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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 

1 USDA appreciates the opportunity to review and provide comments on the proposed rule 

2 “Pesticides; Certification of Pesticide Applicators. General comments on the proposed rule and 

3 economic analysis are described in the following pages. In addition, electronic copies of the

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

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

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

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

8 EPA Response: EPA has reviewed the comments embedded in the Notice of Proposed 

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

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

11 made to the documents sent to USDA for review are included have been provided to USDA. 

12

13 General Comments 

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

15 including those of the Environmental Protection Agency and the U.S. Department of Labor. 

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

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

18 years old or younger when working with pesticides. The current regulatory system allows for 

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

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

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

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

23 proposed by EPA and defers this decision to the States. 

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

25 however, EPA is proposing to establish a minimum age of 18 for certified applicators and 

26 noncertified applicators working under their direct supervision. 
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27 Establishing a minimum age for persons to use restricted use pesticides (RUPs) 

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

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

30 benefit from strengthened protections. In addition, research has shown that children may 

31 not have developed fully the capacity to make decisions and to weigh risks. Proper 

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

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

34 people and animals who depend on an uncontaminated water supply, as well as the safety 

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

36 certification to persons over 18 years old would better protect both the applicators and 

37 those who may be affected negatively by improper or misapplication. 

38 While studies have not demonstrated a clear cut off point at which adolescents are 

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

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

41 less aware of the potential consequences of their actions on themselves and others, and be 

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

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

44 putting themselves and others at risk. 

45 The Department of Labor’s regulations have different requirements for users of 

46 pesticides in agriculture and non-agricultural settings and across all pesticides. EPA’s 

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

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

49 a higher potential to harm the applicator, other persons, or the environment if not used 

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

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

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

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

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

55 16 and on not establishing a minimum age. 
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56 2. USDA requests that EPA work with the USDA agencies and other Federal agencies with pest 

57 management responsibilities on the issues regarding Government Agency Plans. Based on 

58 the discussions at the USDA and EPA briefing, this issue appears to be complex and requires 

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

60 does not fit all USDA agencies; more focused conversations with clear outcomes must occur 

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

62 their State partners. 

63 EPA Response: EPA does not anticipate that the proposed codification of the policy, 

64 which has been in place since 1977, will result in significant changes to the current 

65 Federal plans or the manner in which they are implemented. However, EPA will 

66 continue to work with USDA agencies and other Federal agencies with pest management 

67 responsibilities on issues related to their existing certification plans and throughout the 

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

69 proposal is finalized. 

70 The Government Agency Plan, a single plan administered to certify all federal 

71 employees who use RUPs as part of their official duties and as outlined in the current 

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

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

74 federal agencies to develop and implement their own plans for certifying their employees 

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

76 it with a codification of the existing policy (updated as necessary to reflect other 

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

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

79 size fits all” approach. 

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

81 apparent to USDA that small business representatives, family farms, and state departments of 

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

83 request feedback on each major proposal from representatives of small growers and state 

84 departments of agriculture. 
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85 EPA Response: EPA is seeking input on each regulatory proposal from the public, 

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

87 agriculture, during the public comment period after the proposed rule is published in the 

88 Federal Register, as required under the Administrative Procedures Act. In addition to 

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

90 businesses, family farms, and state departments of agriculture during the regulatory 

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

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

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

94 Committee Workgroup related to this rule and the Worker Protection Standard also 

95 included representatives of small businesses, family farms, and state departments of 

96 agriculture. Finally, the Association of American Pesticide Control Officials, pesticide 

97 regulatory agencies that are generally part of the state departments of the agriculture, has 

98 been involved extensively in the dialogues and meetings that informed this proposed 

99 rulemaking. 

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

101 illnesses, and ecological incidences should be restricted to those known to be from the use of 

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

103 associated with certified applicators applying non-restricted use products is not appropriate. 

104 Extra caution is exercised in the application of restricted use pesticides, as is appropriate. 

105 Therefore, only those incidences arising from restricted use pesticides should be discussed. 

106 Furthermore, only incidences known or of a high probability of being associated with 

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

108 rationale supporting the proposed rule. 

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

110 rulemaking and revised the discussion of incidents in several ways. First, the original set 

111 of human health and ecological incidents included a few incidents that involved a 

112 certified applicator using a non-RUP. Although these incidents may be reflective of 

113 certified applicator practices, EPA dropped these incidents from the analysis. Second, 

114 many of USDA’s objections seem to focus on the qualitative description on page 156 of 
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115 the marked-up EA of several “large” ecological incidents involving certified applicators 

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

117 certified applicators and people applying RUPs under their direct supervision should 

118 increase compliance with the labeling requirements for both RUPs and non-RUPs. Third, 

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

120 products that are definitely or highly likely RUPs. 

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

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

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

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

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

126 ingredient and the likelihood that the product was an RUP. If an active ingredient 

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

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

129 narrative associated with the incident indicated that the incident involved a certified 

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

131 applicator’s qualifications, or use pattern. 

132 Although the federal rule only covers applicators using RUPs, many states require 

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

134 expects that the proposed requirements would improve the use of all products, including 

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

136 incidents involving certified applicators where the product used was not definitely or 

137 likely an RUP. 

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

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

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

141 restricted use pesticide yet in the Reregistration Eligibility Decision document, EPA stated 

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

143 therefore urges a thorough review of the ecological incidences and discussion limited to 

144 incidences with known or highly probable RUP use. 
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145 EPA Response: EPA reviewed the EA and eliminated the discussion of the incident 

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

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

148 2009 through 2013. Instead, the 2007 acrolein incident was discussed qualitatively on 

149 page 156 of the marked up Economic Analysis. 

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

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

152 EPA issued "How to Comply with the Worker Protection Standard for Agricultural 

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

154 for employers of handlers and their obligation to ensure handlers are knowledgeable of 

155 restrictions during applications and specific instructions including environmental 

156 precautions, and the safe operation of equipment. Secondly, Reregistration Review, was 

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

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

159 a number of pesticides and generally enhanced environmental protection by lowering 

160 application rates, canceling numerous residential uses, expanding buffers, etc. As written, 

161 the review of worker and ecological incidences does not support a strong basis for further 

162 regulation though USDA is not opposed to additional training for restricted use applicators if 

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

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

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

166 one application of restricted use pesticide were made by each, the incidences associated with 

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

168 with this proposed rule if the incidences are low? 

169 EPA Response: The discussion of the incidents resulting in adverse effects to human 

170 health or the environment does not include an estimate of the number of RUP 

171 applications, although EPA recognizes that the large proportion of RUP applications do 

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

173 if the applicator had used the RUP properly. The proposed rule seeks to address the 

174 problem of the number of incidents that seem preventable. 
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175 EPA included a qualitative discussion of the major types of incidents involving 

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

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

178 The analysis of human health incidents to characterize the number and severity levels of 

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

180 certainly understate the actual risks, because only a faction of the total number of adverse 

181 effect incidents are reported to poison control centers or state or federal authorizes. In 

182 addition, EPA looked at cases involving high severity illnesses and fatalities in three 

183 different databases, covering the years 2001 through 2014. Because these serious 

184 incidents are less frequent, studying a longer time period allowed EPA to more accurately 

185 assess the average number of these incidents per year. All of these human health 

186 incidents were used to quantify potential benefits of the proposed rule. The ecological 

187 incidents discussed occurred in 2009-2013.

188 Note, too, that adverse effect incidents are not the only reason for the proposed 

189 amendments to the Certification rule. EPA is proposing changes to the current 

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

191 specific methods for applying pesticides, inadequate protections for noncertified 

192 applicators of RUPs, an uneven regulatory landscape, and outdated and obsolete 

193 provisions in the rule related to the administration of certification programs by tribes and 

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

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

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

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

198 training will not necessarily prevent deliberate pesticide misuse; rather, additional resources 

199 and attention should be allocated for enforcement efforts to reduce deliberate misuse. 

200 EPA Response: EPA agrees that equipment failure may take place despite the applicator 

201 having demonstrated his or her competency, but in some instances, equipment failure can 

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

203 degradation or damage prior to use. The proposal requires certified applicators to ensure 

204 that such checks are performed before applicators working under their direct supervision 
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205 make applications, which could prevent some incidents. Further, ensuring the applicator 

206 understands and follows all labeling instructions, such as wearing or having available 

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

208 therefore covered by the regulation. Incidents related to equipment failure might be 

209 preventable if the applicator has available and uses the proper personal protective 

210 equipment. 

211 EPA agrees that the proposal would not prevent deliberate, malicious misuse of 

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

213 misuse. For example, several serious incidents occurred when an applicator put a 

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

215 product’s labeling directions and the instructions in the core manual. The proposed rule 

216 could address this type of issue in several ways. First, the proposal strengthens the 

217 competency standards for private applicators, including more information on 

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

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

220 Understanding and following the labeling is a core competency. During recertification, 

221 applicators would be reminded of the importance of reading and following the labeling 

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

223 followed. Third, the proposal includes specific training for noncertified applicators using 

224 RUPs under the direct supervision of certified applicators that is very similar to handler 

225 training under the Worker Protection Standard (WPS). Educating these noncertified 

226 applicators about proper application, understanding and following the labeling, and 

227 contacting the supervising applicators with questions or in the event of an emergency 

228 would better prepare them to use pesticides properly and in accordance with the labeling, 

229 thereby reducing incidents of unintentional misuse. 

230 8. EPA cited numerous publications which include information on characteristics of farmers 

231 who experience high pesticide exposure events and potential links between pesticide use. 

232 However, restricted use pesticides, with their added handling requirements, were not the 

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

234 workers since they often included pesticides which have been long canceled for use in the 

235 United States. Furthermore, EPA's reregistration effort, completed in 2007, lowered worker 
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236 risks by lowering application rates, reducing frequency of applications, and imposing 

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

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

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

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

241 assessment of the effectiveness of the Worker Protection Standard and reregistration review 

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

243 reregistration decisions) to better assess where RUP improvements might be made. As EPA 

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

245 EPA actions have dramatically reduced the use of more toxic List 1 inert ingredients; 

246 ingredients known to cause cancer, neurotoxicity and other undesirable health and/or 

247 environmental effects. 

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

249 agricultural workers and handlers from occupational risks associated with pesticides 

250 generally. The Certification rule establishes competency standards for persons to be 

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

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

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

254 as a handler under the WPS could be using an RUP under the direct supervision of a 

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

256 because many RUPs are used outside of agricultural settings. Therefore, a retrospective 

257 review of the WPS is not necessary to inform how to improve the Certification rule. 

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

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

260 under the proposed Certification revisions, WPS handler training meets the requirements 

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

262 EPA's pesticide registration, reregistration, and registration review processes 

263 assess the specific risks associated with the particular uses of individual pesticides to 

264 ensure that people, including those making applications and/or working in agriculture, 

265 and the environment do not suffer unreasonable adverse effects. EPA implements risk 

266 reduction and mitigation measures that result from the pesticide reregistration and 
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267 registration review programs primarily through individual pesticide product labeling. In 

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

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

270 RUPs, ensuring that applicators are competent to understand and following the pesticide 

271 labeling that reflects the risk mitigation measures associated with RUPs. While much 

272 progress has been made through the reregistration program to address certain 

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

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

275 impact of the reregistration program is necessary to make improvements to the applicator 

276 certification program. 

277 Despite improvements in labels incidents continue to occur and these incidents 

278 can be serious. The fact that avoidable incidents occur strongly suggests that applicators 

279 do not always follow use directions precisely. Moreover, because sudden and dramatic 

280 adverse effects are more likely to be identified and more likely to be reported, repeated 

281 exposure events that do not, by themselves, produce an immediately identifiable adverse 

282 effect are likely to go unreported. Consequently, EPA has relied on epidemiological 

283 studies, which are a type of retrospective analysis, that focus on pesticide applicators to 

284 better understand the potential impacts associated with such chronic exposure. While 

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

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

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

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

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

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

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

292 minimum. 

293 9. USDA supports improved education to minimize unreasonable adverse effects among 

294 workers and the environment. Increasing the frequency of training is one means to this end. 

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

296 Improving education materials for RUP applicators is another. 

297
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298 EPA Response: EPA appreciates USDA’s support of education to minimize 

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

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

301 education to minimize unreasonable adverse effects to bystanders and the public. 

302

303 SPECIFIC COMMENTS REGARDING APHIS WILDLIFE SERVICES (WS) 

304 APHIS Wildlife Services (WS), unlike other agencies, accomplishes certification and training 

305 through the applicable state department of agriculture or other state regulatory agency. For this 

306 reason, APHIS WS reviewed the proposed rule paying special attention to the impacts that the 

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

308

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

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

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

312 associated fees for renewals appear to potentially be similar under the proposed rule to current 

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

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

315

316 Questions/Requests for Additional Information 

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

318 specifically mention any other restricted use chemicals. These chemicals are registered and 

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

320 those chemicals in the proposed rule. 

321 EPA Response: Sodium cyanide in an M-44 device and sodium fluoroacetate 

322 (Compound 1080) used in livestock protection collars have unique use patters and present 

323 unique risks, such that neither fits into any other existing applicator certification category. 

324 EPA is proposing to establish predator control applicator certification categories that 

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

326 (Compound 1080 used in Livestock Protection Collars) to formalize the existing labeling327 based requirements for specific certification to use these products. Administrative Law 

328 Judge and registration decisions for each of these products have established product-
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329 specific competency standards and require applicators to be competent in the use of each 

330 product. The proposal would codify the requirements that have already been implemented 

331 as a result of the Administrative Law Judge decisions and the subsequent registration and 

332 reregistration actions. 

333 While sodium cyanide in an M-44 device and sodium fluoroacetate are the only 

334 active ingredients mentioned my name in the proposed rule, another class of pesticide 

335 products will have a specific certification category: EPA is also proposing to add a 

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

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

338 products, EPA required additional soil fumigation-specific training due to the potential 

339 for serious harm from improper use of these RUPs. The proposal would codify the 

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

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

342 of RUPs. 

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

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

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

346 EPA Response: The current rule and proposal include provisions for certification of 

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

348 approved or implemented an applicator certification plan for that state or tribe. However, 

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

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

351 Indian country, and certification mechanisms are not in place for most of Indian country 

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

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

354 for the Federal Certification of Applicators of RUPs within Indian Country, under the 

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

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

357 federal certification issued under the EPA Plan is only valid in those areas of Indian 

358 country covered by the EPA Plan. 
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359 The EPA Plan provides RUP applicators in Indian country legal access to the 

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

361 applies to private and commercial applicators who intend to apply RUPs in Indian 

362 country where there are no certification mechanisms in place. RUP dealers located in 

363 Indian country also need to meet certain requirements. 

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

365 geographic areas of Indian country under a single EPA-administered plan. This change 

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

367 Plan for the Federal Certification of Applicators of RUPs within Indian Country) that 

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

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

370 Once the proposed rule is finalized, EPA will need to revise its EPA Plan for the 

371 Federal Certification of Applicators of RUPs within Indian Country just like other federal 

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

373 the need to update the EPA plan upon finalization of the proposal, there is no direct link 

374 between these two efforts. 

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

376 Applicators of RUPs within Indian Country, USDA employees would need to follow the 

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

378 valid federal or state certification can obtain a certification under the EPA Plan for the 

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

380 EPA Regional Office in which the Indian Country where the application will be made is 

381 located. More information about how an applicator who already holds a valid federal or 

382 state certification can obtain a certification to use RUPs in Indian Country is available at: 

383 http://www2.epa.gov/pesticide-applicator-certification-indian-country/how-apply384 applicator-certification-under-epa-plan. 

385

386 ECONOMIC ANALYSIS 

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

388 Applicators proposed rule: 

389 
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390 1. The numbers of commercial and private applicators were initially evaluated based on a time 

391 trend regression using the CPARD State data for the 2008 to 2013 time period. The time 

392 period used seemed limited and the regression results were contradictory. Therefore, EPA 

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

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

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

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

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

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

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

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

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

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

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

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

405 by the proposed changes in certification and recertification requirements. 

406 EPA acknowledges that the number and types of RUPs may change over time. 

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

408 make all soil fumigants restricted use. However, EPA has not seen a corresponding 

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

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

411 restrict soil fumigants. 

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

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

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

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

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

417 certification, is an investment with returns over time. Certification requires a 

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

419 ongoing commitment to maintain (continuing education or retesting), with the benefit of 

420 long term business opportunities for commercial applicators or lower costs for private 
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421 applicators. These considerations are not likely to be a function of yearly variation in the 

422 factors mentioned. 

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

424 retain certification in potentially new, application specific categories (e.g., aerial and 

425 chemigation categories). The methodology for estimating the numbers of those applicators is 

426 essentially the same as described above. Therefore, this portion of the EPA analysis could 

427 also be improved by investigating (and explaining) what significant factors impact the 

428 number of commercial and private applicators (that could obtain and retain certification in 

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

430 draught, temperature), pest infestation intensity and what kind, appearance of new pests, re431 appearance of old pests, etc.). Even a qualitative evaluation of these issues would be very 

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

433 applicators. 

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

435 and the EA do not seek to explain why applicators seek certification in specific 

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

437 proposed categories might need to obtain certification if the proposed rule is 

438 implemented. The EA explains the factors that EPA expects to influence the numbers in 

439 different states and considers these factors when extrapolating the data. The EA seeks to 

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

441 categories being proposed and the potential number of applicators that would need to 

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

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

444 potential new requirements. This could result in significant under or over estimation of 

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

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

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

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

449 average wage rates for estimating unit costs. 

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

451 expects that the variation is balanced when averaged nationally, and therefore accurately 
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452 reflects the overall cost of the proposed rule. Using the national average wage rates will 

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

454 other states. However, the proposed rule would affect the nation as a whole. The cost455 benefit analysis is conducted at the national level, so using the national average wage 

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

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

458 supported by the EPA’s analysis that utilizes the 15 state level wage rates reported by 

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

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

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

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

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

464 should still be present in the latter. There is also variation in the number of applicators 

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

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

467 EPA analysis based on this wage level-applicator number characteristics for the 15 states 

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

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

470 4. Finally, there is a large difference between the estimated benefits for included and excluded 

471 underreported acute incidents. EPA should provide a more transparent solution to this 

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

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

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

475 with reducing the number of unreported incidents are likely greater than the benefits 

476 associated with avoiding reported incidents. As discussed in both the NPRM and the EA, 

477 it is important to recognize that many incidents involving RUP exposure – to human 

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

479 determine what percentage of all pesticide exposure incidents are actually reported. EPA 

480 considered all available studies, discussed them in the Economic Analysis for this 

481 rulemaking, and used the information available to arrive at a factor for underreporting. 
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482 At this time, it is not practical for EPA to develop and fund studies to determine 

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

484 resources to conduct new studies. EPA welcomes any better data that USDA can provide 

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