*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 1 of 17 

### USDA COMMENTS ON THE PROPOSED RULE

“PESTICIDES; CERTIFICATION OF PESTICIDE APPLICATORS”

EO12866_Rin2070-AJ20_PesticideCertApp_NPRM_EPA Responses to USDA_General_2015-03-31.docx



### USDA appreciates the opportunity to review and provide co mments on the proposed rule 1



### “Pesticides; Certification of Pe sticide Applicators. General co mments on the proposed rule and 2



### economic analysis are described in the following pages. In addi tion, electronic c opies of the 3



### FAR_C&T_NPRM_FRN_2014-10-3 and the associated economic analysis that include specific 4



### comments embedded in the proposed rule text have been sent via email. Also note that the rule 5



### text changes are written in such a manner that makes it unclear as to which text in the existing 6



### section 701 of 40 CFR [sic] will be rem oved and modified by the new text. 7



### EPA Response: EPA has reviewed the comments em bedded in the Notice of Proposed 8



### Rulemaking (NPRM) and the associated Economi c Analysis (EA). Where appropriate, EPA has 9



### incorporated USDA’s suggested changes. A copy of the NPRM and EA showing all changes 10



### made to the documents sent to USDA for revi ew are included have b een provided to USDA. 11

12



### General Comments 13



### 1. Minimum Age - US agricultural workers operate under a variety of federal requirements, 14



### including those of the Environmental Protecti on Agency and the U.S. Department of Labor. 15



### States also have minimum age requirements for restricted use applicators. The U.S. 16



### Department of Labor has already set the fede ral minimum age limits for people who are 18 17



### years old or younger when working with pesticides. The current re gulatory system allows for 18



### states to increase age requirements and most st ates have already exercised this right based on 19



### their unique circumstances. USDA believes the current federal-state system is working in 20



### this regard. The need for added regulation is not apparent and shou ld be weighed against 21



### state discretion/rights and current state laws. USDA opposes changing the minimum age as 22



### proposed by EPA and defers th is decision to the States. 23



### EPA Response: EPA appreciates USDA’s comments on establishing a minimum age; 24



### however, EPA is proposing to establish a mini mum age of 18 for certif ied applicators and 25



### noncertified applicators working under their direct supervision. 26*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 2 of 17 

### Establishing a minimum age for persons to use restricted use pesticides (RUPs) 27



### would have wide-reaching protec tions. Since children’s bodies are still developing, they 28



### may be more susceptible to risks associated with RUP application and therefore would 29



### benefit from strengthened protections. In ad dition, research has shown that children may 30



### not have developed fully the capacity to ma ke decisions and to weigh risks. Proper 31



### application of RUPs is essential to protect the safety of people who work, visit, or live in 32



### or near areas treated with RUPs, people who eat food that has been treated with RUPs, 33



### people and animals who depend on an uncontamin ated water supply, as well as the safety 34



### of the applicator him or herself. Therefore, it is reasonable to expect that that restricting 35



### certification to persons over 18 years old would better prot ect both the applicators and 36



### those who may be affected negativ ely by improper or misapplication. 37



### While studies have not demonstrated a cl ear cut off point at which adolescents are 38



### fully developed, literature indicates that their development may continue until they reach 39



### their early to mid-20s. Research also has show n that adolescents may take more risks, be 40



### less aware of the potential consequences of th eir actions on themselves and others, and be 41



### less likely to protect themselves from known risks. All of this information supports 42



### establishing a minimum age that allows persons using RUPs to develop more fully before 43



### putting themselves and others at risk. 44



### The Department of Labor’s regulations ha ve different requirements for users of 45



### pesticides in agriculture and non-agricultura l settings and across all pesticides. EPA’s 46



### proposal would set a standard minimum age for all persons who use restricted use 47



### pesticides (RUPs), regardless of the application site or the product’s toxicity. RUPs have 48



### a higher potential to ha rm the applicator, other persons, or the environment if not used 49



### correctly; therefore, EPA must ensure a highe r level of protection for those using RUPs, 50



### as well as for public health and the envir onment when RUPs are used. Under FIFRA, 51



### EPA regulates pesticides, including RUPs, to avoid unreasonable adverse effects from 52



### pesticides. A proposed minimum age of 18 will not conflict with the Department of 53



### Labor regulations. EPA’s proposal solicits comments on establishing a minimum age of 54



### 16 and on not establishing a minimum age. 55*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 3 of 17 

### 2. USDA requests that EPA work with the USDA agen cies and other Federal agencies with pest 56



### management responsibilities on the issues regard ing Government Agency Plans. Based on 57



### the discussions at the USDA and EPA briefing, th is issue appears to be complex and requires 58



### more time outside of the review period allocate d under FIFRA. A one size fits all approach 59



### does not fit all USDA agencies; more focused c onversations with clear outcomes must occur 60



### in order to meet agency-specific needs as th ey carry out their missions while working with 61



### their State partners. 62



### EPA Response: EPA does not anticipate that the pr oposed codification of the policy, 63



### which has been in place since 1977, will resu lt in significant changes to the current 64



### Federal plans or the manner in which th ey are implemented. However, EPA will 65



### continue to work with USDA agencies and ot her Federal agencies with pest management 66



### responsibilities on issues rela ted to their existing certifi cation plans an d throughout the 67



### process of developing an updated plan that meets the requirements of the rule, once the 68



### proposal is finalized. 69



### The Government Agency Plan, a single pl an administered to certify all federal 70



### employees who use RUPs as part of their o fficial duties and as out lined in the current 71



### regulation at 40 CFR 171.9, was never implemented. It was a “one size fits all” plan that 72



### did not work for all federal agencies. In stead, EPA issued a policy in 1977 allowing 73



### federal agencies to de velop and implement their own plan s for certifying their employees 74



### to use RUPs. EPA is proposing to eliminate the Government Agency Plan and to replace 75



### it with a codification of th e existing policy (updated as necessary to reflect other 76



### proposed changes). Codifying the policy would allow federal agencies, such as USDA, to 77



### continue to develop and implement their own cer tification plans, rather than using a “one 78



### size fits all” approach. 79



### 3. As referenced, EPA has conducted extensive list ening sessions over the years, it is not 80



### apparent to USDA that small business representa tives, family farms, and state departments of 81



### agriculture were asked for feedback on each regulatory proposal. EPA should specifically 82



### request feedback on each major proposal from representatives of sm all growers and state 83



### departments of agriculture. 84*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 4 of 17 

### EPA Response: EPA is seeking input on each re gulatory proposal from the public, 85



### including small business representatives, family farms, and state departments of 86



### agriculture, during the p ublic comment period after the proposed rule is published in the 87



### Federal Register, as required under the Admini strative Procedures Ac t. In addition to 88



### that statutorily-mandated comment period, EPA engaged representatives of small 89



### businesses, family farms, and state depart ments of agriculture during the regulatory 90



### development process to discuss improvements to the certification program generally. For 91



### example, EPA convened a Small Business Advocacy Review Panel that included 92



### growers, applicators, and owners of small businesses. The Pesticide Program Dialogue 93



### Committee Workgroup related to this rule an d the Worker Protection Standard also 94



### included representatives of sm all businesses, family farms, and state departments of 95



### agriculture. Finally, the Association of Amer ican Pesticide Control Officials, pesticide 96



### regulatory agencies that are ge nerally part of the state depa rtments of the agriculture, has 97



### been involved extensively in the dialogues an d meetings that informed this proposed 98



### rulemaking. 99



### 4. Benefits of the Rule - USDA believes the cited worker incidences [sic], anticipated worker 100



### illnesses, and ecological incidences should be rest ricted to those known to be from the use of 101



### Restricted Use Pesticides, which the proposed rule will address. The use of illnesses 102



### associated with certified app licators applying non-restricted use products is not appropriate. 103



### Extra caution is exercised in the application of re stricted use pesticides, as is appropriate. 104



### Therefore, only those incidences arising from re stricted use pesticides should be discussed. 105



### Furthermore, only incidences known or of a high probability of be ing associated with 106



### incidences relating to the use of restricted use pesticides should be summarized for the 107



### rationale supporting the proposed rule. 108



### EPA Response: EPA reviewed the incidents discussed in the EA for this proposed 109



### rulemaking and revised the discussion of incident s in several ways. First, the original set 110



### of human health and ecologi cal incidents included a few incidents that involved a 111



### certified applicator using a non-RUP. Alth ough these incidents may be reflective of 112



### certified applicator practices, EPA dropped th ese incidents from the analysis. Second, 113



### many of USDA’s objections seem to focus on the qualitative description on page 156 of 114*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 5 of 17 

### the marked-up EA of several “large” ecologi cal incidents involving certified applicators 115



### applying RUPs. However, EPA maintains the position that increasing the competency of 116



### certified applicators and people applying RU Ps under their direct supervision should 117



### increase compliance with the labeling require ments for both RUPs and non-RUPs. Third, 118



### EPA adjusted the discussion to clarify that th e incidents included in the analysis involve 119



### products that are definitely or highly likely RUPs. 120



### Specifically, EPA revised the discussion to lim it it to incidents that are definitely 121



### or very likely related to RUP use. For many of the incidents, the product itself (through 122



### the EPA Registration Number) was identified so EPA could confirm the product as an 123



### RUP. In some cases, the EPA Registration Number was not identified. In this situation, 124



### EPA made its the decision on whether to include the incident based on the active 125



### ingredient and the likelihood th at the product was an RUP. If an active ingredient 126



### identified in an incident has products that are RUP and products that ar e non-RUP, EPA 127



### included the incident only if a majority of the end-use products are RUP and if the 128



### narrative associated with the incident indica ted that the incident involved a certified 129



### applicator or it was likely that the product was an RUP based on the application site, 130



### applicator’s qualificatio ns, or use pattern. 131



### Although the federal rule only covers app licators using RUPs, many states require 132



### all commercial applicators to be certified, regardless of whether they apply RUPs. EPA 133



### expects that the proposed requirements woul d improve the use of all products, including 134



### non-RUPs, by certified applicators. However, EPA has not included in the discussion 135



### incidents involving certified a pplicators where the product us ed was not definitely or 136



### likely an RUP. 137



### 5. EPA qualitatively evaluated "78 incidents from 2009 through 2013 where applicator errors 138



### while applying restricted use pesticides (RUPs) damaged crops or killed fish, birds, bees, or 139



### other animals." EPA listed one ecological incident as being a ssociated with a particular 140



### restricted use pesticide yet in the Reregistra tion Eligibility Decision document, EPA stated 141



### that the ecological incident was determined to not be related to the pesticide. USDA 142



### therefore urges a thorough revi ew of the ecological incidences and discussion limited to 143



### incidences with known or highly probable RUP use. 144*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 6 of 17 

### EPA Response: EPA reviewed the EA and eliminated the discussion of the incident 145



### referenced by USDA. That incident occu rred in 2007, so was not included in EPA’s 146



### review of the ecological incident database, which covered incidents involving RUPs from 147



### 2009 through 2013. Instead, the 2007 acrolein in cident was discussed qualitatively on 148



### page 156 of the marked up Economic Analysis. 149



### 6. The basis for regulation would be more apparent if incidences after 2006 were summarized. 150



### First, EPA's Worker Protection Standards went into effect after 1997 [sic]. Later, in 2005, 151



### EPA issued "How to Comply with the Wo rker Protection Standard for Agricultural 152



### Pesticides: What Employers Need to Know" The document reviewed further requirements 153



### for employers of handlers and their obligat ion to ensure handler s are knowledgeable of 154



### restrictions during applica tions and specific instructi ons including environmental 155



### precautions, and the safe operation of equipmen t. Secondly, Reregistration Review, was 156



### completed in 2006. The ten year effort enhanced applicator protection, including the use of 157



### closed-handling systems for many pesticides, including many RUPs, required respirators for 158



### a number of pesticides and generally enha nced environmental protection by lowering 159



### application rates, canceling numer ous residential uses, expanding buffers, etc. As written, 160



### the review of worker and ecological inciden ces does not support a strong basis for further 161



### regulation though USDA is not opposed to additional training fo r restricted use applicators if 162



### needed. The incidence rate could be better assessed for the reader if the numbers of 163



### applications of restricted use pesticides were provided by EPA. EPA estimates that there are 164



### 490,000 private applicators and 414,000 commercial ap plicators. If it were assumed that only 165



### one application of restricted us e pesticide were made by each, the incidences associated with 166



### restricted use pesticides is very low. What are the real challenges EPA is trying to address 167



### with this proposed rule if the incidences are low? 168



### EPA Response: The discussion of the incidents resu lting in adverse effects to human 169



### health or the environment does not incl ude an estimate of the number of RUP 170



### applications, although EPA recognizes that th e large proportion of RUP applications do 171



### not result in reported incidents. Many of the reported incidents would not have happened 172



### if the applicator had used the RUP properl y. The proposed rule seeks to address the 173



### problem of the number of incide nts that seem preventable. 174*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 7 of 17 

### EPA included a qualitative discussion of th e major types of incidents involving 175



### RUPs that have occurred since the rule was implemented in the 1970s to demonstrate that 176



### a single or limited misapplication of an RUP can have widespread and serious effects. 177



### The analysis of human health incidents to characterize the nu mber and severity levels of 178



### incidents that occur annually is based on data from 2009 and 2010. These almost 179



### certainly understate the actual ri sks, because only a faction of the total number of adverse 180



### effect incidents are reported to poison control centers or st ate or federal authorizes. In 181



### addition, EPA looked at cases in volving high severity illne sses and fatalities in three 182



### different databases, covering the year s 2001 through 2014. Because these serious 183



### incidents are less frequent, st udying a longer time period allowed EPA to more accurately 184



### assess the average number of these incident s per year. All of these human health 185



### incidents were used to quantify potential be nefits of the proposed rule. The ecological 186



### incidents discussed occurred in 2009-2013. 187



### Note, too, that adverse effect incident s are not the only reason for the proposed 188



### amendments to the Certifi cation rule. EPA is proposin g changes to the current 189



### certification rule based on the changing nature of pesticide labeling, risks associated with 190



### specific methods for applyi ng pesticides, inadequate protections for noncertified 191



### applicators of RUPs, an uneven regulat ory landscape, and outdated and obsolete 192



### provisions in the rule related to the administ ration of certification programs by tribes and 193



### federal agencies. A more complete discussi on of EPA’s rationale for changing the rule 194



### can be found in Unit III.A. of th e preamble to the proposed rule. 195



### 7. While it is never permissible for any worker in cidences to occur, it must be noted that 196



### equipment failure will take place despite best efforts for worker training. In addition, 197



### training will not necessarily prev ent deliberate pesticide misuse; rather, additional resources 198



### and attention should be allocated for enfor cement efforts to reduce deliberate misuse. 199



### EPA Response: EPA agrees that equipment failure ma y take place despite the applicator 200



### having demonstrated his or her competency, bu t in some instances, equipment failure can 201



### be anticipated and corrected by examination of the equipment for crack, leaks, or other 202



### degradation or damage prior to use. The propos al requires certified applicators to ensure 203



### that such checks are performed before applic ators working under thei r direct supervision 204*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 8 of 17 

### make applications, which could prevent some in cidents. Further, ensuring the applicator 205



### understands and follows all labe ling instructions, such as wearing or having available 206



### additional personal protective equipment, is an element of applicator competency and 207



### therefore covered by th e regulation. Incidents related to equipment failure might be 208



### preventable if the applicator has availa ble and uses the proper personal protective 209



### equipment. 210



### EPA agrees that the proposal would not pr event deliberate, malicious misuse of 211



### RUPs. The proposed changes should reduce some non-malicious incidents of pesticide 212



### misuse. For example, several serious inci dents occurred when an applicator put a 213



### pesticide into a beverage container, e.g., a coffee cup or soda bottle, contrary to the 214



### product’s labeling directions and the instructio ns in the core manual. The proposed rule 215



### could address this type of i ssue in several ways. First, the proposal strengthens the 216



### competency standards for private appli cators, including more information on 217



### understanding and following the labeling. Second, the proposal requires periodic 218



### recertification of all applicators, covering both core and category-specific competency. 219



### Understanding and following the labeling is a core competenc y. During recertification, 220



### applicators would be reminde d of the importance of read ing and following the labeling 221



### and could be alerted to the types of incidents that occur when precautions are not 222



### followed. Third, the proposal in cludes specific training for n oncertified app licators using 223



### RUPs under the direct supervisi on of certified applicators that is very similar to handler 224



### training under the Worker Protection Standa rd (WPS). Educati ng these noncertified 225



### applicators about proper a pplication, understanding and fo llowing the labeling, and 226



### contacting the supervising appl icators with questi ons or in the event of an emergency 227



### would better prepare them to use pesticides pr operly and in accordance with the labeling, 228



### thereby reducing incidents of unintentional misuse. 229



### 8. EPA cited numerous publications which includ e information on characteristics of farmers 230



### who experience high pesticide expo sure events and potential li nks between pesticide use. 231



### However, restricted use pesticides, with th eir added handling requir ements, were not the 232



### focus of these studies. Furthermore, these summ aries are not reflective of today's risks to 233



### workers since they often included pesticides wh ich have been long canceled for use in the 234



### United States. Furthermore, EPA's reregistratio n effort, completed in 2007, lowered worker 235*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 9 of 17 

### risks by lowering application rates, reducing frequency of applications, and imposing 236



### additional Personal Protection Equipment (PPE ) and closed-system requirements for many 237



### pesticides. The older studies do not reflect today's reality in that, sin ce the 1990's, pesticide 238



### products generally do not contain the highly toxic inert ingredient s. In summary, the basis for 239



### additional regulation would be much improved if EPA were to perform a retrospective 240



### assessment of the effectiveness of the Worker Protection Standard an d reregistration review 241



### decisions on RUP pesticides in the workplace since 2009 (to allow for full implementation of 242



### reregistration decisions) to better assess wher e RUP improvements might be made. As EPA 243



### has stated, it required additional protective measures in 2008 for soil fumigant applicators. 244



### EPA actions have dramatically reduced the us e of more toxic List 1 inert ingredients; 245



### ingredients known to cause ca ncer, neurotoxicity and othe r undesirable health and/or 246



### environmental effects. 247



### EPA Response: The Worker Protection Standard (WPS) is designed to help protect 248



### agricultural workers and handlers from occupa tional risks associated with pesticides 249



### generally. The Certification rule establishe s competency standard s for persons to be 250



### certified to use RUPs – both private appli cators (farmers) and commercial applicators 251



### (for-hire and government) – and outlines how cer tification programs can be administered. 252



### There is some overlap between the WPS and th e Certification rule, i.e., a person covered 253



### as a handler under the WPS c ould be using an RUP under th e direct supervision of a 254



### certified applicator and therefore covered by both rules. Such overlap is limited, however, 255



### because many RUPs are used outside of agricu ltural settings. Theref ore, a retrospective 256



### review of the WPS is not necessary to info rm how to improve th e Certification rule. 257



### (Note that EPA has taken care to avoid duplicat ive requirements in these two rules. By 258



### virtue of certification, an applicator meets the training requirements of the WPS and, 259



### under the proposed Certification revisions, W PS handler training meets the requirements 260



### for the training of those applying RUPs under th e supervision of a certified applicator.) 261



### EPA's pesticide registration, reregistra tion, and registration review processes 262



### assess the specific risks associated with the pa rticular uses of individual pesticides to 263



### ensure that people, including those making a pplications and/or working in agriculture, 264



### and the environment do not suffer unreasonabl e adverse effects. EPA implements risk 265



### reduction and mitigation measures that result from the pesticide reregistration and 266*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 10 of 17 

### registration review programs primarily through individual pe sticide product labeling. In 267



### doing so, EPA assumes that the labeling is followed. As stated previously, the 268



### Certification rule establishes general standards of competency applicable to all users of 269



### RUPs, ensuring that applicators are competen t to understand and following the pesticide 270



### labeling that reflects the risk mitigation m easures associated with RUPs. While much 271



### progress has been made th rough the reregistration pr ogram to address certain 272



### occupational risks, those specific improvements have little impact if the applicator lacks 273



### the competency to follow use directions. Therefore, EPA disagrees that a review of the 274



### impact of the reregistration program is necessa ry to make improvement s to the applicator 275



### certification program. 276



### Despite improvements in labels incident s continue to occur and these incidents 277



### can be serious. The fact th at avoidable incidents occur st rongly suggests that applicators 278



### do not always follow use directions precisel y. Moreover, because sudden and dramatic 279



### adverse effects are more likely to be identif ied and more likely to be reported, repeated 280



### exposure events that do not, by themselves, produce an imme diately identifiable adverse 281



### effect are likely to go unreported. Conse quently, EPA has relied on epidemiological 282



### studies, which are a type of retrospective anal ysis, that focus on pesticide applicators to 283



### better understand the potential impacts associat ed with such chronic exposure. While 284



### many of the cited epidemiological studies have found associations with particular 285



### chemicals, EPA finds the results valuable in that they indicate the potential impacts of 286



### chronic exposure in general. For example, pesticide applicators work with multiple 287



### products, both sequentially and simultaneousl y (e.g., tank mixes of active ingredients), 288



### and they work across multiple use sites. The vast number of combinations and situations 289



### preclude risk assessments for every possibility or labels to account for every possibility. 290



### Instead, EPA relies on improving applicator competency to keep all exposures to a 291



### minimum. 292



### 9. USDA supports improved education to mi nimize unreasonable adverse effects among 293



### workers and the environment. Increasing the fre quency of training is one means to this end. 294



### Including additional training categories, such as for aerial applications, is another means. 295



### Improving education materials for RUP applicators is another. 296

297*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 11 of 17 

### EPA Response: EPA appreciates USDA’s support of education to minimize 298



### unreasonable adverse effects to workers and the environment. EPA assumes that USDA 299



### means to include RUP applicators when using the term “workers” and also supports using 300



### education to minimize unreasonable adverse effects to bystander s and the public. 301

302



### SPECIFIC COMMENTS REGARDING APHIS WILDLIFE SERVICES (WS) 303



### APHIS Wildlife Services (WS), unlike other agen cies, accomplishes certif ication and training 304



### through the applicable state department of agricultu re or other state regula tory agency. For this 305



### reason, APHIS WS reviewed the proposed rule payi ng special attention to the impacts that the 306



### rule may have on APHIS WS staff if implemented as written. 307

308



### EPA proposes in the rule that certifications will be required to be renewed every 3 years. 309



### Current state renewals ta ke place anywhere from every year to every 6 years . APHIS WS does 310



### not see any potential problems with the propose d requirement to renew every 3 years. The 311



### associated fees for renewals appear to potentia lly be similar under the proposed rule to current 312



### costs, although the timing will change. However, if state fees have increased significantly by the 313



### time the rule is final, APHIS WS would ha ve to reassess the impact at that time. 314

315



### Questions/Requests for Additional Information 316



### 1. We request that EPA explain why the proposed rule identifies M-44 and LPCs but does not 317



### specifically mention any other re stricted use chemicals. These chemicals are registered and 318



### used by APHIS WS personnel, and we are not certain why EPA chooses to identify only 319



### those chemicals in the proposed rule. 320



### EPA Response: Sodium cyanide in an M-44 devi ce and sodium fluoroacetate 321



### (Compound 1080) used in livestock protection co llars have unique use patters and present 322



### unique risks, such that neither fits into any ot her existing applicator ce rtification category. 323



### EPA is proposing to establish predator cont rol applicator certification categories that 324



### would cover users of sodium cyanide in an M-44 device and s odium fluoroacetate 325



### (Compound 1080 used in Livestock Protection Co llars) to formalize the existing labeling326



### based requirements for specific certification to use these products. Administrative Law 327



### Judge and registration decisions for each of these products have established product- 328*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 12 of 17 

### specific competency standards and require applicators to be competent in the use of each 329



### product. The proposal would codify the require ments that have already been implemented 330



### as a result of the Administrative Law Judge de cisions and the subsequent registration and 331



### reregistration actions. 332



### While sodium cyanide in an M-44 devi ce and sodium fluoro acetate are the only 333



### active ingredients mentioned my name in th e proposed rule, another class of pesticide 334



### products will have a specific ce rtification category: EPA is also proposing to add a 335



### specific category for persons seeking to use RUPs that are soil fumigants based on the 336



### labeling requirements for these products. Under the re-registration decision for these 337



### products, EPA required additional soil fumigati on-specific training due to the potential 338



### for serious harm from improper use of th ese RUPs. The proposal would codify the 339



### labeling option for users of soil fumigants to demonstrate their competency to purchase 340



### and use them through certification in a category specifically related to this limited subset 341



### of RUPs. 342



### 2. We request that EPA provide us with additiona l information on how the proposed rule relates 343



### to the Final Plan for Federal Certification of Pesticide Applicators with Indian Country 344



### (2/6/14). Is there any link between these two efforts? 345



### EPA Response: The current rule and proposal incl ude provisions for certification of 346



### applicators of RUPs. RUPs can only be used in areas where EPA has explicitly 347



### approved or implemented an applicator certificat ion plan for that state or tribe. However, 348



### state certifications are not valid in Indian country without state- tribal agreements or tribal 349



### plans that specifically recognize acceptance of state certifications in certain areas of 350



### Indian country, and certification mechanisms ar e not in place for most of Indian country 351



### (as defined at 18 U.S.C. § 1151). To ensure certification mechanisms are available in 352



### Indian country, EPA consulted with federally recognized tribes to develop an EPA Plan 353



### for the Federal Certification of Applicator s of RUPs within Indian Country, under the 354



### provisions at 40 CFR 171.10 and 171.11. This EPA Plan serves those areas of Indian 355



### country throughout the United States where no other certification mechanism exists. A 356



### federal certification issued under the EPA Plan is only vali d in those areas of Indian 357



### country covered by the EPA Plan. 358*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 13 of 17 

### The EPA Plan provides RUP applicators in Indian country legal access to the 359



### same pest control tools that are available elsewhere in the United States. The EPA Plan 360



### applies to private and commercial applicat ors who intend to apply RUPs in Indian 361



### country where there are no certification mechan isms in place. RUP dealers located in 362



### Indian country also need to meet certain requirements. 363



### The proposed rule clarifies that EPA can include multiple tribes and/or multiple 364



### geographic areas of Indian country under a sing le EPA-administered plan. This change 365



### makes explicit EPA’s authority to implement a nation-wide certificat ion plan (i.e., EPA 366



### Plan for the Federal Certifica tion of Applicators of RUPs within Indian Country) that 367



### would cover applicators using RUPs in a ny part of Indian Country unless a tribe 368



### implements an alternative mechanism to certify RUP applicators within its jurisdiction. 369



### Once the proposed rule is finalized, EPA w ill need to revise its EPA Plan for the 370



### Federal Certification of Applicat ors of RUPs within Indian C ountry just like other federal 371



### agencies in order to ensure th at it meets the requirements of the updated rule. Apart from 372



### the need to update the EPA plan upon finaliza tion of the proposal, th ere is no direct link 373



### between these two efforts. 374



### Under the current and any revised EPA Plan for the Federal Certification of 375



### Applicators of RUPs within Indian Countr y, USDA employees would need to follow the 376



### proper procedures to legally use RUPs in Indian Country. USDA employees holding a 377



### valid federal or state certif ication can obtain a certificatio n under the EPA Plan for the 378



### Federal Certification of Applicators of RUPs within Indian Country by contacting the 379



### EPA Regional Office in which the Indian Count ry where the application will be made is 380



### located. More information about how an app licator who already holds a valid federal or 381



### state certification can obtain a certification to use RUPs in I ndian Country is available at: 382



### http://www2.epa.gov/pesticide-applicator -certification-indi an-country/how-apply383



### applicator-certification-under-epa-plan

. 384

385



### ECONOMIC ANALYSIS 386



### USDA has three key issues with EPA’s cost ca lculations for the Certification of RPU [sic] 387



### Applicators proposed rule: 388

389*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 14 of 17 

### 1. The numbers of commercial and private applicat ors were initially evaluated based on a time 390



### trend regression using the CP ARD State data for the 2008 to 2013 time period. The time 391



### period used seemed limited and the regression re sults were contradictory. Therefore, EPA 392



### decided to use simple averages for calculating the numbers of applicators potentially affected 393



### by the rule. This portion of the analysis coul d be improved by investigating (and explaining) 394



### what significant factors impact the number of commercial and private applicators over time 395



### in various States, e.g., weather conditions (rai n fall, drought, temperature), pest infestation 396



### intensity and what kind, appearance of new pests, re-appearance of old pests, etc.). In other 397



### words, evaluating the dynamics of when the demand for the applicators increases and when it 398



### decreases. Even a qualitative evaluation of these issues would be very helpful and could 399



### increase confidence in the used numbers of the commercial and private applicators. 400



### EPA Response: Although EPA agrees that there are factors that may affect the number 401



### of certified applicators, EPA disagrees that an analysis proposed by USDA would 402



### provide useful information. EPA is not seeking to explain why applicators seek 403



### certification; rather EPA’s goal is to determ ine how many applicators would be impacted 404



### by the proposed changes in certification and recertification requirements. 405



### EPA acknowledges that the number and type s of RUPs may cha nge over time. 406



### For example, EPA made a large change in the spectrum of RUPs with the decision to 407



### make all soil fumigants restricted use. Ho wever, EPA has not se en a corresponding 408



### significant change in the number or type of certified applicators. EPA will seek comment 409



### from the states about the impact on certified applicator numbers from EPA’s decision to 410



### restrict soil fumigants. 411



### EPA is not adding to the discussion of the numbers of commercial and private 412



### applicators. EPA used data from 2008- 2013 because beginning in 2008, this data was 413



### entered into the Certification Plan and Reporting Database ( http://cpard.wsu.edu ), which 414



### allowed EPA to ensure that the data accurately reflected applicator certification data at 415



### the state level. Obtaining certification as an applicator of RUPs, like any professional 416



### certification, is an investment with re turns over time. Cert ification requires a 417



### commitment of effort upfront (studying for an exam or attending a training program) and 418



### ongoing commitment to maintain (continuing educa tion or retesting), w ith the benefit of 419



### long term business opportunities for commercial applicators or lower costs for private 420*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 15 of 17 

### applicators. These considerati ons are not likely to be a func tion of yearly va riation in the 421



### factors mentioned. 422



### 2. EPA estimated the numbers of commercial an d private applicators that could obtain and 423



### retain certification in potenti ally new, application specific categories (e.g., aerial and 424



### chemigation categories). The methodology for estim ating the numbers of those applicators is 425



### essentially the same as described above. Theref ore, this portion of the EPA analysis could 426



### also be improved by investigating (and explai ning) what significant factors impact the 427



### number of commercial and private applicators (t hat could obtain and retain certification in 428



### potentially new categories) over time in vari ous States, e.g., weather conditions (rain fall, 429



### draught, temperature), pest infe station intensity and what kind, appearance of new pests, re430



### appearance of old pests, etc.). Even a qualitati ve evaluation of these issues would be very 431



### helpful and could increase confidence in the estimated numbers of the specific categories 432



### applicators. 433



### EPA Response: See EPA’s response to the question immediately above. EPA’s proposal 434



### and the EA do not seek to explain why a pplicators seek certifi cation in specific 435



### categories; rather EPA’s goal is to estimate how many applicators in states without the 436



### proposed categories might need to obtain certification if th e proposed rule is 437



### implemented. The EA explains the factors th at EPA expects to influence the numbers in 438



### different states and considers these factors wh en extrapolating the data. The EA seeks to 439



### demonstrate a correlation between the number of applicators in states that already have 440



### categories being proposed and th e potential number of applic ators that would need to 441



### obtain certification in states without the categories when the rule goes final. 442



### 3. EPA used the national average wage rates for estimating unit costs for the baseline and 443



### potential new requirements. This could result in signific ant under or over estimation of 444



### impacts. NASS data (by region and farm size) for agricultural (farm) applicators could aid 445



### this portion of the analysis and provide more confidence in the obtained estimates. 446



### EPA Response: EPA appreciates USDA’s comment that using a national average could 447



### result in over- or under-estimation of impacts. EPA decided to continue using the national 448



### average wage rates for estimating unit costs. 449



### EPA acknowledges there may be local or regional variation in wage rates, but 450



### expects that the variation is balanced when averaged nationally, and therefore accurately 451*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 16 of 17 

### reflects the overall cost of the proposed rule. Using the national aver age wage rates will 452



### result in over-estimates of impacts for some states and under-estimates of impacts for 453



### other states. However, the proposed rule woul d affect the nation as a whole. The cost454



### benefit analysis is conducted at the nationa l level, so using the national average wage 455



### rates is a reasonable approach. This approach does not result in sign ificant bias, as there 456



### will be some cancellation of the over- and under-estimates of costs. This claim is 457



### supported by the EPA’s analysis that utilizes the 15 state level wa ge rates reported by 458



### BLS ( http://www.bls.gov/oe s/current/oes373012.htm ). These 15 state level wages range 459



### from $13.28 for Georgia to $22.05 for Connec ticut, with the average of $16.40. EPA 460



### notes that the national average loaded wage rates were used in the cost analysis to 461



### account for other employer costs of hiring la bor, whereas the 15 state wages are unloaded 462



### wage rates. However, the corresponding differences in wa ge rates across the states 463



### should still be present in the latter. There is also vari ation in the number of applicators 464



### across the states. Further, some states ma y have high wages, but a smaller number of 465



### applicators, and other states may have low wages, but a large number of applicators. An 466



### EPA analysis based on this wage level-applic ator number characteristics for the 15 states 467



### for which BLS reports wage rates supports the EPA’s approach of using the national 468



### average wage rates to estimate the total cost of the propose rule without significant bias. 469



### 4. Finally, there is a large differe nce between the estimated bene fits for included and excluded 470



### underreported acute incidents. EPA should pr ovide a more transparent solution to this 471



### problem and seek better data if this is to be included in the rule. 472



### EPA Response: EPA agrees with USDA that the number of unreported incidents is 473



### greater than the number of reported incidents, and therefore that the benefits associated 474



### with reducing the number of unreported incide nts are likely greater than the benefits 475



### associated with avoiding repor ted incidents. As discussed in both the NPRM and the EA, 476



### it is important to recogni ze that many incidents involvi ng RUP exposure – to human 477



### health, the environment, and wildlife – are not reported. Further, it is difficult to 478



### determine what percentage of all pesticide exposure incide nts are actually reported. EPA 479



### considered all available stud ies, discussed them in the Economic Analysis for this 480



### rulemaking, and used the information available to arrive at a factor for underreporting. 481*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

March 31, 2015 Page 17 of 17 

### At this time, it is not practical for EPA to develop and fund studies to determine 482



### the precise number of RUP incidents that are not reported. EPA lacks the time and 483



### resources to conduct new studies. EPA welcom es any better data that USDA can provide 484



### to inform EPA’s estimate of incident under-reporting. 485