of the best ways to
protect them. It is reasonable to expect that the proposed changes
would mitigate or eliminate many of the risks faced by adolescents
covered by this rule.
    4. Retrospective regulatory review. On January 18, 2011, President
Obama issued Executive Order 13563 (76 FR 3821, January 21, 2011), to
direct each Federal agency to develop a plan, consistent with law and
its resources and regulatory priorities, under which the agency would
periodically review its existing significant regulations to determine
whether any such regulations should be modified, streamlined, expanded,
or repealed so as to make the agency's regulatory program more
effective or less burdensome in achieving the regulatory objectives.
The Executive Order also enumerates a number of principles and
directives to guide agencies as they work to improve the Nation's
regulatory system.
    In developing its plan, EPA sought public input on the design of
EPA's plan for the periodic retrospective review of its regulations,
and stakeholder suggestions for regulations that should be the first to
undergo a retrospective review (76 FR 9988, February 23, 2011), and
issued the final EPA plan, titled ``Improving Our Regulations: Final
Plan

for Periodic Retrospective Reviews of Existing Regulations,'' in August
2011 (http://www.epa.gov/regdarrt/retrospective/documents/eparetroreviewplan-aug2011.pdf).
    The existing certification rule was nominated for retrospective
review as part of the public involvement process in 2011. In EPA's
final plan, EPA committed to review the existing certification rule to
determine how to clarify requirements and modify potentially redundant
or restrictive requirements, in keeping with Executive Order 13563.
    The results of EPA's review, which included identified
opportunities for improving the existing regulation, were incorporated
into this rulemaking effort. Based on extensive interactions with
stakeholders during review of the certification regulation, EPA has
identified the potential for harmonized minimum requirements to enhance
State-to-State reciprocity of applicator certifications, which could
reduce the burden on the regulated community by promoting better
coordination among the State, Federal, and Tribal partnerships;
clarifying requirements; and modifying potentially redundant or
restrictive regulation. EPA expects the proposed rule, if finalized, to
achieve the benefits outlined throughout the preamble. For a summary of
the benefits, see the table in Unit I.E. and the discussion of
regulatory objectives in Unit III.B.

IV. Summary of Rationale and Introduction to Specific Revisions to Part
171

    Units II. and III. describe the stakeholder engagement and reports
highlighting the need to update the certification regulation. In
addition to stakeholder recommendations, EPA believes the rule needs to
be updated to address State variability and to support EPA registration
decisions. Each of these reasons for updating the rule are discussed in
this unit.
    As noted in Unit III., EPA has not updated the certification
regulation substantially in almost 40 years. However, many States have
adopted updated standards for certification and recertification. As a
result, State requirements for certification of applicators are highly
varied; most States go beyond the existing Federal requirements for
applicator certification. This has created an uneven regulatory
landscape between States and inhibits recognition of an applicator
certification issued in one State by another State.
    If certification does not represent a uniform degree of competence,
this diversity also compromises EPA's ability to determine confidently
that use of a pesticide product by certified applicators will not cause
unreasonable adverse effects. In order to retain or expand the number
and types of pesticides available to benefit agriculture, public
health, and other pest control needs, EPA plans to raise the Federal
standards for applicator competency. By adopting the proposed
strengthened and additional competency standards, the rule would
provide assurance that certified applicators and noncertified
applicators under their direct supervision are competent to use RUPs in
a manner that will not cause unreasonable adverse effects. In the
absence of such assurance, EPA may have to seek label amendments
imposing other use limitations that could be more burdensome to users.
    Units VI. to XX. describe the most significant of the proposed
changes and alternative options considered by EPA. Each discussion is
generally structured to provide, where appropriate:
     A concise statement of the proposed change.
     The current requirements of the certification regulation.
     Stakeholder feedback and research supporting the proposed
change.
     A detailed description of the proposed change and the
rationale for the change.
     An estimated cost.
     A description of primary alternatives considered by EPA
and the reason for not proposing them.
     Specific questions on which EPA seeks feedback.

V. Public Comments

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting
comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

VI. Revise Private Applicator Certification Standards

A. Enhance Private Applicator Competency Standards

    1. EPA's proposal. Because private applicators have access to and
can apply the same RUPs as commercial applicators and therefore need to
have similar knowledge and skills to apply pesticides safely and
effectively, EPA proposes to amend the private applicator competency
standards to include more specific information on pesticide application
and safe use.
    2. Existing regulation. The current rule has 5 topics under the
competency standards for private applicators:
     Recognize common pests to be controlled and damage caused
by them.
     Read and understand the label and labeling information.
     Apply pesticides in accordance with label instructions and
warnings.
     Recognize local environmental situations that must be
considered during application to avoid contamination.
     Recognize poisoning symptoms and procedures to follow in
case of a pesticide accident. 40 CFR 171.5(a)(1) through (5).
    These topics are listed without specific detail or clarification of
the areas to be covered under each point. In contrast, the core
standards of competency for commercial certification have nine major
areas of focus with more specific sub-points listed under each. 40 CFR
171.4(b)(1).
    3. Stakeholder information. Starting in 1985, EPA received requests
from stakeholders to increase the level of detail and subject matter
outlined in the competency standards for private applicators. SFIREG's
taskforce report calls for EPA to make private applicator competency
standards parallel to those of commercial applicators (Ref. 29). CTAG
recommended that all applicators with access to RUPs meet a similar
competency standard (Ref. 30). Members of the PPDC workgroup also noted
that since commercial and private applicators have access to the same
products, they should meet similar competency standards (Ref. 33).
Almost 90% of States noted that their private applicator certification
standards are comparable to the core standards for commercial
applicators (Ref. 5).
    4. Details of the proposal/rationale. Based on the importance of
understanding and following the pesticide's labeling in managing risks
to the applicator, the public, and the environment, EPA is proposing to
enhance the competency standards for private applicators to more
specifically

define the necessary knowledge and skills to be demonstrated by private
applicators to become certified. More specific competency standards
would better outline the knowledge and skills EPA expects private
applicators to have in order to apply RUPs effectively and without
unreasonable adverse effects.
    The enhanced private applicator competency standards would cover:
Label and labeling comprehension; safety; environment; pests;
pesticides; equipment; application methods; laws and regulations;
responsibilities for supervisors of noncertified applicators;
stewardship; and agricultural pest control. EPA is proposing a set of
competency standards substantially parallel to the core standards for
commercial applicators in the current rule at 40 CFR 171.4(a) and
proposed as 40 CFR 171.105(a), with the addition of some points from
the agricultural plant category and information particularly relevant
to private applicators, such as the WPS. The proposed competency
standards specifically cover protecting pollinators under the
``environment'' heading. In addition to the differences in the proposed
general competency standards for private and commercial applicators,
EPA proposes to maintain the distinction between private and commercial
applicator competency standards required by FIFRA, 7 U.S.C. 136i(e), by
not requiring private applicators to obtain a specific category
certification in addition to the proposed general certification. For
commercial applicators to become certified, they must pass the core and
at least one category exam.
    It is reasonable to expect that the more detailed competency
standards would contribute to improving the overall competency of
private applicators.
    The proposed regulatory text would be located at 40 CFR 171.105(a).
    5. Costs/benefits. EPA estimated the cost of the proposed
enhancements to private applicator competency standards in conjunction
with the requirement to strengthen private applicator certification
requirements. The cost for these combined proposals is presented in
Unit VI.B.5.
    6. Alternative options. EPA considered adopting the core standards
for commercial applicators in the current rule at 40 CFR 171.4(a) for
private applicator competency standards. Private and commercial
applicators have the same access to RUPs and need knowledge of basic
safety and application techniques related to the use of these products.
However, FIFRA requires that EPA establish separate standards for
commercial and private applicators, thereby prohibiting EPA from using
the same core competency standards for commercial and private
applicators. 7 U.S.C. 136i(e). In addition, because private applicators
are engaged only in the production of agricultural commodities, it is
necessary for them to demonstrate specific competency related to this
type of RUP use rather than the broader range of commercial applicator
competencies.
    7. Request for comment. EPA seeks comment on the following:
     Should EPA consider adding points to or deleting points
from the proposed private applicator competency standards? If so, what
points and why?
     Are the competencies necessary to protect pollinators
adequately covered in the proposed competency standards for private
applicators? If not, please explain why and provide alternatives to
ensure that private applicators are competent to use RUPs in a manner
that protects pollinators.

B. Strengthen Private Applicator Certification Requirements

    1. EPA's proposal. In order to address the need for private
applicators to be competent to use RUPs, EPA proposes to require that
persons seeking certification as private applicators complete a
training program approved by the certifying authority that covers the
standards of competency for private applicators or pass a written exam
administered by the certifying authority.
    2. Existing regulation. The certification regulation requires
States to ensure that private applicators are competent and the
certification process use a written or oral exam, or other method
approved as part of the State certification plan. 40 CFR 171.5(b). The
rule does not have a description of a certification system that is not
a written or oral testing procedure.
    3. Stakeholder information. SFIREG, the PPDC workgroup, and CTAG
have recommended that private applicators be required to take and pass
a written exam to become certified to use RUPs (Refs. 29, 33 and 36).
Based on data from State certification plans, 42 States require private
applicators to pass a written exam to become certified, and another 3
States offer the option to certify by passing a written exam (Ref. 5).
    Stakeholders recognize the provision in FIFRA that prohibits EPA
from requiring private applicators to take an exam to establish
competency, 7 U.S.C. 136i(a)(1), and have suggested that EPA set a
minimum training requirement for those States that do not require
private applicators to take an exam.
    4. Details of the proposal/rationale. To implement the enhanced
competency standards for private applicators, EPA proposes to require
that private applicators complete a training program approved by the
certifying authority, or in the alternative, by passing a written exam.
In either case, the certification process must cover the private
applicator core standards described in Unit VI.A., and meet the
procedural standards described in Unit IX. By allowing private
applicators to be certified by either attending a training program or
taking an exam, EPA's action does not conflict with the FIFRA's
prohibition against EPA requiring private applicators of RUPs take an
exam to establish competency. 7 U.S.C. 136i(a)(1).
    Forty-two States already require private applicators to pass a
written exam for certification, so EPA is proposing standard procedures
for such examinations. Those States without a written exam requirement
generally require some form of training, though the length, quality,
and content of the training vary considerably between States, so EPA is
proposing specific content requirements. It is reasonable to expect
that the risks associated with private applicators' use of RUPs can be
reduced through setting more specific minimum requirements for the
content of and mechanisms to assess private applicator competency. This
proposal acknowledges the need for more specific requirements for the
alternate mechanism for private applicator certification and balances
it with the recognition that certifying authorities are well-suited to
develop training programs that cover the content EPA has deemed
necessary to avoid unreasonable adverse effects from the use of RUPs by
private applicators and meet the needs of the private applicators in
their jurisdictions.
    The proposed regulatory text would be located at 40 CFR 171.105(e).
    5. Costs. EPA estimates this proposal would cost about $3.7 million
annually for private applicators (Ref. 3). EPA also estimates that
those States that do not currently require an exam or training that
last approximately 12 hours for private applicator certification would
incur costs of about $16,000 per year for the first two years after
implementation to develop the programs, as well as $61,000 per year
thereafter for ongoing program administration (Ref. 3). EPA plans to
support the development of exams and manuals for private applicator
certification, which should reduce the costs to States.
    6. Alternative options considered but not proposed. While
maintaining the

same enhanced competency standards discussed in Unit VI.A., EPA
considered alternative options of allowing private applicator
certification by completing a training program of a specific length--
either 4, 8, or 16 hours--that covers the content outlined in Unit
VI.A. In developing the EPA-administered certification plan for Indian
country, EPA developed a non-exam certification option for private
applicators. Because of the difficulty of reaching candidates in
various parts of the country and the need to make the training
available throughout the year, the Federal Indian country training
program is a pre-recorded, narrated PowerPoint presented through the
Internet that runs 12 hours (Ref. 37). The training covers much of the
content proposed in Unit VI.A., as well as specific requirements for
pesticide applicators in Indian country. However, EPA decided not to
propose a specific length for private applicator certification by
training. EPA believes that specifying that private applicator non-exam
certification must be accomplished through training and outlining the
content that must be covered in the training would allow States and
private applicator educators--who understand the content, the audience,
and how to convey the content to the audience--to develop training
programs that cover the content EPA deems necessary and meet the needs
of their audiences. For example, narrated PowerPoint presentations and
webinars may take a longer amount of time to cover the specified topics
than an in-person training. Additionally, a mandatory training length
could encourage some training providers to either rush through or draw
out coverage of the content, thereby diminishing the effectiveness of
the training. It is not clear that specifying the length of the
training would better protect human health or the environment.
    7. Request for comment. EPA specifically requests comment on the
following:
     Please provide any relevant information on the efficacy of
private applicator certification training programs or comparisons
between training and testing programs.
     Please comment on the proposed structure of the non-exam
option for private applicator certification.
     Would a different training requirement adequately convey
the necessary information to private applicators? If so, please
describe the alternate requirement.
     Is it necessary for EPA to specify a minimum length of
time for the training program for private applicator certification? If
so, please provide the minimum length of the training program and
explain its basis.

C. Eliminate Non-Reader Certification for Private Applicators

    1. EPA's proposal. Due to the importance of an applicator's ability
to read, understand, and follow the labeling in order to apply
pesticides in a manner that would not cause unreasonable adverse
effects to people or the environment, EPA proposes to delete the
provision of the rule that allows a non-reader to become a certified
private applicator.
    2. Existing regulation. The existing rule contains a provision for
limited certification of private applicators who cannot read by
offering the option to obtain a product-specific certification. 40 CFR
171.5(b)(1). This provision allows States to use a testing procedure
approved by the Administrator to assess the competence of the non-
reader candidate related to the use and handling of each individual
pesticide for which certification is sought. This generally means that
someone has explained the labeling to the non-reader and the non-reader
answers questions on the same labeling asked by the State regulator.
The person seeking certification is not required to demonstrate the
ability to read and understand pesticide labeling.
    As discussed earlier, FIFRA prohibits EPA from requiring private
applicators to pass an exam to establish competency. 7 U.S.C.
136i(a)(1).
    3. Stakeholder information considered by EPA. CTAG recommended that
EPA establish a requirement for persons seeking certification to be
able to read and understand English language pesticide labeling. Most
PPDC workgroup members did not oppose elimination of the non-reader
certification provision (Ref. 33). One State noted that there are small
populations who either cannot read English-language labeling or who
could not pass an exam, but who could use a single product without
causing unreasonable adverse effects. It is EPA's understanding that 22
states have rules in place that make accommodations for persons who
have difficulty reading and who want to become certified as a private
applicator. These states are Alaska, Arizona, California, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Maine, Michigan,
Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York,
Vermont, Virginia, Wisconsin, and Wyoming. Of these states, 6 have
rules in place that make accommodations under the Americans with
Disabilities Act for persons who have documented disabilities. States
are not required to track private applicators certified under the
limited certification provision separately from other private
applicator certification methods. However, EPA requested anecdotal
information from the states on the use of this limited certification
provision and most states responding said that the provision was never
or rarely used.
    4. Details of the proposal/rationale. EPA proposes to eliminate the
current provision that allows States to offer limited certification to
persons who cannot read the pesticide labeling. A key element of
applicator competency is the ability to read the labeling because
understanding the labeling is critical to preventing unreasonable
adverse effects from the use of RUPs. Labeling is increasingly relied
upon to transmit product-specific information relative to subjects such
as worker protection, groundwater, endangered species, and human
exposure. In addition, labeling may change frequently. Approved uses,
application rates, and application methods may be deleted or added by a
registrant voluntarily or as part of an EPA risk mitigation strategy.
The potential for misuse of RUPs presents an unreasonable risk unless
the applicator is able to read and correctly interpret the labeling
that accompanies each product he or she uses. While the current system
is intended to ensure the applicator has knowledge of a specific
product's labeling, there is no way to ensure the applicator would be
aware of subsequent changes. It is reasonable to expect that by
eliminating the specific certification method for applicators who
cannot read, RUPs are more likely to be applied as required by their
labeling, and therefore will be less likely to cause unreasonable
adverse effects to people or the environment.
    EPA recognizes that persons can be certified as private applicators
by attending a training course. In this case, EPA expects that the
certifying body would ensure that the applicator demonstrated all of
the necessary competencies to apply RUPs, including the ability to
read.
    The proposed change does not affect noncertified persons applying
RUPs under the direct supervision of a certified applicator. It is
conceivable that persons who cannot read labeling could use RUPs
properly while working under the direct supervision of a certified
applicator. EPA is proposing to strengthen the training and other
requirements related to noncertified applicators to ensure that they
understand the labeling requirements for each application, are
supervised by

a qualified applicator familiar with the specific product labeling for
each application, and have equipment available to contact the
supervising applicator immediately in the event of an emergency or with
any questions. These strengthened standards should provide sufficient
training that a non-reader or a person who cannot read English could
apply RUPs under the direct supervision of a certified applicator
without causing unreasonable adverse effects to the applicator, the
public, or the environment.
    5. Costs. EPA expects the cost of this proposal would be
negligible, but has not quantified the cost (Ref. 3). Based on EPA's
understanding, the limited certification option is only offered in 22
States, and in those states it is very rarely, if ever, used. EPA did
not quantify the baseline cost to States for maintaining the existing
provision or the potential reduction in administrative burden to States
from eliminating it. EPA anticipates that the minimal costs would be
borne by persons who could not qualify as private applicators absent a
limited certification provision. These persons would have several
options. First they could hire a person on the farm who can be
certified as a private applicator to conduct RUP applications. Second,
they could contract with a commercial applicator to conduct RUP
applications. Third, they could substitute non-RUPs for the RUPs. EPA
is sensitive to the fact that elimination of this provision may
increase costs for a very small number of private applicators, but it
is reasonable to expect that this adverse impact would be small in
comparison to the potential reduction in risks to the applicator, the
public, and the environment. EPA does not expect any impact on the
employability of private applicators because by definition, a private
applicator cannot receive compensation for applying RUPs on the
property of another.
    If the proposal is finalized, EPA would allow existing non-reader
certifications to remain valid until expiration or recertification is
required under the implementation of the final rule. Because most non-
reader certifications are issued for a specific application in a single
growing season, EPA anticipates that non-reader certification would not
continue for any significant period of time if this proposal is
finalized.
    6. Alternative options considered but not proposed. EPA also
considered retaining the limited certification option for private
applicator certification and strengthening the requirements. For this
alternative scenario, the limited certification would be valid for a
single product and for a single season. The State would have to
evaluate each request for a limited certification separately. This
option would codify what EPA understands to be the current practice in
States that allow non-reader certification. Under this option, a person
could be certified to use a single product based on a specific
product's labeling, but might not be aware of subsequent changes to the
labeling of the same product purchased later in the season. Given the
importance of avoiding unreasonable adverse effects from the use of
RUPs and the limited use of this certification option, EPA decided not
to propose this option.
    7. Request for comment. EPA requests comment on the following
questions:
     Would the elimination of the non-reader provision cause
hardship to specific groups of private applicators? If so, please
describe the group and the hardship.
     Should EPA allow private applicators currently certified
under this provision to retain their certification if the non-reader
provision is eliminated? Please explain why. If so, how would
``grandfathering in'' private applicators certified under this
provision impact other proposed changes, such as requirements for
maintaining certification and supervising noncertified applicators?
     Do alternatives to the non-reader certification option
exist that would offer an adequate level of protection while
maintaining a narrow exception to certification requirements? If so,
please describe.

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

    1. Overview. In order to address the elevated risks associated with
certain specific methods of application used by certified private and
commercial applicators to apply RUPs, EPA proposes to add application
method-specific certification categories for private and commercial
applicators that use RUPs to conduct soil fumigation, non-soil
fumigation, and aerial applications. These application method-specific
categories would be independent of the pest control categories in the
existing rule, for example, a person certified in the aerial method
category would also need certification in one or more pest control
categories, such as crop pest control, forest pest control, or public
health pest control.
    2. Existing regulation. The existing rule has no categories for
private applicators. For commercial applicators, the existing rule does
not have any application method-specific categories, although it does
have 11 pest control categories: Agricultural pest control--plant;
agricultural pest control--animal; forest pest control; ornamental and
turf pest control; seed treatment; aquatic pest control; right-of-way
pest control; industrial, institutional, structural and health related
pest control; public health pest control; regulatory pest control; and
demonstration and research pest control. 40 CFR 171.3.
    3. Stakeholder information considered by EPA. Stakeholders,
including SFIREG, CTAG, AAPCO, and members of the PPDC workgroup,
recommended that EPA consider adding application method-specific
certification categories for high-risk uses (Refs. 29 and 30). States
have noted that certain application methods, specifically fumigation
and aerial application, pose elevated risks of exposure or harm to the
applicator, bystanders, or the environment.
    Some States have addressed these elevated risks related to these
application methods by adding specific categories for both private and
commercial applicators seeking to use certain application methods.
States that have chosen to add categories have done so independently,