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Page 1 of 242 [RIN 2070-AJ20] As Submitted for EO 12866 Review. EO12866_Rin2070

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BILLING CODE 6560-50-P ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Part 171 [EPA-HQ-OPP-2011-0183; FRL- XXXX
- XX ] RIN 2070-AJ20 Pesticides; Certification of Pesticide Applicators AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing changes to the existing re gulation concerning th e certification of 1 applicators of restricted use pesticides (RUPs) in res ponse to extensive stake holder review of the 2 regulation and its implementation since 1974. EPA’ s proposed change would ensure the Federal 3 certification program standards ad equately protect applicators, the public, and the environment 4 from risks associated with use of RUPs. Th e proposed changes are intended to improve the 5 competency of certified applicators of RUPs, in crease protection for noncertified applicators of 6 RUPs operating under the direct supe rvision of a certified applicat or through enhanced pesticide 7 safety training and standards for supervision of noncertified applicat ors, and establish a 8 minimum age requirement for certified and noncerti fied applicators. In keeping with EPA’s 9 commitment to work more closely with Trib al governments to strengthen environmental 10 protection in Indian coun try, certain changes are intended to provide more practical options for 11 establishing certification pr ograms in Indian country. 12 DATES: Comments must be recei ved on or before [ insert date 90 days after date of publication 13 in the Federal Register ]. 14 ADDRESSES: 15*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 2 of 242 [RIN 2070-AJ20] Submit your comments, identified by docket identific ation (ID) number EPA-HQ-OPP16 2011-0183, by one of the following methods: 17

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the online instructions 18 for submitting comments. Do not submit electronically any information you consider to be 19 Confidential Business Information (CBI) or other information whose disclosure is restricted by 20

statute. 21

• Mail : OPP Docket, Environmental Protecti on Agency Docket Center (EPA/DC) 22 (28221T), 1200 Pennsylvania Ave., NW., Wash ington, DC 20460-0001. In addition, please mail 23 a copy of your comments on the information collec tion provisions to the Office of Information 24 and Regulatory Affairs, Office of Management and Budget, ATTN: Desk Officer for EPA, 725 25
17 th St ., NW., Washington, DC 20503. 26

• Hand Delivery : To make special arrangements for hand delivery or delivery of boxed 27 information, please follow the instructions at http://www.epa.gov/dockets/contacts.html

. 28 Additional instructions on commenting orvisiting the docket, along with more 29 information about dockets ge nerally, is available at http://www.epa.gov/dockets

. 30 FOR FURTHER INFORMATION CONTACT: Michelle Arling, Field and External Affairs 31 Division (7506P), Office of Pesticide Pr ograms, Environmental Protection Agency, 1200 32 Pennsylvania Ave., NW., Washington, DC 2046 0; telephone number: (703) 308-5891; email 33 address: arling.michelle@epa.gov

. 34 SUPPLEMENTARY INFORMATION: 35 I. Executive Summary 36 A. Does this Action Apply to Me? 37 You may be potentially affected by this action if you apply RUPs. You may also be 38 potentially affected by this action if you are: Certified by a State, Tribe, or Federal agency to 39*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 3 of 242 [RIN 2070-AJ20] apply pesticides; a State, Tribal , or Federal agency who administ ers a certification program for 40 pesticide applicators or a pesticide safety educat or; or other person who pr ovides pesticide safety 41 training for pesticide applicator certification or recertification. 42 The following list of North American Industrial Classification Syst em (NAICS) codes is 43 not intended to be exhaustive, but rather provides a guide to help readers determine whether this 44 rulemaking applies to them. Potentially affected entities may include: 45 • Agricultural Establishments (C rop Production) (NAICS code 111). 46 • Nursery and Tree Production (NAICS code 111421). 47 • Agricultural Pest Control and Pestic ide Handling on Farms (NAICS code 115112). 48 • Crop Advisors (NAICS codes 115112, 541690, 541712). 49 • Agricultural (Animal) Pest Control (Livestock Spraying) (NAICS code 115210). 50 • Forestry Pest Control (NAICS code 115310). 51 • Wood Preservation Pest Control (NAICS code 321114). 52 • Pesticide Registra nts (NAICS code 325320). 53 • Pesticide Dealers (NAICS codes 424690, 424910, 444220). 54 • Research & Demonstration Pest Control, Crop Advisor (NAICS code 541710). 55 • Industrial, Institutional, Structural & Health Relate d Pest Control (NAICS code 56 561710). 57 • Ornamental & Turf, Rights-of-Way Pest Control (NAICS code 561730). 58 • Environmental Protection Program Administrators (NAICS code 924110). 59 • Governmental Pest Contro l Programs (NAICS code 926140). 60 B. What is the Agency’s Authority for Taking this Action? 61 This action is issued under the authority of the Federal Insecticide, Fungicide, and 62 Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, particularly sections 136a(d), 136i, and 136w. 63*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 4 of 242 [RIN 2070-AJ20] C. What Action is the Agency Taking? 64 The proposed rule would revise the existi ng Certification of Pesticide Applicators 65 (certification) rule at40 CFR 171 to enhance the following: Private applicator competency 66 standards, exam and training security standard s, standards for noncertif ied applicators working 67 under the direct supervision of a certified applicator, Tribal app licator certification, and State, 68 Tribal, and Federal agency certif ication plans. The proposed ru le would revise the existing 69 certification rule at 40 CFR 171 to add: Application method-specific categories of certification 70 for commercial and private app licators, predator control cate gories for commercial and private 71 applicators, recertification standards and interv al, and minimum age for certified applicators and 72 noncertified applicators worki ng under direct supervision. 73
1. Private applicator competency standards. The proposed rule would clarify the 74 standards of competency a private applicator mu st meet in order to be certified. The proposed 75 rule would expand the private applicator competen cy standards to include the general standards 76 of competency for commercial applicators (a lso known as “core” competency), standards 77 generally applicable to pesticide use in agricultur e, and specific related regulations relevant to 78 private applicators, such as the Worker Prot ection Standard (WPS) (40 CFR 170). The proposed 79 rule also would amend the options for determin ing private applicator competency by requiring 80 the applicator to complete a training program or to pass a written exam that covers the specific 81 competency standards. 82
2. Application method-specific categories of certification for co mmercial and private 83 applicators . The proposed rule would re quire that commercial and private applicators who apply 84 pesticides aerially or by fumiga tion demonstrate competency to make these types of applications. 85 The proposal would add categories for aerial application, soil fumigation, and non-soil 86 fumigation. 87*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 5 of 242 [RIN 2070-AJ20] 3. Recertification standards and interval. The proposed rule would require that 88 commercial and private applicators demonstrate continued competency to use RUPs every 3 89 years by either passing written exams for each certification they hold or completing specific 90 training in a continuing educati on program administered by the certifying authority. Commercial 91 applicators would be required to demonstrate continued competen cy in the core standards and 92 each category in which they intend to maintain th eir certification. Privat e applicators would be 93 required to demonstrate continued general comp etency and competency in each relevant 94 application method-specific category in which th ey intend to maintain their certification. 95
4. Standards for noncertified applicators wo rking under the direct supervision. The 96 proposed rule would include several new requirement s to ensure that noncertified applicators are 97 competent to use RUPs under the supervision of a certified applicator. In order for noncertified 98 applicators to work under the direct supervision of a certified applicator they would have to 99 complete specific training as outlined in th e proposed rule, complete training required for 100 handlers under the WPS, or pass the exam c overing general standards of competency for 101 commercial pesticide applicators (“core exam”). Either of these two training requirements would 102 be required to be renewed annually and the core exam qualification would need to be renewed 103 every 3 years. Commercial applic ators would be required to ensu re noncertified applicators have 104 met these qualifications and to maintain records of the noncertif ied applicators’ qualifications. 105 The proposal would require a certif ied applicator supervising non certified applicators to be 106 certified in each category in which he or sh e supervises applicati ons, to provide to the 107 noncertified applicators a copy of the labeling for the RUPs used, and to ensure that a means for 108 immediate communication between the supervisi ng applicator and noncertified applicators under 109 his or her direct supe rvision is available. 110 5. Minimum age. The proposed rule would require co mmercial and private applicators to 111*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 6 of 242 [RIN 2070-AJ20] be at least 18 years old and noncertified applic ators using RUPs under the direct supervision of 112 certified applicators to be at least 18 years old. 113
6. Indian Country certification. The proposed rule would offer three options for 114 certification for applicators in Indian country. A Tribe may c hoose to allow persons holding 115 currently valid certifications i ssued under one or more specified State or Federal agency 116 certification plans to apply RUPs within the Tribe’s Indian country, develop its own certification 117 plan for certifying private and commercial applic ators, or take no action, in which case EPA 118 may, in consultation with the Tribe(s) affecte d, implement an EPA-admi nistered certification 119 plan. EPA currently administer s a Federal certification program covering Indian country not 120 otherwise covered by a certif ication plan (79 FR 7185; Fe bruary 6, 2014) as well as a 121 certification program specifically for Navajo Indian country (72 FR32648; June 13, 2007). 122
7. State, Tribal, and Federal agency certification plans. The proposed rule would update 123 the requirements for submission, approval, and main tenance of State, Tribal, and Federal agency 124 certification plans. The proposed rule would de lete the section on Government Agency Plans 125 (GAP) and would codify existing policy on review and approval of Federal agency certification 126 plans. 127 D. Why is the Agency Taking this Action? 128 The Agency is proposing revisions to the ex isting certification regul ation at 40 CFR part 129 171 in order to reduce occupational pesticide expos ure and the incidence of related illness among 130 certified applicators, noncerti fied applicators working under their direct supervision, and 131 agricultural workers, and to ensure that whenused according to their labeling, RUPs do not 132 cause unreasonable adverse effects to applicator s, workers, the public, or the environment. 133 Discussions with State regulatory partners and key stakeholders over many years, together with 134 EPA’s review of incident data, have led EPA to identify several shortcomings in the current 135*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 7 of 242 [RIN 2070-AJ20] regulation that should be addressed, including: 136 • Absence of a minimum age for certifie d pesticide applicators and noncertified 137 applicators working under th eir direct supervision. 138 • Absence of standards or a time period for ensuring that certified pesticide applicators 139 maintain continued competency. 140 • Lack of certification sta ndards for specific types of pes ticide application (aerial and 141 fumigation) that may pose risks to applicators, bystanders, and th e environment if not performed 142 correctly. 143 • Vague standards for evaluating the compet ency of private applicators to use RUPs. 144 • Incomplete protections for persons applying pesticides under the direct supervision of a 145 certified applicator. 146 • Inconsistent national program for applicat or certification that hinders applicators’ 147 ability to work in different states without dupl icative burden and inhi bits EPA’s ability to 148 develop certification and training mate rials that can be used nationally. 149 • Limited options for establishing applicator certification programs in Indian country. 150 • Incomplete information incorporated into the regulation about certification of 151 applicators by Federal agencies. 152 A detailed discussion about the rationale for the proposed rule and EPA’s regulatory 153 objectives are provided in Units III. and VI. through XX. The proposed changes would offer 154 targeted improvements that are reasonably expectedto reduce risk to applicators, workers, the 155 public, and the environment and improve appl icator certification programs’ operational 156 efficiencies. EPA expects th e proposed changes would: 157 • Improve competency of private and comme rcial applicators and noncertified applicators 158 using RUPs under their direct supervision. 159*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 8 of 242 [RIN 2070-AJ20] • Provide more uniform competency among certified applicator s across the nation, 160 thereby assuring the effectiveness of restricteduse registration as a risk management tool. 161 • Protect applicators, workers, the pub lic, and the environment from unreasonable 162 adverse effects from the use of RUPs. 163 • Ensure that applicators are competen t to use high-risk application methods. 164 • Ensure applicators’ ongoing competency to use RUPs. 165 • Protect children by establishing a mi nimum age for commercial, private, and 166 noncertified applicators. 167 • Improve human health and environm ental protection in Indian country. 168 • Clarify and streamline requirements for States, Tribes, and Federal agencies to 169 administer their own ce rtification programs. 170 E. What are the Estimated Impacts of this Action? 171 EPA has prepared an analysis of the potenti al costs and impacts associated with this 172 rulemaking. This analysis is summarized in greater detail in Unit I II. The following chart 173 provides a brief outline of the costs and impacts of this proposed rule. 174 Private Applicators Commercial Applicators States and Other Jurisdictions Number Impacted 490,000 414,000 63 Annualized Cost $19.5 million $27.4 million $359,000 Per-Applicator Average: $40 Range: $0 - $201 Average: $66 Range: $1 - $212 N/A

Small Business Impacts No significant impact on a substantial number of small entities.

 The rule may affect over 800,000 small farms that use pesticides,

although about half are unlikely to apply RUPs.

 Impact less than 0.1% of the annual revenues for the average small

entity. Impact on Jobs The rule will have a negligible effect on jobs and employment.

 Most private and commercial applicators are self-employed.

 Incremental cost per applicator repr esents from 0.3% to 0.5% of the

cost of a part-time employee. 175 II. Background 176*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 9 of 242 [RIN 2070-AJ20] A. Regulatory Framework 177 This unit discusses the legal framework within which EPA regulates the safety of those 178 who apply RUPs as certified applicators and nonc ertified applicators wo rking under the direct 179 supervision of certified applicat ors, as well as of the general public and the environment. 180
1. FIFRA. The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was signed 181 into law in 1947 and established a framework fo r the regulation of pesticide products, requiring 182 them to be registered by the Federal government before sale or distribution in commerce. 183 Amended in 1972 by the Federal Environmenta l Pesticide Control Act (7 U.S.C. 136 et. seq .), 184 FIFRA broadened Federal pesticide regulatory authority in several respects, notably by making it 185 unlawful for anyone to use any registered product in a manner inconsistent with its labeling, 7 186 U.S.C. 136i(a)(2)(G), and limiting the sale and use of RUPs to certified applicators and those 187 under their direct supervision. 7 U.S.C. 136i(a )(2)(F). The amendments provided civil and 188 criminal penalties for violations of FIFRA. 7 U.S.C. 136l. The new a nd revised provisions 189 augmented EPA’s authority to protect humans a nd the environment from unreasonable adverse 190 effects of pesticides. 191 As a general matter, in order to obtain a registration for a pesticide under FIFRA, an 192 applicant must demonstrate that the pesticide sa tisfies the statutory st andard for registration, 193 section 3(c)(5) of FIFRA. 7 U.S.C. 136a(c)(5). That standard requires, among other things, that 194 the pesticide performs its intended function wi thout causing “unreasonable adverse effects on the 195 environment.” The term “unreasonable adverse effects on the environment” takes into account 196 the economic, social, and environmental costs an d benefits of the use of any pesticide and 197 includes any unreasonable risk to man or the en vironment. 7 U.S.C. 136(bb). This standard 198 requires a finding that the risks associated with th e use of a pesticide are justified by the benefits 199 of such use, when the pesticide is used incompliance with the terms and conditions of 200*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 10 of 242 [RIN 2070-AJ20] registration or in acco rdance with commonly r ecognized practices. See Defenders of Wildlife v. 201 Administrator, EPA , 882 F.2d 1294, 1298–99 (8th Cir. 1989) (describing FIFRA’s required 202 balancing of risks and benefits). 203 A pesticide product may be unclassified, or it may be classified for restricted or for 204 general use. Unclassified and ge neral use pesticides generally ha ve a lower toxicity than RUPs 205 and so pose less potential to harm humans or the environment. The general public can buy and 206 use unclassified and general use pesticides without special permits or restrictions. 207 Where EPA determines that a pesticide product would not meet these registration criteria 208 if unclassified or available for ge neral use, but could meet the re gistration criteria if applied by 209 experienced, competent applicators, EPA will classify the pesticide, or particular uses of the 210 pesticide, for restricted use only by certified a pplicators. 7 U.S.C. 136a(d)(1). Generally, EPA 211 classifies a pesticide as restricted use if its to xicity exceeds one or more human health toxicity 212 criteria or based on other standards established in regulation. EPA may also classify a pesticide 213 as restricted use if it meets certain criteria for hazards to non-tar get organisms or ecosystems, or 214 if EPA determines that a product (or class of products) may cause unreasonable adverse effect on 215 human health and/or the environm ent without such restriction. Th e restricted use classification 216 designation must be prominently placed on the t op of the front panel of the pesticide product 217 labeling. 218 The risks associated with products classified as RUP require additiona l controls to ensure 219 that when used they do not cause unreasonable adverse effects on human health or the 220 environment. These products may only be applie d by certified applicator s or persons working 221 under their direct supervision who have demonstr ated competency in the safe application of 222 pesticides, including the ability to read a nd understand the complex labeling requirements. 223 FIFRA requires EPA to develop standards for certif ication of applicators (7 U.S.C. 136i(a)(1)) 224*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 11 of 242 [RIN 2070-AJ20] and allows States to certify applicators under a certification plan submitted to and approved by 225 EPA. 7 U.S.C. 136i(a)(2). 226 Provisions limiting EPA’s authority with re spect to applicator certification include 7 227 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 228 FIFRA prohibits EPA from requiring private applicat ors to take an exam to establish competency 229 in the use of pesticides under an EPA certification program, or from re quiring States to impose 230 an exam requirement as part of a State plan for certification of applicators. 231 Section 136i(c) of FIFRA instructs EPA to make instructional materials on Integrated 232 Pest Management (IPM) available to individu als, but it prohibits EPA from establishing 233 requirements for instruction or competency dete rmination on IPM. EPA makes IPM instructional 234 materials available to individua l users through the National Pestic ide Applicator Certification 235 Core Manual, which is used directly or as a model by many States. Additionally, EPA has 236 developed and implemented a variety of programs in other areas of the pesticide program to 237 inform pesticide applicators about the principles and benefits of IPM. These include the EPA’s 238 IPM in Schools Program, the Pesticide Envir onmental Stewardship Program (PESP), and the 239 Strategic Agricultural Initiative (SAI) Grant Program, as well as several other efforts. The 240 Agency will continue to place a high priority on initiatives and programs that promote IPM 241 practices. For additional information about the range of programs and activities, visit the Office 242 of Pesticide Programs PestWise webpage on the EPA website at: 243 http://www.epa.gov/pesp/about/index.html

. 244 Section 136i(d) of FIFRA prohibits EPA from requiring private applicators to keep 245 records or file reports in c onnection with certification requirements. However, USDA requires 246 private applicators to keep records of RUP applications containing in formation substantially 247 similar to that which EPA requires commercial applicators to maintain. 248*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 12 of 242 [RIN 2070-AJ20] Section 136w-5 of FIFRA pr ohibits EPA from establishi ng training requirements for 249 maintenance applicators (certain applicator s of non-agricultural, non-RUPs) or service 250 technicians. 251 FIFRA section 2(e)(4)’s definition of “unde r the direct supervis ion of a certified 252 applicator” allows noncertified applicators to apply RUPs under the direct supervision of a 253 certified applicator even though th e certified applicator may not be physically present at the time 254 and place the pesticide is applied. EPA can, on a product-by-product basis and through the 255 pesticide’s labeling, require application of an RUP only by a certified applicator. 256 2. Pesticide registration . In order to protect human h ealth and the environment from 257 unreasonable adverse effects that might be caused by pesticides, EPA has developed and 258 implemented a rigorous process for registering and re-evaluating pestic ides. The registration 259 process begins when a manufacturer submits an application to regist er a pesticide. The 260 application must contain required test data, in cluding information on th e pesticide’s chemistry, 261 environmental fate, toxicity to humans and w ildlife, and potential for human exposure. The 262 Agency also requires a copy of the proposed labeling, including directions for use, and 263 appropriate warnings. 264 Once an application for a new pesticide pr oduct is received, EPA conducts an evaluation, 265 which includes a detailed review of scientific data to determine the potential impact on human 266 health and the environment. The Agency consider s the risk assessments and results of any peer 267 review, and evaluates pote ntial risk management measures that could mitigate risks above EPA’s 268 level of concern. Risk management measures c ould include, among other things, classifying the 269 pesticide as restricted use, limitations on the use of the pesticide or requiring the use of 270 engineering controls. 271 In the decision-making process, EPA evaluate s the proposed use(s) of the pesticide to 272*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 13 of 242 [RIN 2070-AJ20] determine whether it would cause adverse effect s on human health, non-target species, and the 273 environment. FIFRA requires that EPA balance the benefits of using a pesticide against the risks 274 from that use. 275 If the application for registration does not contain evidence sufficient for EPA to 276 determine that the pesticide meets the FIFRA registration criteria, EP A communicates to the 277 applicant the need for more or better refined data, labeling modifications, or additional use 278 restrictions. Once the appli cant has demonstrated that a proposed product meets the FIFRA 279 registration criteria and – if th e use would result in residues of the pesticide on food or feed – a 280 tolerance or exemption from the requirement of a tolerance under the Federal Food, Drug, and 281 Cosmetic Act (FFDCA; 21 U.S.C. 301 et seq.) is available, EPA approves the registration 282 subject to any risk mitigation measures necessary to achieve that approval. EPA devotes 283 significant resources to the regulation of pesticides to ensure th at each pesticide product meets 284 the FIFRA requirement that pesticides not cause unreasonable adverse effe cts to the public and 285 the environment. 286 Part of EPA’s pesticide regulation and ev aluation process is determining whether a 287 pesticide should be classified as for restricted use. As discus sed in Unit II.A., EPA classifies 288 products as RUPs when they w ould cause unreasonable adverse eff ects on the environment, the 289 applicator, or the public when used according to the labeling directions. 7 U.S.C 136a(d)(1)(C). 290 EPA has classified about 900 pest icide products as RUPs, which is about 5% of all registered 291 pesticide products. EPA does not have data on the relative usage of RUPs versus general use or 292 unclassified pesticides. 293 When EPA approves a pesticide, the labe ling reflects the risk mitigation measures 294 required by EPA. The potential risk mitigation measures include requiring certain engineering 295 controls, such as use of closed systems for mixi ng pesticides and loading them into application 296*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 14 of 242 [RIN 2070-AJ20] equipment to reduce potential exposure to thos e who handle pesticides; establishing conditions 297 on the use of the pesticide by specifying certainuse sites, maximum application rate or 298 maximum number of applications; or limiting the us e of the product to certified applicators (i.e., 299 prohibit application of an RUP by a noncertified applicator working under the direct supervision 300 of a certified applicator) to protect users, the pub lic, and the environment against risks associated 301 with misapplication by unqualified or incompetent applicators. Since users must comply with the 302 directions for use and use restri ctions on a product’s labeling, EP A uses the labeling to establish 303 and convey mandatory requirements for how the pestic ide must be used to protect the applicator, 304 the public, and the environmen t from pesticide exposure. 305 3. Pesticide Reregistrati on and Registration Review. Under FIFRA, EPA is required to 306 review periodically the registration of pesticides currently registered in the United States. The 307 1988 FIFRA amendments required EPA to establ ish a pesticide rere gistration program. 308 Reregistration was a one-time co mprehensive review of the hu man health and environmental 309 effects of pesticides first registered beforeNovember 1, 1984 to make decisions about these 310 pesticides' future use. The Food Quality Pr otection Act of 1996 (FQPA) required that EPA 311 establish, through rule making, an on going “registration review” proce ss of all pesticides at least 312 every 15 years. The final rule establishing the registration review program was signed in August 313 2006. The purpose of both re-evaluation programs is to review all pesticides registered in the 314 United States to ensure that they continue to meet current safety standards based on up-to-date 315 scientific approaches and relevant data. 316 Pesticides reviewed under the reregistration program that met current scientific and safety 317 standards were declared “elig ible” for reregistration. The re sults of EPA’s reviews are 318 summarized in Reregistration Eligibility Decision (RED) documents. The last RED was 319 completed in 2008. Often before a pesticide coul d be determined “eligible,” certain risk 320*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 15 of 242 [RIN 2070-AJ20] reduction measures had to be put in place. For a number of pesticides, measures intended to 321 reduce exposure to certified applicators and pest icide handlers were needed and are reflected on 322 pesticide labeling. To address occupational risk concerns, REDs include mitigation measures 323 such as: Voluntary cancellation of the product or specific use(s); limiting the amount, frequency 324 or timing of applications; imposing other appl ication restrictions; cl assifying a product or 325 specific use(s) as for restricted use; requiring the use of specific personal protective equipment 326 (PPE); and establishing specific restricted en try intervals; and im proving use directions. 327 Under the registration review program, EPA will revi ew each registered pesticide at least 328 every 15 years to determine whether it continue s to meet the FIFRA standard for registration. 329 Pesticides registered before 1984 were reevaluated initially under the reregistration program. 330 These pesticides also are subject to registration review. 331 Rigorous ongoing education and enforcement ar e needed to ensure that these mitigation 332 measures are appropriately implemented in th e field. The framework provided by the pesticide 333 applicator certification regulati on and associated training programs are critical for ensuring that 334 the improvements brought about by reregistration and registration review are realized in the 335 field. For example, the requirement for applicator s to demonstrate continued competency, or to 336 renew their certifications period ically, is one way to educate applicators about changes in 337 product labeling to ensure they continue to use RU Ps in a manner that will not harm themselves, 338 the public, or the environment. The changes being proposed are designed to enhance the 339 effectiveness of the existing structure. 340 In summary, EPA’s pesticide reregistration and registration reviews assess the specific 341 risks associated with particular chemicals and ensure that the public and environment do not 342 suffer unreasonable adverse effects from the ri sks. EPA implements the risk reduction and 343 mitigation measures that result from the pesticid e reregistration and registration review programs 344*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 16 of 242 [RIN 2070-AJ20] through individual pesticide product labeling. 345 4. Related rulemaking. EPA also issued proposed amendments to the WPS (79 FR 15444; 346 March 19, 2014). Since 40 CFR parts 170 and 171, al ong with other components of the pesticide 347 program, work together to reduce and prevent unreasonable adverse effects from pesticides, 348 EPA’s experience with the proposed amendments to 40 CFR part 170 significantly informs its 349 effort to amend the current certif ication rule at 40 CFR part 171. 350 B. Overview of Certified Applicator Information 351 1. Existing Certification of Pesticide Applicators Rule . The certification regulation is 352 intended to ensure that persons using or supervising the use of RUPs are competent to use these 353 products without causing unreasonable adverse eff ects to human health or the environment and 354 to provide a mechanism by which States, Tribes, and Federal agencies can administer their own 355 programs to certify applicators of RUPs as comp etent. FIFRA distinguis hes three categories of 356 persons who might apply RUPs: 357 • Commercial applicators . “Commercial applicator” is de fined at 7 U.S.C. 136(e)(3). 358 This group consists primarily of those who apply RUPs for hire, incl uding applicators who 359 perform agricultural pest control, structural pestcontrol, lawn and turf care, and public health 360 pest control. 361 • Private applicators . “Private applicator” is defined at 7 U.S.C. 136(e)(2). This group 362 consists primarily of farmers or agricultural growers who apply RUPs to their own land to 363 produce an agricultural commodity. 364 • Noncertified applicators . A noncertified applicator is a person who uses RUPs under 365 the direct supervision of a certified applicator. The phrase “under the direct supervision of a 366 certified applicator” is defi ned at 7 U.S.C. 136(e)(4). 367 The current certification regul ation establishes requirements for submission and approval 368*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 17 of 242 [RIN 2070-AJ20] of State plans for the certification of applicators. Consistent with the provisions of FIFRA 369 section 11(a)(2) and the State planrequirements in the current rule , programs for the certification 370 of applicators of RUPs are currently implement ed by each of the fifty States. The certification 371 programs are conducted by the States and Tribes in accordance with their State or Tribal 372 certification plans, which are approved by the EPA Administrator and filed with EPA after 373 approval. (Ref. 1) In some cases, certification programs are also carried out by other Federal 374 agencies under approved Federal agency plans or by EPA under EPA-administered plans. In 375 addition to the 50 State-implement ed plans, EPA has approved plan s for 3 territories, 4 Federal 376 agencies, and 4 Tribes. EPA also directly admini sters a national certific ation plan for Indian 377 country (79 FR 7185; February 6, 2014) and has implemented a speci fic certification plan for the 378 Navajo Nation (72 FR 32648; June 13, 2007). As usedin FIFRA, the term State means a State, 379 the District of Columbia, the Commonwealth of Puerto Rico, The Virgin Islands, Guam, the 380 Trust Territory of the Pacific Islands, and American Samoa; the term State will have the same 381 meaning in this rulemaking. 382 The current certification regul ation establishes competency standards for persons seeking 383 to become certified as private or commercial applicators. For a person to become certified as a 384 private applicator, he or she mu st either pass an exam covering a general set of information 385 related to pesticide application and safety or qualify through a non-exam option administered by 386 the certifying authority. For a pe rson to become certified as a commercial applicator, he or she 387 must pass at least two exams – one covering the general or “c ore” competencies related to 388 general pesticide application and environmental safety and an exam related to each specific 389 category in which he or she inte nds to apply pesticides. The cu rrent certification rule lists 10 390 categories of certification for commercial applic ators: Agricultural pe st control – plant; 391 agricultural pest control – animal; forest pest co ntrol; ornamental and turf pest control; seed 392*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 18 of 242 [RIN 2070-AJ20] treatment; aquatic pest control; right-of-way pest control; industrial, instit utional, structural and 393 health related pest control; public health pest control; regulatory pest control; and demonstration 394 and research pest control. 40 CFR 171.3(b). (N ote: EPA and other certifying authorities may 395 sometimes refer to 11 categories of certification if the two sub categories under agricultural pest 396 control are counted as indivi dual categories.) Although EPA onl y requires certification of 397 applicators who use RUPs, most States require all commercial “for hire” applicators to be 398 certified, regardless of whethe r they plan to use RUPs. Once the applicator completes the 399 necessary requirements, the certifyi ng authority issues to the app licator a certification valid for a 400 set period of time, ranging from 1-6 years dependi ng on the State, Tribe, or Federal agency that 401 provides the certification. 402 The current regulation requires States to im plement a recertification process to ensure 403 that applicators maintain ongoi ng competency to use pesticid es safely and properly. 40 CFR 404 171.8(a)(2). However, the current rule does not have a requirement for the frequency, content, or 405 standards for applicator recertif ication. States, Tribes and Fede ral agencies have established 406 varying requirements for applicators to be r ecertified, such as atte nding a full-day workshop, 407 earning a specific number of “continuing education units,” or passing written exams. Applicators 408 who do not complete the recertif ication requirements in the es tablished period no longer hold a 409 valid certification and cannot use RUPs after their certification expires. 410 Under the current certificati on regulation, noncertified applic ators, i.e., persons using 411 RUPs under the direct supervision of certified applicators, must receive general instructions and 412 be able to contact their supervis or in the event of an emergency. The rule does not have specific 413 training requirements, a limit on the distance betweenthe supervisor and noncertified applicator, 414 or a restriction on the number of noncertified applicators that one certified applicator can 415 supervise. 416*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 19 of 242 [RIN 2070-AJ20] An overview of the developmen t of the certification rule and the process leading to this 417 proposal appear in Unit IV. 418 2. Applicator demographics . The profile of certified app licators of RUPs has shifted 419 over time. The U.S. is moving away from sma ll agricultural production and more individuals 420 seek professional pest control to address issues in their hom e or workplace. In 1987, around 1.2 421 million applicators held a certification, almost 80% of which were private applicators, and 20% 422 of which were commercial applicators (Ref. 2) . In 2013, the total number of certified applicators 423 decreased to just over 900,000 (R ef. 1). The respective proporti ons of private and commercial 424 applicators changed more significantly – privat e applicators account onl y for 53% of the total 425 certified applicator populati on and commercial applicator s now make up about 47%. 426 Applicators work in a dive rse array of situations in cluding agricultural production, 427 residential pest control, mos quito spraying for public healthprotection, treating weeds along 428 roadside and railroad rights of way, fumigating rail cars and buildings, maintaining lawns and 429 other ornamental plantings, and controlling weeds and algae in wate rways through pesticide 430 application. Specific information on applicators ac ross all industries or in each certification 431 category is difficult to find and summarize. Ho wever, the broad trends indicate a decrease in 432 agricultural applicators and anincrease in urban and pub lic health pest control. 433 Since publication of the origin al rule, pesticide usage and reliance on hired pest control 434 applicators have increased. The U.S. Bureau of Labor Statistics expects th at “employment of pest 435 control workers [will] grow by 15 percent be tween 2008 and 2018, ... [because] more people are 436 expected to use pest control services as envir onmental and health concerns and improvements in 437 the standard of living convince more people to hire professionals, rather th an attempt pest control 438 work themselves” (Ref. 3). 439 3. Incident data and general information. a. Incident Database s. Incident monitoring 440*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 20 of 242 [RIN 2070-AJ20] programs have informed EPA’s understanding of common types of pesticide exposures and their 441 outcomes. In 2007, EPA released a report detaili ng the coverage of all pesticide incident 442 reporting databases considered by EPA (Ref. 4). When developing the proposed changes to the 443 certification rule, EPA consulted three major databases for information on pesticide incidents 444 involving applicator erro rs while using RUPs. 445 To identify deaths and high severity inci dents associated with use of RUPs, EPA 446 consulted its Incident Data System (IDS). ID S is maintained by EPA’s Office of Pesticide 447 Programs (OPP) and incorporates data submitted by registrants under FIFRA section 6(a)(2) as 448 well as other incidents reported directly to EP A. FIFRA allows the aggregation of individual 449 events in some circumstances, meaning an in cident with negative impacts to a number of 450 individuals (persons, livestock, birds, pollinators) and/or the environment could be reported as a 451 single incident. In addition to in cidents involving human health, IDS also collects information on 452 claims of adverse effects from pesticides invol ving plants and animals (wild and domestic), as 453 well as detections of pes ticide in water. EPA uses this inform ation to identify incidents involving 454 the use of RUPs that have ecological effects. While IDS reports may be broad in scope, the 455 system does not consistently cap ture detailed information aboutincident events, such as 456 occupational exposure circumstances or medical outcome, and the reports are not necessarily 457 verified or investigated. 458 The second database, the Sentinel Event Notification System fo r Occupational Risk 459 (SENSOR), is maintained by the Centers for Dise ase Control and Prevention’s National Institute 460 for Occupational Safety and Health (NIOSH). SE NSOR covers all occupational injuries and has 461 a specific component for pestic ides (SENSOR-Pesticides). EP A uses SENSOR-Pesticides to 462 monitor trends in occupational h ealth related to acute exposures to pesticides, to identify 463 emerging pesticide problems, and to build and maintain State surveillance capacity. SENSOR- 464*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 21 of 242 [RIN 2070-AJ20] Pesticides is a State-based surveillance system with 12 State participants. The program collects 465 most poisoning incident cases from: 466

• U.S. Department of Labor (DOL) worker s’ compensation claims when reported by 467 physicians. 468

• State Departments of Agriculture. 469

• Poison control centers. 470 A State SENSOR-Pesticides contact specia list follows up with workers and obtains 471 medical records to verify symptoms, circumst ances surrounding the e xposure, severity, and 472 outcome. SENSOR-Pesticides captures incidents onl y when the affected person has two or more 473 symptoms. Using a standardized pr otocol and case definitions, SENSOR-Pesticides coordinators 474 enter the incident interview de scription provided by the worker, medical report, and physician 475 into the SENSOR data system. SENSOR-Pesticides has a severity index, based partly on poison 476 control center criteria, to assign illness severity in a standardized fash ion. SENSOR-Pesticides 477 provides the most comprehensive information on occupational pesticid e exposure, but its 478 coverage is not nationwide and a majority of the data come from California and Washington 479 State. Since 2009, SENSOR has been including in formation about how the incidents may have 480 been prevented. 481 The third database, the American Association of Poison Control Centers maintains the 482 National Poison Data System (NPDS), formerly the Toxic Effects Surveillance System (TESS). 483 NPDS is a computerized information system w ith geographically-specific and near real-time 484 reporting. While the main mission of Poison Contro l Centers (PCC) is help ing callers respond to 485 emergencies, not collecting specific informati on about incidents, NPDS data help identify 486 emerging problems in chemical product safety. Hotlines at 61 PCCs nationwide are open 24 487 hours every day of the year. There are many bili ngual PCCs in predominantly Spanish speaking 488*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 22 of 242 [RIN 2070-AJ20] areas. Hotlines are staffed by toxicology specialists to provide poisoning in formation and clinical 489 care recommendations to callers with a focus on triage to give patients appropriate care. Using 490 computer assisted data entry, sta ndardized protocols, and strict data entry criteria, local callers 491 report incidents that are retainedlocally and updated in summary form to the national database. 492 Since 2000, nearly all calls in th e system are submitted in a computer-assisted interview format 493 by the 61 certified PCCs, adhering to clinical criteria designed to provide a consistent approach 494 to evaluating and managing pesticide and drug rela ted adverse incidents. Information calls are 495 tallied separately and not countedas incidents. The NPDS systemcovers nearly the entire United 496 States and its territories, but the system is clini cally oriented and not designed to collect detailed 497 occupational incident data. Additionally, NPDS does not capture EPA pesticide registration 498 numbers, a critical element for identifying the specific product and whether it was an RUP. 499 Three studies showing undercounting of poison control data i ndicate the magnitude of the 500 problem. The studies each focus on a specific region and compare cases reported to poison 501 control with those poisonings for which there are hospital records. In all three cases, the studies 502 indicate a substantial un derreporting of poisoning incidents to poison control, especially related 503 to pesticides (Refs. 5, 6, 7). Unde rreporting of pesticide incidents is a challenge for all available 504 data sources for a number of reasons. 505 Symptoms of acute pesticide poisoning are often vague and mimic symptoms with other 506 causes, leading to incorrect dia gnoses, and chronic effects are di fficult to identify and track. The 507 demographics of the populations that typically wo rk with or around pesticid es also contribute to 508 underreporting of incidents. Th ere may not be enough information to determine if the adverse 509 effects noted were in fact the result of pesticide e xposure and not another contributing factor 510 because many incident reports lack useful info rmation such as the exact product that was the 511 source of the exposure, the amount of pesticide involved, or the circumstances of the exposure. 512*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 23 of 242 [RIN 2070-AJ20] There may not be enough information to determine if the adverse effects noted were in fact the 513 result of pesticide exposure and not another contributing factor. A more complete discussion of 514 the underreporting and its effect on pesticide incident reporting is located in the Economic 515 Analysis for this proposal (Ref. 8). 516 The data available do provide a snapshot of the illnesses faced by those applying RUPs 517 and others impacted by the application and the likel y avenues of exposure. Review of these data 518 sources shows that certified applicators continue to face avoidable occupational pesticide 519 exposure and in some instances cause exposures to others. Deaths and illnesses from applicator 520 errors involving RUPs occur for a variety of reas ons, including misuse of pesticides in or around 521 homes, faulty application and/or personal protec tive equipment, failure to confirm a living space 522 is empty before fumigating, or unknowing person s accidentally ingesting an RUP that was 523 improperly put in a beverage container. Common reasons for ecological incidents include failure 524 to follow labeling directions, inattention to weathe r patterns at the time of application, and faulty 525 application equipment (Ref. 9). Generally, report s on the data note that many of the incidents 526 could be prevented with strengthened requirements for initial and ongoing applicator 527 competency (certification and r ecertification), improved traini ng for noncertified applicators 528 working under the direction of a certified applic ator, and knowledge of proper techniques for 529 using specific methods to apply pesticides (Ref. 9). 530 b. Agricultural Health Study. The National Ins titutes of Health (Nati onal Cancer Institute 531 and National Institute of Environmental Health Sciences) and EPA have sponsored the 532 Agricultural Health Study since 1994. This long- term, prospective epidemiological study collects 533 information from farmers who are certified appli cators in Iowa and North Carolina to learn about 534 the effects of environmental, occupational, diet ary, and genetic factors on the health of the 535 farmers, pesticide applicators, and their families. The study design involves gathering 536*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 24 of 242 [RIN 2070-AJ20] information over many years about the pesticide applicator and his or her family’s health, 537 occupational practices, lifestyl e, and diet through mailed que stionnaires and individual 538 interviews (Ref. 10). 539 The Agricultural Health Study includes approximately 52,000 private applicators, 32,000 540 spouses of private applicators, and 5,000 commercial applicators. All applic ators participating in 541 the study are certified (or licensed) in every State in which they work and in each category in 542 which they make applications. All participan ts were healthy before enrolling in the study, 543 allowing the researchers to consider a number of variables such as pesticide use, lifestyle, and 544 diet. 545 The Agricultural Health Study is observa tional and considers a variety of factors 546 including, but not limited to, pesticide use and e xposure. Therefore, esta blishing a link between a 547 specific health outcome and pesticide exposure can be difficult. However, it is possible to 548 demonstrate statistical associations between a certain activity and an outcome. Using the 549 information collected, the inves tigators working on the Agricultu ral Health Study have produced 550 a number of articles relevant to the health and safety of pesticide applicators. See 551 http://aghealth.nih.gov/news/publications.html. For instance, publications include information on 552 characteristics of farmers who experience high pe sticide exposure events and potential links 553 between pesticide use and chronic health effects. 554 EPA considers the information from the Ag ricultural Health Study when appropriate, 555 such as during a chemical reassessment. The data also provide information on applicator 556 practices that lead to exposures, some of which EPA plans to addr ess through the changes 557 proposed in this rulemaking. 558 III. Rationale and Objectives for this Action 559 A. Reasons for the Proposed Action 560*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 25 of 242 [RIN 2070-AJ20] Broadly defined, a pesticide is any agent usedto kill or control undesired insects, weeds, 561 rodents, fungi, bacteria, or othe r organisms. Chemical pest contro l plays a major role in modern 562 agriculture and has contributed to dramatic increases in crop yi elds for most field, fruit and 563 vegetable crops. Additionally, pesticides ensure that the public is protected from health risks, 564 such as West Nile Virus, Lyme disease, and th e plague, and help manage invasive plants and 565 organisms that pose significant harm to the environment. Pesticides are also used to ensure that 566 housing and workplaces are free of pe sts, and to control microbial ag ents in health care settings. 567 EPA’s obligation under FIFRA is to register only those pesticides that do not cause unreasonable 568 adverse effects to human health or the envir onment. EPA is committed to protecting against 569 these potential harms and to ensure access to a safe and adequate food supply in the United 570
States. 571 FIFRA requires EPA to consider the benefits of pesticides as well as the potential risks. 572 This consideration does not override EPA’s responsibility to protect human health and the 573 environment; rather, where a pesticide’s use provi des benefits, EPA must ensure that the product 574 can be used without posing unreas onable adverse effects to human health or the environment. 575 Some pesticides may pose unreasonable adverse effects to human health or the environment 576 without strict adherence to precise and often complex mitigation measures specified on the 577 pesticide labeling – EPA classifies these products as restricted use. To ensure that the necessary 578 measures are followed, EPA requires an additional level of precaution - these pesticides may be 579 applied only by applicators who are certified or by noncertifiedapplicators working under the 580 direct supervision of a certified applicator. Ce rtification serves to ensure competency of 581 applicators to use these restrict ed products, and therefore to protect the applicator, persons 582 working under the direct supervis ion of the applicator, the gene ral public, and the environment 583 through judicious and appr opriate use of RUPs. 584*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 26 of 242 [RIN 2070-AJ20] Applicator certification enables the registrati on of pesticides that otherwise could not be 585 registered, allowing the use of RUPs for pest management inagricultural production, building 586 and other structural pest mana gement, turf and landscape management, forestry, public health, 587 aquatic systems, food processing, stored grain, and other areas. 588 The certification regulation, which sets standards for applicators using RUPs, is 40 years 589 old and has not been updated si gnificantly since it was finalize d. In conjunction with various 590 non-regulatory programs, the certification regul ation requirements are intended to reduce 591 unreasonable adverse effects from application of RUPs to applicator s, bystanders, the public, and 592 the environment. The certification regulation provisions are meant to: 593 • Ensure that certified applicators are a nd remain competent to use RUPs without 594 unreasonable adverse effects. 595 • Ensure that noncertified applicators receiv e adequate information and supervision to 596 protect themselves and to ensure they use RU Ps without posing unreason able adverse effects. 597 • Set standards for States, Tribes, territories, and Federal agencies to administer their own 598 certification programs. 599 • Protect human health and the environment from risks associatedwith use of RUPs. 600 • Ensure the continued availability of RU Ps used for public health and pest control 601
purposes. 602 Within these five areas, EPA evaluated the costs and benefits of alterna tive requirements and is 603 proposing a set of requirements that, in combinati on, is expected to achieve substantial benefits 604 at minimum cost. 605 The certification regulation mu st be updated to ensure th at the certific ation process 606 adequately prepares and ensures the continued co mpetency of applicators to use RUPs. Several 607 factors prompted EPA to propose changes to the cu rrent rule: The changing nature of pesticide 608*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 27 of 242 [RIN 2070-AJ20] labeling, risks associated with specific methods for applying pesticides, adverse human health 609 and ecological incidents, inadequate protections for noncertified applicat ors of RUPs, an uneven 610 regulatory landscape, and outdated and obsolete provisions inthe rule related to the 611 administration of certification program s by Tribes and Federal agencies. 612
1. The changing nature of pesticide labeling . As discussed above, EPA uses a rigorous 613 process to register pesticides. EPA has also im plemented the pesticide re registration program and 614 the registration review program to review regist ered pesticides periodically to ensure they 615 continue to meet the necessary standard. As a result of these ongoing evaluations, labeling for 616 pesticides changes with some frequency to inco rporate risk mitigation measures that allow the 617 pesticide to continue to be us ed safely. Changes address, am ong other topics, pesticide product 618 formulation and packaging, application methods, types of personal protective equipment, and 619 environmental concerns, such as the need to prot ect pollinators. In additi on, EPA conducts risk 620 assessments that result in more detailed risk mitigation measures, which can make the pesticide 621 labeling more complex. For pesticides classified as RUPs, it is essential that applicators stay 622 abreast of the changes to the labeling and understand the risk mitigation measures, because if the 623 products are not used according to their labeling, they may cause harm to the applicator, the 624 public or the environment. The current regulationrequires that applicator s demonstrate continued 625 competency to use RUPs, but does not specify th e length of the certification period or standards 626 for recertification. The more frequently applicat ors receive training, the more likely they are 627 retain the substance of the training and apply it on the job. Studies show that information 628 retained from training sessions de clines significantly within a year (Refs. 11, 12). EPA must 629 ensure that certified applicators demonstrate and maintain an understandi ng of how to use RUPs 630 in a manner that will not cause unr easonable adverse effects so that EPA can continue to register 631 RUPs. Therefore, EPA is proposi ng changes to the regulation thatwould establish a certification 632*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 28 of 242 [RIN 2070-AJ20] period and standards for app licator recertification. 633
2. Risks associated with specific application methods . RUPs are applied using a variety of 634 application methods. Some methods of application may pose a higher risk to the applicator, 635 bystander, and the environment if not performe d correctly. Spray applic ations, particularly 636 spraying pesticides from an aircraft, may result in off-target drift of the pesticide. For example, a 637 recent study estimates that 37% to 68% of acute pesticide-related illnes ses in agricultural 638 workers are caused by spray drift, including both ground-based and aerial spray applications 639 (Ref. 13). EPA also recognized risks associat ed with performing soil fumigation in the 2008 640 Reregistration Eligibility Decision for soil fumigants. As a result of these risks, EPA required 641 additional training for soil fumigant applicat ors through labeling amen dments on top of the 642 existing requirement for the applicator to be certified. The decision also acknowledged that a 643 specific certification category re quiring demonstration of compet ency by passing a written exam 644 related to applying fumigants to soil would be anacceptable alternative risk mitigation measure. 645 EPA must ensure that applicators are competent to perform specific types of applications that 646 may pose higher risks if not perf ormed correctly. Therefore, EPA is proposing changes to the 647 regulation to require applicator s to demonstrate competency to apply RUPs using specific 648 application methods. 649
3. Adverse human health and ecological incidents . Much has changed over the last 40 650 years related to use of RUPs – pesticide produc t formulation and labeling, application methods, 651 types of personal protective equipment, and enviro nmental concerns, such as the need to protect 652 pollinators. The regulation has not been updated to address these and other changes affecting 653 applicators of RUPs. 654 In recent decades, several cases of misuse involving RUPs have indicated that standards 655 are not adequate in some areas . In one of the most significan t cases from the mid-1990s, there 656*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 29 of 242 [RIN 2070-AJ20] was widespread misuse of the RUP methyl parath ion, an insecticide used primarily on cotton and 657 other outdoor agricultural crops, to control pests indoors. The improper use of this product by a 658 limited number of applicators across several Stat es led to the widespread contamination of 659 hundreds of homes, significant pesticide exposures and human health effects for hundreds of 660 homeowners and children, and a clean-up cost of millions of dollars (Refs. 14, 15). The incident 661 resulted in one of the most significant and wide spread pesticide exposure cases in EPA’s history. 662 In another incident, a noncerti fied applicator using the RUP aluminum phosphide under the 663 supervision of a certified applicat or caused the death of 2 young gi rls and made the rest of the 664 family ill. (1) Finally, several severe health in cidents have resulted from the public getting access 665 to RUPs that have been put into different c ontainers, e.g., transferred to a soda bottle or a 666 sandwich bag, that do not have th e necessary labeling (Ref. 8). 667 In addition to human health incidents from RUP exposure, there are instances where use 668 of RUPs has had negative impacts on the enviro nment. Although data on the damage associated 669 ecological incidents are difficult to capture, EPA has identified a number of incidents of harm to 670 fish and aquatic animals, birds, mammals, b ees, and crops that could be prevented by the 671 proposed changes to the certificati on rule (Ref. 8). See the economi c assessment for this rule for 672 more information on human health and ecological incidents stemming from RUP use (Ref. 8). 673 In light of the incidents discussed above, EP A must update the certifi cation rule to ensure 674 that RUPs can continue to be used without pos ing unreasonable adverse e ffects to human health 675 or the environment. EPA expect s the proposed rule to reduce hu man health and environmental 676 incidents related to RUP use by strengthening the standards of competency for certified 677 applicators, improving training for noncertifi ed applicators, and establishing a maximum 678 certification period and standards for recertification training. These changes would ensure that 679 applicators and those under their supervision more carefully follow pesticide label instructions, 680*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 30 of 242 [RIN 2070-AJ20] take proper care to prevent harm, and generally have a higher level of competency. 681
4. Inadequate protection for noncertified applicators of RUPs . Noncertified applicators 682 using RUPs receive little instruction on how to protect themselves, their families, other persons 683 and the environment from pesticide exposure. Al though little demographic data exists on this 684 group, in industries including but no t limited to agriculture and ornamental plant production, the 685 profile of the population appears to be similar to that of agricu ltural pesticide handlers under the 686 WPS. Both groups are permitted to mix, load, and apply pesticides with proper guidance from 687 their employer or supervisor. Agricultural hand lers under the WPS only us e pesticides in the 688 production of agricultural comm odities; noncertified applicator s may use pesticides in any 689 setting not prohibited by the labeling. In orde r to mix, load or apply RUPs, however, all 690 noncertified persons, including agricultural ha ndlers, must be working under the direct 691 supervision of a certified app licator and are protected under the certification rule. These 692 noncertified applicators must be competent to use RUPs in a manner that will not cause 693 unreasonable adverse effects to themselves, the public, or the environment. The existing 694 certification rule does not have sp ecific standards on which noncerti fied applicators must receive 695 instruction in order to prepare them to use RU Ps. EPA identified six incidents from 2006 to 2010 696 where noncertified applicators e xperienced high severity health impacts from working with 697 RUPs (Ref. 8). These adverse hea lth effects were largely due to the noncertified applicators’ lack 698 of understanding about the risks posed by the RUPs they were applying, proper application 699 procedures and techniques, and labeling instructions. 700 Under the WPS, agricultural handlers must receive training that covers, among other 701 topics, hazards associated with pesticide use; format and meaning of pesticide labeling; and 702 proper pesticide use, transportation, storage, and disposal. 40 CFR 170.230(c)(4). Agricultural 703 handlers also must be provided a copy of the labeling and any other information necessary to 704*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 31 of 242 [RIN 2070-AJ20] make the application without causing unreasonabl e adverse effects. EPA is proposing additional 705 content under the WPS for agricultural handler tr aining that covers prop er use and removal of 706 PPE and specific information on fitting and weari ng respirators to ensure agricultural handlers 707 are protected adequately and understand how to follow all relevant labeling provisions. 79 FR 708 15443; March 19, 2014. 709 Like agricultural handlers, some noncertified applicators may face challenges, such as not 710 speaking or reading English and having a low in come. They may bear risks from occupational 711 pesticide exposure because they work with and around pesticides on a daily basis, and language 712 and literacy barriers may make effective tr aining and hazard communi cation challenging. Under 713 the principles of environmental justice, EPA re cognizes the need to re duce the disproportionate 714 burden or risk carried by this population. 715 Noncertified applicators must receive adequate instructi on on understanding and 716 following pesticide labeling to ensure that RU Ps are used in a manner that will not cause 717 unreasonable adverse effects to human health or the environment. Additionally, noncertified 718 applicators must have sufficient information inorder to protect themselves, others, and the 719 environment before, during, and after pesticide ap plications. Because of the similar risks faced 720 by agricultural handlers under the WPS and noncerti fied applicators under th e certification rule, 721 EPA proposes to strengthen the standards for no ncertified applicators to include relevant 722 provisions from the proposed agricultural handler training under the WPS and to ensure that the 723 training is provided in a manner that the nonc ertified applicators unde rstand, including through 724 audiovisual materials or a translator if necessary. 725 5. Uneven regulatory landscape . EPA assumes a minimum sta ndard level of competency 726 of RUP applicators as part of the pesticide registration and ongoing review processes, and 727 registers RUPs based on the minimum standard of competency. States, however, may adopt 728*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 32 of 242 [RIN 2070-AJ20] additional requirements as long as they meet the minimum standards established by EPA. Two 729 areas of the rule related to asse ssing applicator competency lack specificity sufficient to ensure 730 the minimum level of competency: Standards fo r exams and private applicator competency 731 standards. The lack of specificity in the rule ha s resulted in States adopting differing standards, 732 some of which do not match EPA’s expectation re garding the minimum level of competency of a 733 certified applicator. 734 In 2007, EPA issued guidance on its interpretation of exams in the rule. The guidance 735 notes that EPA interprets any exam administeredto gauge applicator competency as being a 736 proctored, closed-book, written exam. EPA has b ecome aware, however, that not all State 737 certification programs reflect this interpretation; several States ha ve certification processes that 738 allow open-book, written exams for determining app licator competency. EP A is concerned that 739 open-book exams allow a lower standard for the process of determining and assuring 740 competency than intended when EPA establishe d the requirement for ex ams in the regulation. 741 EPA proposes to codify the 2007 guidance and to clarify its exp ectations regarding 742 administration of certification ex ams and training programs to ensure that the process for 743 determining competence meets a standard national baseline. 744 The certification rule lists five points on which a person much demonstrate competency 745 to become a private applicator. While these points cover the main topics that EPA expects an 746 applicator to master be fore being certified to use RUPs, they do not cover in detail the necessary 747 competencies for a person to use RUPs without causing unreasonable adve rse effects. EPA must 748 ensure that private applicators use RUPs compet ently. Commercial applicators must demonstrate 749 competency in core pesticide use, such as reading and understanding th e labeling, calculating 750 application rates, wearing and caring for PPE, ho w to handle spills and other emergencies, and 751 avoiding environmental contamination from pesticid e use, as well as in specific categories of 752*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 33 of 242 [RIN 2070-AJ20] application. Private and commercia l applicators have access to th e same RUPs and EPA expects 753 that they have the same level of competency. Over 90% of States have ad opted specific standards 754 of competency for private applicators that are comparable to the core standards for commercial 755 applicators. Those States that have not adoptedsuch standards for priv ate applicators may be 756 certifying applicators who do not me et the level of competency that EPA believes is necessary to 757 use RUPs. To address this problem, EPA proposes to make the standards of competency for 758 private applicators more speci fic – the proposed standards in clude many concepts from the 759 commercial core standards as well as competencies necessary to use RUPs in agricultural 760 production. 761
6. Outdated and obsolete rule provisions . The certification rule ha s one section regarding 762 Tribal programs that is outdated and one section on government agency certification programs 763 that is not necessary. The curren t rule provides three options for applicator certification programs 764 in Indian country. Consultation w ith Tribes raised an issue w ith one of the current options 765 because it calls for Tribes that chooses to utilize a State certification program and rely on State 766 certifications to obtain concurrence from the re levant States and to enter into a documented 767 State-Tribal cooperative agreement. This option has led to questions about jurisdiction and the 768 appropriate exercise of enforcement authority for such programs in Indian country. EPA 769 proposes to revise this option to allow Tribes to administerprograms based on certifications 770 issued by a State, a separate Tribe, or a Federa l agency by entering into an agreement with the 771 appropriate EPA Regional office. This would allow Tribes to enter into agreements with EPA to 772 recognize the certific ation of applicators w ho hold a certificate issuedunder an EPA-approved 773 certification plan without the need for State-Tribal cooperative agreements. The agreement 774 between the Tribe and the EPA Regional office would address appropriate implementation and 775 enforcement issues. 776*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 34 of 242 [RIN 2070-AJ20] The current rule includes a provision for a GAP, a certification progr am that would cover 777 all Federal government employees using RUPs. No such plan was developed or implemented by 778 EPA or any other Federal agency. Subsequently, EPA issued a policy that allows each Federal 779 agency to submit its own plan to certify RUP applicators. Four Federal agencies have EPA780 approved certification plans. To streamline the rule and codify the existing policy, EPA proposes 781 to delete the current section on GAP and replace it with requirements from the existing policy on 782 Federal agency certification plans. 783 B. Regulatory Objectives 784 Through this proposal EPA seeks to have those responsible for making pesticide use 785 decisions and applying RUPs and those who benefit from the availability of these products to 786 internalize the effects of thei r decisions. By strengthening ce rtification standards, adding 787 categories for application methods that present high risk of expos ure, establishing recertification 788 standards, and requiring specifi c training for noncertified applic ators, EPA proposes to put the 789 responsibility to ensure that RUPs are used in a manner to avoid unreasonable adverse effects on 790 the parties who are most able to control the s ituation. This would minimize the externalities, 791 undesirable or unintended conseque nces of decisions that result in negative consequences for 792 other parties, in this case bystande rs, the public, and the environment. 793 EPA estimates the total annua lized cost of the rule at $47.2 million. States and other 794 jurisdictions that administer certification programs would bear annualiz ed costs of about 795 $359,000, but States would incur most of these costs immediately after the ru le is finalized to 796 modify their programs to correspond with the pr oposed changes to the Federal regulation. The 797 annual cost to private applicators would be about $19.5 million, or about $40 per year per private 798 applicator. The estimated annual cost to commer cial applicators would be $27.4 million, or about 799 $66 per commercial applicator per year. Many of the firms in the affected sectors are small 800*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 35 of 242 [RIN 2070-AJ20] businesses, particularly in the agricultural se ctor. EPA concludes thatthere would not be a 801 significant impact on a substantial number of small entities. The impact to the average small 802 farm is anticipated to be less th an 1% of annual sales while the impacts to small commercial pest 803 control services are e xpected to be around 0.1% of annual gross revenue. Given the modest 804 increases in per-applicator costs, EPA also conc ludes that the proposed rule would not have a 805 substantial effect on employment. 806 The rule changes proposed by EPA would improve the pestic ide applicator certification 807 and training program substantiall y. Trained and competent applicat ors are more likely to apply 808 pesticide products without causing unreasonable a dverse effects and to use RUPs properly to 809 achieve the intended results than applicators who are not adequately trained or pr operly certified. 810 In addition to core pesticide sa fety and practical use concepts, certification and training assures 811 that certified applicators possess critical inform ation on a wide range of environmental issues 812 such as endangered species, water quality, worker protection, and protecting non-target 813 organisms, such as pollinators. Pesticide safe ty education helps applicators improve their 814 abilities to avoid pesticide misuse, spills and harm to non-target organisms. 815 The benefits of the proposed rule accrue to certified and noncertifi ed applicators, the 816 public, and the environment. EPA estimates the qu antified value of the 638 to 762 acute illnesses 817 from RUP exposure per year that could be prev ented by the rule to be between $20.1 million and 818 $20.5 million per year (Ref. 8). However, EPA rec ognizes that the estimate is biased downward 819 by an unknown degree. First, pesticide incide nts, like many illnesses and accidents, are 820 underreported because sufferers may not seek medical care, cases may not be correctly 821 diagnosed, and correctly diagnosed cases may not be filed to the central reporting database. Also, 822 many symptoms of pesticide poisoning, such as fa tigue, nausea, rash, dizziness, and diarrhea, 823 may be confused with other illnesses and may not be reported as related to pesticide exposure. 824*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 36 of 242 [RIN 2070-AJ20] Studies estimate that underreporting of pesticid e exposure ranges from 20% to 75% (Refs. 5, 6, 825 7). If only 25% of pesticide poisonings are reporte d, the quantified estimated benefits of the rule 826 would be about $80.5 million annually (Ref. 8). 827 EPA’s approach to estimating the quantitativ e benefits of the proposal only measures 828 avoided medical costs and lost wa ges, not the willingness to pay to avoid possible symptoms due 829 to pesticide exposure, which could be substantially higher. Many of the negative health impacts 830 associated with agricultural pesticide applicati on are borne by agricultura l workers and handlers, 831 a population that more acutely feels the impact of lost work time on their incomes and family 832 health. An increase in the overall level of compet ency for certified applicators and noncertified 833 applicators working under their dire ct supervision would also be be neficial to people who work, 834 play, or live in areas treated with RUPs, such as agricultural workers, neighbors of agricultural 835 fields, and consumers whose homes are treate d. Under-trained and unde r qualified pesticide 836 applicators may not be aware immediately of the potential impact s to their own health or the 837 health of those who live or work around areas where RUPs are applied, and therefore may not 838 independently adopt measures to increase the sa fety of themselves or others, necessitating 839 intervention by the government to ensure thes e populations are ade quately protected. 840 It is reasonable to expect that the qualita tive benefits of the rule are more substantial. 841 Although EPA is not able to measure the full be nefits that accrue from reducing chronic 842 exposure to pesticides, well-documented associa tions between pesticide exposure and certain 843 cancer and non-cancer chronic health effects exis t in peer-reviewed literature. See the economic 844 assessment for this proposal for a discussion of the peer-reviewed literature (Ref. 8). The 845 proposals for strengthened competency standards for private applicators, expanded training for 846 noncertified applicators, additional applicati on method-specific certification categories, a 847 minimum age for all persons using RUPs, and appropriate certification opti ons in Indian country 848*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 37 of 242 [RIN 2070-AJ20] would lead to an overall reduction in the number of human health incide nts related to chronic 849 pesticide exposure and environmental contamin ation from improper or misapplication of 850 pesticides. Overall, the weight of evidence sugg ests that the proposed requirements would result 851 in long-term health benefits to certified and noncertified applicator s, as well as to bystanders and 852 the public. 853 It is reasonable to expect that that the proposed rule w ould benefit the environment and 854 the food supply. The proposed changes enhance private applicator competency standards to 855 include information on protecti ng the environment during and after application, such as 856 protecting pollinators and avoiding contamination of water supplies. The proposal to ensure that 857 all applicators continue to demonstrate thei r competency to use RUPs without unreasonable 858 adverse effect should better protect the public from RUP e xposure when occupying treated 859 buildings or outdoor spaces, cons uming treated food products, and when near areas where RUPs 860 have been applied. The economic assessment for this proposal includes a qualitative discussion 861 of 68 incidents from 2009 through 2013 where app licator errors while applying RUPs damaged 862 crops or killed fish, bird, bees, or other animals (Ref. 8). The environment should also be better 863 protected from misapplication, wh ich can result in cleaner wate r and less impact on non-target 864 plants and animals. 865 In addition, the proposed changes to the certification regulation specifically mitigate risks 866 to children. The proposal would implement a mi nimum age of 18 for certified applicators and 867 noncertified applicators working under their direct supervision. Si nce children’s bodies are still 868 developing, they may be more susceptible to risk s associated with RUP application and therefore 869 would benefit from strengthened protections. In addition, research has shown that children may 870 not have developed fully the capacity to make decisions and to weigh risks (Refs. 16, 17, 18). 871 Proper application of RUPs is esse ntial to protect the safety of pe ople who work, visit, or live in 872*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 38 of 242 [RIN 2070-AJ20] or near areas treated with RUPs , people who eat food that has been treated with RUPs, people 873 and animals who depend on an uncontaminated water supply, as well as the safety of the 874 applicator him or herself. Therefor e, it is reasonable to expect that that restricting certification to 875 persons over 18 years old would better protect both the applicators and those who may be 876 affected negatively by improper or misapplication. 877 Children also suffer the effects of RUP e xposure from residential applications and 878 accidental ingestion. Accidental ingestion occurs when children get access to an RUP that has 879 been improperly stored, e.g., transferred to an un marked container or left accessible to the public 880 (Ref. 9). The proposed changes improve traini ng for noncertified applicators, strengthen 881 competency standards for private applicators, and require all applic ators to demonstrate 882 continued competency to use RUPs would remind applicators about core principles of safe 883 pesticide use and storage, reduc ing the likelihood that children would experience these types of 884 RUP exposures. Thus, the proposed changes ma y reduce children’s expo sure to RUPs and 885 contamination caused by improper application of pesticides. 886 In the almost 4 decades since implementing the certification regul ation, EPA has learned 887 from the Pesticide Program Dialogue Committee, Certification and Training Assessment Group 888 (CTAG), National Assessment of the Pesticide Worker Safety Program, meetings with State 889 regulators, and other stakeholde r interaction, that th e national applicator certification program 890 needs improvements, some of which can only be accomplished through rulemaking. This 891 proposal reflects EPA’s commitmentto pay particular attention to the heal th of children and 892 environmental justice concerns. 893 C. Considerations for Improving the Certification of Applicators Rule 894
1. Regulatory history . The Agency proposed the existi ng certification rule in 1974. EPA 895 finalized sections covering applicator compet ency standards and nonc ertified applicator 896*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 39 of 242 [RIN 2070-AJ20] requirements (40 CFR 171.1-171.6) in 1974 (39 FR 36447; October 9, 1974), followed by 897 sections outlining State plan submission and revi ew and certification in Indian country (40 CFR 898 171.7 through 171.10) in 1975 (40 FR 11698; March 12, 1975), and the requirements for EPA899 administered plans (40 CFR 171.11) in 1978 (4 3 FR 24834; June 8, 1978). Since 1978, EPA has 900 made minor amendments to the rule, such as requiring dealer record keeping and reporting under 901 EPA-implemented plans and establishing standards for EPA-administered plans. 48 FR 29854; 902 June 29, 1983; 48 FR 53972; November 29, 1983. 903 In 1990, EPA proposed amendments to the certification regulation that included 904 provisions for establishing private applicator categories, adding categories for commercial 905 applicators, revising applicator competency st andards, establishing criteria and levels of 906 supervision for the use of a RUP by a noncertif ied applicator, criteria for approving State 907 noncertified applicator training programs, establishing recertifi cation requirements for private 908 and commercial applicators, and eliminating the exemption for non-read er certification. 55 FR 909 46890; November 7, 1990. EPA took comments on the proposal but did not finalize it due to 910 constraints on EPA’s resources. 911 Because no major revision has been made to this Federal regulation in almost 40 years, 912 State programs have taken the lead in revi sing and updating standard s for certification and 913 recertification. Many States updated their certification programs based on EPA’s 1990 proposal. 914 Others have amended their programs to addr ess changes in technology or other aspects of 915 pesticide application. As a re sult, the State requirements for certification of applicators are 916 highly varied and most States go beyond Federal re quirements for applicat or certification. This 917 situation has created an uneven regulatory landscape and problems in program consistency that 918 complicate registration decisions, inhibit State-to -State reciprocity (i.e ., recognition of other 919 State certifications as valid), and hinder EPA’s ability to develop national program materials that 920*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 40 of 242 [RIN 2070-AJ20] meet the needs of all States. 921 2. Stakeholder Engagement. In 1985, a ta skforce was formed by EPA and the State922 FIFRA Issues Research and Evaluation Group ( SFIREG) to review existing certification 923 programs and policies to determine what, if any, actions should be taken to improve the 924 certification program. The taskforce included representatives from EPA, USDA, State 925 cooperative extension services, and State lead agencies for pes ticide regulation. The taskforce 926 issued the Report of the EPA/SFIREG Certifi cation and Training Task Force in August 1985, 927 which identified areas in need of improveme nt and made specific recommendations for 928 improvement (Ref. 19). The taskforce noted the growing complexity and technological 929 advancements in pesticides and pesticide use practices, especially in the agricultural community. 930 Further, the taskforce recognized proper pesticide use as a growing issue under broader 931 environmental concerns, such as groundwater pr otection, endangered specie s protection, worker 932 protection, chronic toxicity, pesticide disposal, and pesticide re sidues in the food supply (Ref. 933 19). The agricultural and commercial applicator communities were becoming aware of these 934 issues and as a consequence sought increased and specialized training. Based on the identified 935 issues and action in the applic ator community, the taskforce suggested that EPA upgrade the 936 competency requirements for private and commercial agricultural applicators. 937 The taskforce’s recommendations included ad ding additional categorie s “for certain use 938 and application methods which require more stringent attention [such as] Compound 1080, 939 certain fumigants, or aerial application” (Ref. 19). In addition, th e taskforce recommended 940 strengthening the training for noncertified applicators working under the direct supervision of a 941 certified applicator and requiring commercial applicators to retain records of the training (Ref. 942 19). It suggested that EPA add dealer requireme nts for recordkeeping about sales of RUPs and 943 make private applicator competency standards closer to the general commercial applicator 944*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 41 of 242 [RIN 2070-AJ20] competency standards. Lastly, the report discusse d the need for a standardrecertification period 945 and “sufficient standardization of training and the process of certification renewal to facilitate 946 interstate commerce” (Ref. 19). 947 EPA proposed amendments to the certification regulation in 1990, based in part on the 948 taskforce’s report (55 FR 46890; November 7, 1990). However, the proposed rule was not 949 finalized and the taskforce’s recommendations were not implemented at the Federal level. While 950 many States adopted new regulations meeting or exceeding the proposed standards contained in 951 the 1990 proposal, other States chose to retaintheir standards until EP A revised the Federal 952 certification regulation. Some Stat es sought to avoid potential conf licts with Federal regulations 953 that had not been finalized, while other States we re bound by laws or regulations that prohibited 954 the State’s standards from being more restrictive than Fe deral standards. 955 In 1996, stakeholders from the Federal and State governments and cooperative extension 956 programs formed CTAG to assess the current st atus of and provide direction for Federal and 957 State pesticide applicator certification program s. CTAG’s mission is to develop and implement 958 proposals to strengthen Federal, State and Tribal pesticide certification and training programs, 959 with the goal of enhancing the knowledge and skills of pesticide users. Pes ticide certification and 960 training programs are run primarily by State government programs and cooperative extension 961 service programs from State land grant universities, so these stakeholders provide valuable 962 insight into the needs of the program. 963 In 1999, CTAG issued a comprehensive report, Pesticide Safety in the 21 st Century, 964 which recommended improvements for State and Fe deral pesticide applicator certification 965 programs, including how to strengthen the certific ation regulation (Ref. 20) . The report suggests 966 that EPA update the core training requirements fo r private and commercial applicators, establish 967 a minimum age for applicator certification, set standards for a recertif ication or continuing 968*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 42 of 242 [RIN 2070-AJ20] education program, facilitate the ab ility of applicators certified inone State to work in another 969 State without going through the whole certification process ag ain, and strengthen protections for 970 noncertified applicators working unde r the direct supervision of a certified applicator (Ref. 20). 971 Around the same time as CTAG issued its re port, EPA initiated the National Assessment 972 of the Pesticide Worker Safety Program (the Nati onal Assessment), an evaluation of its pesticide 973 worker safety program (pesticide applicator ce rtification and agricultu ral worker protection) 974 (Ref. 21). The National Assessment engaged a wide array of stakeholder groups in public forums 975 to discuss among other things, the CTAG recomm endations and other necessary improvements 976 to EPA’s pesticide applicator certific ation program. In 2003, EPA issued the Report on the 977 National Assessment of EPA’s Pest icide Worker Safety Program, which included many 978 recommendations for rule revisions to improve the applicator certification program (Ref. 22). 979 The various individual opinions and suggestions made during th e course of the assessment 980 centered on a few broad improvement areas: Th e expansion and upgrade of applicator and 981 worker competency and promotion of safe r work practices, improved training of and 982 communication with all pesticide workers, incr eased enforcement efforts and improved training 983 of inspectors, training of health care providers and monitoring of pesticide incidents, and finally, 984 program operation, efficiency and funding (Ref. 22). Suggestions specific to certification of 985 applicators included improving standards for noncertified applicators working under the direct 986 supervision of certified applicat ors, establishing a minimum age for applicator certification, 987 requiring all applicators to pass an exam to beco me certified, and facilitating reciprocity between 988 States for certification of applicators (R ef. 22). While EPA addressed some of the 989 recommendations through grants, program guidan ce, and other outreach, others could only be 990 accomplished by rulemaking. 991 During the initial stages of the framing of this proposal, EPA’s Federal advisory 992*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 43 of 242 [RIN 2070-AJ20] committee, the Pesticide Program Dialogue Co mmittee (PPDC), formed a workgroup in 2006 to 993 provide feedback to EPA on different areas for change to the certific ation regulation and the 994 WPS. The workgroup had over 70 members repres enting a wide range of stakeholders. EPA 995 shared with the workgroup suggestions for re gulatory change identified through the National 996 Assessment and solicited comments. The workgr oup convened for a series of meetings and 997 conference calls to get more information on specif ic parts of the regulation and areas where EPA 998 was considering change, and provided feedb ack to EPA. The workgroup never reached 999 consensus; it focused on evaluating possible changes under consideration by EPA by providing 1000 feedback from each member’s or organizati on’s perspective. Comments from the PPDC 1001 workgroup members have been compiled into a singl e document and posted in the docket (Ref. 1002 23). 1003 EPA convened a Small Business Advocacy Re view (SBAR) Panel on potential revisions 1004 to the certification rule a nd the WPS in 2008. The SBAR Pa nel was convened under section 1005 609(b) of the Regulatory Flexibility Act as amended by the Small Business Regulatory 1006 Enforcement and Fairness Act (SBREFA). As part of the SBAR Panel’s activities, EPA 1007 consulted with a group of Small Entity Repres entatives (SERs) from small businesses and 1008 organizations that could be a ffected by the potential revisions. EPA provided the SERs with 1009 information on potential revisi ons to both rules and requestedfeedback on the proposals under 1010 consideration. EPA asked the SERs to offer alternate solutions to the potential proposals 1011 presented to provide flexibility or to decrease economic impact for small entities while still 1012 accomplishing the goal of improved safety (Ref. 24). 1013 Specific to the certification rule, the SERs provided feedback on requirements for the 1014 minimum age of pesticide appli cators and protections for noncerti fied applicators working under 1015 the direct supervision of a certified applicator. The SERs ’ responses were compiled in an 1016*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 44 of 242 [RIN 2070-AJ20] Appendix to the final Panel Re port and posted in the docket (R ef. 24). EPA considered input 1017 from the SERs as part of the evaluation of available options for this rulemaking and SER 1018 feedback is discussed where relevant in this preamble. 1019 Consistent with EPA’s Indian Policy and Tribal Consultation Policy, EPA’s Office of 1020 Pesticide Programs conducted a consultation with Tribes. The consultation was carried out via a 1021 series of scheduled conference calls with Tribal representatives to inform them about potential 1022 regulatory changes, especially areas that could affect Tribes. EPA also informed the Tribal 1023 Pesticide Program Council (TPPC) about th e potential changes to the regulation. 1024 In addition to formal stakeholder outreac h, EPA held numerous individual stakeholder 1025 meetings as requested to discuss concerns and suggestions in detail. Stakeholders requesting 1026 meetings included the National Association of State Departments of Agriculture (NASDA), the 1027 American Association of Pesticide Safety Edu cators (AAPSE), the Association of American 1028 Pesticide Control Officials (AAPCO), the Associ ation of Structural Pest Control Regulatory 1029 Officials (ASPCRO), Crop Li fe America, and others. 1030
3. Children’s health protection . Executive Order 13045 issued in 1997 (62 FR 19885; 1031 April 23, 1997) and modified by Executive Order 13296 in 2003 (68 FR 19931; April 18, 2003) 1032 requires Federal agencies to identify and a ssess environmental health risks that may 1033 disproportionately affect children. Children who apply pesticides face risks of exposure. A 2003 1034 study identified 531 children under 18 years old with acute occupational pesticide-related 1035 illnesses over a 10-year period (Ref. 25). The sa me study raised concerns for chronic impacts: 1036 “because [the] acute illnesses affect young peopl e at a time before they have reached full 1037 developmental maturation, there is also concern about unique and persis tent chronic effects” 1038 (Ref. 25). Although the study is not limited to RUPs , its findings indicate the potential risk to 1039 children from working with and around pesticides. 1040*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 45 of 242 [RIN 2070-AJ20] The Fair Labor Standard Act’s (FLSA) childlabor provisions, which are administered by 1041 DOL, permit children to work at younger ages in agricultural empl oyment than in non1042 agricultural employment. Children under 16 years old are prohibited from doing hazardous tasks 1043 in agriculture, including hand ling or applying acutely toxic pesticides. 29 CFR 570.71(a)(9). 1044 DOL has established a general rule, applicable to most industries other than agriculture, that 1045 workers must be at least 18 years ol d to perform hazardous jobs. 29 CFR 570.120. 1046 Research has shown differences in the deci sion making of adolescen ts and adults that 1047 leads to the conclusion that applicators that are children may take more ri sks than those who are 1048 adults. Behavioral scientists note that re sponsible decision making is more common in young 1049 adults than adolescents: “socia lly responsible decision making is significantly more common 1050 among young adults than among adolescents, but does not increase appr eciably after age 19. 1051 Adolescents, on average, scored significantly worse than adults did, but in dividual differences in 1052 judgment within each adolescent age group were considerable. These findi ngs call into question 1053 recent assertions, derived from studies of logi cal reasoning, that adolescents and adults are 1054 equally competent and that laws and social policies should treat them as such” (Ref. 18). 1055 Decision-making skills and competence differ betw een adolescents and adults. While research 1056 has focused on decision making of juveniles in te rms of legal culpability, the research suggests 1057 similar logic can be applied to decisi on making for pestic ide application. 1058 In sum, children applying RUPs – products that require additional care when used to 1059 ensure they do not cause unreasonable adverse effects on people or the environment – may be at 1060 a potentially higher risk of pesticide exposure an d illness. The elevated risk to the adolescent 1061 applicators, in addition to adol escents’ not fully developed d ecision-making abilities, warrant 1062 careful consideration of the best ways to protect them. It is reas onable to expect that that the 1063 proposed changes would mitigate or eliminate many of the risks faced by adolescents covered by 1064*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 46 of 242 [RIN 2070-AJ20] this rule. 1065
4. Retrospective regulatory review . On January 18, 2011, President Obama issued 1066 Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821; January 1067 21, 2011), to direct each Federal agency to develop a plan, consistent with law and its resources 1068 and regulatory priorities, under which the agency would period ically review its existing 1069 significant regulations to determine whether any such regulations should be modified, 1070 streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective 1071 or less burdensome in achieving the regulatory ob jectives. The Executive Order also enumerates 1072 a number of principles and directives to guide agencies as they work to improve the Nation’s 1073 regulatory system. 1074 In developing its plan, EPA sought public input on the design of EPA’s plan for the 1075 periodic retrospective re view of its regulations, and stakehol der suggestions for regulations that 1076 should be the first to undergo a retrospec tive review (76 FR 9988, February 23, 2011), and 1077 issued the final EPA plan, titled “Improvi ng Our Regulations: Final Plan for Periodic 1078 Retrospective Reviews of Existi ng Regulations,” in August 2011 1079 (http://www.epa.gov/regdarrt/retrospective/documents/epare troreviewplan-aug2011.pdf). 1080 The existing certification rule was nominate d for retrospective revi ew as part of the 1081 public involvement process in 2011. In EPA’s fina l plan, EPA committed to review the existing 1082 certification rule to determine how to clarify requirem ents and modify pote ntially redundant or 1083 restrictive requirements, in k eeping with Executive Order 13563’s directive to reduce regulatory 1084 burden. 1085 The results of EPA’s review, which incl uded identified opportuni ties for improving the 1086 existing regulation, were incorporated into this rulemaking effort. Based on extensive 1087 interactions with stakeholders during review of the certification regulation, EPA has identified 1088*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 47 of 242 [RIN 2070-AJ20] the potential for streamlining activities whic h could reduce the burden on the regulated 1089 community by promoting better coordination among th e State, Federal, and Tribal partnerships; 1090 clarifying requirements; and m odifying potentially redundant orrestrictive regulation. EPA 1091 expects the proposed rule, if finalized, to achie ve the benefits outlined throughout the preamble. 1092 IV. Overview of the Proposed Revisions to Part 171 1093 Units II. and III. described the stakeholder engagement and reports highlighting the need 1094 to update the certificatio n regulation. In additi on to stakeholder recommendations, EPA believes 1095 the rule needs to be updated to address St ate variability and to support EPA registration 1096 decisions. Each of these reasons for updati ng the rule are discussed in this unit. 1097 As noted in Unit III., EPA has not updated the certification regulation substantially in 1098 almost 40 years. However, many States have adopted updated standards for certification and 1099 recertification. As a result, State requirements fo r certification of applicators are highly varied; 1100 most States go beyond Federal requirements for applicator certification. This has created an 1101 uneven regulatory landscape betw een States and inhibits r ecognition of an applicator 1102 certification issued in on e State by another State. 1103 If certification does not represent a uniform degree of competence, this diversity also 1104 compromises EPA’s ability to dete rmine confidently that use of a pesticide product by certified 1105 applicators will not cause unreasonable adverse eff ects. In order to retain or expand the number 1106 and types of pesticides available to benefit ag riculture, public health, and other pest control 1107 needs, EPA plans to raise the Federal standard s for applicator competency. By adopting the 1108 proposed strengthened and additional competency st andards, EPA could rely on a higher level of 1109 applicator competence generally, and may be able to register pesticides under terms more 1110 beneficial to users. 1111 Units VI to XX describe the most signifi cant of the proposed changes and alternative 1112*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 48 of 242 [RIN 2070-AJ20] options considered by EPA. Each discussion is generally structured to provide, where 1113 appropriate: 1114 • A concise statement of the proposed change. 1115 • The current requirements of the certification regulation. 1116 • Stakeholder feedback and rese arch supporting the proposed change. 1117 • A detailed description of the proposed change and the rationale for the change. 1118 • An estimated cost. 1119 • A description of primary alternatives considered by EPA and the reason for not 1120 proposing them. 1121 • Specific questions on which EPA seeks feedback. 1122 V. Public Comments 1123
1. Submitting CBI . Do not submit this information to EPA through regulations.gov or 1124 email. Clearly mark the part or all of the information that you claim to be CBI. For CBI 1125 information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD1126 ROM as CBI and then identify electronically within the disk or CD-ROM the specific 1127 information that is claimed as CBI. In addition to one complete version of the comment that 1128 includes information claimed as CBI, a copy of the comment that does not contain the 1129 information claimed as CBI must be submitted for inclusion in the public docket. Information so 1130 marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 1131
2. Tips for preparing your comments . When preparing and submitting comments, see the 1132 commenting tips at http://www.epa.gov/dockets/comments.html. 1133 VI. Revise Private Applicator Certification Standards 1134 A. Enhance Private Applicator Competency Standards 1135
1. EPA’s proposal. Because private applicators have access to and can apply the same 1136*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 49 of 242 [RIN 2070-AJ20] RUPs as commercial applicators and therefore n eed to have similar knowledge and skills to 1137 apply pesticides safely and effectively, EP A proposes to amend the private applicator 1138 competency standards to include more specific info rmation on pesticide application and safe use. 1139
2. Existing regulation . The current rule has 5 topics under the competency standards for 1140 private applicators: 1141 • Recognize common pests to be controlled and damage caused by them. 1142 • Read and understand the label and labeling information. 1143 • Apply pesticides in accordance w ith label instructions and warnings. 1144 • Recognize local environmental situations that must be cons idered during application to 1145 avoid contamination. 1146 • Recognize poisoning symptoms and proce dures to follow in case of a pesticide 1147 accident. 40 CFR 171.5(a)(1) through (5). 1148 These topics are listed without specific detail or clarification of the ar eas to be covered under 1149 each point. In contrast, the core standards of co mpetency for commercial certification have nine 1150 major areas of focus with more specific sub-points listed under each. 40 CFR 171.4(b)(1). 1151
3. Stakeholder information. Starting in 1985, EPA received re quests from stakeholders to 1152 increase the level of detail and subject matter outlined in the competency standards for private 1153 applicators. SFIREG’s taskforce report calls fo r EPA to make private applicator competency 1154 standards parallel to those of commercial applicators (Ref. 19). CTAG recommended that all 1155 applicators with access to RUPs meet a similar competency standard (Ref. 20). Members of the 1156 PPDC workgroup also noted that since commercial and private applicators have access to the 1157 same products, they should meet similar compet ency standards (Ref. 23). Over 90% of States 1158 noted that their private applicator certification st andards are comparable to the core standards for 1159 commercial applicators (Ref. 1). 1160*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 50 of 242 [RIN 2070-AJ20] 4. Details of the proposal/rationale. Based on the importance of understanding and 1161 following the pesticide’s labeling in managing risks to the applicator, the public, and the 1162 environment, EPA is proposing to enhance the co mpetency standards for private applicators to 1163 more specifically define the necessary knowledge and skills to be demonstrated by private 1164 applicators to become certified. More specific competency standards would better outline the 1165 knowledge and skills EPA expects private applicators to have in order to apply RUPs effectively 1166 and without unreasonable adverse effects. 1167 The enhanced private applicator competency standards would cover: Label and labeling 1168 comprehension; safety; environment; pests; pesticides; equipment; application techniques; laws 1169 and regulations; responsibilities for supervisors of noncertified applicators; professionalism; and 1170 agricultural pest control. EPA is proposing a set of competency standards substantially parallel to 1171 the core standards for commercial applicator s in the current ruleat 40 CFR 171.4(a) and 1172 proposed as 40 CFR 171.105(a), with the addition of some points from the agricultural plant 1173 category and information particularly relevant to private applicators, such as the WPS. The 1174 proposed competency standards specifical ly cover protecting pollinators under the 1175 “environment” heading. In addition to the di fferences in the proposed general competency 1176 standards for private and commercial applicator s, EPA proposes to maintain the distinction 1177 between private and commercial applicator competency standards required by FIFRA (7 U.S.C. 1178 136i(e)) by not requiring private ap plicators to obtain a specific category certification in addition 1179 to the proposed general certification. For commerci al applicators to become certified, they must 1180 pass the core and at least one category exam. 1181 It is reasonable to expect that that the more detailed competency standards would 1182 contribute to improving the overall comp etency of private applicators. 1183 The proposed regulatory text woul d be located at 40 CFR 171.105(a). 1184*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 51 of 242 [RIN 2070-AJ20] 5. Costs/benefits. EPA estimated the cost of the proposed enhancements to private 1185 applicator competency standard s in conjunction with the requir ement to strengthen private 1186 applicator certification requireme nts. The cost for these combined proposals is presented in Unit 1187 VI.B.5. 1188
6. Alternative options. EPA considered adopting the core standards for commercial 1189 applicators in the current rule at 40 CFR 171.4(a) for private applicator competency standards. 1190 Private and commercial applicators have the same access to RUPs and need knowledge of basic 1191 safety and application techniques related to th e use of these products. However, FIFRA requires 1192 that EPA establish separate standards for commerc ial and private applicat ors, thereby prohibiting 1193 EPA from using the same core competency standards for commercial and private applicators. 7 1194 U.S.C. 136i(e). In addition, because private applicators are engaged only in the production of 1195 agricultural commodities, it is necessary for them to demonstrate specific competency related to 1196 this type of RUP use rather than the broader range of commercial applicator competencies. 1197
7. Request for comment. EPA seeks comment on the following: 1198 • Should EPA consider adding points to or deleting points from the proposed private 1199 applicator competency standards? If so, what points and why? 1200 • Are the competencies necessary to prot ect pollinators adequately covered in the 1201 proposed competency standards for private applicat ors? If not, please explain why and provide 1202 alternatives to ensure that private applicator s are competent to use RUPs in a manner that 1203 protects pollinators. 1204 B. Strengthen Private Applicator Certification Requirements 1205
1. EPA’s proposal. In order to address the need for priv ate applicators to be competent to 1206 use RUPs, EPA proposes to require that persons seeking certification as private applicators 1207 complete a training program approved by the certif ying authority that covers the standards of 1208*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 52 of 242 [RIN 2070-AJ20] competency for private applicators or pass a written exam administered by the certifying 1209 authority. 1210
2. Existing regulation. The certification regulation requires States to ensure that private 1211 applicators are competent and th e certification process use a written or oral exam, or other 1212 method approved as part of the State certification plan. 40 CFR 171.5(b). The rule does not have 1213 a description of a certification system that is not a written or oral testing procedure. 1214
3. Stakeholder information. SFIREG, the PPDC workgroup, and CTAG have 1215 recommended that private applicators be require d to take and pass a written exam to become 1216 certified to use RUPs (Refs. 19, 23, 26). Based on data from State certification plans, 42 States 1217 require private applicators to pass a written exam to become certified, and another 3 States offer 1218 the option to certify by passing a written exam (Ref. 1). 1219 Stakeholders recognize the provision in FIFRA that prohibits EPA from requiring private 1220 applicators to take an exam to establish comp etency, 7 U.S.C. 136i(a)( 1), and have suggested 1221 that EPA set a minimum training requirement fo r those States that do not require private 1222 applicators to take an exam. 1223
4. Details of the proposal/rationale. To implement the enhanced competency standards 1224 for private applicators, EPA proposes to requir e that private applicat ors complete a training 1225 program approved by the certifying au thority, or in the alternative, by passing a written exam. In 1226 either case, the certification process must cover th e private applicator core standards described in 1227 Unit VI.A., and meet the procedural standard s described in Unit IX. By allowing private 1228 applicators to be certified by eith er attending a training program or taking an exam, EPA’s action 1229 does not conflict with the FIFR A’s prohibition against EPA requi ring private applicators of 1230 RUPs take an exam to establish competency. 7 U.S.C. 136i(a)(1). 1231 Forty-two States already re quire private applicators to pass a written exam for 1232*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 53 of 242 [RIN 2070-AJ20] certification, so EPA is proposing standard pro cedures for such examinations. Those States 1233 without a written exam requirement generally require some form of training, though the length, 1234 quality, and content of the trai ning vary considerably betweenStates, so EPA is proposing 1235 specific content requirements. It is reasonable to e xpect that that the risks associated with private 1236 applicators’ use of RUPs can be reduced through setting more specific minimum requirements 1237 for the content of and mechanisms to assess private applicator comp etency. This proposal 1238 acknowledges the need for more specific requirem ents for the alternate mechanism for private 1239 applicator certification and balances it with the recognition th at certifying authorities are well1240 suited to develop training programs that cover the content EPA has deemed necessary to avoid 1241 unreasonable adverse effects from the use of RUPs by private applicators and meet the needs of 1242 the private applicators in their jurisdictions. 1243 The proposed regulatory text woul d be located at 40 CFR 171.105(e). 1244 5. Costs. EPA estimates this proposal would cost about $3.7 million annually for private 1245 applicators. EPA also estimates th at those States that do not currently require an exam or training 1246 that last approximately 12 hours for private applicator certification would incur costs of about 1247 $16,000 per year for the first two years after implementation to develop the programs, as well as 1248 $61,000 per year thereafter for ongoing program administration. EPA plans to support the 1249 development of exams and manuals for private applicator certification, which should reduce the 1250
costs to States. 1251
6. Alternative options cons idered but not proposed. While maintaining the same 1252 enhanced competency standards discussed in Unit VI.A., EPA considered alternative options of 1253 allowing private applicator certification by comp leting a training program of a specific length – 1254 either 4, 8, or 16 hours – that covers the conten t outlined in Unit VI.A. In developing the EPA1255 administered certification plan for Indian country, EPA developed a non-exam certification 1256*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 54 of 242 [RIN 2070-AJ20] option for private applicators. Because of the diffi culty of reaching candidates in various parts of 1257 the country and the need to make the training av ailable throughout the y ear, the Federal Indian 1258 country training program is a pr e-recorded, narrated PowerPoint presented through the Internet 1259 that runs 12 hours (Ref. 27). The tr aining covers much of the conten t proposed in Unit VI.A., as 1260 well as specific requirements for pesticide applic ators in Indian country. However, EPA decided 1261 not to propose a specific length for private appl icator certification by training. EPA believes that 1262 specifying that private applicator non-exam certification must be accomplished through training 1263 and outlining the content that must be covered in the training would a llow States and private 1264 applicator educators - who unders tand the content, the audience, and how to convey the content 1265 to the audience - to develop training programs that cover the content EPA deems necessary and 1266 meet the needs of their audiences. For example, narrated PowerPoint presentations and webinars 1267 may take a longer amount of time to cover the specified topics than an in-person training. 1268 Additionally, a mandatory training length could enc ourage some training provi ders to either rush 1269 through or draw out coverage of the content, thereby diminishing the effectiveness of the 1270 training. It is not clear that specifying the le ngth of the training w ould better protect human 1271 health or the environment. 1272
7. Request for comment. EPA specifically requests comment on the following: 1273 • Please provide any relevant informati on on the efficacy of private applicator 1274 certification training programs or comparisons between training and testing programs. 1275 • Please comment on the proposed structure of the non-exam option for private applicator 1276 certification. 1277 • Would a different training requirement adequately convey the necessary information to 1278 private applicators? If so, please describe the alternate requirement. 1279 • Is it necessary for EPA to specify a mini mum length of time for the training program for 1280*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 55 of 242 [RIN 2070-AJ20] private applicator certification? If so, please provide the minimu m length of the training program 1281 and explain its basis. 1282 C. Eliminate Non-Reader Certific ation for Private Applicators 1283
1. EPA’s proposal. Due to the importance of an applic ator’s ability to read, understand, 1284 and follow the labeling in order to apply pe sticides in a manner that would not cause 1285 unreasonable adverse effects to pe ople or the environment, EPA pr oposes to delete the provision 1286 of the rule that allows a non-reader to become a certified private applicator. 1287
2. Existing regulation. The existing rule contains a provi sion for limited certification of 1288 private applicators who cannot read by offeri ng the option to obtain a product-specific 1289 certification. 40 CFR 171.5(b)(1). This provision allows States to use a testing procedure 1290 approved by the Administrator to assess the comp etence of the non-reader candidate related to 1291 the use and handling of each indivi dual pesticide for which certifi cation is sought. This generally 1292 means that someone has explained the labeling to the non-reader and the non-reader answers 1293 questions on the same labeling asked by the Stat e regulator. The person seeking certification is 1294 not required to demonstrate the ability to read and understand pesticide labeling. 1295 As discussed earlier, FIFRA prohibits EPA fr om requiring private applicators to pass an 1296 exam to establish competency. 7 U.S.C. 136i(a)(1). 1297
3. Stakeholder information considered by EPA. CTAG recommended that EPA establish 1298 a requirement for persons seeking certification to be able to read and understand English 1299 language pesticide labeling. Most PPDC workgr oup members did not oppose elimination of the 1300 non-reader certification provision (Ref. 23). One State noted that there are small populations who 1301 either cannot read English-language labeling or who could not pass an exam, but who could use 1302 a single product without causing unr easonable adverse effects. EPA is only aware of two States 1303 that employ limited certification. 1304*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 56 of 242 [RIN 2070-AJ20] 4. Details of the proposal/rationale. EPA proposes to eliminate the current provision that 1305 allows States to offer limited certification to persons who cannot read the pesticide labeling. A 1306 key element of applicator competency is the ability to read the labeling because understanding 1307 the labeling is critical to preventing unreasonabl e adverse effects from the use of RUPs. Labeling 1308 is increasingly relied upon to transmit product-spec ific information relativ e to subjects such as 1309 worker protection, groundwater, endangered species, and human e xposure. In addition, labeling 1310 may change frequently. Approved uses, application rates, and applic ation methods may be 1311 deleted or added by a registrant voluntarily or as part of an EPA risk mitigation strategy. The 1312 potential for misuse of RUPs presents an unreasonab le risk unless the applicator is able to read 1313 and correctly interpret the labeling that accomp anies each product he or she uses. While the 1314 current system is intended to ensure the applicator has knowledge of a specific product’s 1315 labeling, there is no way to ensure the applicator would be aware of subsequent changes. It is 1316 reasonable to expect that that by eliminating th e specific certification me thod for applicators who 1317 cannot read, RUPs are more likely to be applied as required by their labeling, and therefore will 1318 be less likely to cause unreasonable advers e effects to people or the environment. 1319 EPA recognizes that persons can be certified as private applicators by attending a training 1320 course. In this case, EPA exp ects that the certifying body woul d ensure that the applicator 1321 demonstrated all of the necessary competencies to apply RUPs, including the ability to read. 1322 The proposed change does not affect non-certified persons applying RUPs under the 1323 direct supervision of a certified applicator. It is conceivable that persons who cannot read 1324 labeling could use RUPs properly while working under the direct superv ision of a certified 1325 applicator. EPA is proposing to strengthen th e training and other requirements related to 1326 noncertified applicators to ensure that th ey understand the labeling requirements for each 1327 application, are supervised by a qualified applic ator familiar with the specific product labeling 1328*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 57 of 242 [RIN 2070-AJ20] for each application, and have equipment availa ble to contact the supervising applicator 1329 immediately in the event of an emergency or with any questions. Thes e strengthened standards 1330 should provide sufficient training that a non-readeror a person who cannot read English could 1331 apply RUPs under the direct supervision of a certified applicator without causing unreasonable 1332 adverse effects to the applicator , the public, or the environment. 1333 5. Costs. EPA estimates the cost of this proposal would be negligible. EPA is sensitive to 1334 the fact that elimination of th is provision may increase costs for a very small number of private 1335 applicators, but it is r easonable to expect that this adverse impact would be small in comparison 1336 to the potential reduction in ri sks to the applicator, the public, and the environment. If the 1337 proposal is finalized, EPA would allow existing non-reader certifi cations to remain valid until 1338 expiration or recertification is required under the implementation of the final rule. Because most 1339 non-reader certifications are issu ed for a specific application in a single growing season, EPA 1340 anticipates that non-reader certification would not continue fo r any significant period of time if 1341 this proposal is finalized. 1342
6. Alternative options cons idered but not proposed. EPA also considered retaining the 1343 limited certification option for private appli cator certification and strengthening the 1344 requirements. For this alternative scenario, the limited certification would be valid for a single 1345 product and for a single season. Th e State would have to evaluate each request for a limited 1346 certification separately. This option would codify what EPA understands to be the current 1347 practice in States that allow non-reader certification. Under this op tion, a person could be 1348 certified to use a single product based on a speci fic product’s labeling, but might not be aware of 1349 subsequent changes to the labeling of the same product purchased later in the season. Given the 1350 importance of avoiding unreasonable adverse effects from the use of RUPs and the limited use of 1351 this certification option, EPA deci ded not to propose this option. 1352*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 58 of 242 [RIN 2070-AJ20] 7. Request for comment. EPA requests comment on the following questions: 1353 • Would the elimination of the non-reader pr ovision cause hardship to specific groups of 1354 private applicators? If so, please de scribe the group and the hardship. 1355 • Should EPA allow private applicators currentl y certified under this provision to retain 1356 their certification if the non-reader provision is eliminated ? Please explain why. If so, how would 1357 “grandfathering in” private applicators certified under this provision im pact other proposed 1358 changes, such as requirements for maintaini ng certification and supervising noncertified 1359 applicators? 1360 • Do alternatives to the non -reader certification option exist that would offer an adequate 1361 level of protection while maintaining a narrow ex ception to certification requirements? If so, 1362 please describe. 1363 VII. Establish Application Method-Specific Certification Categories for Private and 1364 Commercial Applicators 1365
1. Overview. In order to address the elevated ri sks associated with certain specific 1366 methods of application used by certified private and commercial applicators to apply RUPs, EPA 1367 proposes to add application method-specific certif ication categories for private and commercial 1368 applicators that use RUPs to conduct so il fumigation, non-soil fumigation, and aerial 1369 applications. These application method-specific categories would be independent of the pest 1370 control categories in the existi ng rule, for example, a person certified in the aerial method 1371 category would also need certification in one or more pest contro l categories, such as crop pest 1372 control, forest pest control, or public health pest control. 1373
2. Existing regulation. The existing rule has no categories for private applicators. For 1374 commercial applicators, the existing rule doe s not have any application method-specific 1375 categories, although it does have 11 pest control categories: Agri cultural pest control – plant; 1376*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 59 of 242 [RIN 2070-AJ20] agricultural pest control – animal; forest pest co ntrol; ornamental and turf pest control; seed 1377 treatment; aquatic pest control; right-of-way pest control; industrial, instit utional, structural and 1378 health related pest control; public health pest control; regulatory pest control; and demonstration 1379 and research pest control. 40 CFR 171.3. 1380
3. Stakeholder information considered by EPA. Stakeholders, including SFIREG, CTAG, 1381 AAPCO, and members of the PPDC workgroup, recommended that EPA consider adding 1382 application method-specific certifi cation categories for high-risk us es (Refs. 19, 20). States have 1383 noted that certain application methods, speci fically fumigation and aerial application, pose 1384 elevated risks of exposure or harm to the applicator, bystanders, or the environment. 1385 Some States have addressed these elevated risks related to these application methods by 1386 adding specific categories for both private and commercial applicators se eking to use certain 1387 application methods. States thathave chosen to add categorie s have done so independently, 1388 resulting in different standard s and levels of protection acros s the country. EPA reviewed the 1389 categories related to application methods a dopted by the States and other stakeholders. 1390 According to data from 2013, 32 States require co mmercial applicators to be certified for aerial 1391 application and 1 State requires th e same for private applicators. For soil fumigation, 16 States 1392 require commercial applicators to obtain a sp ecific certification and 10 States have a similar 1393 requirement for private applicators. Finally, for non-soil fumigation, 41 States mandate that 1394 commercial applicators be certif ied in this specific category to conduct non-soil fumigation 1395 applications and 8 States have a similar requirement for private applicators. 1396 The 2008 Reregistration Eligibility Deci sion for soil fumigants acknowledged the 1397 elevated risks. As a result of these risks, EPA required additional tr aining for soil fumigant 1398 applicators through labeling amendments. The decision also acknowledge d that a specific 1399 certification category requiring de monstration of competency by passing a written exam related 1400*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 60 of 242 [RIN 2070-AJ20] to applying fumigants to soil would be an acceptabl e alternative risk mitigation measure. Several 1401 States have opted to require ap plicators to be certified in a specific soil fumigation category. As 1402 chemicals are reviewed as part of the ongoing regi stration review program, risks associated with 1403 individual pesticides may be addressed through labeling requirements fo r additional training or 1404 competency. 1405
4. Details of the proposal/rationale. The Agency proposes to es tablish three application 1406 method-specific certification categories for privat e and commercial applicators: Soil fumigation, 1407 non-soil fumigation, and aerial. Based on the discu ssions with States a nd review of existing 1408 State-adopted categories, EPA proposes these cat egories because EPA has concluded that these 1409 categories of use for RUPs may cause unreas onable adverse effect s without additional 1410 regulation. These types of RUP application require specialized skills and present unique risks, 1411 such that it is reasonable and appropriate for private and commerc ial applicators to acquire or 1412 demonstrate the pertinent knowledge and skills befo re being certified to apply RUPs in any of 1413 these three categories. For commercial applicator s, certification in any ofthe application method1414 specific categories would only be available to persons certified in a relevant pest control category 1415 as described in proposed 40 CF R 171.101(a). Private applicators would need to satisfy the 1416 general competency standards desc ribed in Unit VI in order to qua lify for additional certification 1417 in an application method-specific category. 1418 Pesticide application and agriculture both are becoming increasingly specialized. 1419 Improper use of application equipment may lead to increased risks to the health of the applicator, 1420 workers, the environment, and the public. A dditionally, certain categ ories of pesticides, 1421 including fumigants, pose an inherently higher risk of acute injury or death if the applicator does 1422 not understand and follow the labe ling. These increased risks can be mitigated by requiring 1423 applicators to demonstrate a more specific set of competencies relative to certain application 1424*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 61 of 242 [RIN 2070-AJ20] methods. 1425 Soil fumigation is a complicated process, and involves highly t oxic pesticide products 1426 that can cause acute, severe injury to the appl icator, handler, bystanders, or the environment if 1427 not used properly. Given the incr eased potential for harm to human health and the environment, 1428 EPA proposes to establish soil fumigation catego ries for private and commercial applicators. 1429 Under the re-registration decision for th e soil fumigants, 72 FR 24295-24297, May 2, 2007 1430 (Refs. 28, 29, 30), additional soil fumigation-specific training is required for applicators certified 1431 to use RUPs registered for use as soil fumi gants due to their incr eased potential for harm. 1432 Because there was no generally applicable requi rement or standard of competence for soil 1433 fumigation, EPA required each registrant to de velop and implement a soil fumigant training 1434 program. In discussing this approach with States, EPA recognized that an applicator certification 1435 category specific to soil fumigation with a si ngle, uniform set of criteria would be less 1436 burdensome than requiring separate, registrant -sponsored trainings for each soil fumigation 1437 product. States have requested that EPA consider requiring all applicators us ing soil fumigants to 1438 be certified in a single, soil fumigation category in lieu of each product’s labeling requirement 1439 for registrant-sponsored traini ng (Ref. 31). The labeling for soil fumigants provides the option 1440 for applicators to qualify to pur chase and use these products eith er by attending the registrant 1441 training specified on the labeling for each specif ic chemical or by being certified in a soil 1442 fumigation category that covers all active ingredients and m eets the competency standards 1443 approved by EPA. Recognizing th e potential risks from soil fu migants and the importance of 1444 applicator competency, EPA workedwith State regulators, coopera tive extension personnel, soil 1445 fumigant applicators, and indus try to develop a training manual and exam item bank (database of 1446 questions related to soil fumigation that can be used on a certification exam) that States can use 1447 for certification of applicators perf orming soil fumigation (Refs. 32, 33). 1448*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 62 of 242 [RIN 2070-AJ20] Under the proposal, commercial applicator certification in the soil fumigation category 1449 would require the applicator to demonstrate competency in soil fumigation by passing a written 1450 exam and to hold concurrent certification in each of the pest c ontrol categories in which he or 1451 she intends to conduct this type of application, e.g., agricultural pest control – plant; ornamental 1452 and turf pest control; forest pestcontrol; right-of-way pest control; regulatory pest control; or 1453 demonstration and research. Privat e applicator certification in soil fumigation would require the 1454 applicator to demonstrate competency by passi ng a written exam or completing a training 1455 program covering the proposed competency stan dards for soil fumigati on (proposed at 40 CFR 1456 171.105(c)(1)) in addition to holding a valid ge neral private applicat or certification. 1457 Other (non-soil) types of fumigation require di fferent techniques and training than soil 1458 fumigation, but have similar potential to harm th e applicator, the environment, and the public. 1459 For example, although fumigation of a shipping container requires different application 1460 equipment, monitoring strategy, and mitigation of environmental concerns than soil fumigation, 1461 both types of fumigation can cause acute, severe injury to the applicator, handler, bystanders, or 1462 the environment if not conducted properly. Given the high potential for harm to human health 1463 and the environment, EPA proposes to add non-soil fumigation application method-specific 1464 certification categories for private and commerc ial applicators. Commercial applicator 1465 certification in the non-soil fumigation category would require the applic ator to demonstrate 1466 competency in non-soil fumigation by passi ng a written exam and to hold concurrent 1467 certification in each of the pest control categories in which he or she intends to conduct this type 1468 of application, e.g., agricultural pestcontrol – plant; forest pest control; ornamental and turf pest 1469 control; seed treatment; aquatic pest control; indu strial, institutional, structural, and health1470 related pest control; public health pest control; regulatory pest control; or demonstration and 1471 research. Private applicator certification in non-soil fumigation w ould require the applicator to 1472*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 63 of 242 [RIN 2070-AJ20] demonstrate competency by passing a written ex am or completing a training program covering 1473 the proposed competency standards for non-soil fumigation (proposed at 40 CFR 171.105(c)(2)) 1474 in addition to holding a valid general private applicator certification. 1475 Applying pesticides with a pl ane or helicopter poses a unique set of risks and challenges 1476 to the applicator, bystanders, and the environment. There is heightened concern for spray drift, 1477 elevated potential for off-target applications and bystander exposure, and an increased need for 1478 application equipment to be calib rated accurately. Aerial applicat ors are required to comply not 1479 only with EPA regulations for the application of pesticides, but also Federal Aviation 1480 Administration requirements for pilots making applications using an aircraft. Recognizing the 1481 potential risks and the importance of applicator competency when performing aerial applications, 1482 EPA worked with State regulator s, cooperative extension personne l, aerial applicators, and 1483 industry to develop a training manual and exam ite m bank that States can use for certification of 1484 aerial applicators (Ref. 34). Th e unique challenges posed by this application method warrant 1485 establishing aerial application categories for priv ate and commercial applicators. Accordingly, in 1486 order for a commercial applicat or to make aerial applicatio ns of RUPs, the commercial 1487 applicator would be required to demonstrate competency in aerial application by passing a 1488 written exam and to hold concurrent certification in each of the pest control categories in which 1489 he or she intends to conduct ae rial application, e.g., ag ricultural pest contro l – plant; ornamental 1490 and turf pest control; forest pest control; aquatic pest control; right-of- way pest control; public 1491 health pest control; demonstration and research; or regulatory pest control. Private applicator 1492 certification in aerial application would require the applicator to demonstrate competency by 1493 passing a written exam or completing a traini ng program covering the proposed competency 1494 standards for aerial application (proposed at 40 CFR 171.105(c)(3)) in addition to holding a valid 1495 general private applicator certification. 1496*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 64 of 242 [RIN 2070-AJ20] Requirements for general private applicator certification in each of the aforementioned 1497 application method-specific categories would para llel the certification requ irements proposed in 1498 Unit VI.B. Private applicators would be required to either pass a written exam or complete a 1499 training program for each applic ation method-specific category that covers the proposed 1500 competency standards and is approved by the certifying authority. A person who does not have a 1501 general private applicator certif ication would not be eligible for certification in any of the 1502 application method-specific categories. These additional categories of certification would 1503 provide a measure of assurance that the privat e applicator has the sp ecialized knowledge of 1504 application methods, equipment, and the characteris tics of the pesticides pertinent to a specific 1505 category to use the pesticide without generally causing unreasonabl e adverse effects. 1506 The regulatory text for the proposed commerci al applicator applic ation method-specific 1507 categories would be located at 40 CFR 171.101(b). Th e regulatory text for the proposed private 1508 applicator application method- specific categories would be located at 40 CFR 171.105(c). 1509 5. Costs. The cost estimates are broken out by each category for private and commercial 1510 applicators. As discussed in Unit VI.B., EPA plans to support the development of exams and 1511 manuals for the proposed application-method specific categories, wh ich should reduce the 1512 overall burden to States associated with this proposal. EPA has alr eady developed and made 1513 available to State certification agencies free of charge training manuals and exam item banks for 1514 the aerial and soil fumigation categories. States that elect to use the EPA-developed materials 1515 would incur minimal development costs; however, the costs below reflect the full estimated cost 1516 to States and do not include EPA assistance indeveloping exams and manuals. EPA expects the 1517 actual costs to States would be lower. 1518 Private applicators 1519 EPA estimates the cost to private applicator s of adding a private ae rial category to be 1520*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 65 of 242 [RIN 2070-AJ20] about $2,000 annually. The low cost to applicat ors reflects the number of existing private 1521 applicators certified in aerial application and the low estimated number of new private 1522 applicators seeking aerial certific ation. The costs to States to de velop and administer exams or 1523 training for certification w ould be about $108,000 annually for the first 2 years of 1524 implementation. Most of this cost would be borne within the first two year s to develop the exams 1525 and recognizes that nationally developed materials will be available for States to adapt for their 1526
own programs. 1527 EPA estimates that adding a soil fumigation category for private applicators would not 1528 result in any additional cost to private appli cators. The labeling for soil fumigation products 1529 already requires applicators to e ither participate in re gistrant training for e ach product or to be 1530 certified in a State soil fumigation category. 1531 EPA estimates that the cost to privat e applicators of adding a non-soil fumigation 1532 category to be about $78,000. 1533 EPA estimates that the costs to States to develop and administer exams or training for 1534 certification in the soil and non-soil fumigati on categories would be $197,000 annually for the 1535 first 2 years of implementation. 1536 Commercial applicators 1537 EPA estimates the cost to commercial applicat ors of adding an aerial category to be about 1538 $98,000 annually. The low cost to app licators reflects the number of States that already require 1539 commercial applicators to obtain a specific certification to perform aerial application and the 1540 relatively low number of applicators that seek certification in an aerial category each year. The 1541 cost to States to develop a certification exam for this category would be about $39,000 annually 1542 for the first 2 years after implementation. 1543 EPA estimates that adding a soil fumigation category for commercial applicators would 1544*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 66 of 242 [RIN 2070-AJ20] not result in any additional co st to commercial applicators. The labeling for soil fumigation 1545 products already requires applicators to either participate in registrant training for each product 1546 or to be certified in a State soil fumigation category. 1547 EPA estimates the cost of adding requ irements a non-soil fumigation category for 1548 commercial applicators would be about $131,000 pe r year for commercial applicators. Many 1549 States already require commercia l applicators to be certified in either general fumigation, soil 1550 fumigation, or another type of fu migation. However, the cost to a dd this category is higher than 1551 for other commercial applicator categories propo sed because most States do not already have 1552 categories for both soil and non-soil fumigation. 1553 The costs to States to de velop non-soil fumigation certification exams would be about 1554 $30,000 per year for the first 2 years following implementation. 1555
6. Alternative options considered by EPA but not proposed. The Agency considered six 1556 alternatives to the proposed requirement. 1557 i. Specify a certain number of training hours fo r private applicator certification in these 1558 categories. 1559 EPA considered requiring private applicators to complete a specific number of hours of 1560 training (either 4 or 8 hours) or to pass an exam in order to become certified in an application 1561 method-specific category. As discussed above inUnit VI.B., it is not clear that a mandatory 1562 minimum length for private applicator certificatio n training programs would not ensure specific 1563 competency. 1564 ii. Continue to rely on label-specific risk mitigation to address elevated risks associated 1565 with certain application methods. 1566 EPA considered relying on imposing risk mitigation measures through labeling, limiting 1567 the use of high risk products or higher risk application methods. This approach would be 1568*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 67 of 242 [RIN 2070-AJ20] implemented on a case-by-case basis and not directly linked to pesticide applicator certification 1569 programs. The Agency learned that applicator s, States, and cooperative extension service 1570 programs did not support this approach and facedsignificant burdens when this approach was 1571 used to regulate soil fumigants (Refs. 35, 36, 37, 38). Based on the adverse reaction and impact 1572 to States, as well as the need to promote appl icator competency and national consistency, EPA 1573 decided not to propose this option. It is reasonabl e to expect that adding categories at the Federal 1574 level to cover many types of pes ticides applied by specific mechanisms would be more efficient 1575 than imposing similar but not identical requirements on each pesticide label. 1576 iii. Consolidate soil fumigation and non-so il fumigation into a single fumigation 1577 category. 1578 To reduce the burden on State certification authorities and applicators who perform both 1579 types of fumigation applications, EPA cons idered proposing a single general fumigation 1580 concurrent category instead of separate soil and non-soil fumigation concurrent categories. The 1581 knowledge and skills necessary to perform soil fumigation and non-soil fumigation differ 1582 substantially. In additi on, there are significant differences in risks to the applicator and 1583 environmental concerns between the two methods for applying fumigants. The reregistration 1584 decisions on the soil fumigants highlighted the specific use conditions and risk mitigation 1585 measures necessary to apply soil fumigants without unreasonable adverse effects, not necessary 1586 restrictions for applications of all fumigants. Combining these related categories may reduce the 1587 burden on certifying agencies and on some app licators; however, applicators who perform only 1588 soil fumigation or only non-soil fumigation would receive less instruction specific to their 1589 particular application method and more instruc tion than they wish on a method for which they 1590 may have no use. In order to ensure that applicat ors have a level of compet ency in the applicable 1591 application method proportional to the potential risk, EPA decided notto propose a general 1592*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 68 of 242 [RIN 2070-AJ20] fumigation category. 1593 iv. Add application method-specific standards as subcategories under the existing 1594 commercial applicator categories. 1595 EPA considered adding the categories discus sed in this Unit as subcategories under the 1596 applicable existing commercial applicator pest control categories. For ex ample, a person seeking 1597 to perform aerial application to agricultural fiel ds and forests, and for mosquito control would 1598 have to take an aerial exam specific to each of these categories. This would require creating 1599 subcategories under almost every pest control cate gory. An applicator would have to be certified 1600 not only in each relevant pest control category, but also in a subcategory under each in order to 1601 use a specific application method. Application method-specif ic certification requirements as 1602 proposed are expected to impose a lower burden on applicators seeking certification, e.g., one 1603 aerial method-specific certificati on exam rather than separate aerial subcategory exams under 1604 agricultural plant, forest, and aquatic pest control. The competency necessary to employ a 1605 specific application method, i.e., soil fumigation, non-soil fumigation, or aerial pest control, does 1606 not appear to vary substantially based on wher e the application occurs. For example, an 1607 applicator performing soil fumigation needs to know the same techniques and safety measures 1608 whether doing it in for a field crop or for ornamental pest control. Therefore, EPA decided not to 1609 propose the application method-specific certification as subcategories under the commercial 1610 applicator pest control categories. 1611

v. Add an application method-speci fic category for chemigation. 1612 Chemigation, i.e., application of pesticides through irrigation systems, has a higher 1613 potential for environmental contamination if not conducted properly and poses additional risks to 1614 the applicator or those working unde r the applicator’s direct superv ision due to the nature of the 1615 equipment. Chemigation can contaminate ground a nd drinking water that fl ow directly into a 1616*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 69 of 242 [RIN 2070-AJ20] water supply, if uncalibrated equipment causes application over the rate specified on the 1617 labeling, or improperly maintained equipment leak s treated water from the chemigation system. 1618 Applicators need to be knowledg eable about the equipment specifi c to chemigation necessary to 1619 prevent contamination of groundwater, including but not limited to anti-backflow devices, 1620 injection pumps, storage tanks, safety valves, anti-pollution devices, and calibration devices. In 1621 addition, applicators should be knowledgeable about the risks, benefits, and necessary 1622 precautions associated with chemigation in order to protect themselves before, during, and after 1623 the application. EPA considered adding an application method-specific category to perform 1624 chemigation; however, very few States have added a specific category for this application 1625 method and very few incidents i nvolving this application method have been reported to EPA. 1626 Absent more persuasive evidence that chemigation is causing adverse effects that could be 1627 mitigated through a demonstration of competen cy by applicators who use this application 1628 method, EPA is not proposing this as an appl ication method-specific ca tegory at this time. 1629 vi. Add a “limited use” category. 1630 EPA considered adding a category for commerci al applicators who w ould be certified for 1631 limited uses of specific RUP pesticides or in ni che application scenarios. For example, some 1632 States require applicators to be certified to perform sewer line root control, wood treatment, 1633 biocide use in fracking, or use of horse sterilization products. These types of applications require 1634 use of a single product or very limited set of products and specific application techniques. 1635 Frequently, the industry in which these applicatio ns are made (e.g., fracking) provides training to 1636 applicators on proper use of the pr oduct(s) and other specific information related to use in the 1637 specific situation. However, applicators often have to be certified by taking the core exam, a 1638 category exam (e.g., industrial, institutional, structural, and health -related pest control), and an 1639 additional exam for the limited use subcategory (e .g., sewer line root control), although they will 1640*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 70 of 242 [RIN 2070-AJ20] only be performing specific applications and using a few products. This places a substantial 1641 burden on applicators to demonstrate competency re lated to types of applications they will not 1642 perform. It also places a burden on States to main tain an infrastructure to address the needs of 1643 niche applicator populations. 1644 Some States have developed and updated exams and training programs in these limited 1645 use categories that have fewer than 10 certifiedapplicators. Other St ates handle limited use 1646 applicators differently. They require commer cial applicators to pass the core exam, 1647 demonstrating competency in basic environm ental safety; reading, understanding, and following 1648 pesticide labeling; calculating application rates; and other general application techniques. The 1649 State relies on the industry to pr ovide the necessary training relate d to the limited use. The State 1650 clearly marks on the applicator’s certification cred ential that the applicator is only certified for 1651 the purchase and use of a limited subset of produc ts, not all RUPs. States that follow the second 1652 approach described above note th ey are confident that applicat ors are prepared to conduct 1653 applications in a manner that will protect th emselves, the public, and the environment. 1654 EPA considered adding a “limited use” category for commercial appl icators that would 1655 allow States and applicators to reduce the bur den associated with maintaining certification 1656 categories for few applicators performing specifi c applications. Commercial applicators must 1657 demonstrate competency in core and for the spec ific category in which they intend to use RUPs. 1658 To address the need for category-specific certif ication for applicators performing “limited use” 1659 applications of RUPs, EPA considered three optio ns, other than a category-specific exam. First, 1660 the applicator could be require d to comply with industry-prov ided training or certification 1661 requirements as specified on the product labeling. This is similar to the requirements for people 1662 who treat water using chlorine gas – the labeling requires the applicator to use the product in 1663 accordance with a manual from The Chlorine Ins titute that details prope r use of the product and 1664*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 71 of 242 [RIN 2070-AJ20] safety procedures. Second, the applicator could be required to hold applicable State or Federal 1665 professional credentials in addition to passing th e core exam. For example, a plumber performing 1666 sewer line root control who uses a specific RUP as part of his services co uld be required to pass 1667 the core exam and to hold a State-issued plumbi ng license to demonstrate his competency to use 1668 the specific RUP safely in the limited circumstance. Third, the applicator could demonstrate 1669 competency as required by a specific product’s labeling. For example, the labeling for sodium 1670 fluoroacetate (Compound 1080 used in livestock prot ection collars) details specific competency 1671 standards that the applicator must meet to use the product; certifyi ng authorities that allow use of 1672 this product must develop a specific certification category that cove rs the labeling-based 1673 requirements. 1674 A commercial applicator seeking certification in a limited us e category would be required 1675 to demonstrate competency by passing the core ex am and satisfying one of the category-specific 1676 methods described in this Unit. The applicator ’s certification would be limited only to the 1677 specific uses related to his certification. EPA wo uld require that the certifying authority ensure 1678 that any certification documentation, e.g., a license, clearly no te the limited set of RUPs 1679 available for purchase and use by an applic ator certified in a limited use category. 1680 EPA is actively seeking addi tional information from States , applicators, and industry on 1681 the value of a limited use category and will consid er any public comments received in deciding 1682 whether to include this type of category in the final rule. 1683
7. Request for comment. EPA specifically requests comment on the following questions: 1684 • Would the proposed categories adequately establish competency for the specified 1685 application methods? 1686 • Should EPA consider adding or deleting any of the proposed private applicator 1687 application method-specific certif ication categories? If so, wh ich category(ies) and why? 1688*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 72 of 242 [RIN 2070-AJ20] • Please provide feedback on the proposed co mpetency standards for private applicators 1689 in each of the application method-specific categories. Do the proposed standards contain 1690 sufficient detail? Are there any elements of th ese types of applicati on that are not covered 1691 adequately? 1692 • Should EPA consider adding or deleting any of the proposed commercial applicator 1693 application method-specific certif ication categories? If so, wh ich category(ies) and why? 1694 • Should EPA require that comm ercial applicators be certified in one or more pest control 1695 categories in order to be certi fied in one of the applicati on method-specific certification 1696 categories? If so, please specify which other cate gories should be considered prerequisites for 1697 each application method-specific certification (in addition to those proposed) and explain why. 1698 • Should EPA add an application method-spec ific certification categ ory for chemigation? 1699 If so, why? 1700 • Should EPA consider adding any categorie s (not application method-specific) for 1701 commercial applicators? If so, which category(ies) and why? 1702 • Please provide feedback on adding a “limite d use” category for comm ercial applicators. 1703 Would the proposed options for category-specific demonstrations of competency for limited use 1704 certification minimize burden on applicators and State certification authorities while ensuring 1705 that RUPs are applied in a manner that would not cause unreasonable adverse effects on human 1706 health or the environment? Are there other op tions for offering a limited use certification for 1707 certain RUPs that EPA has not c onsidered? If so, please describe. 1708 • Please provide any relevant informati on on how the regulation could best balance 1709 flexibility and uniformity of the certification categories used in di fferent jurisdictions. 1710 • Are the competencies necessary to treat b ee hives adequately covered in the agricultural 1711 pest control - animal category? If not, please explain why this category does not ensure that 1712*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 73 of 242 [RIN 2070-AJ20] applicators are competent to use RUPs to treat be e hives and provide alternatives to ensure that 1713 applicators are competent to use RUPs in this manner. 1714 • What were the impacts of EPA’s decision to make soil fumigants restricted use on state 1715 certification programs and on the numb er of certified applicators? Would states expect a similar 1716 impact if the proposed application method-specific categories ar e included in the final rule? 1717 • For entities that have already developed certification requirements for persons using soil 1718 fumigants, please provide a desc ription of the costs incurred. 1719 VIII. Establish Predator Control Categories for Commercial and Private Applicator 1720 Certification 1721 1. Overview. In order to address the specific risks and competency requirements 1722 associated with the use of predator control pr oducts and to formalize the existing labeling-based 1723 requirements for specific certification to use these products, EPA proposes to add categories for 1724 both private and commercial applicators to use two mammalia n predator control methods: 1725 Sodium fluoroacetate (Compound 1080 used in lives tock protection collars) and sodium cyanide 1726 in an M-44 device. 1727 2. Existing regulation. The existing regulation does not have categories for the use of 1728 sodium fluoroacetate in livesto ck protection collars or sodium cyanide in an M-44 device. 1729 Registration decisions for these products have established specific competency standards and 1730 require applicators to be competent in how to use the products properly (Refs. 39, 40). 1731 3. Stakeholder information considered by EPA. Sodium fluoroacetateis a highly acutely 1732 toxic predacide used to control coyotes that prey on sheep and goats. Currently registered end1733 use products are injected into the rubber reservoi rs of livestock protecti on collars (LPC). These 1734 collars are strapped to the thro ats of sheep or goats. Coyotes attempting to attack livestock 1735 wearing LPCs are likely to puncture the LPCs a nd be fatally poisoned by s odium fluoroacetate as 1736*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 74 of 242 [RIN 2070-AJ20] a result. Sodium fluoroacetate is highly toxic to humans and to non-target mammals. No antidote 1737 exists for sodium fluoroacetate. 1738 Sodium cyanide dispensed through an M-44 de vice is another highly toxic predacide that 1739 poses extreme risks to humans and non-target mammals. M-44 is an ejector device used to 1740 dispense sodium cyanide as a single dose pois on to control predators of livestock, poultry, or 1741 Federally-designated threatened or endangere d species, or those that are vectors of 1742 communicable diseases. EPA has registered this product for use in pastures, range land, and 1743 forests, only by trained and certi fied applicators under the direct supervision of a government 1744
agency. 1745 4. Details of the proposal/rationale. EPA proposes to establ ish predator control 1746 categories for commercial applicators and private applicators, codifying th e current standards of 1747 competency outlined in the specific registration decisions for each of these pesticides. Based on 1748 the extreme risks posed by the use of sodium fl uoroacetate in livestock protection collars and 1749 sodium cyanide dispensed through M-44 devices, EP A only grants registrations to State, Tribal, 1750 and Federal agencies. EPA’s existi ng registrations of th ese products prohibit their use except by 1751 applicators who meet certain criteria. Each re gistration decision outlines specific competencies 1752 the applicator must demonstrate and the process that must be used to certify applicators of these 1753 products. EPA is adding specific categories to th e rule to codify the competency standards 1754 established by the products’ labe ling and to facilitate the adopti on of a certification category in 1755 areas where these products are used. 1756 The predator control categories for commercial applicators will be located at 40 CFR 1757 171.101(a)(10) and the categories for private app licators will be loca ted at 40 CFR 171.105(b). 1758
5. Costs. EPA estimates that this proposal will not impose any additional costs because 1759 the labeling requirements of sodium fluoroacetate and sodium cyanide predator control products 1760*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 75 of 242 [RIN 2070-AJ20] already establish competency standards and require specific certification to use these products. It 1761 is reasonable to expect that the costs associatedwith this proposal ar e de minimus because it 1762 merely codifies in the regulation the requirement already imposed through the products’ labeling. 1763
6. Request for comment. EPA requests comment on the proposed addition of pest control 1764 categories for certification to use sodium fluoroacet ate in livestock protection collars and sodium 1765 cyanide dispensed thro ugh an M-44 device. 1766 IX. Establish Requirements to Ensure Security and Effectiveness of Exam and Training 1767 Administration 1768
1. Overview . In order to address concerns that administration of pe sticide applicator 1769 exams and trainings currently affords opportunity for cheating or fraud, and to maintain the 1770 integrity of exams, EPA proposes to add re quirements for those s eeking certification or 1771 recertification to pres ent identification at th e time of the exam or training session. EPA also 1772 proposes to codify the existing policy that all certification exams be closed book and proctored 1773 (Ref. 41). 1774
2. Existing regulation . The rule establishes that commer cial applicators must demonstrate 1775 competence by passing written exams, and as a ppropriate, through performance testing. 40 CFR 1776 171.4(a). Private applicators may demonstrate competency through a written or oral exam, or 1777 other method established by the State and approv ed by EPA. 171.5(b). The rule does not have 1778 requirements for verification of the identity of pe rsons seeking certification or recertification or 1779 for exams to be proctored. 1780
3. Stakeholder information considered by EPA . States have varying requirements for 1781 exams because there are no minimum standards fo r exam development and administration. Some 1782 States place a priority on devel oping content-relevant exams and ad ministering them in a secure 1783 manner, while other States allow candidates to bring notes and manuals in to the exam which may 1784*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 76 of 242 [RIN 2070-AJ20] undermine the competency determination process. EPA is aware of at least one situation in 1785 which a State offered a practice test in the study materials and administ ered exactly the same 1786 exam for certification. Incases where exam security is not implemented, the integrity of the 1787 entire certification proc ess can be compromised. 1788 CTAG recognized the gap in security in the applicator certification program and 1789 developed the Exam Administration and Security Procedures Manual(Ref. 42). This document 1790 recommends practical ways for States to ensure the integrity of their applicator certification 1791 exams, including establishing chain of custody re quirements, treating exam booklets and answer 1792 sheets as controlled documents, proctoring exams, implementing security requirements such as 1793 checking all booklets for missing pages before re leasing exam candidate s, and not allowing 1794 candidates to bring in or remove scratch paper from the exam room. States invest significant 1795 resources in developing and administering exam s for applicator certification. A breach in 1796 security, such as a person taking an exam bookletfrom the test site or copying questions and 1797 answers on scratch paper and sharing them with others, compromises the exam’s integrity and 1798 could require the State to invest substantial reso urces to develop another exam. Many States have 1799 consulted CTAG’s document to incorporate elements of exam security in to their certification 1800
programs. 1801 States have recognized the need to ensure that the candidate pursuing certification by 1802 exam or training or attending a recertification se ssion is the person seeking or currently holding a 1803 certification. CTAG recommended th at EPA require positive identification of candidates for 1804 pesticide certification exams before the exam is issued and before any credentials are issued, 1805 noting that the lack of such a requirement “calls into question the integrity of the entire 1806 certification system and provides opportunity for abuse” (Ref. 43) . CTAG suggests that States 1807 that do not currently ask for any form of identif ication before administering exams review their 1808*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 77 of 242 [RIN 2070-AJ20] policies, regulations, and laws and consider adop ting a mechanism to verify the identification of 1809 all individuals taking their exams. CTAG also r ecommended that States ve rify the identity of 1810 certified applicators atte nding recertification trai ning sessions (Ref. 44). 1811 Based on an EPA review of State progra m data, 36 States require persons seeking 1812 commercial certification to present identification prior to taking the exam and 27 States have a 1813 similar requirement for private applicators s eeking certification through an exam or training. 1814 Similarly, 22 States require commercial applicat ors to present identification at recertification 1815 training sessions or exams, and 29 States require the same for pr ivate applicators (Ref. 8). Many 1816 States seem to recognize the importance of maintaining the integrity of the pesticide applicator 1817 certification and recertification pr ograms, evidenced by the number of States that have adopted a 1818 requirement to verify the identity of candidates. 1819 States have raised the need for a standard definition of closed-book exams to ensure that 1820 certifying authorities using EPA-developed exam s or sharing a State-developed exam with 1821 another State have confidence that the exam ad ministration would meet a consistent security 1822 standard. CTAG recommended that EPA require States using the EPA-developed exams to agree 1823 to administer them as closed-book exams, meani ng the candidate cannot bring in any materials, 1824 e.g., study manuals, notebooks, or scrap paper. A ny materials necessary, apart from non-memory 1825 calculators and writing utensils, e.g., scratch paper or referenc e pesticide labeling, would be 1826 provided by the proctor and collect ed at the end of the exam. CTAG believes this would help 1827 preserve the integrity of the exam process and give confidence that the security of EPA1828 developed exams is not compromised by vary ing administration standards across States. 1829
4. Details of the proposal/rationale . The Agency proposes to require that applicator 1830 certification exams for initial certification and recertif ication be closed book, proctored, and that 1831 the identity of each test taker be verified. The identity of the applicant must also be verified 1832*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 78 of 242 [RIN 2070-AJ20] where the State or other agency ce rtifies or recertifies applicators based on training rather than an 1833 exam. EPA considers these requirements essentia l elements of the certification process because 1834 exams and training programs are the means used to assure that those who are seeking to become 1835 certified have adequate training and experi ence to use RUPs without causing unreasonable 1836 adverse effects. It is also reasonable to expect that that these security requirements would give 1837 States confidence that exams are administered c onsistently across the country in such a way to 1838 ensure their integrity. 1839 The Agency proposes to require that exams be “closed book,” that is, the test taker would 1840 not be allowed to use any materials, for example notes or study guides, other than the materials 1841 provided by the test administrator during the ex am. EPA is proposing this requirement for two 1842 reasons. First, a closed-book exam provides a morereliable gauge of the individual test taker’s 1843 competency because the outcome depends more di rectly on the test taker’s personal knowledge 1844 and understanding than does an exam where the test -taker may refer to his or her own notes or 1845 other study aids. Second, limitati ons on outside materials reduce the likelihood of test takers 1846 copying questions and removing them from the exam room to share w ith subsequent test takers. 1847 Implementing closed-book exams is one step towards improving exam security and the 1848 competency of certified applicators. 1849 EPA proposes to require that proctors: 1850 • Verify the identity and age of persons taking the exam by checking identification as 1851 required under the proposed rule and ha ve examinees sign an exam roster. 1852 • Monitor examinees throughout the exam period. 1853 • Instruct examinees in exam pr ocedures before beginning the exam. 1854 • Keep exams secure before, during, and after the exam period. 1855 • Allow only examinees to access the exam and allow such access only in the presence of 1856*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 79 of 242 [RIN 2070-AJ20] the proctor. 1857 • Ensure that examinees have no verbal or non-verbal communication with anyone other 1858 than the proctor during the exam period. 1859 • Ensure that no copies of the exam or any associated reference materials are made and/or 1860 retained by examinees. 1861 • Ensure that examinees do not have access to reference materials other than those that 1862 are approved by the certifying authority and provided by the proctor. 1863 • Review reference materials provided to examinees when the exam is complete, to 1864 ensure that no portion of the reference material has been removed or destroyed. 1865 • Report to the certifying authority any exam administration inconsistencies or 1866 irregularities, including but not limited to cheating, use of unauthorized materials, and attempts 1867 to copy or retain the exam, 1868 • Comply with any other instructions required by the certifying authority related to exam 1869 administration. 1870 EPA proposes to prohibit a proctor from seeking certification at any exam session that he 1871 or she is proctoring. Where applicator exams requi re use of resource ma terials (for example, 1872 requiring the candidate to identify pests based on depictions of plant damage, interpret specific 1873 labels, or demonstrate other ski lls or abilities beyond the core requirements), the proctor would 1874 provide the necessary materials (e.g., sample labeling, reference books) and collect them after 1875 the exam is completed. 1876 Finally, EPA proposes a requirement for St ates to ensure thattest or training 1877 administrators verify the identity of persons seeking initial applicator certification and 1878 recertification. Many orga nizations and institutions require a person taking a test for possible 1879 employment to present valid, government-issuedphoto identification. Itis important that 1880*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 80 of 242 [RIN 2070-AJ20] pesticide applicator candidates ar e required to present valid photo identification when they sit for 1881 the exam, receive their credentials, and purchase RUPs. This requirement would help to ensure 1882 that the person who takes the exam is the same person who receives th e certification, which 1883 could help prevent a candidate from sending a mo re qualified or prepar ed person to take the 1884 exam under his name, and to verify that the candidate meets the minimum age requirement. See 1885 Units XII and XIII. Preventing abuse of the exam pr ocess is necessary to ensure the integrity of 1886 the exams and that certified applicator credential s are issued only to those who are qualified and 1887 certified as competent. Without such assurance, classification for restricted use offers an 1888 uncertain level of protection. 1889 If finalized, the requirements for initial ce rtification administration security would be 1890 located at 40 CFR 171.103(a) for commercial ap plicators and at 40 CFR 171.105(e) for private 1891 applicators. The requirement fo r recertification administration se curity would be located at 40 1892 CFR 171.107(b). 1893 5. Costs . Not all States or applicators would be expected to incur costs to implement the 1894 aforementioned proposals. For those that do, EPA expects the incremental costs to come into 1895 compliance would be minimal. Many States alrea dy check identification at initial certification 1896 events and already have proctors for some se ssions. The aspects of a secure exam – written, 1897 closed-book, proctored, and requiring positive identif ication of the candidate– would provide the 1898 benefit of maintaining the credibility of the certification program, as well as to filter out 1899 unqualified candidates. 1900
6. Alternative options considered by EPA but not proposed . EPA considered imposing 1901 only a requirement to verify the identity of the initial certification and recertification candidates 1902 and not codifying the existing policy that requi res exams to be proctored and closed book. A 1903 requirement to verify a certi fication or recertification ca ndidate’s identity implemented 1904*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 81 of 242 [RIN 2070-AJ20] independently of other exam security require ments could lead to a potential improvement 1905 because by verifying that the candidates are th e same person seeking the certification, false 1906 attendance at training and exam se ssions should decrease. It is also more likely that credentials 1907 would be issued to the same candidate that de monstrated competency. However, it is reasonable 1908 to expect that that the additional burden of implementing closed-book, proctored exams would 1909 have substantial additional bene fits by ensuring the security of the exams, reducing burden on 1910 certifying authorities to update exams after security breaches, and limiting instances where 1911 candidates taking an exam can cheat. It is reason able to expect that the potential benefits of 1912 requiring proctored, closed-book exams are sufficient to justify the burden. 1913
7. Request for comment. EPA requests comments on the following: 1914 • Should EPA consider allowing an exception to the requirement for candidates to present 1915 a government-issued photo identif ication? If so, under what ci rcumstances? Please provide 1916 examples of how an excep tion could be implemented. 1917 • Should EPA consider any other requirements to improve the security and integrity of 1918 applicator certification and recertific ation exams? If so, please describe. 1919 X. Strengthen Standards for Noncertified Applicators Working Under the Direct 1920 Supervision of Certified Applicators 1921 A. Enhance Competence of Noncertified Applicators Working Under the Direct Supervision of a 1922 Certified Applicator 1923
1. Overview . To improve the protection of noncertified applicators and to reduce the 1924 chance for RUP applications to cause unreasonable adverse effects, EPA proposes to require that 1925 noncertified applicators working under the direct supervision of a certified applicator receive 1926 annual training that covers pesticide labeling, safety precautions, application equipment and 1927 techniques, environmental concerns, health e ffects of pesticide expos ure, decontamination, 1928*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 82 of 242 [RIN 2070-AJ20] emergency response, and protection of the appli cator and the applicator’s family. The Agency 1929 also proposes exemptions to this training requir ement for persons qualified as a trained handler 1930 under the WPS or who have passed the core exam covering general standards of competency for 1931 commercial applicators, and to require periodic retraini ng or retesting. 1932
2. Existing regulation . FIFRA section 2(e)(4) provides that a noncertified applicator 1933 using an RUP must be competent and working unde r the direction of a ce rtified applicator. The 1934 certified applicator must be available when neededbut does not need to be present physically at 1935 the application.7 U.S.C. 136(e)(4 ). The regulation establishes: General requirements for the 1936 certified applicator to demons trate a practical knowledge of Federal and State supervisory 1937 requirements; that when the certified applicator will not be pres ent during application, he or she 1938 must provide instruction to the noncertified appli cator, including instructions for proper pesticide 1939 applications and how to contact the certified applicator if necessary; and that certain labeling1940 specific restrictions require the ce rtified applicator to be physically present for the application. 40 1941 CFR 171.2(a)(28) and 171.6. 1942
3. Stakeholder information considered by EPA . The need to upgrade the requirements for 1943 the supervision of a noncertified applicatorby the certified applicator was a major 1944 recommendation of the SFIREG 1985 Taskforce report. The Taskforce concluded that the 1945 existing requirements at 40 CFR 171.6 are general innature and have resulted in some instances 1946 where supervision of the noncertified applicator is conducted from locations far removed from 1947 the application site. The issue has also beenraised to EPA by the PPDC Worker Safety 1948 Workgroup and by States at the Pesticide Re gulatory Education Program (PREP), which 1949 provides an avenue for information sharing betw een States and EPA abou t pesticide regulatory 1950 issues and programs (Ref. 23). While some Stat es have imposed more stringent supervision 1951 requirements or eliminated the option for applic ation of RUPs by noncertified applicators under 1952*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 83 of 242 [RIN 2070-AJ20] the direct supervision of a certified applicator, other States’ standards are similar to the existing 1953 requirement at 40 CFR 171.6. 1954
4. Details of the proposal/rationale . EPA proposes to enhance protections for 1955 noncertified applicators, i.e., those who use RUPs under the dire ct supervision of a certified 1956 applicator, and to ensure that RUPs are used in a manner that does not pose unreasonable adverse 1957 effects to the applicator, bystanders, or the environment by: Expanding the training content, 1958 offering alternatives to the training require ment, and requiring periodic retraining. 1959 i. Expanding training content. Noncertified applicators have a similar work profile to 1960 agricultural handlers under the WPS (40 CFR 17 0); both are permitted to mix, load, and apply 1961 pesticides with proper guidance from their employe r or supervisor. In order to mix, load or apply 1962 RUPs, however, all noncertified persons, includi ng agricultural handlers, must be working under 1963 the direct supervision of a certified applicator. Agricultural handlers must receive training that 1964 covers self-protection; hazards associated with pesticide use; format and meaning of pesticide 1965 labeling; protection from take home exposure to family members; proper pesticide use, 1966 transportation, storage, and disposal; and protections re quired under the WPS. 40 CFR 1967 170.230(c)(4). In addition, agricultura l handlers must be provided a copy of the labeling and any 1968 other information necessary to make the application without causing unreasonable adverse 1969 effects. The existing part 171 regulation does not require that noncertifiedapplicators receive 1970 similar training before applying RUPs under the di rect supervision of a certified applicator. 1971 To foster a level of competency appropriate to the responsib ilities of noncertified 1972 applicators who apply RUPs unde r the direct supervision of a certified applicator and 1973 comparable to the competency currently requi red of agricultural pe sticide handlers, EPA 1974 proposes to add the following training re quirements for noncertified applicators: 1975 a. Training on information, techniques, and e quipment that noncertifi ed applicators need 1976*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 84 of 242 [RIN 2070-AJ20] to protect themselves, other people, and the environment before, during, and after making a 1977 pesticide application, includi ng all of the following: 1978 • Format and meaning of information cont ained on pesticide labels and in labeling, 1979 including safety information, such as precautionary statements about human health hazards, and 1980 hazards of pesticides resulting from toxicity a nd exposure, including acute and chronic effects, 1981 delayed effects, and sensitization. 1982 • Routes by which pesticides can enter the body. 1983 • Signs and symptoms of common types of pesticide poisoning. 1984 • Emergency first aid for pesticide injuries or poisonings. 1985 • How to obtain emergency medical care. 1986 • Routine and emergency decontamination procedures. 1987 • Need for, and appropriate use of, personal protective equipment. 1988 • Prevention, recognition, and first aid treatment of heat-related illness associated with 1989 the use of personal protective equipment. 1990 • Safety requirements for handling, trans porting, storing, and dis posing of pesticides, 1991 including general procedures for spill cleanup. 1992 • Environmental concerns such as drift, runoff, and wildlife hazards. 1993 b. Training on all of the following elements , which noncertified applicators need to 1994 protect their families from pesticides: 1995 • Warnings against taking pesticid es or pesticide containers home. 1996 • Washing and changing work clothe s before physical contact with family. 1997 • Washing work clothes separately from the family’s clothe s before wearing them again. 1998 • Heightened precautions required to protect children and pregnant women. 1999 c. Training on how to report suspected pestic ide illness to the appropriate State agency. 2000*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 85 of 242 [RIN 2070-AJ20] The proposed training requirements would promote the competence of noncertified 2001 applicators who apply RUPs under the direct supe rvision of a certified applicator by improving 2002 their understanding of pesticide labeling, application methods, se lf-protection, risk mitigation, 2003 and general pesticide safety principl es. It is reasonable to expectthat an unders tanding of this 2004 information, together with the specific inst ructions for each application from a certified 2005 applicator, would provide noncertifie d applicators with an adequate level of competency to use 2006 RUPs without causing unreasonable adverse effects, consistent w ith the FIFRA requirement that 2007 noncertified applicators be competent. 2008 ii. Offering alternatives to the training requirement. In addition to the training proposed 2009 in Unit X.A.4.i., EPA proposes to offer two a lternative mechanisms for establishing the 2010 competency of noncertified applicators who appl y RUPs under the dire ct supervision of a 2011 certified applicator: Demonstrating that the nonce rtified applicator has met the handler training 2012 requirements of the WPS (40 CFR 170.230 of the current WPS or proposed 40 CFR 170.201(c) 2013 of the proposed revisions to the WPS) or passin g the exam on core standards of competency for 2014 certified commercial applicator s (currently 40 CFR 171.4(b)). 2015 As mentioned in this unit, noncertified app licators working on agricultural establishments 2016 and agricultural pesticide handlers have similar job responsibilities. The proposed training for 2017 noncertified applicators mirrors th e proposed training for agricultur al pesticide handlers, except 2018 it does not include specific requirements of the W PS. Including a provision in the rule to allow 2019 noncertified applicators to meet the training requirement by following the training outlined in 2020 this rule or that outlined in the WPS could reduce the burden on noncertified applicators, 2021 certified applicators, agricultural pesticide handl ers, and agricultural employers by allowing them 2022 to provide substantially similar tr aining to the same audience once, rather than twice, to comply 2023 with both regulations. 2024*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 86 of 242 [RIN 2070-AJ20] The second alternative mechanism, requiring noncertified applicat ors to pass a written 2025 exam covering the core standards of competen cy for commercial appl icators, would also 2026 establish an adequate level of competency for noncertified applicators. The commercial 2027 applicator core competency standards outlinedat 40 CFR 171.4(b) of the existing regulation 2028 cover label and labeling comprehension, proper application, potential environmental risks, 2029 characteristics of pesticides, application equi pment and techniques, and laws and regulations. 2030 The content of these core competency standards encompasses the proposed noncertified 2031 applicator training content. In some situations , it may be easier or more convenient to allow a 2032 noncertified applicator to qualif y by taking the core exam than to complete the noncertified 2033 applicator training. For example, a person who ha s taken and passed the core exam and failed the 2034 category exam, which generally has a lower pass rate, would not be certified as a commercial 2035 applicator but would have demonstrated suffici ent competency to apply RUPs under the direct 2036 supervision of a certified app licator. Allowing such a pers on to qualify as a noncertified 2037 applicator based on passing the core exam ratherthan requiring that he or she undergo another 2038 training program would reduce the potential burden on noncertified applicators and their 2039 employers without sacrificing protection of th e noncertified applicators, the public, or the 2040 environment. 2041 iii. Requiring periodic retraining. EPA proposes to implement a requirement to refresh 2042 the qualifications of non-certified applicators. Noncertified applicator s who qualified through a 2043 training program, either as pr oposed under 171.201(d) or as a handl er under the WPS, would be 2044 required to undergo retraining annually. Noncerti fied applicators who recertify by passing the 2045 commercial applicator core exam would be requ ired to requalify every 3 years. The proposed 2046 training requirement for noncertified applicat ors who would apply RUPs under the direct 2047 supervision of a certified applic ator is comparable to the training required for agricultural 2048*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 87 of 242 [RIN 2070-AJ20] pesticide handlers. EPA has proposed a require ment under the WPS for handlers to receive 2049 pesticide safety training annually. It is reasonable to expect th at noncertified applicators must 2050 maintain an ongoing level of competency similar to that required of certified applicators. 2051 However, neither of the options to qualify by attending a training program requires passing a 2052 written exam or attending a training course covering the proposed enhanced competency 2053 standards for private applicators. Therefore, the proposed noncertifiedapplicator training 2054 programs would not provide the same assurance of competency as the certification process for 2055 commercial and private applicators. For these reasons, it is reasonabl e to expect that noncertified 2056 applicators who qualify through trai ning should receive training every year rather than every 3 2057 years as proposed for the recertification of certified private and commercial applicators. 2058 States require certified applicators to demonstrate continued competency through 2059 recertification program s; noncertified applicators who es tablish competency must also 2060 demonstrate that they maintain a level of comp etency to apply pesticides without unreasonable 2061 adverse effects. An annual trai ning requirement would be consis tent with the proposed training 2062 interval for agricultura l handlers (79 FR 15444; March 19, 2014) , thereby decreasing the burden 2063 on agricultural employers to track two training tim eframes. Additionally, studies have shown that 2064 training participants begin to forget the content of the training almost immediately, and that often 2065 90% or less of the training is remembered at 1 year after training, and that knowledge from 2066 training on skills and decision making deteriorates more quickly information from training on 2067 repetitive physical tasks (Ref. 11). Further, studies have dem onstrated the effectiveness of 2068 periodic retraining on retention of the knowle dge necessary to implement self-protective 2069 measures (Ref. 12). 2070 Noncertified applicators w ho qualify through passing the core exam for commercial 2071 applicators would be required to requalify every 3 years. Passing the core exam provides an 2072*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 88 of 242 [RIN 2070-AJ20] assurance of competency similar to that requir ed of certified applicators. Therefore, it is 2073 reasonable to expect that noncertified applicator s who pass the core exam would maintain their 2074 competency on the topics covered for a similar length of time as commercial applicators. EPA is 2075 proposing a requirement for all certified applicat ors to renew their credentials every 3 years. 2076 The regulatory text related to these propos als would be located at 40 CFR 171.201(c) and 2077 (d). 2078 5. Costs . Because noncertified applicators working under the direct supervision of 2079 commercial applicators and private applicators have different wage rates, the costs are presented 2080 separately for noncertified applicators working under the direct superv ision of a commercial 2081 applicator and for noncertified applicators working under the dire ct supervision of a private 2082 applicator. 2083 Noncertified applicators worki ng under the direct supervision of a commercial applicator 2084 EPA estimates the cost of the proposed requi rement to require noncertified applicators to 2085 either complete the proposed training, be handl ers under the WPS, or pa ss the core exam would 2086 be about $6.6 million per year for noncertified applicators working under the direct supervision 2087 of a commercial applicator. 2088 Noncertified applicators working under the dire ct supervision of a private applicator 2089 EPA estimates the cost of the proposed requi rement to require noncertified applicators to 2090 either complete the proposed training, be handl ers under the WPS, or pa ss the core exam would 2091 be about $639,000 per year for noncertified applicat ors working under the dire ct supervision of a 2092 private applicator. 2093
6. Alternative options considered by EPA but not proposed . EPA considered four 2094 alternatives to this proposal. 2095 i. Allow States to determine noncert ified applicator training content. EPA considered 2096*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 89 of 242 [RIN 2070-AJ20] allowing each State to determine what training or qualifications are appropriate for noncertified 2097 applicators, rather than adhering to the standard establ ished in this proposal. For example, some 2098 States have specific requirements for noncertified applicators to be qualified, such as through an 2099 apprenticeship program, or completing a State-de veloped training programor minimum number 2100 of hours of privately-provided training. Although the State program s with various requirements 2101 may adequately ensure the competency of noncerti fied applicators, allowing States to adopt 2102 varying standards would result inclassification for restricted us e providing differing levels of 2103 protection from State to State. Inorder to ensure that RUPs ar e used by competent persons in a 2104 way that would not cause unreasonable advers e effects, it is nece ssary for noncertified 2105 applicators to receive instruction that covers a specific set of basic competency information. The 2106 consistent minimum standard would not be met if States adopted their own programs that did not 2107 meet or exceed the standards proposed by EPA. 2108 EPA recognizes that State programs may ade quately prepare a noncertified applicator to 2109 use pesticides effectively and without unreason able adverse effect on human health or the 2110 environment. However, under the proposed opti on, States can modify existing programs to 2111 ensure they cover the content and requirements of the pr oposed standard and do not need a 2112 specific exception. If the State training program provides instruc tion on the training requirements 2113 listed above, the supervising certif ied applicator would still be required to verify that the 2114 noncertified applicators working under his or her direct supervis ion have received the training. 2115 The proposed option balances flexibility for States to adopt more stringent standards with the 2116 need to ensure that noncertified applicators meet a consistent standard of competency. 2117 ii. Require all noncertified applicators to pass the core exam. EPA considered requiring 2118 all noncertified applicators to pass the core ex am for commercial applic ator certification. The 2119 current requirements concerning the core exam fo r commercial applicators covers all the topics 2120*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 90 of 242 [RIN 2070-AJ20] that would help ensure general knowledge of pesticide application by noncertified applicators. 2121 The Agency decided against proposing a re quirement that noncertified applicators 2122 demonstrate competence only by taking the core exam for commercial applicators because in 2123 some instances, that requirement may impose additional burden on the certified applicators and 2124 the noncertified applicators. Some noncertifiedapplicators may have a more difficult time 2125 preparing for and passing a written exam th an meeting training requirements. Although 2126 noncertified applicators may be able to demons trate their competency to make applications 2127 without unreasonable adverse eff ects with proper supervision, so me noncertified applicators may 2128 have literacy and language issues that would stand in the way of passing a written exam. By 2129 limiting a noncertified applicator’s options fo r demonstrating competen ce to passing a written 2130 exam, the number of noncertified applicators available could decrease because fewer people 2131 would qualify. A decrease in the number of noncertified applicators avai lable would increase 2132 costs because certified applicators would be required to perform th e applications themselves. In 2133 addition, States would have to ad minister approximately five times the current number of exams, 2134 increasing their administrative burden. 2135 EPA decided not to propose this option b ecause it would impose a significant burden on 2136 noncertified applicators, the supervising certifiedapplicators, and the States, and the benefits 2137 associated with the alternate options do not appear to justify the burden. 2138 iii. Establish different standards for noncertified applicators working under the direct 2139 supervision of commercial and private applicators. EPA considered establishing separate 2140 standards for noncertified applic ators under the direct supervis ion of commercial and private 2141 applicators. Under this alternative, noncertified applicator s working under the direct supervision 2142 of a private applicator would be required to complete the propos ed training or the training for 2143 handlers under the proposed revisions to th e WPS. 79 FR 15444; March 19, 2014. EPA considers 2144*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 91 of 242 [RIN 2070-AJ20] this to be the minimum level of training th at could reasonably be expected to prevent 2145 unreasonable adverse effects associated with the use of RUPs. EPA considered requiring a higher 2146 level of training for noncertified applicator s working under the dire ct supervision of a 2147 commercial applicator; specifically, EPA consider ed requiring them to pass the core exam for 2148 certified applicators as described in the alternate option discussed in this unit. 2149 EPA decided not to propose this alternativ e for two reasons. First, EPA does not believe 2150 there is a significant difference in the risks f aced by, or posed by, a noncertified applicator under 2151 the direct supervision of a pr ivate applicator and a noncertifie d applicator under the direct 2152 supervision of a commercial appl icator. As the risks appear to be the same, the same level of 2153 training seems appropriate. S econd, having a single standardwould allow noncertified 2154 applicators to work for both commercial and priv ate applicators without ha ving to meet different 2155 standards. 2156 iv. Implement longer retraining interval. Lastly, EPA considered requiring all 2157 noncertified applicators to be retrained using the same timeframes as certified applicator 2158 recertification (currently proposed as every 3 years, s ee Unit XIV.). However, commercial 2159 applicators are required to demonstrate thei r competency through a written exam; the more 2160 rigorous standard establishes a higher level of confidence in commercial applicators’ knowledge 2161 and ability to protect themselves, the public, and the environment. Training is a less reliable 2162 indicator of competency than passing an exam and knowledge from training deteriorates rapidly 2163 (Refs. 11, 12). EPA recognizes a distinction betweenthe noncertified app licators that qualify 2164 through training and those that qualify through an exam. That distinction and EPA’s confidence 2165 in the exam process prompted EPA to reject the option to establish the same requalification 2166 timeframe for all noncertified applicators parallel to the recertification period for certified 2167 applicators. 2168*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 92 of 242 [RIN 2070-AJ20] 7. Request for comment . EPA requests specific feedback on the following: 2169 • Should EPA allow States to adopt noncerti fied applicator traini ng programs different 2170 than what EPA proposes? If so, please explain w hy, and how portability of the varied programs 2171 might be addressed. 2172 • Should EPA require States to adopt th e proposed noncertified applicator training 2173 program and allow States to add other qualifications or requirements? 2174 • Are there other points that EPA should in clude in the noncertified applicator training 2175 outlined in the proposal? If so, what points should be added and why? 2176 • Should EPA consider a single requalification interval for all noncertified applicators, 2177 regardless of their method of qualification, i.e., should EPA c onsider requiring noncertified 2178 applicators who qualify by passing the core exam to requalify annually, or for those who qualify 2179 by training to requalify every 3 years? Please explain why. 2180 B. Establish Qualifications for Training Providers 2181
1. Overview. In order to ensure that noncertifiedapplicators receive training that 2182 communicates the nature of their work and the po tential risks of pestic ide exposure in a manner 2183 they understand, EPA proposes to require that non certified applicator tr aining be provided by a 2184 currently certified applicator, a State-designated traine r of certified applicat ors, or a person who 2185 has completed a train-the-tr ainer course under the WPS. 2186
2. Existing regulation. The rule has no requirement for training and therefore, no 2187 restrictions on who may provide training to noncertified applicators. 2188
3. Stakeholder information considered by EPA. Stakeholders, including the PPDC, State 2189 associations, and CTAG, have noted the similar work prof iles between WPS handlers and 2190 noncertified applicators working on agricultu ral establishments. They recommended that 2191 noncertified applicator trainers ha ve similar qualifications to WPS handler trainers because of the 2192*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 93 of 242 [RIN 2070-AJ20] importance of conveying information related to safe pesticide use, understanding labeling 2193 requirements, and how to contact the employer in the event of an emergency. 2194
4. Details of the proposal/rationale. EPA proposes to allow non certified applicators to 2195 receive training from an applicator with a valid certification issued under 40 CFR 171, a State2196 designated trainer of certified app licators, or a person who has completed a pesticide safety train2197 the-trainer program under the WPS, 40 CFR 170. Given the elevated risks associated with 2198 applying RUPs, it is critical to have a high leve l of confidence in the co mpetence of those who 2199 will make applications. Commercial applicators have to pass a written exam to demonstrate their 2200 competency. The qualifications of the trainer be come more important where the competency of 2201 noncertified applicators is es tablished through training ratherthan through passing a written 2202 exam. It is important to have the information presented by trainers w ho are knowledgeable about 2203 pesticide safety requirements. 2204 Certified applicators supe rvising noncertified applicat ors have knowledge of the 2205 information necessary to ensure that applications are made eff ectively and without unreasonable 2206 adverse effects and commercial applicators have passed an exam demonstrating their 2207 competency. The core standards of competency for both private and commercial applicators 2208 would cover supervising noncertified applic ators using RUPs, including how to convey 2209 information about proper application techniques , understanding the labe ling, and contacting the 2210 supervisor if necessary. In addition, the comp etency standards would cover communicating with 2211 noncertified applicators in a manner they understand. State designated trainers, mainly 2212 cooperative extension service pesticide safety educators and county agents, have expertise in 2213 educating adult populations about how to conduct pesticide applications and the risks associated 2214 with pesticide exposure. Lastly, trainers who have undergone a train-the-trainer program have 2215 learned techniques to effectively transfer in formation on application techniques, risks of 2216*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 94 of 242 [RIN 2070-AJ20] exposure, and other necessary information requi red to protect agricu ltural handlers before, 2217 during, and after application. EPA an ticipates that most people likely to be training noncertified 2218 applicators would already be w ithin one of the aforementioned categories of qualified trainers. 2219 The regulatory text related to this propos al would be located at 40 CFR 171.201(d)(2). 2220 5. Costs. EPA expects this proposal to have neg ligible cost. Certified applicators are 2221 qualified as trainers by virtue of their certification and would not incur any additional costs to be 2222 qualified under this proposal. EPA assumes most training wo uld be provided by certified 2223 applicators to noncertified applicators working under their direct supervision. Therefore, EPA 2224 does not believe many people who are not already certified applicator s would seek to be 2225 qualified trainers under this proposal. Allowing Stat e-designated trainers of applicators and those 2226 who have completed a WPS pesticide safety train-the-trainer program would provide flexibility 2227 to the certified applicators and offer a variety of options to ensure nonc ertified applicators are 2228 trained. 2229 C. Establish Qualifications for Certified A pplicators Supervising Noncertified Applicators 2230
1. Overview. In order to ensure that noncertifiedapplicators do not apply RUPs in a 2231 manner that would cause unreasonable adverse e ffects, EPA proposes to establish specific 2232 requirements for the supervising applicator. 2233
2. Existing regulation. The current regulation requires su pervising certified applicators to 2234 demonstrate a practical knowledge of Federal and State supervisory requirements related to the 2235 application of RUPs by noncertifi ed applicators. 40 CFR 171.6(a). In addition, the current rule 2236 requires the availability of the certified applicator and the hazard of the situation to be directly 2237 related. 40 CFR 171.6(a). For certain products, the labeling requires th e applicator to be on-site 2238 for the application or prohibits application by noncertified applicators even under the direct 2239 supervision of a certified applic ator. Wherever noncertified applicators are applying RUPs under 2240*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 95 of 242 [RIN 2070-AJ20] the direct supervision of a certified applicator, the existing regulation requires the certified 2241 applicator provide verifiable instruction to the noncertified applicator, which includes detailed 2242 guidance for applying the pesticide properly, and provisions for cont acting the certified 2243 applicator in the even t that he or she is needed. 40 CFR 171.6. 2244
3. Stakeholder information considered by EPA. States indicated overall support for 2245 establishing qualifications for certified applicator s supervising noncertified applicators; however 2246 they noted that some limitations would be impr actical or difficult to enforce (Ref. 23). For 2247 example, States noted that they would not be ab le to verify whether th e supervising applicator 2248 was within a certain distance or time of the noncertified applicator c onducting the application, 2249 and it would be impossible to note how many non certified applicators were working under the 2250 direct supervision of a certified applicator at one time (Ref. 45). The SBAR panel recommended 2251 that EPA require “communication capability betw een certified applicators and those under their 2252 supervision during RUP applications” (Ref. 24). 2253
4. Details of the proposal/rationale. EPA proposes to require th at certified applicators 2254 who supervise noncertified applicators to be ce rtified in the category of the supervised 2255 application in order to protect the noncertified applicator and the environment from risks 2256 associated with insufficient supervision or quali fication. EPA proposes to require that certified 2257 applicators ensure that noncertified applicators under their direct superv ision have satisfied one 2258 of the qualification methods discussed in Unit X. B. For specific applications, EPA proposes to 2259 require the certified applicator to provide a copy of all applicable labeling to each noncertified 2260 applicator for each supervised application; en sure that means are available for immediate 2261 communication between the certif ied applicator and the noncertif ied applicators working under 2262 their direct supervision; provide specific instructions related to each application, including the 2263 site-specific precautions and how to use the equi pment; and explain and comply with all labeling 2264*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 96 of 242 [RIN 2070-AJ20] restrictions. 2265 It is critical that the supervising appli cator be competent in the specific types of 2266 application that he or she is supervising, know the requirements re lated to application of RUPs 2267 by noncertified applicators, and ensure that non certified applicators ar e competent. It is 2268 reasonable to expect that many supervising appl icators currently provid e instruction to the 2269 noncertified applicators under thei r supervision and are certified in the appr opriate category. The 2270 proposed change would codify more precise requir ements to ensure thatsupervising certified 2271 applicators are prepared adequately to supervise specific types of applications and to provide the 2272 appropriate protections to noncertified applicators. 2273 EPA proposes to add a requirement for the ce rtified applicator to provide a copy of the 2274 labeling to noncertified applic ators applying RUPs under his or her supervision. Providing the 2275 product labeling to noncertified applicators is important for seve ral reasons. First, product 2276 labeling communicates critical in formation to the pesticide user on how to use and apply the 2277 product. The labeling contains use directions, hea lth and safety information, and instructions for 2278 proper storage and disposal. By law, users mustfollow the use instructions on the labeling for 2279 registered products. Second, in the event that the noncertified applicat or cannot contact the 2280 supervising applicator, the labeli ng contains critical information that the noncertified applicator 2281 or a literate person nearby could consult in order to understand sp ecial use restrictions, make a 2282 proper application, or respond in the event of a spill or accident, including providing proper 2283 medical treatment. Third, the WPS requires empl oyers to provide handlers access to the product 2284 labeling during handling activities in order to provide protections parallel to those provided 2285 under the Occupational Safety and Health Act (OSHA). OSHA requires that persons working 2286 with or around hazardous chemicals receive inform ation (generally in the form of the product 2287 label or safety data sheet (S DS)) prior to working with the hazardous chemicals. Fourth, 2288*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 97 of 242 [RIN 2070-AJ20] noncertified applicators have si milar job responsibilities to agri cultural pesticide handlers under 2289 the WPS and have an equal need for labeling info rmation. For these reasons, it is important to 2290 make the labeling available to all noncertified applicators worki ng with RUPs, even if some may 2291 not be able to read or understand the labeling. 2292 Communication between the supe rvising applicator and the n oncertified applicator is 2293 critical if the noncertified applicator has a question before application or encounters an 2294 emergency situation related to the misapplication. The current rule requires provisions for 2295 contacting the certified applicator, but it is very general and provides no assurance of timely 2296 contact. The intent of the existing provis ion was to enable co mmunication between the 2297 supervising applicator and th e noncertified applicator throug hout the application process. 2298 Telecommunications options have improved dram atically over the last 35 years, and the 2299 proposed requirement to ensure means are avai lable for immediate communication would take 2300 advantage of those changes to more fully accomplish the intent of the original provision. 2301 Requiring means to be available for immediate communication would allow flexibility for the 2302 supervising applicator; if the certified and nonc ertified applicator are working at the same 2303 location, means for immediate communication could be speaking to one another directly. In the 2304 event the noncertified applicat or is using RUPs under the dir ect supervision of a certified 2305 applicator when the certified applicator is not present, means of immediate communication could 2306 include cellular phones or two-way radios, among other mechanisms. 2307 The regulatory text related to this pro posal would be locate d at 40 CFR 171.201(b). 2308 5. Costs. EPA assumes that the current requirem ent to provide detailed guidance for 2309 applying the pesticide properly a nd the proposed requirement to provide application-specific 2310 instructions are substantially similar and will not result in a significant increase in the cost of 2311 compliance. 2312*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 98 of 242 [RIN 2070-AJ20] EPA estimates the cost for ensuring mean s for immediate communi cation are available 2313 would be negligible because according to CTIA– The Wireless Association, as of December 2314 2012, wireless penetration in the United States wa s 102% (the number of wireless subscriptions 2315 divided by the U.S. population) (Ref. 46). 2316
6. Alternative options considered by EPA but not proposed. EPA considered different 2317 application-specific requirements for supervisin g applicators, includi ng a requirement for the 2318 supervising applicator to keep non certified applicators within their line of sight or to be on site 2319 during applications, a limit on the number of noncerti fied applicators that c ould be supervised at 2320 one time, or a limit on the distance between th e certified applicator and the noncertified 2321 applicators. 2322 EPA may limit who may apply RUPs and the type of supervision required on a product2323 by-product basis. Some RUP labeling requires certified applicators to keep noncertified 2324 applicators within their line of sight during appl ications. EPA considered requiring line of sight 2325 supervision wherever noncertifiedapplicators are applying RUPs under the direct supervision of 2326 a certified applicator. For example, labeling for fumigant products requires the supervising 2327 applicator to be on site because of the significa nt danger to the applicator if not used properly. 2328 However, a universal requirement that certified applicators keep noncertified applicators in their 2329 line of sight or to be on site du ring application would be inconsis tent with 7 U.S.C. 136(e)(4), 2330 which allows use of RUPs even if the certified applicator providing direct supervision is not on 2331 site at the time of application. 2332 EPA considered establishing a limit on the number of noncertified applicators that a 2333 certified applicator could supervise for eachapplication of RUPs, e.g., 10 noncertified 2334 applicators could use RUPs under the direct superv ision of a certified appl icator at any specific 2335 time. Limiting the number of noncertified applicat ors using RUPs under the direct supervision of 2336*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 99 of 242 [RIN 2070-AJ20] a certified applicator could better ensure that the applications are conducted in a manner that 2337 would not cause unreasonable adverse effects to th e applicator, the public, or the environment. 2338 EPA does not have information on the maximum nu mber of noncertifiedapplicators that a 2339 certified applicator could supe rvise without causing unreasonable adverse effects. There may be 2340 limits on the capability of a certified applicator to supervise noncertified applicators using RUPs, 2341 but the limits seem circumstantial. For example, a certified applicator supervising the application 2342 of RUPs through backpack sprayers on a single agricultural establishment may be able to 2343 supervise many noncertified applicators without causing unreasonable adverse effects. However, 2344 a certified applicator su pervising noncertified applicator s fumigating a warehouse with RUPs 2345 may not be able to supervise other applications of RUPs at the same time in a safe manner. 2346 EPA chose not to propose a limit on the number of noncertified applicators that can use 2347 RUPs under the direct supervisi on of a certified applicator. EPA regulates specific risks related 2348 to the use of RUPs on a product by product basis, including limiting or restricting the use of 2349 RUPs by noncertified applicators. The certified applicator is liab le for all applications conducted 2350 under his or her supervision. To become certified, applic ators must demonstrate competency in 2351 conducting and supervising applications in a manne r that will not result in adverse effects to 2352 human health or the environment. It is reasonable to expect that the certified applicator will 2353 generally recognize the limits of his or her capacity to appropriately supervise multiple 2354 noncertified applicators. It is reasonable to exp ect that the combination of certified applicators’ 2355 competency in making and supervising applicati ons of RUPs, product-specific limitations on the 2356 use of RUPs by noncertified applicators, comb ined with the proposed requirement that the 2357 supervising applicator ensure that a mechanism for communication betweencertified applicators 2358 and noncertified applicators using RUPs under thei r direct supervision, w ould adequately protect 2359 the noncertified applicator, the public, and th e environment. Recognizing that EPA has 2360*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 100 of 242 [RIN 2070-AJ20] insufficient data to support a limit on the num ber of noncertified applicators that can be 2361 supervised by a certified applicator or data to establish the number if a limit is required, EPA is 2362 soliciting additional information related to this option. 2363 EPA also considered proposing a maximum phys ical distance or trav el time between the 2364 certified applicator and noncerti fied applicator using RUPs unde r his or her direct supervision. 2365 For instance, the certified applic ator would have to be within X yards or Y minutes of the 2366 noncertified applicator. This option would make it more likely that the certified applicator could 2367 physically reach the noncertified applicator within a reasonable timeframe in the event assistance 2368 was needed. Time-based and distance-based limitations would have different impacts in urban 2369 and rural areas – in a city , the certified applicator might take an hour to get to an application site 2370 within 5 miles, whereas in a rural area, the ap plicator could cover the same distance in a few 2371 minutes. EPA does require the supervising certifie d applicator to be on site when certain RUPs 2372 are used by noncertified applicators. These restrictions are impos ed on a product by product 2373 basis. EPA does not have sufficient information on a specific time or distance between certified 2374 applicators and noncertified applicators using RU Ps under their direct supervision that would 2375 make meaningful reductions in the overall risk of adverse effects from RUP use by noncertified 2376 applicators. Rather than set an arbitrary time or distance, EPA chose to propose a requirement for 2377 the certified applicator to ensure a mechanism for the supe rvisor and noncertified applicator 2378 using RUPs under his or her di rect supervision to be in immediate communication. It is 2379 reasonable to expect that ensuri ng that noncertified applicators ar e able to immediately contact 2380 their supervisors in the event of a spill, emergency, or question about the application would 2381 reduce the potential for unreasonable adverse effects from RUP application by noncertified 2382 applicators. 2383
7. Request for comment. EPA requests specific comment on the following: 2384*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 101 of 242 [RIN 2070-AJ20] • Would supervising ce rtified applicators and noncertifiedapplicators rely on cell phones 2385 rather than two-way radios as a mean s to ensure immediate communication? 2386 • Please provide any additional information that would assist EPA in more accurately 2387 estimating the cost associated with this proposal. 2388 • Should EPA consider other qualifications for supervising applicators? If so, what 2389 qualifications and why? 2390 • Should EPA require certified applicators to be within a ce rtain distance or time of the 2391 noncertified applicators using RU Ps under their direct supervisio n? Please explain why. If so, 2392 what distance or time should EPA require? 2393 • Should EPA limit the number of noncertified applicators that a certified applicator can 2394 supervise? Please explain why. If so, how should EPA select the maximum number? 2395 XI. Expand Commercial Applicator Recordk eeping to Include Noncertified Applicator 2396 Training 2397
1. Overview . In order to facilitate in spectors’ ability to verify that noncertified applicators 2398 have been trained in accordance with the rule, EPA proposes to require commercial applicators 2399 to maintain records of noncertified applicator training for two years. 2400
2. Existing regulation . The current rule does not require any person to keep records of the 2401 information or training provided to noncertified applicators. 2402
3. Details of the proposal/rationale . EPA proposes to require commercial applicators to 2403 maintain records of noncertified applicators’ training. The proposed recordkeeping requirement 2404 includes: The trained noncertifi ed applicator’s printed name, and signature; the date of the 2405 training; the name of the person who provided the training; and the supervising commercial 2406 applicator’s name. It is reasonable to expect that that requi ring commercial applicators to 2407 maintain records of noncertified applicators’ training would increase the likelihood that the 2408*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 102 of 242 [RIN 2070-AJ20] noncertified applicators will be trained in accordance with the proposed requirements. In 2409 addition, records can help ensure that noncertifi ed applicators meet the proposed minimum age 2410 requirement. Records are a key component of an effective enforcement program. EPA is not 2411 proposing to require commercial applicators to document the qualifications of noncertified 2412 applicators who satisfy the requirement of 40 CFR 171.201(c) as agricultural handlers or by 2413 having passed the core exam. The WPS already requires agricultural employers to maintain 2414 records of pesticide safety traini ng provided to handlers. It is reasonable to e xpect that certifying 2415 authorities would be able to veri fy whether a noncertified applicat or has passed the core exam. 2416 FIFRA prohibits EPA from issuing regulati ons that require private applicators to 2417 maintain records. Therefore, EPA is not propos ing to make the recordkeeping requirements 2418 outlined in this Unit apply to private applicators. Nevertheless, private applicators still would be 2419 subject to the proposed requirements for ensuring that noncertified applicators under their direct 2420 supervision have met the proposed training requi rements. In the absence of training records 2421 maintained by private applicators, EPA would gauge compliance with th e training requirement 2422 during routine compliance inspections. The inspect or could question non certified applicators 2423 regarding the content of the tr aining and the labeling of any products being applied. If the 2424 noncertified applicators’ answers are not consistent w ith the content of the required training and 2425 the labeling of any products be ing applied, it may support a presumption that the private 2426 applicator has failed to adequately comply withthe noncertified applicator training requirement. 2427 Where private applicators keep records, either ontheir own initiative or in response to State, 2428 Tribal, or local requirements, th at are sufficient to verify compliance with the requirements for 2429 training and supervising noncertifi ed applicators, EPA expects th at it would ordinarily rely on 2430 such records to assess compliance, rather than evaluating individual noncertified applicators. 2431 The regulatory text related to this pro posal would be locate d at 40 CFR 171.201(e). 2432*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 103 of 242 [RIN 2070-AJ20] 4. Costs . EPA estimates the cost of the proposal to require commerc ial applicators to 2433 maintain records of the training provided to nonc ertified applicators wo rking under their direct 2434 supervision for 2 years would be $324,000 annually. 2435 5. Alternative options considered by EPA but not proposed. EPA considered requiring the 2436 training record to include the noncertified applicator’s date of birth. The Department of 2437 Homeland Security (DHS) requires every employe r to have a completed I-9 form for every 2438 employee. The I-9 form already requires employe rs to obtain and keep records on a number of 2439 pieces of information about the employee to veri fy employability, including the employee’s date 2440 of birth. The employer must retain the I-9 form for inspection by DHS or other federal agencies. 2441 Rather than impose a duplicative requirement for recordkeeping on employers, EPA chose not to 2442 propose a requirement for the traini ng record to include the noncertifi ed applicators date of birth. 2443
6. Request for comment. EPA requests specific comment on the following: 2444 • Should EPA consider requiring the commerc ial applicator to pr ovide a copy of the 2445 training record to the noncertifiedapplicator? What would be the value of this record to the 2446 noncertified applicator and subs equent employers? Should EP A require the record to be 2447 provided to all noncertified appl icators as a matter of course or only to those noncertified 2448 applicators who request such documentation from the certified applicator? 2449 • Should EPA consider requiring commercia l applicators to maintain records of 2450 noncertified applicator training fo r a different length of time? If so, for how long should training 2451 records be maintained and why? 2452 • Should EPA consider requiring commercia l applicators to doc ument the noncertified 2453 applicator’s qualification regardless of the method used to qualify? Should EPA require 2454 commercial applicators to document the WP S training or core exam? If so, why? 2455 XII. Establish a Minimum Age for Certified Applicators 2456*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 104 of 242 [RIN 2070-AJ20] 1. Overview . In order to reduce the risks of expos ure to applicators, bystanders, the 2457 public, and the environment, EPA proposes to es tablish a minimum age of 18 for any person to 2458 become certified as a private or commercial applicator. 2459
2. Existing regulation . The rule has no age restricti ons for certified applicators. 2460
3. Stakeholder information considered by EPA . Stakeholders including Farmworker 2461 Justice, Migrant Clinicians Network, EPA’s Ch ildren’s Health Protection Advisory Committee, 2462 members of the PPDC workgroup, and State regul atory agencies recommended establishing a 2463 minimum age for pesticide applicators. 2464 In 2002, CTAG surveyed State lead agencies for pesticide applicator certification. 2465 Responses were provided from 49 States, with30 States implementing a minimum age for 2466 commercial applicators and 27 Stat es establishing a minimum age for private applicators. The 2467 commercial applicator minimum ages were 16 (6 States) and 18 (24 States); the private 2468 applicator minimum ages ranged from 15 to 18 (15 years, 1 State; 16 years, 10 States; 17 years, 1 2469 State; 18 years, 15 States) (R ef. 47). CTAG also evaluated St ate support of a minimum age 2470 requirement for applicator certific ation. Ninety-eight pe rcent of the responde nts supported such a 2471 requirement. Twenty-six States supported a mi nimum age of 18, 12 Stat es supported a minimum 2472 age of 16, and the remainder did not respond with a specific age or provided different required 2473 minimum ages, depending on type of certification (Ref. 47). 2474 As of 2013, 35 States had implemented a mini mum age of 18 for comm ercial applicators 2475 and 8 States had implemented a minimum age of 16 for commercial applicators. For private 2476 applicators, 16 States establis hed a minimum age of 18, 1 State established a minimum age of 2477 17, and 17 States established a minimum age of 16 (Ref. 8). 2478 DOL has established a general rule, applic able to non-agricultural employment, that 2479 workers must be at least 18 years old to pe rform hazardous jobs. 29 CFR 570.120. For example, 2480*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 105 of 242 [RIN 2070-AJ20] those under the age of 18 may not perform most tasks in manufacturing or mining industries; 2481 communications or public utilities; construction or repair; in transporting pe ople or property; and 2482 in warehousing and storage. The FLSA establishe s a minimum age of 16 for youth in agriculture 2483 engaged in occupations deemed hazardous by the Secretary of Labor. 29 U.S.C. 213(c)(2). This 2484 includes persons handling toxicity category I and II pesticides in agriculture. 29 CFR 2485 570.71(a)(9). By regulation, DOL prohibits youth unde r the age of 16 engage d in nonagricultural 2486 employment from any work involving pestic ides unless employed by a parent or someone 2487 standing in place of th e parent. 29 CFR 570.32. 2488
4. Details of the proposal/rationale . EPA proposes to establish a minimum age of 18 for 2489 persons to become certified as comme rcial and private applicators. 2490 Aside from any increased risks that adol escents may suffer from pesticide exposures, 2491 adolescents generally lack the experience and judgment to avoid or prevent unnecessary 2492 exposure. A study conducted by the National Institute s of Health also demonstrates that because 2493 their brains are still developi ng, adolescents may have trouble balancing risk-reward decision2494 making and goal-oriented decisi on-making (Ref. 17). Although a dolescents may understand the 2495 possible consequences of their actions, they are more likely to make decisions based upon their 2496 initial emotional responses, wh ich will often lead them to make suboptimal choices (Ref. 16). 2497 Additionally, adolescents are less likely to be aw are of their rights and how to recognize hazards 2498 in the workplace (Ref. 16). 2499 Pesticide applicators must exercise good judgment and responsible behavior to best 2500 protect themselves and others as they work withthese potentially toxic materials. Research has 2501 shown differences in the decision making of adol escents and adults thatreasonably supports the 2502 conclusion that applicators who are children may take more risks than those who are adults. 2503 Behavioral scientists note that responsible decision making is more common in young adults 2504*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 106 of 242 [RIN 2070-AJ20] than adolescents: “socially responsible de cision making is signifi cantly more common among 2505 young adults than among adolescents, but doe s not increase appreciably after age 19. 2506 Adolescents, on average, scored significantly worse than adults did, but in dividual differences in 2507 judgment within each adolescent age group were considerable. Thes e findings call into question 2508 recent assertions, derived from studies of logi cal reasoning, that adolescents and adults are 2509 equally competent and that laws and social policies should treat them as such” (Ref. 18). 2510 Decision-making skills and competence differ between adolescents and adults. A NIOSH 2511 compilation of studies demonstrat es “[y]outh are at increased ri sk of injury from lack of 2512 experience. Inexperienced workers are unfamiliar with the requirements of work, are less likely 2513 to be trained to recognize hazards, and are co mmonly unaware of their legal rights on the job. 2514 Developmental factors – physical, cognitive, and psychological – may also place them at 2515 increased risk” (Ref. 17). While some research has focused on decision-making of adolescents in 2516 terms of legal culpability, the findings on decision-making skills and competence can be applied 2517 reasonably to pesticide application. 2518 Society has established 18 as the age of majo rity in many circumstances, and research has 2519 shown that by 18 years old, most people have developed a level of competence that makes 2520 responsible decision making more likely. For example, persons must wait until they are 18 to 2521 vote, join the military, use tobacco, and give medical consent. For the one major exception to 18 2522 as the age of majority, issuance of driver’s licen ses, States have recognized the increased risks 2523 associated with new, immature drivers. Forty-ni ne States have established a graduated driver’s 2524 license program, under which the young driver s do not get full rights and independence upon 2525 passing the necessary tests; rather they get limite d privileges that expand over time to result in 2526 full rights and independence when they reach 17 or 18 years old. Overall, this approach has 2527 resulted in fewer accidents by teenage driv ers between 16 and 18 years old (Refs. 48, 49). 2528*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 107 of 242 [RIN 2070-AJ20] Society does not entrust individuals with the right to conduct some high risk activities until they 2529 have met a certain age because th e risk of harm to the underage person and others is too great. 2530 Pesticide application presents comparable risks, with the potential for significant harm to the 2531 applicator, the public, a nd the environment. 2532 In addition to differences between adolescen ts and adults in terms of decision-making 2533 ability, children may be more susceptible to pe sticides because their physiological systems are 2534 developing, and that development may be alte red by pesticide exposur e. Most pesticides 2535 classified as RUPs are so classified based on an increased potential for acute harm to human 2536 health. A level of exposure to RUPs considered sa fe for an adult may not be safe for a child. 2537 EPA expects that restricting certification to persons 18 years of age or older would 2538 prevent children from being exposed while perf orming and supervising application ac tivities and 2539 protect other persons and the environment frommisapplication due to children’s poor judgment 2540 or inadequate decision-making skills. EPA’s propos al would harmonize the age requirements for 2541 pesticide applicators with the minimum age requ irements for workers performing hazardous jobs 2542 in other industries. 2543 The regulatory text for these provisions w ould be located at 40 CFR 171.103(a)(1) for 2544 commercial applicators and at 40 CF R 171.105(d) for private applicators. 2545 5. Costs . EPA separates the cost of establis hing a minimum age for commercial and 2546 private applicators in this unit. 2547 i. Commercial applicators. EPA estimates the cost of requiring commercial applicators to 2548 be 18 would be $294,000 per year. The costs would reflect the difference in the wage rates 2549 between commercial applicators who are 18 years or older and those who are younger in States 2550 that do not currently have a minimum age of 18. As discussed in this unit, many States already 2551 have a requirement that certified applic ators must be at least 18 years old. 2552*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 108 of 242 [RIN 2070-AJ20] ii. Private applicators. EPA estimates the cost of requiri ng private applicators to be 18 2553 would be $174,000 per year. The costs would reflect the difference in the wage rates between 2554 private applicators who are 18 years or older and those who are younger inStates that do not 2555 currently have a minimum age of 18. 2556
6. Alternative options considered by EPA but not proposed . EPA considered two 2557 alternatives: Allowing flexibility in the minimum age of 18 for applicators on a family farm, and 2558 establishing a minimum age of 16 for co mmercial and private applicators. 2559 The SBAR panel, comprised of pesticide applicators and business owners convened to 2560 evaluate the impact of the proposed changes on small business, recommended that EPA establish 2561 a minimum age of 18 for commercial and private applicator certificati on, with an exception 2562 allowing private applicators working on a farm owned by an immediate family member (as 2563 defined in the WPS at 40 CFR 170) to be certifie d at 16 years old (Ref. 24). This option would 2564 allow flexibility for earlier certification fo r private applicators working on farms owned by 2565 immediate family members; however, it provides a different level of protection for private and 2566 commercial applicators and to those who would be impacted by their applications of RUPs. 2567 EPA’s primary concern is the pr otection of human health and the environment from pesticide 2568 hazards; the SBAR panel alternative does not adequately protect a vulnerable segment of the 2569 population, youths 16 and 17 years old. It also puts at risk nei ghbors, bystanders, the food supply 2570 (from misapplication), and the environment. RUPs pose greater pote ntial for unreasonable 2571 adverse effects if they are misused than do other pesticides. Persons younger than 18 may 2572 possess less maturity and good judgement than a dults, and they may be careless in making 2573 applications. It is reasonable to expect that th ere would be additional risk to the applicator, the 2574 public, and the environment from RUP applications by persons younger than 18, and despite the 2575 benefit of flexibility offered by a reduced mini mum age on family owned enterprises, EPA does 2576*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 109 of 242 [RIN 2070-AJ20] not consider that flexibility justified in light of the associated risks. 2577 The second alternative considered by EPA wa s to set a minimum age of 16 for persons to 2578 become certified as commercial or private applicat ors. This option would require fewer States to 2579 incorporate the new requirement because most St ates have a minimum ag e of at least 16. Under 2580 this alternative, States could a dopt or retain a requirement for a higher minimum age. In addition, 2581 a minimum age of 16 would match the requireme nts of the FLSA for handling or applying 2582 products in toxicity category I and II in agri cultural employment and the minimum age for 2583 handlers under the proposed changes to the WPS. 79 FR 15444; March 19, 2014. However, this 2584 option would provide significantly less protectio n to the applicator, the public, and the 2585 environment. Moreover, this option could create a scenario in which a minor could be directing 2586 the actions of an adult by superv ising the application of RUPs. Stat es have noted that it can be 2587 difficult to take enforcement actions against mi nors. Under this scenario, States may have no 2588 recourse if the pesticide was misapplied by the n oncertified applicator because responsibility 2589 ultimately rests with the certified applicator, inthis case, a minor. Certified applicators use 2590 RUPs, pesticides with a higher potential for harming human hea lth and the environment, and 2591 must possess an appropriate level of competence, maturity and decision-making skills to ensure 2592 these products are used safely. Therefore, EPA does not believe that the difference in cost 2593 between the proposed option and this alternative justifies the associated risk to youth applicators, 2594 the public, and the environment. 2595
7. Request for comment. EPA specifically requests comment on the following questions: 2596

• Are there alternatives that have not been c onsidered that would im prove protections for 2597 adolescent certified applicators using RUPs , either those under 16 or 18 years old, while 2598 allowing flexibility for pesticide use for agriculture? 2599 • What would be the impact on State program s of establishing a mi nimum age of either 2600*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 110 of 242 [RIN 2070-AJ20] 16 or 18 for certified applicators? What would be the impact on pesticide application businesses? 2601 • Are there additional benefits or burdens associated with establishing a minimum age of 2602 16 or 18 for certified applicators? If so, pl ease provide data to support either position. 2603 • Would this proposal have an impact on trai ning programs for adolescen ts? If so, please 2604 describe the impact. 2605 XIII. Establish a Minimum Age for Noncertif ied Applicators Working Under the Direct 2606 Supervision of Certified Applicators 2607
1. Overview. EPA proposes to require that noncerti fied applicators who use RUPs under 2608 the direct supervision of a certified applicator be at least 18 years old. EPA expects this change 2609 would result in reduced risks to children and impr oved competency in the use of RUPs, resulting 2610 in reduced exposure to noncertified applic ators, bystanders, and the environment. 2611
2. Existing WPS regulations. The current rule does not establish a minimum age for 2612 noncertified applicators. 2613
3. Stakeholder information considered by EPA. As of 2013, 16 States had implemented a 2614 minimum age of 18 for noncertified applicators under the direct superv ision of commercial 2615 applicators and 4 States had implemented a minimum age of 16 for noncertified applicators 2616 under the direct supervision of commercial app licators. For private applicators, 5 States 2617 established a minimum age of 18 and 2 States established a minimum age of 16. Two States 2618 prohibit use of RUPs by noncertifi ed applicators, eliminating th e option for use of RUPs under 2619 the direct supervision of a certified applicator (Ref. 8). 2620 EPA also considered the inform ation discussed in Unit XII.3. 2621
4. Details of the proposal/rationale. EPA proposes to establish a minimum age of 18 for 2622 noncertified applicators using RU Ps under the direct supervision of certified applicators. The 2623 proposed age restriction would in clude a requirement for commercia l applicators supervising the 2624*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 111 of 242 [RIN 2070-AJ20] noncertified applicator to record the training and the birth date of any noncertified applicator 2625 using RUPs under their direct supervision. 2626 EPA considered the rationale discussed in Unit XII.4. in developing this proposal. As 2627 discussed in the previous section, research shows the differen ces in the decision-making of 2628 adolescents and adults leads to the conclusion that noncertified applicat ors who are adolescents 2629 may take more risks than those who are adults. Th e use of RUPs presents demonstrable risks of 2630 significant harm to the applicator, the public , and the environment, and these risks are 2631 significantly influenced by th e user’s judgment and decisi on-making skills. Requiring 2632 noncertified applicators to be 18 years of age or older would prevent youth under 18 from being 2633 exposed while using RUPs under the supervision of a certified applicator and would reduce risks 2634 to other persons and the environment from mi sapplication owing to users’ poor judgment or 2635 decision-making skills. This proposal would also align with society’s general trend toward 2636 increasing the ages at which persons are eligibleto do certain things that present recognized 2637 risks, such as purchasing alcohol or becoming a licensed driver. 2638 Because noncertified applicators use RUPs, th eir activities entail a heightened level of 2639 risk that requires maturity and good decision-maki ng skills if unreasonable adverse effects are to 2640 be avoided. Therefore, it is reasonable to expe ct that establishing a minimum age of 18 for 2641 noncertified applicators would impr ove protections from misapplication of RUPs to applicators, 2642 the public, the food supply, and the environment. 2643 The regulatory text establishing a minimu m age for noncertified applicators would be 2644 located at 40 CFR 171.201(b)(5). 2645
5. Costs . EPA separated the cost for establis hing a minimum age of 18 for noncertified 2646 applicators working under the dire ct supervision of commercial applicators and for those under 2647 the direct supervision of priv ate applicators in this unit. 2648*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 112 of 242 [RIN 2070-AJ20] i. Noncertified applicators working unde r the direct supervision of commercial 2649 applicators. EPA estimates the cost of requiring non certified applicators working under the 2650 direct supervision of commercial applicators to be 18 would be $12.8 million per year. The costs 2651 reflect the difference in the wage rates betweenthese noncertified app licators who are 18 years 2652 or older and those who are younger. 2653 ii. Noncertified applicators working unde r the direct supervision of commercial 2654 applicators. EPA estimates the cost of requiring non certified applicators working under the 2655 direct supervision of private applicators to be 18 would be $1.1 million per year. The costs 2656 reflect the difference in the wage rates betweenthese noncertified app licators who are 18 years 2657 or older and those who are younger. 2658 For a complete discussion of the costs of the proposals and alternatives, see the economic 2659 analysis for this proposal (Ref. 8). 2660 EPA cannot quantify the benefits associated w ith this proposal. Howe ver, it is reasonable 2661 to expect that this proposal would improve the health of adolescent noncertified applicators, as 2662 well as other bystanders and the environment. As discussed in Units XII. and XIII., adolescents’ 2663 judgment is not fully developed. It is reasonable to expect that re stricting adolescen ts’ ability to 2664 handle pesticides would lead to less exposur e potential for the non certified applicators 2665 themselves, and less potential for misapplicati on that could cause negative impacts on other 2666 persons nearby, the food supply, and the environment. 2667
6. Alternative options co nsidered but not proposed . EPA considered two alternatives: 2668 Proposing a minimum age of 16 for all noncertifi ed applicators using RUPs under the direct 2669 supervision of commercial and private applicators, and proposing a minimum age of 18 for all 2670 noncertified applicators using RUPs under the direct supervision of a certified applicator with an 2671 exception for noncertified applicators working u nder the direct superv ision of a private 2672*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 113 of 242 [RIN 2070-AJ20] applicator on a farm owned by an immediate family member. 2673 Establishing a minimum age of 16 for noncertified applicators woul d roughly align with 2674 the DOL’s age restrictions related to pesticide handling. It would also correspond with the 2675 proposed minimum age of 16 for pesticide handl ers under the WPS that EPA is considering. 2676 Finally, this alternative would give noncertifiedapplicators the opportuni ty to gain knowledge 2677 and experience about the proper use of RUPs at a younger age while working under the direct 2678 supervision of a certified applicator. EPA recognizes similarities between noncertified 2679 applicators and handlers under the WPS. Howeve r, noncertified applicators use RUPs, products 2680 that pose a higher risk of harm to human healthand the environment if not used properly. For 2681 this reason, it is critical that those who use RU Ps, even with proper supervision, have developed 2682 the necessary maturity and deci sion-making skills to use the produc ts in a manner that avoids 2683 unreasonable adverse effects to themselves, othe r persons, and the environment. EPA does not 2684 believe that harmonizing the minimum age for noncertified applicators with the proposed 2685 minimum age for handlers under the WPS and the Department of Labor’s requirements would 2686 offer benefits sufficient to justify the increased potential risk from impr oper use of an RUP by a 2687 noncertified applicator who is not at least 18 years old. 2688 The SERs on the SBAR panel recommended that EPA establish a minimum age of 18 for 2689 commercial and private applicator certification, with an excep tion allowing private applicators 2690 working on a farm owned by an immediate family member (as defined at 40 CFR 170.2) to be 2691 certified at 16 years old (R ef. 24). EPA considered adopting a similar requirement for 2692 noncertified applicators or establishing a minimum age of 18 for those working under the direct 2693 supervision of commercial applicators and 16 years old for those working under the direct 2694 supervision of private applicator s. These options would allow flexibility for earlier certification 2695 on family-owned farms or for private applicators; however, they would pr ovide a different level 2696*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 114 of 242 [RIN 2070-AJ20] of protection to noncertified applicators working under the direct supervision of private and 2697 commercial applicators. A noncertified applicator is likely to have less experience and 2698 knowledge than a certified applicator. A person younge r than 18 may also have less maturity and 2699 good judgement. It is reasonable to expect that that it is mo re likely that there would be 2700 additional risk to the applicat or, the public, and the environm ent from RUP applications by 2701 noncertified persons younger than 18, and despite the benefit of flexibili ty offered by a reduced 2702 minimum age on family owned enterprises, EPA doe s not consider that flexibility justified in 2703 light of the associated risks. 2704
7. Request for comment. EPA specifically requests comment on the following questions: 2705

• Are there alternatives that have not been c onsidered that would im prove protections for 2706 adolescent noncertified applic ators using RUPs under the dir ect supervision of a certified 2707 applicator, either those under 16 or 18 years ol d, while allowing flexibility for pesticide use for 2708 agriculture? 2709 • What would be the impact on State program s of establishing a mi nimum age of either 2710 16 or 18 for noncertified applic ators? What would be the impact on pesticide application 2711 businesses? 2712 • Are there additional benefits or burdens with establishing a minimum age of 16 or 18 2713 for noncertified applicators? If so, please provide data to supp ort either position. 2714 • Would this proposal have an impact on trai ning programs for adolesce nts? If so, please 2715 describe the impact. 2716 • Would it be possible for EPA to include in the final rule include exceptions the 2717 proposed minimum age requirement for persons participating in adolescent vocational training 2718 programs and high school educational programs, where persons who do not meet the minimum 2719 age work under the direct supervision of certifie d applicators, while en suring that adolescents, 2720*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 115 of 242 [RIN 2070-AJ20] others, and the environment are protected adequately? If so, explain how EPA could ensure 2721 adequate protections. Please suggest a framework for such an exemption. 2722 XIV. Establish a National Certification P eriod and Standards for Recertification 2723 A. National Recertification Period 2724
1. Overview . To ensure certified applicators maintain core competencies and keep pace 2725 with the changing technology of pe sticide application, a nd to ensure that th e public, environment 2726 and applicators are protected from misapplication and misuse , EPA proposes to establish a 2727 maximum certification period of 3 years. This would require all applic ators to renew their 2728 certification, i.e., recertify, at least every 3 years. 2729
2. Existing regulation . The current rule requires States to ensure applicators maintain a 2730 continuing level of competency and ability to apply pesticides safely and properly as part of their 2731 State plans. 40 CFR 171.8(a)(2). The rule requires that under plans administered by EPA, 2732 commercial applicators must be recertified ev ery 3 years and private applicators must be 2733 recertified every four years. 40 CFR 171.11. A policy published in the Federal Register 2734 applicable to Federal agency plans (42 FR 41907; August 19, 1977) directs Federal agencies to 2735 include in their certification plan s a requirement for applicators to recertify every 3 years. There 2736 are no corresponding regulatory requirements or policies establishing a maximum certification 2737 period under State and Tribal certification plans. 2738
3. Stakeholder information considered by EPA . CTAG, SFIREG, State regulatory 2739 agencies and members of the PPDC workgroup a ll requested that EPA establish a standard 2740 maximum certification period. Stat e and Tribal participants atthe 2006 Worker Safety PREP 2741 generally supported the proposed3-year maximum certification period, though States with 5- 2742 year periods expressed concerns for the poten tial impacts to their programs (Ref. 23). 2743 In a survey of State requirements, EPA determined that 31 States already have a 2744*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 116 of 242 [RIN 2070-AJ20] certification period of 3 years or fewer for comme rcial applicators. Twenty-five States already 2745 require recertification every 3 years or fewer for privat e applicators (Ref. 1). 2746
4. Details of the proposal/rationale . EPA proposes that all pesticide applicator 2747 certifications be valid for no more than 3 year s. This proposal corresponds with the existing 2748 requirements for commercial applicators under EP A-administered plans and Federal agency 2749 plans. 2750 Ensuring the ongoing competency of applicat ors of RUPs is crucial in preventing 2751 unreasonable adverse effects when RUPs are us ed. Applicators must be knowledgeable about 2752 changing technology, product reformulations, ne w labeling and regulatory requirements, and 2753 other essential labeling information. Applicators also must be reminded about personal safety 2754 and basic application principles. To ensure ongoing competency, it is necessary to require 2755 renewal of an applicator’s certification within a specific period. The more frequently applicators 2756 receive training, the more likely they are retain the substance of the tr aining and apply it on the 2757 job. Studies show that information retained from training sessions declines significantly within a 2758 year (Refs. 11, 12). However, preparing for and demonstrating competency by passing an exam 2759 requires a higher level of preparation and a morereliable demonstration of the competencies 2760 needed. Therefore, it is reasonable to believe that allowing certified applicators to renew their 2761 certifications over a slightly longer period woul d not adversely impact human health and the 2762 environment. EPA already requires applicators u nder an EPA-administered plan to recertify 2763 every 3 years and it is reasonable to extend this requirement to a ll applicators certified under any 2764 plan approved by EPA. 2765 It is reasonable to expect that requiring all ap plicators certified by States, Tribes and 2766 Federal agencies to be recertif ied at least every 3 years would set an acceptable minimum 2767 standard for continued competency in the applicator certification program. 2768*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 117 of 242 [RIN 2070-AJ20] The regulatory text for this proposal would be located at 40 CFR 171.107(a). 2769 5. Costs . EPA estimated the cost of this propos al in conjunction with the proposal to 2770 establish requirements for recertification programs. See Unit XIV.B. The cost of this proposal is 2771 provided in combination with the cost of the proposal for recertification requirements in Unit 2772 XIV.B.5. 2773
6. Alternative options considered by EPA but not proposed . EPA considered proposing a 2774 maximum certification period of 5 years for privat e and commercial applicat ors. As discussed in 2775 this unit, learned knowledge diminishes over time (Refs. 11, 12). EPA must ensure that 2776 applicators maintain ongoing competency to protect themselves, other persons, and the 2777 environment from unreasonable adverse effects fro m RUP exposure. It is reasonable to expect 2778 that applicators retain less know ledge over a 5 year recertificati on period than they would over a 2779 3 year recertification period, ther eby increasing the potential risk posed by applicators who do 2780 not maintain an ongoing level of competency. EPA estimates that the difference in cost between 2781 a 3 year and 5 year recertification would be ne gligible. For these reasons, it is reasonable to 2782 expect that the potential small co st savings associated with a 5 year recertification period instead 2783 of a 3 year recertification pe riod are not significant enough to warrant the increased risks 2784 associated with applicators who do not maintainan ongoing level of competency in the use of 2785
RUPs. 2786
7. Request for comment. EPA specifically requests comment on the following questions: 2787

• Should EPA consider a different maximum rece rtification period? If so, what period 2788 and why? 2789 B. Recertification Requirements 2790
1. Overview . To ensure certified applicators maintain core competencies and keep pace 2791 with the changing technology of pe sticide application, and to ensure that th e public, environment 2792*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 118 of 242 [RIN 2070-AJ20] and applicators are protected fr om misapplication and misuse, EP A proposes to require State, 2793 Tribal, and Federal agencies to require applicat ors to complete a continuing education program 2794 that meets or exceeds specific standards or to pass exams related to their ce rtification(s) in order 2795 to be recertified. 2796
2. Existing regulation . The current rule requires States to require applicators to 2797 demonstrate ongoing competency as part of their State plans. 40 CFR 171.8( a)(2). The rule has 2798 no requirements for the recertification standard s such as content or manner in which ongoing 2799 competency is evaluated. 2800
3. Stakeholder information considered by EPA . In a survey of State certification program 2801 personnel, CTAG found most States ag reed that the credibility of training presenters, programs, 2802 and recertification exams should be subject to review and approval by the agency that assigns the 2803 recertification program cr edits or oversees exams. Participan ts at the 2006 Worker Safety PREP 2804 noted that most States offer applicators the op tion to take an exam for recertification if 2805 recertification is not accomp lished through accruing continuing education units by the required 2806 deadline. Additionally, States noted that some applicator categories have so few applicators or 2807 the substance of the categories changes so in frequently that devel oping and updating training 2808 materials may be cost-prohibitive for States or cooperative extens ion services; therefore, States 2809 requested the option to offe r or require retesting for recertification (Ref. 23). 2810 State and Tribal participants at the 2006 Worker Safety PREP generally supported having 2811 a requirement for the minimum number of credits that must be earned by an applicator in a 2812 continuing education program during the recertifi cation period. Some Stat es expressed concern 2813 that minimum requirements established at the Federal level could cause States with more 2814 stringent requirements to lower their requirements. For example, if EPA re quired an applicator to 2815 earn 6 credits per category every 3 years, those St ates with higher requirements (e.g., 12 credits 2816*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 119 of 242 [RIN 2070-AJ20] per category) might face resistance from their ap plicators. Conversely, they appreciated that a 2817 Federal standard would make issuing and monitori ng reciprocal certificat es to applicators less 2818 burdensome, because all States would meet a mi nimum standard for recertification programs. 2819
4. Details of the proposal/rationale . The Agency proposes to establish minimum 2820 standards for continuing education programs, including: The minimum number of continuing 2821 education units (CEUs) that must be earned by an applicator in order to be recertified in core and 2822 each category; the standard length of a CEU; and a requirement for applicat ors to earn at least 2823 half of the required CEUs in the 18 months preced ing expiration of the app licator’s certification. 2824 States, Tribes, and Federal agencies would be required to include a continuing education 2825 program that meets or exceeds these standards as part of their certification plan. EPA also 2826 proposes to allow States to re quire recertification only by exam. The exam and its administration 2827 would have to meet the sta ndards outlined in Unit IX. 2828 EPA proposes to require that private applic ator continuing educa tion programs require 2829 instruction in the general comp etency standards as well as ea ch relevant application method2830 specific category. The more training applicators receive, the more likely they are retain the 2831 substance of the training and apply it on the job. Under EPA’s proposal, a private applicator 2832 would need to earn a minimum of 6 CEUs of instruction that covers th e content proposed as 40 2833 CFR 171.105(a) every 3 years to maintain core certification. The CEUs must be part of a 2834 continuing education program approved by the appropriate State, Tribal, or Federal agency for 2835 recertification. To qualify for recertification in the proposed application-method specific 2836 categories of soil fumigation, non-soil fumigation, or aerial applicati on, or in the predator control 2837 category, a private applicator would need to earn a minimum of an additional 3 CEUs specific to 2838 each relevant application method that covers the content proposed as 40 CFR 171.105(b) and (c) 2839 every 3 years. A commercial appl icator would need to earn a minimum of 6 CEUs related to his 2840*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 120 of 242 [RIN 2070-AJ20] or her core certification every 3 years to maintainhis or her core certif ication. For each category 2841 (pest control and application method-specific) in which the applicator is certified, he or she 2842 would need to obtain at least 6 CEUs specific to each category every 3 years. For example, a 2843 commercial applicator certified in agricultural pest control and aerial application would be 2844 required to obtain 6 CEUs of core material to satisfy recertification re quirements for commercial 2845 core, as well as an additional 6 CEUs in ag ricultural pest control and 6 CEUs in aerial 2846 application in order to satisfy recertification requirements for maintain ing his or her overall 2847 certification in the appropriate categories. 2848 EPA proposes to allow applicators to ear n CEUs in a program administered by or 2849 approved by the certifying St ate, Tribal, or Federal agen cy. The certifying authority’s 2850 certification plan would need to detail how it would review and approve content for the 2851 continuing education program and how it would en sure that applicators satisfy the necessary 2852 requirements. The certifying authority could eith er conduct the continuing education program 2853 directly (some States refer to this type of program as a work shop), or could approve continuing 2854 education programs administered by cooperative extension services at State universities, other 2855 States, or private training provide rs. To approve the program, the St ate would have to ensure that 2856 the continuing education progr am meets the competency requirements established for 2857 commercial core certification, gene ral private applicator certification, or the specific category or 2858 application method-specific category cove red by the continuing education program. 2859 EPA also proposes to set 50 minutes of activ e training time as the standard for a CEU. 2860 There is a wide range of time across States and professions for what constitutes a CEU. A 2861 minimum standard of 50 minutes of education pe r CEU would be consistent with most State 2862 standards. Setting a minimum standard for acceptable CEUs across all States, Tribes, and Federal 2863 agencies will ensure a baseline level for rece rtification programs that employ training and may 2864*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 121 of 242 [RIN 2070-AJ20] facilitate applicators earning credits for recertification in more than one State. With a more 2865 standardized baseline for a CEU, States may be more likely to approve or accept continuing 2866 education programs presented in other States. In terstate collaboration for recertification would 2867 reduce the burden on State lead agencies and edu cators to develop and present new materials for 2868 each category. In addition, applicators certified inthe same category in more than one State 2869 could be able to earn CEUs in one State and appl y them to recertification in their other State of 2870 certification, reducing the overall burden associated with recertification in multiple States. 2871 EPA also proposes to require that the appl icator earn a minimum of one-half of the 2872 required CEUs during the 18 month period prece ding the expiration date of his or her 2873 certification. A more recently tr ained applicator is more likel y than less frequently trained 2874 applicators to apply what he or she learned from the training on the job. This should ensure that 2875 the applicator maintains an ongoing level of competence throughout the period that the 2876 certification is valid. The propos al would support applicators staying abreas t of current 2877 information and technology related to th eir category of pes ticide application. 2878 EPA is also proposing to allow certifying auth orities to require applicators to pass exams 2879 relevant to their categories of certification in order to be recertified. Exams are a reliable gauge 2880 of competency and can be used to ensure that ap plicators continue to de monstrate an appropriate 2881 level of competency. 2882 For a discussion of the requirement for veri fication of the recertification candidate’s 2883 identity, see Unit IX. 2884 The regulatory text for the proposed add ition of recertification standards would be 2885 located at 40 CFR 171.107(b). 2886 5. Costs . The estimated costs for this proposal and the proposal in Unit XIV.A. are 2887 presented by impact to commercial applicators and private applicator s. The costs to the States are 2888*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 122 of 242 [RIN 2070-AJ20] incorporated in each section. 2889 i. Commercial applicators. EPA estimates that the proposed requirement for commercial 2890 applicators to recertify would co st a total of $6.5 million per year. EPA estimated this cost based 2891 on an applicator being required to complete 6 hours of training incore competency standards and 2892 6 hours of training for each category of certification. The recertification costs include applicators 2893 recertifying in the proposed appl ication-method specific categories and the new predator control 2894 categories. EPA estimates that St ate costs to administer the propos ed recertification program for 2895 commercial applicators would be $39,000 because mo st States already have recertification 2896 programs in place and would only need to ad just it to match the proposed regulatory 2897 requirement. 2898 ii. Private applicators. EPA estimates the cost of the proposed requirement for private 2899 applicators to recertify at $16.8 million annually. EPA estimated this cost based on an applicator 2900 being required to complete 6 hours of traini ng in general private applicator competency 2901 standards and 3 hours of training for each applic ation method-specific category of certification. 2902 The recertification costs incl ude applicators recertifying in the proposed application-method 2903 specific categories and the new predator control cat egories. EPA estimates that State costs to 2904 administer the proposed recertification program for privat e applicators would be $11,000 2905 because most States already have a recertifi cation program in place and would only need to 2906 adjust it to match the proposed regulatory requirement. 2907
6. Alternative options considered by EPA but not proposed . EPA considered a range of 2908 continuing education requirements but does nothave a specific a lternative proposal. EPA 2909 reviewed recertification and continuing education requirements for several other types of 2910 professional occupations and found wide variabi lity in continuing education requirements across 2911 States or organizations within a single profession (e.g., nursing), and found little information to 2912*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 123 of 242 [RIN 2070-AJ20] explain the variation in requirements. Similarly, EPA reviewed the ex isting State continuing 2913 education requirements for pestic ide applicator recertification and found that the requirements 2914 ranged from two up to 40 continuing education un its per cycle, and cycles ranged from 1 to 5 2915 years, but there was little or no information av ailable to support why a particular number of 2916 continuing education units was selected. 2917
7. Request for comment . EPA specifically requests comment on the following questions: 2918

• Is the proposed number of recertification CE Us is too low or too high? If so, please 2919 provide specific information on the number of c ontinuing education units that you believe should 2920 be required for professional recertification and the rationale behind the number. 2921

• Should EPA consider a different time period for applicator recertification? If so, please 2922 explain what period EPA should consider and why. 2923

• Should EPA require commercial and private app licators to have the same recertification 2924 requirements for category rece rtification? If so, why? 2925

• Should EPA do more to harmonize requirements for recertification to further facilitate 2926 reciprocity? Please describe what actions EPA should take and how they would further facilitate 2927 reciprocity. 2928 XV. Revise State Certification Plan Requirements 2929
1. Overview. In order to clarify requirements fo r content, submission and approval of 2930 State plans, raise the minimum standards for Stat e pesticide applicator certification programs, 2931 and update the requirements for State plans, EPA proposes to revise the provisions of the rule 2932 related to submission, approval, and maintenance of State plans. Since the requirements for 2933 Tribal and Federal agency plans reference the standards for State plans, the proposed changes 2934 would also impact the requirements for Tribal and Federal agency plans. 2935
2. Existing regulation. The current provisions at 40 CFR 171.7 and 171.8 establish the 2936*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 124 of 242 [RIN 2070-AJ20] requirements for the submission, approval and mainte nance of State plans. These sections of the 2937 rule set the content of State plans and outline the specific regulatory provisions, legal authorities, 2938 and components that States must have in or der for EPA to approve a State plan. An EPA2939 approved State plan allows the State to certify and recertify RU P applicators. 2940
3. Details of the proposal/rationale. EPA proposes to revise the provisions covering the 2941 submission, approval, and maintenance of State plans. The revisions wi ll cover: Revision of 2942 State plans to conform with proposed change s; additional reporting and accountability 2943 information; States’ need to have both civil and criminal penalty authority to enforce their State 2944 plans; recordkeeping requirements for commercial applicators; recordkeeping requirements for 2945 RUP dealers; standards for certification creden tials; requirements for States’ recognition of 2946 certifications issued by other St ates (known as reciprocal certification); and maintenance, 2947 modification, and withdr awals of State plans. 2948 i. State plan modification to implement proposed changes. EPA’s proposal would add 2949 appropriate provisions to ensure that State plans conform to new standards and requirements 2950 being proposed in other parts of the rule. This includes proposed standards for the certification of 2951 private and commercial applicators, recertific ation, and direct supe rvision of noncertified 2952 applicators

. States would continue to be permitted to adopt, as they considered appropriate, the 2953 Federal categories appropriate for their States, add subcategories under th e Federal categories, 2954 delete Federal categories not needed, and add State-specific categorie s not reflected by the 2955 Federal categories 2956 EPA considered several alternatives. First, EPA considered requiring States to adopt all 2957 applicable Federal categorie s proposed as 40 CFR 171.101 and 171.105. At the present time, few 2958 States have defined their certification categories to align exactly with the Federal categories – 2959 many have either split existing Federal categories into multiple categories or added a number of 2960*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 125 of 242 [RIN 2070-AJ20] subcategories under categories similar to the Federa l categories. Some stakeholders believe that 2961 requiring all certifying authoritie s to use the Federally-estab lished categories could benefit 2962 applicator mobility, stating that if the standards for certificatio n were consistent across States, 2963 States would be able to more easily evaluate requests for reci procal certification. However, 2964 requiring States to adopt the Fe deral categories would burden Stat es and applicators, and would 2965 not necessarily result in improved protection fo r applicators, the public , or the environment. 2966 Because the Federal categories may be broad, app licators may be required to learn material in 2967 areas not relevant to their actual applications , potentially reducing prot ections. Consequently, 2968 EPA expects that many States would still require applicators to certify intheir State-specific 2969 subcategories to ensure specific competency. If a significant number of Stat es continue to require 2970 applicators to certify in State-sp ecific subcategories, it would defeat the goal of facilitating 2971 reciprocal certification. In this scenario, requiring States to adopt the Federal categories would 2972 increase the burden to the States to revise their certification systems to accommodate the 2973 changes, and to applicators requ ired to pass another exam, withoutany clear benefit in either 2974 efficiency or protection. Because there is little, if any, gain inprotection from this option, and 2975 because it would be a burden to States and applicators, it is not proposed. 2976 EPA also considered subdividing the nationa l pest category 7 (industrial, institutional, 2977 structural and health-related pest control) into component parts. This category covers a range of 2978 specific application types – for example, applicat ions in food handling areas to control insects 2979 and rodents, termite control in infested buildin gs, and treatments to nursing homes and schools. 2980 Safe and effective applications to these differe nt sites require differe nt skills and knowledge. 2981 Subdividing the category at th e Federal level would allow th e certification to focus on the 2982 competencies most relevant to applicators in th e subdivided categories. However, 47 States have 2983 already created appropriate cate gories for their needs and their applicators learn information 2984*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 126 of 242 [RIN 2070-AJ20] relevant to their specific applications and are being tested on that speci fic information. Because 2985 of the State-specific divisions, th ere is little consistency in how the States have subdivided the 2986 category. Retaining the category in its current form and allowing St ates to adjust it as needed 2987 would avoid imposing an increased burden on Stat es to adjust their categories to a newly 2988 developed Federal standard with littl e or no improvement in protection. 2989 For a discussion on EPA’s proposal for appl icator reciprocity, please refer to Unit 2990 XV.3.vii. 2991 For standards for direct supervision of non certified applicators, EPA proposes to require 2992 States to adopt the proposed standards at 40 CFR 171.201 for commercial and/or private 2993 applicators that supervis e noncertified applicators. This would not require States to allow the use 2994 of RUPs by noncertified applicator s under the direct supervision of certified applicators; States 2995 that choose to restrict use of RUPs to certi fied applicators would be exempted from the 2996 requirement to adopt the proposed standards as 40 CFR 171.201. These options would continue 2997 to allow the States the flexibility to decide whether or not to a llow use of RUPs by noncertified 2998 applicators. EPA’s criteria for approving the registrations of RUPs are based, in part, on 2999 presumptions that any uncertifiedapplicators have at least the level of training mandated in 40 3000 CFR 171.201. Therefore, EPA only pr oposes that States adopt EPA’ s standards for noncertified 3001 applicators exactly, with the flexibility to adopt additional standards at the State’s discretion to 3002 address State-specific issues. 3003 The proposed regulatory text would be located at 40 CFR 171.303(a) and (b). 3004 ii. Program reporting and accountability. To reflect the proposed changes to applicator 3005 certification categories and to en sure EPA receives adequate information to monitor the State’s 3006 implementation of its certification plan, EPA proposes to require States to report the information 3007 below to EPA annually. EPA is also proposing to require Tribes a nd Federal agencies with their 3008*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 127 of 242 [RIN 2070-AJ20] own certification plans to submit similar relevant information to EPA. 3009

• The numbers of new, recertified, and total applicators holding a valid general private 3010 certification at the end of the last 12-month re porting period. 3011

• For each application method-specific cate gory specified in 40 CFR 171.105(c), the 3012 numbers of new, recertified, and total private app licators holding valid certifications for the last 3013 12-month reporting period. 3014

• The numbers of new, recertified, and total co mmercial applicators holding a valid core 3015 and at least one category certification at th e end of the last 12-month reporting period. 3016

• For each commercial applicator certific ation category specified in 40 CFR 171.101(a), 3017 the numbers of new, recertified, and total commer cial applicators holding a valid certification in 3018 each of those categories at the end of the last 12-month reporting period. 3019

• For each application method-specific cate gory specified in 40 CFR 171.101(b), the 3020 numbers of new, recertified, and total valid certif ications for the last 12 month reporting period. 3021

• If a State has established subcategories with in any of the commercial categories, the 3022 report must include the numbers of new, recertified, and total commercial applicators holding 3023 valid certifications in each of the subcategories. 3024

• A description of any modifications made to the approved ce rtification plan during the 3025 last 12-month reporting period that have not been previously evaluated by EPA. 3026

• A description of any proposed changes to the ce rtification plan that the State anticipates 3027 making during the next reporting period that may affect the certification plan. 3028

• The number and description of enforcement ac tions taken for any violations of Federal 3029 or State laws and regulations involving use of RUPs during the last 12-month reporting period. 3030

• A narrative summary describing the misuse in cidents or enforcement activities related 3031 to use of RUPs during the last 12-month reporting period, including specific information on the 3032*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 128 of 242 [RIN 2070-AJ20] pesticide(s) used, circumstances of the incident, nature of the violation, and information on the 3033 applicator’s certification. This section should include a discussi on of potential changes in policy 3034 or procedure to prevent futu re incidents or violations. 3035 EPA considers these additional reporting el ements necessary to improve performance 3036 measurement and accountability for the applicator certification program. Standardized data 3037 reporting requirements assist in uniform program measurement, an important element of the 3038 1993 Government Performance and Results Act (G PRA). The limited requirements for, and the 3039 wide variation in, the current State program re porting present impediments to national program 3040 monitoring and management. Fair and equitable assessment of State programs and the national 3041 program should be based on the review of sta ndardized reports. Uniform data collection and 3042 submission would assist EPA in accurately m easuring the success of the program and would 3043 facilitate the development and use of program measures to gauge program success. Areas 3044 requiring improvement and targeted outreach to address problems c ould be identified during data 3045 analysis. 3046 The proposed regulatory language for the pr ogram reporting would be located at 40 CFR 3047 171.303(c). 3048 iii. Civil and Criminal Penalty Authority. The current rule is not clear on whether States 3049 must have authority to impose both criminal an d civil penalty provision s for commercial and 3050 private applicators. EPA has conc erns that in the absence of either civil or criminal penalty 3051 provisions, a State would not have an adequate range of enfor cement options and capabilities to 3052 respond appropriately to the wide range of pesticide misuse situ ations that could arise. EPA 3053 proposes to revise the regulation to expressly require that States have both civil and criminal 3054 penalty provisions. 3055 The proposed regulatory language for civil and criminal penalty authority would be 3056*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 129 of 242 [RIN 2070-AJ20] located at 40 CF R 171.303(b)(6)(iii). 3057 iv. Commercial Applicator Recordkeeping. EPA proposes to clarify what records 3058 commercial applicators must maintain. The curre nt rule mandates that State plans include 3059 requirements for certified commercial applicators maintain for at least two years routine 3060 operational records containing information on ki nds, amounts, uses, dates, and places of 3061 application of RUPs. 40 CFR 171.7(b)(1)(iii)(E). Under this proposal, commercial applicators 3062 would be required to keep and ma intain all of the following records for the RUPs they apply: 3063

• The name and address of the person for whom the pesticide was applied. 3064

• The location of the pesticide application. 3065

• The size of the area treated. 3066

• The crop, commodity, stored product, or site to which the pes ticide was applied. 3067

• The time and date of the pesticide application. 3068

• The brand or product name of the pesticide applied. 3069

• The EPA registration number of the pesticide applied. 3070

• The total amount of th e pesticide applied. 3071

• The name and certification number of the certifi ed applicator that made or supervised 3072 the application, and if applicable, the name of any noncertified applicator(s) that made the 3073 application under the direct superv ision of the certif ied applicator. 3074

• Records related to the superv ision of noncertified applicator s working under the direct 3075 supervision of a certified app licator described in Unit XI. 3076 This proposed recordkeeping parallels the recordkeeping requirements established for 3077 private applicators under the USDA Food, Agricu lture, Conservation, and Trade Act of 1990 and 3078 agreed to by USDA and EPA in a 1995 Memorandu m of Understanding (R ef. 50). This proposal 3079 would ensure consistency betweenState recordkeeping requireme nts for commercial applicators 3080*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 130 of 242 [RIN 2070-AJ20] and existing Federal recordkeeping requirement s, which govern recordkeeping by commercial 3081 applicators certified under EPA-admini stered certification programs. 3082 The proposed regulatory language for commerc ial applicator reco rdkeeping would be 3083 located at 40 CFR 171.303(b)(6)(vi). 3084 v. RUP Dealer Recordkeeping. EPA proposes to require St ates to have provisions 3085 requiring RUP retail dealers to keep and maintain at each individual dealersh ip, for a period of at 3086 least two years, records of each transaction where a RUP is distributed or sold by that dealership 3087 to any person. Records of each such transaction must include all of the following information: 3088

• Name and address of the residence or principal place of business of each person to 3089 whom the RUP was distributed or sold, or if appl icable, the name and addr ess of the residence or 3090 principal place of business of each noncertified a pplicator to whom the RUP was distributed or 3091 sold for use by a certified applicator. 3092

• The applicator’s unique certific ation number on the certifi cation document presented to 3093 the dealer evidencing the valid certification of the certified applic ator authorized to purchase the 3094 RUP; the State, Tribe or Federal agency that issued the certification document; the expiration 3095 date of the certified applicator's certification; and the categories in which the certified applicator 3096 is certified. 3097

• The product name and EPA registration number of the RUP(s) distributed or sold in the 3098 transaction, and the State special local need registration numbe r on the label of the RUP if 3099 applicable. 3100

• The quantity of the pesticide(s) distri buted or sold in the transaction. 3101

• The date of the transaction. 3102 All 50 States currently have RUP dealer r ecordkeeping requirements; EPA proposes this 3103 Federal standard to ensure cons istency across the States and to ensure all necessary information 3104*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 131 of 242 [RIN 2070-AJ20] is collected. This proposal would also ensu re consistency between State recordkeeping 3105 requirements for RUP dealers and existing Fede ral recordkeeping requirements, which govern 3106 recordkeeping by RUP dealers that operate in ar eas covered by EPA-administered certification 3107
programs. 3108 The proposed regulatory language for th e proposed RUP dealer recordkeeping 3109 requirement would be locatedat 40 CFR 171.303(b)(6)(vii). 3110 vi. Certified Applicator Credentials. The certification regulation does not currently have 3111 requirements for what information States must include on applicator certification documents. 3112 EPA proposes to require States to issue appr opriate credentials or documents verifying 3113 certification of applicator s, containing all of the following information: 3114

• The full name of the certified applicator. 3115

• The certification, license, or credential number of th e certified applicator. 3116

• The type of certification (private or commercial). 3117

• The category(ies), including any application method-specific category(ies) and 3118 subcategories of certification, in which th e applicator is certified, as applicable. 3119

• The expiration date of the certification. 3120

• A Statement that the certification is base d on a certification issu ed by another State, 3121 Tribe or Federal agency, if applicable, and the id entity of that State, Tribe or Federal agency. 3122 It is reasonable to expect that requiring consistent information on applicator certification 3123 across all certifying agencies woul d assist States in evaluating ce rtification documents presented 3124 by applicators certified in another State, woul d assist dealers in reviewing certification 3125 information, and would assist enforcement agents in evaluating the app licator’s certification 3126 document during an inspection. 3127 The proposed regulatory text fo r applicator certification cred entials would be located at 3128*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 132 of 242 [RIN 2070-AJ20] 40 CFR 171.303(a)(6). 3129 vii. Reciprocal Applicator Certification. The current provisions do not require States to 3130 provide specific information about State requirements and procedures for reciprocity. States have 3131 requested that EPA take action to establish standards to allow reciprocal certification between 3132 States and to standardize the process. Based on the request by States and to facilitate the 3133 certification of applicators working in more than one State, EPA proposes to require State 3134 certification plans to specify whether (and if so, under what circumstances) the State would 3135 certify applicators based, in whole or in part, on the applicator having b een certified by another 3136 State, Tribe, or Federal agency. Under the propose d rule, such certification s would be subject to 3137 all of the following conditions: 3138

• A State may only rely on current, valid certifications issued unde r an approved State, 3139 Tribal or Federal agency certification plan, and may only rely on a certification issued by a State, 3140 Tribe or Federal agency that issued its certifi cation based on an indepe ndent determination of 3141 competency without reliance on any other existing certification or authority. For each category of 3142 certification that will be accepted, the standards of competency inthe State, Tribe or Federal 3143 agency that originally certified the applicator must be comparable to the standards of the 3144 accepting State. 3145

• Any certification that is base d, in whole or in part, on the applicator having been 3146 certified by another State, Tribe or Federal agency must terminate immediately if the applicator’s 3147 original certification terminates for any reason. 3148

• Any State which chooses to certify applicators based, in whole or in part, on the 3149 applicator having been certified by another State, Tribe, or Federal agency, must implement a 3150 mechanism to ensure the State will immediately terminate an applicator's certification if the 3151 applicator’s original certification terminates for any reason. 3152*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 133 of 242 [RIN 2070-AJ20] • The State issuing a certification based, in whole or in part, on the applicator having 3153 been certified by another State, Tribe or Federal agency must issue an appropriate credential or 3154 document in accordance with the re quirements of this section. 3155 The proposed regulatory text re lated to States issu ing certifications based on applicator 3156 certification credentials obtained in other jurisdictions would be located at 40 CFR 3157 171.303(a)(7). 3158 viii. State plan maintenance, modification, and withdrawal. EPA proposes to replace the 3159 existing provisions related to maintenance, modi fication, and withdrawals of State certification 3160 plans. The proposed revisions woul d clarify the types of plan changes that constitute substantial 3161 modifications and therefore re quire additional review and approval by EPA. The proposed 3162 revisions would codify existi ng interim program policy and guidance issued by EPA in 2006 3163 (Ref. 41). 3164 The regulatory text for modification and withdrawal of State plans will be located at 40 3165 CFR 171.309. 3166
4. Costs. EPA estimates the proposed revisions to the State certification plan 3167 requirements will include 3 costs: Revising State requirements to meet EPA’s proposed 3168 standards, updating State plans for submi ssion to and approval by EPA, and adding a 3169 requirement for dealers to maintain records of RUP sales. The current rule requires States to 3170 require commercial applicators to keep records; the proposal mere ly clarifies the content of the 3171 records and therefore is not expected to re sult in costs to the applicator or States. 3172 EPA estimates that States would incur a one-time cost of about $119,000 annually for the 3173 first two years to revise and fina lize pesticide applicator laws and regulations that meet or exceed 3174 EPA’s proposed requirement. Once States have revi sed their laws and regulations, they will need 3175 to draft and submit a revised plan for applicator certification to EPA for approval. Since EPA 3176*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 134 of 242 [RIN 2070-AJ20] already requires States to update plans as appropriate and to report necessary information to EPA 3177 annually, EPA estimates the cost of this proce ss would be about $4,000 annually for the first two 3178 years after implementation across all States. 3179 Finally, it is reasonable to expect that th e requirement for RUP dealers to maintain 3180 records of RUP sales will not impose any burden on the regulated community. All States already 3181 require RUP applicators to maintain such reco rds. However, a few States may have to do 3182 additional revisions to their laws and regulations to ensure the State recordkeeping requirement 3183 mirrors the proposed Federal requi rement. There is no estimated cost associated with this 3184 proposal because all States already require RU P dealers to maintain records of sales. 3185 5. Alternative options considered by EPA but not proposed . EPA considered requiring 3186 States to make available publically a list of all applicators certified by the State. Under this 3187 alternative, such a list could be made availabl e electronically, e.g., via th e internet. Such a list 3188 could be used by the public to verify whether the pest control operato r hired to perform the 3189 application was certified. States already maintain information on the persons who hold valid 3190 certifications. States maintain the information in varying formats – some keep paper files, while 3191 others maintain an electronic database that is upd ated in real time as certifications are earned and 3192 expired. Some States have chosen to publish th e information on the internet. Some States may 3193 have restrictions on publishing information on line, but would make it available upon request. 3194 Because the States do not have a uniform manner to track and make ava ilable electronically the 3195 names of all certified applicators, and the public may already have access to this information in 3196 varying forms in each State, it is not necessary impose a requirement at the Federal level. 3197
6. Request for comment. EPA specifically requests comment on the following questions: 3198

• EPA is not proposing to require States to adopt all applicable Federal categories to 3199 address reciprocity between jurisdictions, becauseit would burden States and applicators, and 3200*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 135 of 242 [RIN 2070-AJ20] protections may not be improved. Are there appro aches to facilitate reciprocity that would 3201 minimize burdens and disruption at the lead ag ency level and improve protections? Please 3202 describe these approaches and how they may be implemented. 3203

• Are there benefits, that EPA has not consider ed, to requiring States to adopt Federal 3204 certification categories? If so, please explain the benefits and how they would impact 3205 competency standards for nati onal certification categories. 3206

• Would the proposed reporting and recordkeeping requirements impose unnecessary 3207 burden on States, farmers, small businesses, or other entities? If so, who would bear unnecessary 3208 burden and why? 3209

• Should EPA consider requiring records to be reta ined for a different period? If so, what 3210 how long should records be retained and why? 3211

• Are there other types of information that EPA should consider collecting from States, 3212 RUP dealers, or commercial applicators? 3213

• Is there any other information related to reciprocal certification that EPA should 3214 consider incorporating into the regulation? If so, please indicate whic h information should be 3215 added or deleted and why. 3216

• Should EPA consider adding to or deleting from the required elements of the applicator 3217 certification document? If so, please indicate whic h information should be added or deleted and 3218 why. 3219

• Should EPA consider requiring States to make available public ally a list of all 3220 applicators holding a valid certification? If so, s hould the list be availabl e electronically? Should 3221 the list be updated in real time, or would periodic updates be acceptable? If periodic updates are 3222 chosen, what period would be reasonable? 3223

• Should EPA consider requiring certifying au thorities to require their commercial 3224*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 136 of 242 [RIN 2070-AJ20] applicators to report incidents that would meet the reporting criteria of 40 CFR 159.184 of this 3225 chapter if known to the pesticide registrant 3226 XVI. Establish Provision for Review a nd Approval of Federal Agency Plans 3227
1. Overview. In order to codify Agency policy on Federal agency certification plans, EPA 3228 proposes to delete from the current regulation the section on GAP (40 CFR 171.9) and to codify 3229 EPA’s 1977 policy on review and approva l of Federal agency plans. 3230
2. Existing regulation. The certification rule covers GAP certifications, outlining a 3231 process for certifying employees of Federal agenci es to use RUPs in the course of their duties 3232 under a government-wide GAP. 40 CFR 171.9. The 1974 proposal (39 FR 6730; February 22, 3233 1974) included a special process for certifying employees of Fede ral agencies, but the process 3234 was not included in the final rule. A subsequent Federal Register Notice (40 FR 2528; January 3235 13, 1975) outlined a proposed process for certifying employees of Federal agencies under a 3236 government-wide GAP. The GAP certification proce ss was included in the fi nal revised rule (40 3237 FR 11699; March 12, 1975), but a GAP was never developed or implemented by EPA or the 3238 Federal government. In 1977, EPA announced a policy that provided an alte rnative approach for 3239 Federal employee certification (42 FR 41907; A ugust 19, 1977). Under this policy, EPA allows 3240 Federal agencies to submit their own plans fo r the certification of RUP applicators; EPA 3241 approves the Federal plans provided they meet or exceed EPA’s standards. In the policy, EPA 3242 noted that the standards for Federal agency plan s were to be essentially equal to or more 3243 stringent than requirements for State plans. Four Federal agencies currently have EPA-approved 3244 Federal agency plans. The Departments of Agricu lture and Defense have certification plans that 3245 were revised and approved in 2009. The Department s of Energy and the Inte rior have plans that 3246 were approved prior to 1990. 3247
3. Details of the proposal/rationale. EPA proposes to delete th e current text at 40 CFR 3248*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 137 of 242 [RIN 2070-AJ20] 171.9. EPA proposes to codify the August 19, 1977, policy covering Federal agency plans, and 3249 to clarify the standards that Federal agencies must meet. The proposed revisions include the 3250 following requirements: Federal agencies must comply with all applicable standards for 3251 certification, recordkeeping, and other similar requirements for State/Tribal plans; Federal 3252 agencies must ensure compliance with applicab le State pesticide use laws and regulations, 3253 including those pertaining to sp ecial certification requirements and use reporting, when applying 3254 pesticides on State lands; Federal agencies must comply with all applicable Executive Orders; 3255 and Federal agencies must conform to standards established for St ates related to maintenance of 3256 plans and annual reporting. 3257 The proposed regulatory language concerning Federa l agency plans will be located at 40 CFR 3258 171.305. 3259
4. Costs. EPA estimates negligible burden associ ated with this requirement. Although 3260 Federal agencies with existing plans would be re quired to revise and resubmit their certification 3261 plans to be in compliance with the revised propos ed rule resulting in some administrative burden 3262 for these Federal agencies, EPA believes that the administrative burden associated with plan 3263 revisions would not be significant for two reasons . First, the four Federal agencies currently 3264 administering certification plans appear to be th e only Federal agencies interested in certifying 3265 applicators and so this proposal will not have a substantial impact on most Federal agencies. 3266 Second, Federal agencies with existing certificati on plans have revised their plans to address 3267 changing needs within their certif ication programs, so revisions required by this proposal would 3268 not significantly increasethe burden above that wh ich they already incur. 3269 5. Request for comment. EPA specifically requests comment on the following questions: 3270

• Is there any reason for EPA to retain the GAP provisions in the curren t rule? If so, why? 3271 XVII. Clarify Options for Establishing a Certification Program in Indian Country 3272*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 138 of 242 [RIN 2070-AJ20] 1. Overview. In order to provide more workable app licator certification options in Indian 3273 country, EPA proposes to revise the mechanisms available to Tribes fo r certifying pesticide 3274 applicators. 3275
2. Existing regulation. The current rule provides three options for applicator certification 3276 programs in Indian country: Tribes may utilize St ate certification to certify applicators (requires 3277 concurrence by the State(s) and anappropriate State-Tribal coope rative agreement); Tribes may 3278 develop and implement a Tribal certification pl an (requires Tribes to develop and submit an 3279 appropriate Tribal certification plan to EPA for approval); or EPA may administer a Federal 3280 certification plan for applicator s in Indian country, such as EPA’s national plan for Indian 3281 country (79 FR 7185; February 6, 2014). 3282 Currently, only a few Tribes have been approved by EPA to admi nister certification 3283 plans. In those areas of Indian country withoutan EPA-approved State orTribal certification 3284 plan in effect, EPA administers a certification plan to ensure thatRUPs are used only by certified 3285 applicators or noncertified applicators working under their direct supervision. 3286
3. Stakeholder information considered by EPA. Consistent with EPA’s Indian Policy and 3287 Tribal Consultation Policy, EPA engaged in a formal consultation process with Tribes 3288 summarized in Unit XXII. 3289
4. Details of the proposal/rationale. EPA proposes to revise the mechanisms for 3290 establishing applicator certifi cation programs in Indian country. EPA would revise the option 3291 where a Tribe relies on State certification and the option for EPA-admini stered certification 3292 plans in Indian country. EPA would also amend the requirements for Tribal-implemented 3293 certification plans to require Trib al plans to incorporate the pr oposed revisions to applicator 3294 certification standards. 3295 First, the proposal would revise the current op tion for Tribes to rely on State certification 3296*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 139 of 242 [RIN 2070-AJ20] by eliminating the requirement for Tribes to enter into cooperative agreements with States. This 3297 option would be replaced by an option to enter in to agreements with EPA Regional offices to 3298 establish certification programs inIndian country. The proposed re visions would allow Tribes to 3299 enter into agreements with EPA to recognize the certificati on of applicators who hold a 3300 certificate issued under one or more specific EP A-approved State, Tribal or Federal agency 3301 certification plans, without the need for State- Tribal cooperative agr eements and with little 3302 burden on States or Tribes. EPA would retain rele vant enforcement responsibilities in areas of 3303 Indian country covered by a certificati on plan implemented in this manner. 3304 Second, EPA proposes to clarify that EPA can include multiple Tribes and/or multiple 3305 geographic areas of Indian country under one si ngle EPA-administered plan. This option makes 3306 explicit EPA’s authority to implement a nati on-wide certification pl an that would cover 3307 applicators using RUPs in any part of Indian co untry unless a Tribe specifically requests to be 3308 excluded from the plan prior to the conclusion of the public comment period or elects to use one 3309 of the other mechanisms available to certify appli cators. This proposal is merely a clarification 3310 of the existing rule, and EPA has already established a national planfor certification of 3311 applicators in Indian country. EPA implemented the EPA Plan for the Federal Certification of 3312 Applicators of Restricted Use Pestic ides (RUPs) within Indian Country in 2014. 79 FR 7185; 3313 February 6, 2014. The EPA-administered plan serv es those areas of Indian country throughout 3314 the United States where no other ce rtification mechanism exists. 3315 Third, the proposal would update the require ments for Tribal plans by requiring those 3316 Tribes that choose to manage their own certific ation plan to adopt the new standards being 3317 proposed for State and Federal agency certificatio n plans in regard to initial certif ication and 3318 recertification of priv ate and commercial applicators a nd the training and supervision of 3319 noncertified applicators who appl y RUPs under the direct supervis ion of a certified applicator. 3320*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 140 of 242 [RIN 2070-AJ20] The proposal would also eliminate current requir ements for States to include in their State 3321 certification plans references to any agreemen ts with Tribes for recognizing the States’ 3322 certificates. 3323 The proposed revisions would ensure that Tribes are generally subject to the same 3324 certification program standards applicable to States, Federal ag encies, and EPA-administered 3325 programs. However, certain separate requireme nts would be included inthe Indian country 3326 provision relating to the exercise of criminal enforcement authority. EPA recognizes that certain 3327 limitations exist regarding Tribes’ ability to exer cise criminal enforcement authority. In such 3328 circumstances, it is appropriate to retain primary criminal enforcement authority with the Federal 3329 government and has proposed requirements for Tribes and EPA to enter into relevant agreements 3330 regarding the exchange of potentia l investigative leads. These requirements are similar to EPA’s 3331 approach to criminal enforcement authority in the context of other EPA rules addressing Tribal 3332 programs under Federal environmental laws. See, e.g., 40 CFR 49.8. The proposed revisions 3333 would enhance the ability of Tribal programs to develop and implement certification plans and 3334 programs for those Tribes that choose to mana ge their own certification plans, and would 3335 provide practicable alternatives for those Tribes that do not. Th e proposed revisions may require 3336 some Tribes with a current, EPA-approved certif ication plan to make changes to Tribal laws, 3337 regulations, or code. EPA intends to consider the potential impact s of Tribal legislative changes 3338 and Tribal plan revision when establishi ng effective dates for the final rule. 3339 Once final, the regulatory language for the pr oposed options for applicator certification in 3340 Indian country would be located at 40 CFR 171.307. 3341 5. Costs. The costs associated with these changes should be negligible because they 3342 primarily result in clarification of requirements and policy, not in the im position of substantial 3343 new requirements or obligations on the part of Tribes. EPA does not believe the proposed 3344*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 141 of 242 [RIN 2070-AJ20] revisions would place any unreasonable burden on Tribes because they do not require Tribes to 3345 implement certification programs. These proposedrevisions would require existing Tribal 3346 certification plans to be revised and resubmitted to EPA for review and approval. EPA estimates 3347 the costs to these Tribes would be similar to the costs to States for updating and submitting to 3348 EPA for approval a revised certification plan. Becaus e there are currently only four Tribes with 3349 an EPA-approved certification plan the proposed ch anges to certification mechanisms in Indian 3350 country should not result in a significant impact on Tribal entities or pr ograms as a whole. 3351
6. Request for comment. EPA specifically requests comment on the following questions: 3352

• Are there other mechanisms EPA should consid er for certification of RUP applicators in 3353 Indian country? If so, please describe the additional mechanism(s), how they would be 3354 implemented, and the benefit to Tribes, applicators, human h ealth, and the environment. 3355 XVIII. Revise Provisions for EPA-Administered Plans 3356
1. Overview. To update requirements for EPA-admini stered plans to conform with the 3357 proposed changes to the regulati on, EPA proposes to amend the sec tion of the rule dealing with 3358 EPA-administered plans. 3359
2. Existing regulation. The current rule establishes re quirements for EPA-administered 3360 certification in States or areas of Indian country without EP A-approved certification plans in 3361 place, including specific standard s for certification and recertification of pesticide applicators. 40 3362
CFR 171.11. 3363
3. Details of the proposal/rationale. EPA proposes to revise the current section outlining 3364 the requirements for an EPA-administered Federa l certification plan to incorporate the proposed 3365 changes to State certification plan s related to RUP applicator certification, recertification, and 3366 noncertified applicator qualifications, as well as plan reporti ng and maintenance requirements. 3367 The rules governing EPA-administered certific ation programs should be constructed in a way 3368*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 142 of 242 [RIN 2070-AJ20] that minimizes administrative burden on EPA and the regulated community and reduces costs to 3369 taxpayers, while still providing EPA with the t ools necessary to protect human health and the 3370 environment. The proposed revisions would make requirements for the certification and 3371 recertification of RUP applicator s and supervision of noncertified applicators parallel to the 3372 requirements proposed for States, Trib es, and other Federal agencies. 3373 The proposed regulatory language covering EPA- administered plans would be located at 3374
40 CFR 171.311. 3375
4. Costs. EPA estimates the costs associated with this proposal would be negligible. EPA 3376 currently administers two certifi cation plans – one for the Navajo Tribe (72 FR 32648; June 13, 3377 2007) and one for certification in Indian country (79 FR 7185; February 6, 2014). It is reasonable 3378 to expect that the costs of updating these plan s to conform to the proposed changes would be 3379 relatively low. 3380 5. Request for comment. EPA specifically requests comment on the following questions: 3381

• Should EPA consider other revisions to the provisions for EPA-administered plans? If 3382 so, please describe the additional revision(s), how they would be implemented, and the benefit(s) 3383 to applicators, human health, and the environment. 3384 XIX: Revise Definitions and Restructure 40 CFR Part 171 3385 A. Improved Definitions 3386 EPA proposes to revise the definitions in the certification regulati on to add several new 3387 definitions and to eliminate several unnece ssary definitions. EPA expects that improved 3388 definitions would reduce the likelihood of misint erpretation and thereby improve compliance and 3389 enforceability. 3390 These proposed revisions to the definiti ons adopt more widely used and commonly 3391 accepted “plain English” language, and add clarity and consistency to the rule. The proposed 3392*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 143 of 242 [RIN 2070-AJ20] revisions to the definitions also help address issues raised by St ate regulatory partners and other 3393 program stakeholders. EPA does not believe the proposed revisions to the definitions will add 3394 new regulatory requirements on the regulated co mmunity or substantia lly increase regulatory 3395 burden. 3396 The revised and new definitions would be located at 40 CFR 171.3. 3397 1. Revised definitions. The Agency proposes to revise the following existing definitions: 3398 “act,” “dealership,” “compatibility,” “non-target organism,” “orn amental,” “principal place of 3399 business,” and “toxicity.” 3400
2. New definitions. The Agency also proposes to add the following new definitions: 3401 “application,” “application method,” “fumigant,” “fumigation, “Indi an country,” “Indian Tribe,” 3402 “noncertified applicator,” “perso nal protective equipment,” “use ,” and “use site specific 3403 guidance.” 3404
3. Definitions to be deleted. The Agency proposes to delete the following existing 3405 definitions from 40 CFR part 171 because they are no longer necessary as a result of other 3406 proposed revisions to the existi ng rule or are already defined in FIFRA: “Act,” “Agency,” 3407 “forest,” “uncertified person,” and “hazard.” 3408
4. Request for comment. EPA specifically requests comment on the following questions: 3409

• Are there other terms that EPA should c onsider adding, clarifying, redefining, or 3410 eliminating from the rule? If so, please provide detail about the term(s) and rationale for change. 3411 B. Restructuring of 40 CFR Part 171 3412 In order to improve clarity and implement the principles of using plain language in 3413 regulations, EPA proposes to reorganize the structure of 40 CFR 171. EPA expects the revised 3414 40 CFR 171 will be easier to read and understand, improving compliance by applicators and 3415 other program stakeholders. 3416*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 144 of 242 [RIN 2070-AJ20] 1. Existing 40 CFR 171. At this time 40 CFR 171 is a si ngle part with no subparts. The 3417 first sections (40 CFR 171.1-6) describe the stan dards for commercial and private applicators, 3418 requirements for persons working under the dir ect supervision of a certified applicator, 3419 definitions, and a statement of purpose. The seco nd half of the rule (40 CFR 171.7-11) describes 3420 the procedures for States, Tribes, Federal agen cies, and EPA to administer a certification 3421 program. The rule has a section titled “Government Agency Plan” describi ng a plan covering the 3422 entire Federal government that was not implemented. EPA has received feedback that this 3423 section is difficult to underst and and seems irrelevant. 3424
2. This proposal. The proposal would reorganize the ru le into four s ubparts: “General 3425 Provisions,” “Certification Requirements for Applicators of Restricted Use Pesticides,” 3426 “Supervision of Noncertif ied Applicators,” and “Certification Plans.” The General Provisions 3427 section would include the sections on scope, de finitions, and effective date. The Certification 3428 Requirements for Applicators of Restricted Use Pesticides section would include all standards 3429 for the certification and recertification of commercial and private ap plicators. The Supervision of 3430 Noncertified Applicators section would include all relevant standards for the certified applicator 3431 and the noncertified applicator us ing RUPs under his or her direct supervision. The Certification 3432 Plans section would include requi rements for States, Tribes, and Federal agencies to submit and 3433 modify their certification plans, as well as a de scription of an EPA-ad ministered applicator 3434 certification plan. 3435 EPA expects that the restructured rule will facilitate understanding of the rule by 3436 applicators and authorized agencies because it deletes obsolete provisions and uses clearer 3437 language. 3438
3. Alternative options considered by EPA but not proposed . EPA considered two 3439 additional changes to the organization of the regulation. First, EPA considered moving the 3440*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 145 of 242 [RIN 2070-AJ20] paragraph titled “Determination of Competency” proposed as 40 CFR 171.103(a) to the 3441 beginning of subpart B as an independent, in troductory section. Second, EPA considered moving 3442 the paragraph titled “Examination Standards” proposed as 40 CFR 171.103(b) to subpart D 3443 related to certification plans. Keeping the st andards related to determining competency and 3444 administering competency exams in the same section as the specific competency standards that 3445 applicators must meet is a more reasonable or ganization of the regulation because these two 3446 sections are related to how comm ercial applicator competency is determined. Therefore, EPA 3447 does not propose the two change s discussed in this unit. 3448
4. Request for comment. EPA specifically requests comment on the following questions: 3449

• Is the restructuring clearer? Is it easier to read and understand? 3450

• Are there other ways that EPA could simp lify or clarify 40 CFR 171? If so, please 3451 describe. 3452

• Should EPA consider alternate organizations of the regulation? If so, please provide a 3453 proposal and rationale for reorganization. 3454 XX. Implementation 3455 EPA proposes to make the final rule effec tive 60 days after the promulgated rule is 3456 published in the Federal Register . Compliance with certain provi sions of the rule would be 3457 delayed. Existing certification plans could remain ineffect for up to four years after the effective 3458 date of the final rule. Beginning four years after the effective date of the final rule, a State, Tribe, 3459 Federal agency, and EPA would only be permitted to certify applicators of RUPs in accordance 3460 with a certification plan that meets or exceeds all of the applicable re quirements of the final 3461 regulation and that has been approved by EPA after the eff ective date of the rule. 3462 States, Tribes, and Federal agencies ad ministering EPA-approved certification plans 3463 would be required to submit amen ded certification plans to EPA fo r approval within two years of 3464*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 146 of 242 [RIN 2070-AJ20] the effective date of the final rule. EPA intends to review and respond to all certification plans 3465 submitted within 2 years of the effective date. This would allow ample time for EPA, Tribes, 3466 Federal agencies, and State regulators time to makethe necessary changes to certification plans, 3467 and for these and other stakeholders to implemen t the new certification procedures. EPA expects 3468 that applicators may need to be certified in new categories and noncertified applicators could 3469 need training to meet the new standard. States , Tribes, and Federal agencies administering EPA3470 approved certification plans would need to beco me familiar with the new regulation and conduct 3471 outreach to the regulated community. Certifie d applicators and trai ners of noncertified 3472 applicators would have to beco me familiar with the noncertified applicator training content, 3473 ensure that they meet any eligibility requirement s, and obtain training mate rials if necessary. As 3474 resources permit and if the fina l rule includes the relevant pr ovisions from the proposal, EPA 3475 intends to develop training materials for non certified applicators working under the direct 3476 supervision of a certified applic ator and for certification in a non-soil fumigation category. 3477 Materials currently exist that can be modified to support ge neral certificati on for private 3478 applicators, and EPA has devel oped and distributed to States training materials for aerial 3479 applicators and soil fumigation categories. 3480 To facilitate implementation, EPA plans to issue a guidance document at the time the 3481 final rule is published, to provide assistance to States, and to conduct outreach to potentially 3482 affected parties. 3483 EPA requests comment on the proposed implementation of the rule. Specifically, EPA 3484 requests feedback on the following: 3485

• Would States and Tribes be able to ame nd and submit revised certification plans for 3486 EPA approval within 2 years of the e ffective date of the final rule? 3487

• If the proposed implementation schedule doe s not seem reasonable, please provide 3488*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 147 of 242 [RIN 2070-AJ20] specific comments on why the proposal is not reasonable and provide specific suggestions of an 3489 alternate schedule and why it would be reasonable. 3490

• Would States, Tribes, and Federal agencies need additional time after EPA approves the 3491 revised certification plan that meets or exceeds the requirements of the final rule in order to bring 3492 certified applicators into compliance with the ne w requirements? If so, how much time would be 3493 needed? What activities would be conducted? 3494

• Would the implementation schedule be reas onable if EPA provided exams and training 3495 materials for the proposedadditional categories? 3496

• What support would States, Tribes, and Fede ral agencies require from EPA during the 3497 implementation of the provi sions of the final rule? 3498

• If EPA evaluates the effectiveness and/or the impacts and benefits of the rule, what 3499 timeframe should be used to conduct the evaluation, e.g., should EPA begin a review after the 3500 rule is fully implemented or a specific time period after full implementation? For how long 3501 should EPA conduct the evaluation? Please prov ide additional information on methodology that 3502 could be used to conduct any evaluation. 3503 XXI. References 3504 The following is a listing of the documents that are specifically referenced in this 3505 rulemaking. The docket includes these documents and other information considered by EPA. For 3506 assistance in locating these other document s, please consult the person listed under FOR 3507 FURTHER INFORMATION CONTACT

. 3508
1. Certification Plan and Reporting Database. http://cpard.wsu.edu/reports/menu.aspx

. 3509 2. EPA. 1987-2004 Annual Certified Applicator Data. 3510 http://www.epa.gov/oppfead1/sa fety/applicators/data.htm. 3511*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 148 of 242 [RIN 2070-AJ20] 3. DOL. U.S. Bureau of Labor Statistics. Occupational Outlook Handbook, 2010-11 3512 Library Edition. Bulletin 2800

. Washington, DC. 3513
4. EPA. OPP Report on Incidence In formation: The Baseline. 2007. 3514 5. Harchselroad, F., et al. Treated vs reported toxic expos ures: discrepanc ies between a 3515 poison control center and a member hospital. Vetinary and Human Toxicology, April 1990, Vol. 3516 32, pp. 156-159. 3517 6. Bahamon, C., Chafee, et al. Pattern s in Hospitals' Use of a Regional Poison 3518 Information Center

. American Journal of Public Health. April 4, 1983. Vol. 73, pp. 396-400. 3519 7. Veltri, et al. Interpretation and uses of data collected in poison control centres in the 3520 United States. Medical Toxicology and Adverse Drug Experience, November-December 1987. 3521 Vol. 6, pp. 389-97. 3522
8. EPA. Economic Analysis of Proposed Revisi ons to the Applicator Certification 3523 Regulation. 2014. 3524 9. NIOSH. Data from the Sentinel Event Notification System for Occupational Risk – 3525 Pesticides Program. 2014. 3526 10. National Institutes of Hea lth. Agricultural Health Study. http://aghealth.nih.gov

. 3527 11. Arthur, W., Bennett Jr., W., Stanush, P., and McNelly, T. Factors That Influence Skill 3528 Decay and Retention: A Quantitative Review and Analysis. Human Performance. 1998, Vol. 11, 3529 pp. 57-101. 3530 12. Calabro, K, Bright, K and Kouzekanani, K. Long-Term Effectiven ess of Infection 3531 Control Training among Fourth Year Medical Students. Medical Education Online, Vol. 5, pp. 3532
1-7. 3533*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 149 of 242 [RIN 2070-AJ20] 13. Lee, S-J., Mehler, L., Beckman, J., Diebol t-Brown, B., Prado, J., Lackovic, M., et al. 3534 Acute Pesticide Illnesses Associated with O ff-Target Pesticide Drift from Agricultural 3535 Applications. Environmental Health Perspectives. 2011, Vol. 119, pp. 1162-1169. 3536
14. EPA. Review of Methyl Parathion Incident Reports. February 5, 1998. 3537 15. EPA. Office of the Inspector General. Result of Assessment of Controls Over 3538 Emergency Removal Actions at Methyl Parathion Sites. Sept. 23, 1997. Report No. E1SFB7-06- 3539 0020-7400069. 3540 16. Casey, B.J., Jones, R.M. and Hare, T.A. The Adolescent Brain. Annals of the New 3541 York Academy of Sciences. March 2008, pp. 111-126. 3542 17. HHS, PHS, CDC, NIOSH. National Institute for Occupational Safety and Health 3543 (NIOSH) Recommendations to the U.S. Departme nt of Labor for Changes to Hazardous Orders

. 3544 May 3, 2002. 3545 18. (Im)maturity of Judgment in Adolescen ce: Why Adolescents May Be Less Culpable 3546 Than Adults

. Behavioral Sciences and the Law. 2000, Vol. 18, pp. 741-760. 3547 19. State FIFRA Issues Research and Ev aluation Group. Report of the EPA/SFIREG 3548 Certification and Training Task Force

. August 1985. 3549 20. Certification and Training Assessment Gr oup. Pesticide Safety for the 21st Century

. 3550 1999. 3551 21. EPA. National Assessment of the Pesticide Worker Safety Program. 3552 http://www.epa.gov/oppfead1/safety/workshops.htm. 3553 22. EPA, OPP. Report on the National Assessment of EPA's Pesticide Worker Safety 3554 Program

. 2005. 3555 23. EPA, OPP. Pesticide Program Dial ogue Committee Worker Safety Regulation 3556 Change Subgroup, Summary of PREP and PPDC Comments

. Washington, DC 2007. 3557*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 150 of 242 [RIN 2070-AJ20] 24. Small Business Advocacy Review Panel on EPA Planned Revisions to Two Related 3558 Rules: Worker Protection Standard for Agri cultural Pesticides (RIN 2070-AJ22); and 3559 Certification of Pesticide Applicators (RIN 2070-AJ20). Final Report. November 3, 2008. 3560 25. Calvert, G M, et al. Acute Pesticid e-related Illnesses Among Working Youths, 1988- 3561 1999. American Journal of Public Health. April 2003, Vol. 93, pp. 605-610. 3562
26. CTAG. Requiring Written Examinations for Approval of State Certification 3563 Programs . 2003. 3564
27. EPA. Pesticide Applicator Certi fication in Indian Country. 3565 http://www2.epa.gov/pesticide-ap plicator-certification-indi an-country/training-private3566 applicators-indian-country. 3567 28. EPA, OPP. Amended Reregistrati on Eligibility Decision for Dazomat

. 2009. 3568 29. EPA, OPP. Amended Reregistration Eligibility Decision for the 3569 Methyldithiocarbamate Salts (Metam-sodium, Me tam-potassium) and Methyl Isothiocyanate 3570 (MITC). 2009. 3571 30. EPA, OPP. Amended Reregistration El igibility Decision for Methyl Bromide

. 2009. 3572 31. AAPCO. Letter to EPA Re: Registrati on Eligibility Decision (RED) for Soil 3573 Fumigant Dockets. October 30, 2008. 3574 32. EPA. Pesticide Applicator Certif ication and Training for Soil Fumigation 3575 Category/Subcategory. Last updated: November 2012. http://www2.epa.gov/so il-fumigants/soil3576 fumigant-training-certified-applicators

. 3577
33. NASDARF. Soil Fumigation Manual. 2012. 3578
34. NASDARF. Aerial Applicator's Manual. 2009. 3579 35. AAPCO. Letter to EPA. January 26, 2010. 3580 http://www.aapco.org/documents/FumigantLtr_Owens012610.pdf

. 3581*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 151 of 242 [RIN 2070-AJ20] 36. Dwinell, Steven on behalf of SFIREG. Letter to EPA. December 23, 2010. 3582 http://www.aapco.org/documents/ SFIREGtoBradburyKeigwin122310.pdf

. 3583
37. AAPSE. Reregistration Eligibility Decisi on (RED) for Soil Fumigant Dockets

. 3584 Letter to EPA. October 29, 2008. 3585 http://aapse.ext.vt.edu/aapse/sites/defau lt/files/AAPSE%20comme nts%20on%20fumigants%20R 3586 ED.pdf. 3587 38. AAPSE. Letter to EPA. July 28, 2009. 3588 http://aapse.ext.vt.e du/aapse/sites/default/files/FI NAL%20EPA_LabelMandatedTraining2008.pd 3589 f

. 3590 39. EPA, OPP. Reregistration Eligib ility Decision: Sodium Fluoroacetate

. EPA 738-R3591 95-025. September 1995. 3592 40. EPA, OPP. Reregistration Eligibility Decision: Sodium Cyanide

. EPA 738-R-94-020. 3593 September 1994. 3594 41. EPA. Interim National Program Guidance for EPA Regional Offices on EPA's 3595 Pesticide Applicator Certifi cation Program (40 CFR Part 171)

. July 2006. 3596
42. CTAG. Exam Administration and S ecurity Procedures Manual. National Association 3597 of State Departments of Agri culture Research Foundation, 2006. 3598
43. CTAG. Positive Identification Requirement for Pesticide Applicator Certification 3599
Exams. 2006. 3600
44. CTAG. Pesticide Applicator Recertification: Verifying Attendance at Recertification 3601
Events. 2009. 3602 45. EPA. PREP Discussion Report. 2007. 3603 46. CTIA, The Wireless Association. Wireless Quick Facts . Last updated: November 3604
2013. http://www.ctia.org/your-wireless-life/ how-wireless-works/wi reless-quick-facts

. 3605*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 152 of 242 [RIN 2070-AJ20] 47. CTAG. Minimum-Age Requirement for Certification to Use Restricted Use Pesticides 3606 (RUP). 2004. 3607 48. Masten, S., Foss, R., Marshall, S. Gr aduated driver licensing program component 3608 calibrations and their association with fata l crash involvement. Ac cident Analysis and 3609 Prevention. August 2013, Vol. 57, pp. 105-113. 3610 49. Williams, A. and Shults, R. Graduated Driver Licensing Research, 2007–Present: A 3611 Review and Commentary. Journal of Safety Research. April 2010, Vol. 41, 2, pp. 77-84. 3612 50. EPA and USDA. Memorandum of Unde rstanding: Restricted Use Pesticide 3613 Applicator Recordkeeping

. 1995. 3614 51. EPA. Amended ICR for Certification Rule, 2499.01. 2014. 3615 52. EPA, OPP. Summary of Consultation with Tribes on the Certification of Pesticide 3616 Applicators Regulation. 2010. 3617 XXII. FIFRA Review Requirements 3618 Under FIFRA section 25(a), EPA has submitted a draft of the proposed rule to the 3619 Secretary of the Department of Agriculture and the appropriate Congressional Committees. Their 3620 comments on this proposed rule and EPA’s resp onses are located in the docket for this 3621 rulemaking. 3622 The Scientific Advisory Panel waived its review of this proposal on September 4, 2014. 3623 XXIII. Statutory and Executive Order Reviews 3624 A. Executive Order 12866: Regulatory Planni ng and Review; and, Executive Order 13563: 3625 Improving Regulation an d Regulatory Review 3626 This action is a significant regulatory action because it may raise novel legal or policy 3627 issues arising out of legal mandates, the Presiden t’s priorities, or the principles set forth in 3628 Executive Order 12866 (58 FR 51735, October 4, 1993). Accordingly, EPA submitted the action 3629*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 153 of 242 [RIN 2070-AJ20] to the Office of Management and Budget (O MB) for review under Ex ecutive Order 12866 and 3630 Executive Order 13563 (76 FR 3821, January 21, 2011) , and any changes made in response to 3631 OMB recommendations have been documented in the docket. EPA prepared an economic 3632 analysis of the potential costs and benefits asso ciated with this action, which is summarized in 3633 Unit III.B. This economic analysis is available in the docket (Ref. 8). 3634 B. Paperwork Reduction Act 3635 The information collection activities in th is proposed rule have been submitted for 3636 approval to OMB under the PRA, 44 U.S.C. 3501 et seq . The Information Collection Request 3637 (ICR) document that the EPA prepared ha s been assigned EPA ICR number 2499.01 (OMB 3638 Control No. 2070-NEW). You can find a copy of th e ICR in the docket for this proposed rule, 3639 and it is briefly summarized here (Ref. 51). 3640 The information collection activities related to the existing certification regulation are 3641 already approved by OMB in an ICR titled “Certif ication of Pesticide A pplicators” (EPA ICR 3642 No. 0155.10; OMB Control No. 2070-0029). Ther efore, EPA ICR number 2499.01 (OMB 3643 Control No. 2070-NEW) only addresses the propos ed changes to the certification regulation. 3644 These include: 3645 • Updating the information States, Trib es, and Federal agen cies report to EPA 3646 • Updating the process and requirement s for modifying a certification plan 3647 • Adding a provision for States to require recordkeeping by RUP dealers 3648 • Adding specific requirements for noncertified applicator qualification through training 3649 • Adding a provision for commercial applicat ors to maintain records of noncertified 3650 applicator training 3651 Respondents/affected entities: Certified applicators; private and commercial . The number of 3652 applicators is based on the Certification Plan and Reporting Database for the years 2008 to 2013 3653*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 154 of 242 [RIN 2070-AJ20] (CPARD, 2014), there are 364,579 commercial app licators and 455,278 private applicators. 3654 Noncertified applicators under the direct supervision of certified applicators . It is 3655 estimated that there are 947,275 noncertified ap plicators who apply RUPs under the direct 3656 supervision of commercial certified applicators, and there are 81,678 noncertified applicators 3657 under the direct supervision of private certified applicators. 3658

RUP dealers . EPA estimates that there are approximately 10,000 retail dealers. 3659 According to the Agricultural Retailers Associ ation, there are approximately 9,000 agricultural 3660 retailers in the United States. Not all are licensed to sell RUPs. EPA estimates that there are far 3661 fewer nonagricultural pesticide retailers licensed to sell RUPs, give n that RUPs are generally not 3662 labeled for use in residential and other publ ic areas, even by a certified applicator. 3663 Authorized agencies . Authorized agencies are the entitie s that are federally authorized to 3664 administer applicator certification plans under 40 CFR 171. Authorized agencies includes States, 3665 territories, federally recognized Tribes and Federa l agencies authorized to operate certification 3666 programs. In addition to the 50 States, there are 4 plans for the US territo ries (Puerto Rico, DC, 3667 US Virgin Islands, and Pacific Islands), 4 Tribal plans, and 5 approved Federal agency 3668 certification plans. Federa l agencies include DOD, DOE, USDA APHISPPQ, USDA Forest 3669 Service (the 2 USDA plans are se parate plans), and DOI (the DOI plan covers 3 agencies within 3670 DOI BLM, BIA and NPS, but no others). Wa ge rates vary according to the entity 3671 Respondent’s obligation to respond: Mandatory (7 U.S.C. 136–136y, particularly 3672 sections 136a(d), 136i, and 136w). 3673 Estimated number of respondents: 1,749,265 3674 Frequency of response: Rule familiarization will occur annually for the first 3 years. 3675 Revising and submitting certification plans will occur one time. Training of noncertified 3676 applicators will occur annually. Recordkeeping of training of noncertified applicators working 3677*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 155 of 242 [RIN 2070-AJ20] under the direct supervision of commercial app licators will occur annually . Recordkeeping of 3678 RUP sales will occur each time an RUP is sold, which EPA estimates will be 39 times per year. 3679 Total estimated burden: 1,853,000 hours (per year). Burd en is defined at 5 CFR 3680 1320.3(b). 3681 Total estimated cost: $57,363,250 annualized capital or operati on and maintenance costs. 3682 An agency may not conduct or sponsor, and a person is not required to respond to, a 3683 collection of information unless it displays a currently valid OMB control number. The OMB 3684 control numbers for the EPA’s regulations in 40 CFR are lis ted in 40 CFR part 9, and on 3685 applicable collect instruments. 3686 Submit your comments on EPA’s need for this information, the accuracy of the provided 3687 burden estimates and any suggested methods for minimizing respondent burden to the EPA using 3688 the docket identified at the beginning of th is rule. You may also send your ICR-related 3689 comments to OMB’s Office of Informati on and Regulatory Affairs via email to 3690 oria_submissions@omb.eop.gov, Attention: Desk Offi cer for the EPA. Since OMB is required to 3691 make a decision concerning the ICR between 30 and 60 days after recei pt, OMB must receive 3692 comments no later than [insert date 30 days after date of publication in the Federal Register]

. 3693 The EPA will respond to any ICR-related comments in the final rule. 3694 C. Regulatory Flexibility Act (RFA) 3695 I certify that this action will not have a significant economic impact on a substantial 3696 number of small entities under RFA, 5 U.S.C. 601 et seq . The small entities subject to the 3697 requirements of this action are private applicators, commercial applicators, and noncertified 3698 applicators using RUPs under their direct supervision. The Agency has determined that for 3699 private applicators, average impacts of the rule represent less than 1% of annual sales revenue for 3700 the average small farm and even to small-sma ll farms with sales of less than $10,000. Impacts to 3701*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 156 of 242 [RIN 2070-AJ20] the smallest farms, especially in high-impact St ates, could exceed 2% of annual sales revenue but 3702 the number of farms facing such impacts is small relative to the number of small farms affected 3703 by the rule. For commercial appli cators, average impacts of the ru le represent less than 0.1% of 3704 annual revenue for the average small firm. The im pacts are expected to be around 0.1% of annual 3705 revenue even for the high cost scenarios. Detail s of this analysis are presented in the Economic 3706 Analysis for this action (Ref. 8). 3707 Although EPA is not required by the RFA to convene a Small Business Advocacy 3708 Review (SBAR) Panel because this proposal woul d not have a significant economic impact on a 3709 substantial number of small enti ties, EPA has nevertheless convened a panel to obtain advice and 3710 recommendations from small entity representatives potentially subject to this rule’s 3711 requirements. A copy of the SBAR Panel Report is included in the docket for this rulemaking 3712 (Ref. 24). 3713 D. Unfunded Mandates Reform Act (UMRA) 3714 This action does not contain an unfunded ma ndate of $100 million or more as described 3715 in UMRA, 2 U.S.C. 1531–1538, and does not significan tly or uniquely affect small governments. 3716 The proposed rule requirements would primarily a ffect certified applicat ors of RUPs. The total 3717 estimated annualized cost of th e proposed rule is $47.2 million. 3718 E. Executive Order 13132: Federalism 3719 This action does not have federalism impli cations, as specified in Executive Order 13132 3720 (64 FR 43255, August 10, 1999). It will not have subs tantial direct effects on the States, on the 3721 relationship between the national government and the States, or on the distribution of power and 3722 responsibilities among the various levels of gove rnment. However, this action may be of 3723 significant interest to State governments. C onsistent with the EPA’s policy to promote 3724 communications between the EPA and State and local governments, EPA consulted with State 3725*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 157 of 242 [RIN 2070-AJ20] officials early in the process of developing this rulemaking to permit them to have meaningful 3726 and timely input into its development. EPA wo rked extensively with State partners when 3727 considering revisions to the exis ting regulation and solic ited feedback from States in a number of 3728 ways, as discussed in Unit III. EPA carefully co nsidered the input of St ate partners during the 3729 development of this rulemaking inmeetings with State pesticid e regulatory officials and with 3730 groups representing State pesticide regulatory ag encies. In the spirit of Executive Order 13132, 3731 EPA specifically solicits comment on this ru lemaking from State and local officials. 3732 F. Executive Order 13175: Consultation and Coor dination with Indian Tribal Governments 3733 This action does not have Tribal implications, as specified in Executive Order 13175 (65 3734 FR 67249, November 9, 2000). This action would requi re Tribes that certify applicators to 3735 perform RUP applications in Indian country to comply with the revised regulation. EPA 3736 currently directly administers a national certification plan for Indian country (79 FR 7185; 3737 February 6, 2014) and has implemented a specific certification plan for the Navajo Nation (72 3738 FR 32648; June 13, 2007). As proposed, this rule pr ovides Tribes with the option to develop and 3739 administer their own applicator certification programs, to partic ipate in the EPA-administered 3740 applicator certification program for Indian country, or to ente r into an agreement with EPA 3741 regarding administration of an applicator certificati on program. As explained in Unit XVII., EPA 3742 does not believe the proposed revisions would place any unreasonable burden on Tribes because 3743 the proposed rule does not require Tribes to implement certification programs. There are 3744 currently only four Tribes with an EPA-appr oved certification plan. Th e proposed rule would 3745 require existing Tribal certification plans to be revised and resubmitted to EPA for review and 3746 approval. The costs associated with the proposedchanges should be negligible because they 3747 primarily result in clarification of requirements and policy, not the impos ition of substantial new 3748 obligations on the part of Tribes. EPA estimates th e costs to these Tribes would be similar to the 3749*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 158 of 242 [RIN 2070-AJ20] costs to States for updating and submitting to EP A for approval a revised certification plan, and 3750 that they would not result in a significant impact on Tribal entities or pr ograms. Thus, Executive 3751 Order 13175 does not appl y to this action. 3752 Consistent with EPA’s Policy on Consultati on and Coordination withIndian Tribes, EPA 3753 consulted with Tribal officials during the de velopment of this action. A summary of that 3754 consultation is provided in the docket for this action (Ref. 52). 3755 EPA specifically solicits additional comment on this proposed action from Tribal 3756 officials. 3757 G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety 3758 Risks 3759 This proposed rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 3760 1997) because it is not an economically signific ant regulatory action as defined by Executive 3761 Order 12866. However, it is reasonable to expect th at the environmental health or safety risks 3762 addressed in this proposed rule may have a disproportionate effect on children. 3763 The primary risk to children that is withinthe scope of this rulemaking is exposure to 3764 RUPs during their work as applicators of RUPs. The proposed rule is intended to minimize these 3765 exposures and risks. By establishing a minimum ag e for persons to become a certified applicator 3766 or to use RUPs as a noncertified applicator under the direct supervision of a certified applicator, 3767 children would receive less exposure to pesticides that may lead to chronic or acute pesticide3768 related illness. In addi tion, the proposal expands training fo r noncertified applicators to include 3769 topics that should also assist in reducing potenti al risks to children from incidental pesticide 3770 exposure, such as avoiding bringing pesticide residues home on clothing. 3771 Like DOL’s regulations that implement the FL SA, the proposed rule s eeks to regulate the 3772 ages at which children can apply pesticides. Th e proposed rule would establish a minimum age 3773*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 159 of 242 [RIN 2070-AJ20] of 18 for persons to become certified to apply RU Ps and to apply RUPs as noncertified persons 3774 under the direct supervision of certified applicators. Since many RUPs present heightened risks 3775 to harm human health relative to other pesticides, EPA feels that they warrant special 3776 consideration. EPA expects that the proposals to establish minimum ages would mitigate or 3777 eliminate many risks faced by young applicators. 3778 Additional information on EPA’s consideration of the risks to childre n in development of 3779 this action can be found in Unit III.C.3. and in the economic analysis fo r this action (Ref. 8). 3780 The public is invited to submit comments or identify peer-reviewed studies and data that 3781 assess effects of early life exposure to pesticides. 3782 H. Executive Order 13211: Actions Concerning Regul ations that Significantly Affect Energy 3783 Supply, Distribution, or Use 3784 This proposed rule is not a “significant energy action” as defined in Executive Order 3785 13211 (66 FR 28355, May 22, 2001), because it is not likel y to have a significant adverse effect 3786 on the supply, distribution, or use of energy. Further, this rule is not likely to have any adverse 3787 energy effects because it does not require any action related to the supply, distribution, or use of 3788
energy. 3789 I. National Technology Transfer and Advancement Act (NTTAA) 3790 This rulemaking does not involve technical standards that would require Agency 3791 consideration under NTTAA secti on 12(d), 15 U.S.C. 272 note. 3792 J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 3793 Populations and Low-Income Populations 3794 EPA believes that this proposed rule would not have disproportionately high and adverse 3795 human health or environmental effects on minority, low-income, or indigenous populations, as 3796 specified in Executive Order 12898 (59 FR 7629, Fe bruary 16, 1994), because it increases the 3797*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 160 of 242 [RIN 2070-AJ20] level of environmental protection for a ll affected populations without having any 3798 disproportionately high and adve rse human health or environm ental effects on any population, 3799 including any minority or low-income population. 3800 EPA engaged with stakeholders from impacted communities extensively in the 3801 development of this rulemaking in order to seek meaningful involvement of all parties. The 3802 Agency’s efforts to address environmental ju stice through this rulemaking were reviewed 3803 repeatedly during the development of the ruleand its supporting documents. The proposed 3804 changes demonstrate EPA’s commitment to impr oving the health and safety of certified 3805 applicators and noncertified applicators using RU Ps under their direct supervision by changes 3806 such as adding application method-specific catego ries, strengthening competency standards for 3807 private applicators, adding tr aining for noncertified applicator s using RUPs under the direct 3808 supervision of a certified applic ator, and establishing a minimum age for all persons using RUPs. 3809*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 161 of 242 [RIN 2070-AJ20] List of Subjects in 40 CFR Part 171 3810 Environmental protection, Admi nistrative practice and procedure, Certified applicator, 3811 Commercial applicator, Indian Country, Indian Tribes, Noncertif ied applicator, Pesticides and 3812 pests, Private applicator, Restricted use pesticides, Reporting and reco rdkeeping requirements. 3813

Dated: ____________________ 3814

_______________________________________ 3815

Administrator. 3816
3817*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 162 of 242 [RIN 2070-AJ20] Therefore, it is proposed that 40 CFR part 171 be revised to read as follows: 3818 PART 171-CERTIFICATION OF PESTICIDE APPLICATORS 3819 Subpart A-General Provisions 3820 Sec. 3821 171.1 Scope. 3822 171.3 Definitions. 3823 171.5 Effective dates 3824 Subpart B-Certification Requirements for App licators of Restrict ed Use Pesticides 3825 171.101 Commercial applicator ce rtification categories. 3826 171.103 Standards for certification of commercial applicators. 3827 171.105 Standards for certificati on of private applicators. 3828 171.107 Standards for recertificati on of certified applicators. 3829 Subpart C-Supervision of Noncertified Applicators 3830 171.201 Requirements for direct supervision of noncertified applicators by certified applicators. 3831 Subpart D-Certification Plans 3832 171.301 General. 3833 171.303 Requirements for State certification plans. 3834 171.305 Requirements for Federal ag ency certification plans. 3835 171.307 Certification of applicat ors in Indian country. 3836 171.309 Modification and withdrawal of certification plans. 3837 171.311 EPA-administered applicator certification programs. 3838 3839 A UTHORITY : 7 U.S.C. 136 I AND 136 W
. 3840 Subpart A-General Provisions 3841 § 171.1 Scope. 3842 (a) This part establishes Federal standards for the certification and recertification of 3843 applicators of restricted use pe sticides. The standards address th e requirements for certification 3844 and recertification of applicat ors using restricted use pestic ides, requirements for certified 3845 applicators supervising the use of restricted use pesticides by noncertified applicators, 3846 requirements for noncertified persons using restrict ed use pesticides under the direct supervision 3847 of a certified applicator, and requirements for pesticide ap plicator certification plans 3848 administered by States, Tribes and Federal agencies. 3849 (b) A person is a certified applicator for purposes of the Federal Insecticide, Fungicide 3850 and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq ., only if the person holds a certification issued 3851 pursuant to a plan approved in accordance with th is part and currently valid in the pertinent 3852*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 163 of 242 [RIN 2070-AJ20] jurisdiction. As provided in secti on 12(a)(2)(F) of the Act, it is unlawful for any person to make 3853 available for use or to use any pesticide classifiedfor restricted use other than in accordance with 3854 the requirements of this part. 3855 § 171.3 Definitions. 3856 Terms used in this part have the same meanings they have in FIFRA and 40 CFR part 3857 152. In addition, the following terms, when used in this part, shall mean: 3858 Agricultural commoditymeans any plant, or part thereo f, or animal, or animal product, 3859 produced by a person (including, but not limited to, farmers, ranchers, vineyardists, plant 3860 propagators, Christmas tree growers, aquaculturists, fl oriculturists, orchardists, foresters, or other 3861 comparable persons) primarily for sale, consumption, propagation, or other use by man or 3862 animals. 3863 Application means the dispersal of a pesticide on, in, at, or around a target site. 3864 Application method means the application using a particular type of equipment, 3865 mechanism, or device used in the application of a pesticide, including, but not limited to, ground 3866 boom, air-blast sprayer, wand, and backpack spra yer, as well as methods such as aerial, 3867 chemigation, and fumigation. 3868 Application method-spec ific certifica tion category means a defined set of competencies 3869 related to the use of a speci fic application method to appl y restricted use pesticides

. 3870 Applicator means any individual using a restricted use pesticide. An applicator may be 3871 certified as a commercial or private applicatoras defined in FIFRAor may be a noncertified 3872 applicator as defi ned in this part. 3873 Calibration means measurement of dispersal or output of application equipment and 3874 adjustment of such equipment to establish a specif ic rate of dispersal and, if applicable, droplet 3875 or particle size of a pesticid e dispersed by the equipment. 3876*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 164 of 242 [RIN 2070-AJ20] Certification means a certifying authority’s issu ance, pursuant to this part, of 3877 authorization to a person to use or superv ise the use of restricted use pesticides. 3878 Certifying authority means the Agency, or a State, Trib al, or Federal agency that issues 3879 restricted use pesticide applicator certifications pursuant to a certification plan approved by the 3880 Agency under this part. 3881 Compatibility means the extent to which a pesticide can be combined with other 3882 chemicals without causi ng undesirable results. 3883 Competent means having the practical knowledge, skills, experience, and judgment 3884 necessary to perform functions associated with restricted us e pesticide application without 3885 causing unreasonable adverse effects, where the nature and degree of comp etency required relate 3886 directly to the nature of the activity and the degree of independent responsibility. 3887 Dealership means any establishment owned or operate d by a restricted use pesticide retail 3888 dealer where restricted use pesticides are distributed or sold. 3889 Fumigant means any pesticide product that is a vapor or gas, or forms a vapor or gas 3890 upon application, and whose pesticidal action is achieved through the gaseous or vapor state. 3891 Fumigation means the application of a fumigant. 3892
Host means any plant or animal on or in which another species of plant or animal lives 3893 for nourishment, development, or protection. 3894 Indian country means: 3895 (1) All land within th e limits of any Indian reservation under the jurisdiction of the 3896 United States Government, notwithstanding the is suance of any patent, an d, including rights-of3897 way running through the reservation. 3898 (2) All dependent Indian communities withinthe borders of the United States whether 3899 within the original or subsequently acquired territory thereof, and whether within or without the 3900*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 165 of 242 [RIN 2070-AJ20] limits of a State. 3901 (3) All Indian allotments, th e Indian titles to which have not been extinguished, including 3902 rights-of-way running through the same. 3903 Indian Tribe or Tribe means any Indian or Alaska Native Tribe, band, nation, pueblo, 3904 village, or community included in the list of Tr ibes published by the Secretary of the Interior 3905 pursuant to the Federally Recogni zed Indian Tribe List Act. 3906 Mishap means an event that may adversely aff ect man or the environment and that is 3907 related to the use or presence of a pesticide, whether the event was unexpected or intentional. 3908 Non-target organism means any plant, animal or othe r organism other than the target 3909 pests which a pesticide is intended to affect. 3910 Noncertified applicator means any person who is not certified in accordance with this 3911 part to use or supervise the use of restricted use pesticides in th e pertinent jurisd iction, but who is 3912 using restricted use pesticides under the direct supervision of a person certified as a commercial 3913 or private applicator certified in accordance with this part. 3914 Ornamental means trees, shrubs, flowers, and other plantings intended primarily for 3915 aesthetic purposes in and around habitations , buildings and surrounding grounds, including 3916 residences, parks, streets, and commercial, industrial, and institutional buildings. 3917 Personal protective equipment means devices and apparel th at are worn to protect the 3918 body from contact with pesticides or pesticide re sidues, including, but not limited to, coveralls, 3919 chemical-resistant suits, chemical-resistant glove s, chemical-resistant footwear, respirators, 3920 chemical-resistant aprons, chemical-resis tant headgear, and protective eyewear. 3921 Practical knowledge means the possession of pertin ent facts and comprehension 3922 sufficient to properly perform func tions associated with applicati on of restricted use pesticides, 3923 including properly responding to reasonabl y foreseeable problems and situations. 3924*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 166 of 242 [RIN 2070-AJ20] Principal place of business means the principal location, eith er residence or office, where 3925 a person conducts a business of applying restricted use pesticides. A person who applies 3926 restricted use pesticides in more than one St ate or area of Indian country may designate a 3927 location within a State or area of Indian country as its principal pl ace of business for that State or 3928 area of Indian country. 3929 Regulated pest means a particular species of pest sp ecifically subject to Tribal, State or 3930 Federal regulatory restrictions, regulations, or control procedures intended to pr otect the hosts, 3931 man and/or the environment. 3932 Restricted use pesticide means a pesticide that is classi fied for restricted use under the 3933 provisions of secti on 3(d) of FIFRA. 3934 Restricted use pesticide retail dealer means any person who distri butes or sells restricted 3935 use pesticides to any person, ex cluding transactions solely be tween persons who are pesticide 3936 producers, registrants, wholesal ers, or retail sellers, acti ng only in those capacities. 3937 Toxicity means the property of a pesticide that refers to the degree to which the pesticide 3938 and its related derivative compounds are able to cause an adverse physiological effect on an 3939 organism as a result of exposure. 3940 Use, as in “to use a pesticide” means any of the following: 3941 (1) Pre-application activities, including, but not limited to: 3942 (i) Arranging for the application of the pesticide. 3943 (ii) Mixing and loading the pesticide. 3944 (iii) Making necessary preparations for th e application of the pesticide, including 3945 responsibilities related to providing training, a copy of a label and use-specific instructions to 3946 noncertified applicators, and complying with any applicable requirements under part 170 of this 3947 chapter. 3948*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 167 of 242 [RIN 2070-AJ20] (2) Applying the pesticide, including supervising the use of a pesticide by a noncertified 3949 applicator. 3950 (3) Post-application activities, including, but not limited to, transporting or storing 3951 pesticide containers that have been opene d, cleaning equipment, and disposing of excess 3952 pesticides, spray mix, equipment wash waters , pesticide containers, and other materials 3953 contaminated with or containing pesticides. 3954 Use-specific instructions means the information and require ments specific to a particular 3955 pesticide product or work site that are necessary inorder for an applicator to use the pesticide in 3956 accordance with applicable requirements and w ithout causing unreasonable adverse effects. 3957 § 171.5 Effective date. 3958 This part is effective [insert date 60 days after the date of publication of the final rule in the 3959 Federal Register ]. Certification plans approved by EPA before the effective date remain 3960 approved except as provided in §§ 171.301(b) and 171.309. 3961 Subpart B-Certification Requirements for App licators of Restrict ed Use Pesticides 3962 § 171.101 Commercial applicator certification categories. 3963 (a) Pest control certification categories . Certification in any of the pest control 3964 certification categories listed in this paragraph (a) alone is not sufficien t to lawfully use or 3965 supervise the use of products inte nded to be applied using a method specified in paragraph (b) of 3966 this section. 3967 (1) Agricultural pest control. 3968 (i) Crop pest control. This category applies to comme rcial applicators who use or 3969 supervise the use of restricted use pesticides in production of ag ricultural crops, including but not 3970 limited to grains, vegetables, sma ll fruits, tree fruits, peanuts, tr ee nuts, tobacco, cotton, feed and 3971 forage crops including grasslands , and non-crop agricultural lands. 3972*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 168 of 242 [RIN 2070-AJ20] (ii) Livestock pest control. This category applies to commer cial applicators who use or 3973 supervise the use of restricted use pesticides on animals or to places on or in which animals are 3974 confined. Certification in this category alone is not sufficient to authorize the purchase, use, or 3975 supervision of use of products for predator contro l listed in paragraph (b)( 10) of this section. 3976 (2) Forest pest control. This category applies to comme rcial applicators who use or 3977 supervise the use of restricted use pesticides in forests, fore st nurseries and forest seed 3978 production. 3979 (3) Ornamental and turf pest control. This category applies to commercial applicators 3980 who use or supervise the use of re stricted use pesticides to control pests in the maintenance and 3981 production of ornamental plants and turf. 3982 (4) Seed treatment. This category applies to commercial applicators using or supervising 3983 the use of restricted use pesticides onseeds in seed treatment facilities. 3984 (5) Aquatic pest control. This category applies to comme rcial applicators who use or 3985 supervise the use of any restri cted use pesticide purposefully applied to standing or running 3986 water, excluding applicators engage d in public health related activit ies included in as specified in 3987 paragraph (b)(8) of this section. 3988 (6) Right-of-way pest control. This category applies to commer cial applicators who use or 3989 supervise the use of restricted use pesticides in the maintena nce of roadsides, power-line, 3990 pipeline, and railway rights-o f-way, and similar areas. 3991 (7) Industrial, institutional, and structural pest control. This category applies to 3992 commercial applicators who use or supervise the use of restricted use pesticides in, on, or around 3993 the following: Food handling establishments, p acking houses, and food-processing facilities; 3994 human dwellings; institutions, such as school s, hospitals and prisons; and industrial 3995 establishments, including manufacturing facilities, warehouses, gr ain elevators, and any other 3996*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 169 of 242 [RIN 2070-AJ20] structures and adjacent areas, public or private, for the protection of stored, processed, or 3997 manufactured products. 3998 (8) Public health pest control. This category applies to Stat e, Tribal, Federal or other 3999 governmental employees who use or supervise the use of restricted use pesticides in public 4000 health programs for the management and contro l of pests having medi cal and public health 4001 importance. This category includes contractors as well as individuals directly employed by a 4002 State, Tribal, Federal, or other government agency for government-sponsored public health 4003
programs. 4004 (9) Regulatory pest control. This category applies to State, Tribal, Federal, or other 4005 governmental employees who use or supervise the us e of restricted use pes ticides in the control 4006 of regulated pests but does not include individuals that use or supervise the use of sodium 4007 cyanide in mechanical ejection devices or sodium fluoroacetate in a protective collar for predator 4008 pest control. This regulatory pest control cat egory includes contractor s and other individuals 4009 directly employed by a State, Tribal, Federal, or other government agency for government4010 sponsored regulatory pest control programs. Certif ication in this category does not authorize the 4011 purchase, use, or supervision of use of products fo r predator control listed in paragraph (b)(10) of 4012 this section. 4013 (10) Predator pest control. 4014 (i ) Sodium cyanide predator control . This pest control category applies to commercial 4015 applicators who use or supervise the use of sodium cyanide in a mechanical ejection device to 4016 control regulated predators. 4017 (ii) Sodium fluoroacetate. This pest control category applies to commercial applicators 4018 who use or supervise the use of sodium fluoroacet ate in a protective collar to control regulated 4019 predators. 4020*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 170 of 242 [RIN 2070-AJ20] (11) Demonstration and research. This category applies to in dividuals who demonstrate 4021 to the public the proper use and tech niques of application of restrict ed use pesticides or supervise 4022 such demonstration and to persons conducting field research with pesticides, and in doing so, use 4023 or supervise the use of restricted use pesticides. This incl udes such individuals as extension 4024 specialists and county agents, commercial represen tatives demonstrating re stricted use pesticide 4025 products, individuals demons trating application or pest control methods used in public or private 4026 programs, and State, Federal, commercial, a nd other persons conducting field research on or 4027 involving restricted use pesticides. Certification in this category requires concurrentcertification 4028 in each pest control category iden tified in paragraphs (b)(1) through (b)(10) of this section for 4029 which a person does demonstration or research in volving the use or supervision of the use of 4030 restricted use pesticides for the type of pest control described inthose categories, and in each 4031 application method-specific category identified inparagraph (c) of this section for which a 4032 person does demonstration or resear ch involving the use or supervis ion of the use of restricted 4033 use pesticides using an application me thod described in those categories. 4034 (b) Application method-specific certification categories. 4035 (1) Soil fumigation applications . This category applies to co mmercial applicators who use 4036 or supervise the use of a restricteduse pesticide to fumigate soil. Certification in this application 4037 method-specific category requires concurrent ce rtification in each pest control category 4038 identified in paragraphs (b)(1) through (b)(10) of this section for wh ich a person intends to 4039 perform soil fumigation. 4040 (2) Non –soil fumigation applications . This category applies to commercial applicators 4041 who use or supervise the use of a restricted use pesticide to fu migate anything other than soil. 4042 Certification in this application method-specific category requires concurrent certification in 4043 each pest control category identified in paragr aphs (b)(1) through (b)(10) of this section for 4044*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 171 of 242 [RIN 2070-AJ20] which a person intends to perform soil fumigation. 4045 (3) Aerial applications . This category applies to comme rcial applicators who use or 4046 supervise the use of restricteduse pesticides applied by fi xed or rotary wing aircraft. 4047 Certification in this application method-specific category requires concurrent certification in 4048 each pest control category identified in paragr aphs (b)(1) through (b)(10) of this section for 4049 which a person intends to perform soil fumigation. 4050 § 171.103 Standards for certification of commercial applicators. 4051 (a) Determination of competency. To be determined competent in the use and handling of 4052 restricted use pesticides by a State, Tribe, or Federal agency, a commercial applicator must meet 4053 the minimum age requirement specified in paragraph (a)(1) of this section and receive a passing 4054 score on a written examination that meets the st andards specified in paragraph (a)(2) of this 4055 section and any related performan ce testing that is required by the State, Tribe, or Federal 4056 agency. Examinations and any alternate methods employed by the certifying authority to 4057 determine applicator competency must include th e core standards applicable to all categories 4058 (paragraph (c) of this section), th e standards applicable to each pest control category in which an 4059 applicator seeks certification (paragraph (d) of th is section), and the standards for each 4060 application method-specific category in which an applicator seeks certific ation (paragraph (e) of 4061 this section), as provided in th is section. Certification processe s must meet all of the following 4062 criteria: 4063 (1) Commercial applicator minimum age . A commercial applicator must be at least 18 4064 years old. 4065 (2) Examination standards . Examinations must conform to all of the following 4066 standards: 4067 (i) The examination must be pr esented and answered in writing. 4068*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 172 of 242 [RIN 2070-AJ20] (ii) The examination must be proctored by an individual designated by the certifying 4069 authority and who is not seeking certification at any examinati on session that he or she is 4070 proctoring. The proctor must do all of the following: 4071 (A) Verify the identity and age of persons taking the examination by checking 4072 identification and having examinees sign an examination roster. 4073 (B) Monitor examinees thr oughout the examination period. 4074 (C) Instruct examinees in examination pr ocedures before beginning the examination. 4075 (D) Keep examinations secure before, during, and after the examination period. 4076 (E) Allow only the examinees to access the examination, and allow such access only in 4077 the presence of the proctor. 4078 (F) Ensure that examinees have no verb al or non-verbal communication with anyone 4079 other than the proctor du ring the examination period. 4080 (G) Ensure that no portion of the examination or any associated reference materials 4081 described in paragraph (a)(3)(ii)(H) of this sectio n is copied or retained by any person other than 4082 a person authorized by the certifying authority to copy or retain the examination. 4083 (H) Ensure that examinees do not have access to reference materials other than those that 4084 are approved by the certifying authority and provided and collected by the proctor. 4085 (I) Review reference materials provided to examinees after the exam is complete to 4086 ensure that no portion of the reference material has been removed or destroyed. 4087 (J) Report to the certifying authority any examination administration inconsistencies or 4088 irregularities, including but not limited to cheating, use of unauthorized materials, and attempts 4089 to copy or retain the examination. 4090 (K) Comply with any other requirements of the certifying authority related to 4091 examination administration. 4092*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 173 of 242 [RIN 2070-AJ20] (iii) The examination must be closed-book. No reference materials may be used during 4093 the examination, except those that are approved by the certifying authority and provided by the 4094 proctor. 4095 (iv) Each person seeking certification must present at the time of examination valid, 4096 government-issued photo identification to the certif ying authority as proof of identity and age to 4097 be eligible for certification. 4098 (v) The certifying authority must notify eachexaminee of the results of his or her 4099 examination. 4100 (b) Additional methods of determining competency . In addition to written examination 4101 requirements for determining competency, a certifying authority may employ additional methods 4102 for determining applicator competency, such as performance testing. Such additional methods 4103 must be part of the certifying authority’s Agen cy-approved certification plan and must comply 4104 with the applicable standards in paragraph (a) of this section. 4105 (c) Core standards for all categories of certified commercial applicators. Persons seeking 4106 certification as commercial appl icators must demonstrate practi cal knowledge of the principles 4107 and practices of pest control and proper and effective use of restricted use pesticides by passing a 4108 written examination. Written examinations for all commercial applicators must address all of the 4109 following areas of competency: 4110 (1) Label and labeling comprehension. Familiarity with pesticide labels and labeling and 4111 their functions, includin g all of the following: 4112 (i) The general format and terminol ogy of pesticide labels and labeling. 4113 (ii) Understanding instructions, warnings , terms, symbols, and other information 4114 commonly appearing on pestic ide labels and labeling. 4115 (iii) Understanding that it is a violation of Federal law to us e any registered pesticide in a 4116*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 174 of 242 [RIN 2070-AJ20] manner inconsistent with its labeling. 4117 (iv) Understanding when a certified applicator must be physically present at the site of 4118 the application based on labeling requirements. 4119 (v) Understanding labeling requirements for s upervising noncertified applicators working 4120 under the direct supervision of a certified applicator. 4121 (vi) Understanding that applic ators must comply with all us e restrictions and directions 4122 for use contained in pesticide la bels and labeling, including being certified in the certification 4123 category and application method-sp ecific category appropriate to the type and site of the 4124 application. 4125 (vii) Understanding the meaning of product classification as e ither general or restricted 4126 use and that a product may be unclassified. 4127 (viii) Understanding and complying with product-specific notification requirements. 4128 (2) Safety. Measures to avoid or minimize adverse health effects, including all of the 4129 following: 4130 (i) Understanding the terms “acute toxicity” a nd “chronic toxicity,” as well as the long4131 term effects of pesticides. 4132 (ii) Understanding that a pesticide’s risk is a function of exposure and the pesticide’s 4133 toxicity. 4134 (iii) Recognition of likely ways in which de rmal, inhalation and oral exposure may occur. 4135 (iv) Common types and causes of pesticide mishaps. 4136 (v) Precautions to prevent injury to applicat ors and other individuals in or near treated 4137

areas. 4138 (vi) Need for, and proper use of, protectiv e clothing and personal protective equipment. 4139 (vii) Symptoms of pesticide poisoning. 4140*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 175 of 242 [RIN 2070-AJ20] (viii) First aid and other pr ocedures to be followed in case of a pesticide mishap. 4141 (ix) Proper identification, storage, trans port, handling, mixing procedures, and disposal 4142 methods for pesticides and used pesticide contai ners, including precautions to be taken to prevent 4143 children from having access to pes ticides and pesticide containers. 4144 (3) Environment. The potential environmental conseque nces of the use and misuse of 4145 pesticides, including the influe nce of all of the following: 4146 (i) Weather and other indoor and outdoor climatic conditions. 4147 (ii) Types of terrain, so il, or other substrate. 4148 (iii) Presence of fish, wildlife, and other non-target organisms. 4149 (iv) Presence of pollinators. 4150 (v) Drainage patterns. 4151 (4) Pests. The proper identification and effective control of pest s, including all of the 4152 following: 4153 (i) Common features of pestorganisms and characteristics of damage needed for pest 4154 recognition. 4155 (ii) Recognition of relevant pests. 4156 (iii) Pest development, biology, and beha vior as it may be relevant to problem 4157 identification and control. 4158 (5) Pesticides. Characteristics of pesticides, in cluding all of the following: 4159 (i) Types of pesticides. 4160 (ii) Types of formulations. 4161 (iii) Compatibility, synergism, persisten ce, and animal and plant toxicity of the 4162 formulations. 4163 (iv) Hazards and residues associated with use. 4164*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 176 of 242 [RIN 2070-AJ20] (v) Factors that influence effectiveness or l ead to problems such as pesticide resistance. 4165 (vi) Dilution procedures. 4166 (6) Equipment. Application equipment, includi ng all of the following: 4167 (i) Types of equipment and advantag es and limitations of each type. 4168 (ii) Use, maintenance, and calibration procedures. 4169 (7) Application methods. Selecting appropriate application methods, including all of the 4170 following: 4171 (i) Methods used to apply various formula tions of pesticides, solutions, and gases. 4172 (ii) Knowledge of which application method to use in a given situation and when 4173 certification in an application me thod-specific category is requiredin accordance with paragraph 4174 (c) of this section. 4175 (iii) Relationship of application and placement of pesticides to proper use, unnecessary or 4176 ineffective use, and misuse. 4177 (iv) Prevention of drift and pesticide loss into the environment. 4178 (8) Laws and regulations. Knowledge of all applicable St ate, Tribal, and Federal laws 4179 and regulations. 4180 (9) Responsibilities of supervisors of noncertified applicators. Knowledge of the 4181 responsibilities of certifie d applicators supervising noncertified applicators, incl uding all of the 4182 following: 4183 (i) Understanding and complying with requirements in § 171.201 for certified 4184 commercial applicators who superv ise noncertified applicators usi ng restricted use pesticides. 4185 (ii) Requirements to keep records of pestic ide safety training for noncertified applicators 4186 using restricted use pesticides under the dire ct supervision of a certified applicator. 4187 (iii) Providing use-specific instructions to noncertified app licators using restricted use 4188*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 177 of 242 [RIN 2070-AJ20] pesticides under the direct supe rvision of a certif ied applicator. 4189 (iv) Explaining appropriate St ate, Tribal, and Federal laws and regulations to noncertified 4190 applicators working under the direct s upervision of a certified applicator. 4191 (10) Professionalism. Understanding the importance of all of the following: 4192 (i) Maintaining chemical security for restricted use pesticides. 4193 (ii) How to communicate information about pe sticide exposures and risks with the public 4194 and their clientele. 4195 (iii) Appropriate product stewards hip for certified applicators. 4196 (d) Specific standards of competency for each pest control category of commercial 4197 applicators. Commercial applicators mustdemonstrate practical knowledge of the principles and 4198 practices of pest control and prope r and effective use of restricted use pesticides for each pest 4199 control category for which they intend to apply restricted use pesticides through written 4200 examinations. The minimum competency standards fo r each category of pest control are listed in 4201 paragraphs (d)(1) through (10) of this section. Examinations for each pest control category 4202 certification listed in § 171.101(a) must be based on the standards of competency specified in 4203 paragraphs (d)(1) through (11) of this section and examples of pr oblems and situations 4204 appropriate to the particular category in which the applicat or is seeking certification. 4205 (1) Agricultural pest control 4206 (i) Plant. Applicators must demonstrate practical knowledge of crops, grasslands, and 4207 non-crop agricultural lands and th e specific pests of those areas on which they may be using 4208 restricted use pesticides. The importance of suchcompetency is amplified by the extensive areas 4209 involved, the quantities of pesticides needed, an d the ultimate use of many commodities as food 4210 and feed. The required knowledge includes pre-harvest intervals, restricted entry intervals, 4211 phytotoxicity, potential for envir onmental contamination such as soil and water problems, non- 4212*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 178 of 242 [RIN 2070-AJ20] target injury, and other problems resulting from the use of restricted use pesticides in agricultural 4213 areas. The required knowledge also includes the potential for phytot oxicity due to a wide variety 4214 of plants to be protected, for drift, for persis tence beyond the intended peri od of pest control, and 4215 for non-target exposures. 4216 (ii) Animal. Applicators applying pes ticides directly to animals must demonstrate 4217 practical knowledge of such animals and their as sociated pests. The required knowledge includes 4218 specific pesticide toxicity and re sidue potential, and the hazards a ssociated with such factors as 4219 formulation, application techni ques, age of animals, stress, and extent of treatment. 4220 (2) Forest pest control. Applicators must demonstrate pr actical knowledge of types of 4221 forests, forest nurseries, and s eed production within the jurisdic tion of the certifying authority 4222 and the pests involved. The required knowledge incl udes the cyclic occurre nce of certain pests 4223 and specific population dynamics as a basis for pr ogramming pesticide applications, the relevant 4224 organisms causing harm and their vu lnerability to the pesticides to be applied, how to determine 4225 when pesticide use is proper, selection of application method and proper use of application 4226 equipment to minimize non-target exposures, an d appropriate responses to meteorological 4227 factors and adjacent land use. The requiredknowledge also includes the potential for 4228 phytotoxicity due to a wide variety of plants to be protected, for drift, for persistence beyond the 4229 intended period of pest control, and for non-target exposures. 4230 (3) Ornamental and turf pest control. Applicators must demonstrate practical knowledge 4231 of pesticide problems associated with the produc tion and maintenance of ornamental plants and 4232 turf. The required knowledge includes the potential for phytotoxicity due to a wide variety of 4233 plants to be protected, for drift, for persistenc e beyond the intended period of pest control, and 4234 for non-target exposures. Because of the frequent proximity of human hab itations to application 4235 activities, applicators in this category must demonstrate prac tical knowledge of application 4236*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 179 of 242 [RIN 2070-AJ20] methods which will minimize or prevent hazards to humans, pets, and other domestic animals. 4237 (4) Seed-treatment. Applicators must demonstrate practical knowledge including 4238 recognizing types of seeds to be treated, the e ffects of carriers and su rface active agents on 4239 pesticide binding and germination, the hazards as sociated with handling, sorting and mixing, and 4240 misuse of treated seed, the importance of prope r application techniques to avoid harm to non4241 target organisms such as pollinators, and the proper disposal of unused treated seeds. 4242 (5) Aquatic pest control. Applicators must demonstrat e practical knowledge of the 4243 characteristics of various water use situations , the potential for adverse effects on non-target 4244 plants, fish, birds, beneficial insects and other organisms in the immediate aquatic environment 4245 and downstream, and the principles of limited area application. 4246 (6) Right-of-way pest control. Applicators must demonstrate practical knowledge of the 4247 types of environments (terrestrial and aquati c) traversed by rights-of -way, techniques to 4248 minimize non-target exposure runoff, drift, and excessive foliage destruction, and recognition of 4249 target pests. The required knowledge also includes the potential for phytotoxicity due to a wide 4250 variety of plants and pests to be controlled, for drift, for pers istence beyond the intended period 4251 of pest control, and for non-target exposures. 4252 (7) Industrial, institutional, and structural pest control. Applicators must demonstrate a 4253 practical knowledge of industrial, institutional and structural pests, including recognizing those 4254 pests and signs of their presence, their habitats , their life cycles, biology, and behavior as it may 4255 be relevant to problem identification and control. Applicators must demonstrate practical 4256 knowledge of types of formulations appropriate for control of industria l, institutional and 4257 structural pests, and methods of application th at avoid contamination of food, minimize damage 4258 to and contamination of areas treated, minimize acute and chr onic exposure of people and pets, 4259 and minimize environmental impacts of outdoor applications. 4260*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 180 of 242 [RIN 2070-AJ20] (8) Public health pest control. Applicators must demonstrate practical knowledge of pests 4261 that are important vectors of di sease, including recognizing the pe sts and signs of their presence, 4262 their habitats, their life cycles, biology and behavior as it may be relevant to problem 4263 identification and control. The re quired knowledge also includes how to minimize damage to and 4264 contamination of areas treated, acute and chroni c exposure of people and pets, and non-target 4265
exposures. 4266 (9) Regulatory pest control. Applicators must demonstrate practical knowledge of 4267 regulated pests, applicable laws relating to quarantine and other regulati on of pests, and the 4268 potential impact on the environm ent of restricted use pestic ides used in suppression and 4269 eradication programs. They must demonstrate knowledge of factors in fluencing introduction, 4270 spread, and population dynamics of regulated pests. 4271 (10) Predator pest control. Applicators must demonstrate practical knowledge of 4272 mammalian predator pests, includi ng recognizing those pests and signs of their presence, their 4273 habitats, their life cycles, biology, and behavior as it may be rele vant to problem identification 4274 and control. 4275 (i) Sodium cyanide . Applicators must demonstrate comprehension of all laws and 4276 regulations applicable to the us e of mechanical ejection devices for sodium cyanide, including 4277 the restrictions on the use of sodium cyanide products ordere d by the EPA Administrator and 4278 published in the Federal Registerof September 29, 1975 (40 FR 44726, pp. 44733-44734). 4279 Applicators must also demonstrat e practical knowledge and understanding of all of the specific 4280 use restrictions for sodium cyanide devices, in cluding safe handling and proper placement of the 4281 capsules and device, proper use of the antidote ki t, notification to medical personnel before use 4282 of the device, conditions of and restricti ons on when and where devices can be used, 4283 requirements to consult U.S. Fish and Wildlife Service maps before use to avoid affecting 4284*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 181 of 242 [RIN 2070-AJ20] endangered species, maximum density of devices , provisions for supervising and monitoring 4285 applicators, required information exchange inlocations where more than one agency is 4286 authorized to place devices, and specific requir ements for recordkeeping, monitoring, field 4287 posting, proper storage, and di sposal of damaged or used sodium cyanide capsules. 4288 (ii) Sodium fluoroacetate . Applicators must demonstrate comprehension of all laws and 4289 regulations applicable to the us e of sodium fluoroacetate products , including the restrictions on 4290 the use of sodium fluoroacetate products ordere d by the EPA Administrator and published in the 4291 Federal Registerof February 8, 1984 (49 FR 4830). Applicators must also demonstrate 4292 practical knowledge and understandi ng of the specific use restrictions for sodium fluoroacetate in 4293 the livestock protection collar, including where and when sodium fluoroacetate products can be 4294 used, safe handling and placement of collars, and practical treatment of sodium fluoroacetate 4295 poisoning in humans and domestic animals. A pplicators must also demonstrate practical 4296 knowledge and understanding of specific requ irements for field posting, monitoring, 4297 recordkeeping, proper storage of collars, disposalof punctured or leaki ng collars, disposal of 4298 contaminated animal remains, vegetation, soil, and clothing, and reporting of suspected and 4299 actual poisoning, mishap, or injury to threat ened or endangered species, human, domestic 4300 animals, or non-target wild animals. 4301 (11) Demonstration pest control. Applicators demonstrating the safe and effective use of 4302 restricted use pesticides to other applicators and the public must demonstrate practical 4303 knowledge of the potential problems, pests, and population levels reasonably expected to occur 4304 in a demonstration situation and the effects of re stricted use pesticides on target and non-target 4305 organisms. In addition, they must demonstrat e competency in each pest control category 4306 applicable to their demonstrations. 4307 (e) Specific standards of competency for each application method-spec ific certification 4308*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 182 of 242 [RIN 2070-AJ20] category of commercial applicators. In order to apply a restricteduse pesticide using any of the 4309 application methods identified in this paragraph, a commercial applicator must first obtain the 4310 appropriate application method-specific certifi cation as provided in this paragraph. This 4311 requirement is in addition to the requirements of paragraphs (c), (d), and (e) of this section. The 4312 competency standards for each application method- specific certification category are specified in 4313 paragraphs (e)(1) through (3) of this section. 4314 (1) Soil fumigation application . Commercial applicators performing soil fumigation 4315 applications of restricted us e pesticides must demonstrate practical knowledge of the pest 4316 problems and pest control practices associatedwith performing soil fumigation applications, 4317 including all the following: 4318 (i) Label and labeling comprehension. Familiarity with the pesticide labels and labeling 4319 for products used to perform soil fumi gation, including all of the following: 4320 (A) Labeling requirements specific to soil fumigants. 4321 (B) Fumigant applicators, fumigant applicat or tasks, and the safety information that 4322 certified applicators must provide to noncertified applicators us ing fumigants under their direct 4323 supervision. 4324 (C) Entry-restricted periods for different tarped and untarped field application scenarios. 4325 (D) Recordkeeping requirements. 4326 (E) Special label provisions of fumigant products containing certainactive ingredients. 4327 (ii) Safety. Measures to minimize adverse health effects, including all of the following: 4328 (A) Understanding how certified applicators, noncertified applicators using fumigants 4329 under direct supervision of certif ied applicators, field worker s, and bystanders can become 4330 exposed to fumigants. 4331 (B) Common problems and mistakes that can result in direct exposure to fumigants. 4332*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 183 of 242 [RIN 2070-AJ20] (C) Signs and symptoms of human exposure to fumigants. 4333 (D) Air concentrations of a fumigant require that applicators wear re spirators or exit the 4334 work area entirely. 4335 (E) Steps to take if a fumigant app licator experiences sensory irritation. 4336 (F) Understanding air monitoring, when it is required, and where to take samples. 4337 (G) Buffer zones, including procedures for buffer zone monitoring. 4338 (H) First aid measures to take in th e event of exposure to a soil fumigant. 4339 (I) Labeling requirements for transportati on, storage, spill clean-up, and emergency 4340 response for soil fumigants, including safe dispos al of containers and contaminated soil, and 4341 management of empty containers. 4342 (iii) Soil fumigant chemical characteristics. Characteristics of soil fumigants, including 4343 all of the following: 4344 (A) Chemical characteris tics of soil fumigants. 4345 (B) Specific human exposure concerns for soil fumigants. 4346 (C) How soil fumigants change fr om a liquid or solid to a gas. 4347 (D) How soil fumigants disper se in the application zone. 4348 (E) Incompatibility concerns for tanks, hoses, tubing, and other equipment. 4349 (iv) Application . Selecting appropriate application methods and timing, including all of 4350 the following: 4351 (A) Application methods and equipment co mmonly used for each soil fumigant. 4352 (B) Water-run and non-water- run application methods. 4353 (C) Site characteristics that can be used to pr event fumigant exposure. 4354 (D) Understanding temperature inversi ons and their impact on soil fumigation 4355 application. 4356*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 184 of 242 [RIN 2070-AJ20] (E) Weather conditions that could impact ti ming of soil fumigation application, such as 4357 air stability, air temperature, humidity, and wind currents, and labeling statements limiting 4358 applications during spec ific weather conditions. 4359 (F) Conducting pre-application insp ection of application equipment. 4360 (G) Understanding the purpose and methods of soil sealing, includi ng the factors that 4361 determine which soil sealing method to use. 4362 (H) Understanding the use of tarps, including the range of tarps available, how to seal 4363 tarps, and labeling requirements fo r tarp removal and perforation. 4364 (I) Calculating the amount of product re quired for a specific treatment area. 4365 (J) Understanding the basic techniques for calibrating soil fumigation application 4366 equipment. 4367 (v) Soil and pest factors. Soil and pest factors that infl uence fumigant activity, including 4368 all of the following: 4369 (A) Influence of soil factors on fumigant vol atility and movement within the soil profile. 4370 (B) Factors that influence gaseous movement through the soil profile and into the air. 4371 (C) Soil characteristics, including how soil ch aracteristics affect the success of a soil 4372 fumigation application, assessing so il moisture, and corre cting for soil characte ristics that could 4373 hinder a successful soil fumigation application. 4374 (D) Identifying pests causing the damageto be treated by the soil fumigation. 4375 (E) Understanding the relationship betweenpest density and application rate. 4376 (F) The importance of proper application depth and timing. 4377 (vi) Personal protective equipment. Understanding what personal protective equipment is 4378 necessary and how to use it properl y, including all of the following: 4379 (A) Following labeling directions for required personal protective equipment. 4380*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 185 of 242 [RIN 2070-AJ20] (B) Selecting, inspecting, using, caring fo r, replacing, and disposing of personal 4381 protective equipment. 4382 (C) Understanding the types of respirators required when using specific soil fumigants 4383 and how to use them properly, including medical evaluation, fit testing, and required replacement 4384 of cartridges and cannisters. 4385 (D) Labeling requirements and other laws appl icable to medical evaluation for respirator 4386 use, fit tests, training, and recordkeeping. 4387 (vii) Fumigant management plans and post-application summaries . Information about 4388 fumigant management plans, in cluding all of the following: 4389 (A) When a fumigant management plan must be in effect, how long it must be kept on 4390 file, where it must be kept during the application, and w ho must have access to it. 4391 (B) The elements of a fumigation management plan and resources avai lable to assist the 4392 applicator in preparing a fumigation management plan. 4393 (C) The party responsible for verifying that a fumigant management plan is accurate. 4394 (D) The elements, purpose and content of a post-application summary, who must prepare 4395 it, and when it must be completed. 4396 (viii) Buffer zones and posting requirements. Understanding buffer zones and posting 4397 requirements, including all of the following: 4398 (A) Buffer zones and the buffer zone period. 4399 (B) Identifying is allowed in a buffer z one during the buffer zone period and who is 4400 prohibited from being in a buffer z one during the buffer zone period. 4401 (C) Using the buffer zone table from the labe ling to determine the size of the buffer zone. 4402 (D) Factors that determine the buffer z one credits for application scenarios and 4403 calculating buffer zones using credits. 4404*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 186 of 242 [RIN 2070-AJ20] (E) Distinguishing buffer zone posting and treated area posting, including the pre4405 application and post-applicati on posting timeframes for each. 4406 (F) Proper choice and placement of warning signs. 4407 (2) Non-soil fumigation applications . Commercial applicator s performing fumigation 4408 applications of restricted use pesticides to si tes other than soil must demonstrate practical 4409 knowledge of the pest problems and pest control pr actices associated with performing fumigation 4410 applications to sites other than soil, including all the following: 4411 (i) Label & labeling comprehension. Familiarity with the pestic ide labels and labeling for 4412 products used to perform non-soil fumi gation, including all of the following: 4413 (A) Labeling requirements specific to non-soil fumigants. 4414 (ii) Safety. Measures to minimize adverse health effects, including all of the following: 4415 (A) Understanding how certified applicators, noncertified applicators using fumigants 4416 under direct supervision of certified applicators, and bystande rs can become exposed to 4417 fumigants. 4418 (B) Common problems and mistakes that can result in direct exposure to fumigants. 4419 (C) Signs and symptoms of human exposure to fumigants. 4420 (D) Air concentrations of a fumigant that requ ire applicators to wear respirators or to exit 4421 the work area entirely. 4422 (E) Steps to take if a fumigant app licator experiences sensory irritation. 4423 (F) Understanding air monitoring, when it is required, and where to take samples. 4424 (G) First aid measures to take in the event of exposure to a fumigant. 4425 (H) Labeling requirements for transportation, storage, spill cl ean-up, and emergency 4426 response for non-soil fumigants, including safe disposal of containers and contaminated 4427 materials, and managementof empty containers. 4428*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 187 of 242 [RIN 2070-AJ20] (iii) Non-soil fumigant chem ical characteristics. Characteristics of non-soil fumigants, 4429 including all of the following: 4430 (A) Chemical characteris tics of non-soil fumigants. 4431 (B) Specific human exposure conc erns for non-soil fumigants. 4432 (C) How fumigants change from a liquid or solid to a gas. 4433 (D) How fumigants disperse in the application zone. 4434 (E) Incompatibility concerns for tanks, hoses, tubing, and other equipment. 4435 (iv) Application . Selecting appropriate application methods and timing, including all of 4436 the following: 4437 (A) Application methods and equipment commonly used for non-soil fumigation. 4438 (B) Site characteristics that can be used to pr event fumigant exposure. 4439 (C) Conditions that could impact timing of non-soil fumigation application, such as air 4440 stability, air temperature, hu midity, and wind currents, and labeling statements limiting 4441 applications when specifi c conditions are present. 4442 (D) Conducting pre-application inspection of application equipment and the site to be 4443 fumigated. 4444 (E) Understanding the purpose and methods of sealing the area to be fumigated, including 4445 the factors that determine which sealing method to use. 4446 (F) Calculating the amount of product re quired for a specific treatment area. 4447 (G) Understanding the basic techniques fo r calibrating non-soil fumigation application 4448 equipment. 4449 (H) Understanding when and how to conduct ai r monitoring and when it is required. 4450 (v) Pest factors. Pest factors that influence fumi gant activity, including all of the 4451 following: 4452*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 188 of 242 [RIN 2070-AJ20] (A) Influence of pest factors on fumigant volatility. 4453 (B) Factors that influence gaseous movement through the area being fumigated and into 4454 the air. 4455 (C) Identifying pests causing the dama ge to be treated by the fumigation. 4456 (D) Understanding the relationship betweenpest density and application rate. 4457 (E) The importance of proper application rate and timing. 4458 (vi) Personal protective equipment. Understanding what personal protective equipment is 4459 necessary and how to use it properl y, including all of the following: 4460 (A) Following labeling directions for required personal protective equipment. 4461 (B) Selecting, inspecting, using, caring fo r, replacing, and disposing of personal 4462 protective equipment. 4463 (C) Understanding the types of respirator s required when using specific non-soil 4464 fumigants and how to use them properly, includ ing medical evaluation, fit testing, and required 4465 replacement of cartri dges and cannisters. 4466 (D) Labeling requirements and other laws appl icable to medical evaluation for respirator 4467 use, fit tests, training, and recordkeeping. 4468 (vii) Fumigant management plans and post-application summaries . Information about 4469 fumigant management plans and when they are required, including all of the following: 4470 (A) When a fumigant management plan must be in effect, how long it must be kept on 4471 file, where it must be kept during the application, and w ho must have access to it. 4472 (B) The elements of a fumigation management plan and resources avai lable to assist the 4473 applicator in preparing a fumigation management plan. 4474 (C) The party responsible for verifying that a fumigant management plan is accurate. 4475 (D) The elements, purpose and content of a post-application summary, who must prepare 4476*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 189 of 242 [RIN 2070-AJ20] it, and when it must be completed. 4477 (viii) Posting requirements. Understanding posting requirements, including all of the 4478 following: 4479 (A) Identifying who is allowed in an area be ing fumigated or after fumigation and who is 4480 prohibited from being in such areas. 4481 (B) Distinguishing fumigant labeling-requi red posting and treated area posting, including 4482 the pre-application and post-applic ation posting timeframes for each. 4483 (C) Proper choice and placement of warning signs. 4484 (3) Aerial applications . Commercial applicators perf orming aerial application of 4485 restricted use pesticides must demonstrate pr actical knowledge of the pest problems and pest 4486 control practices associated with performing aerial application, including all the following: 4487 (i) Labeling . Labeling requirements and restrictions specific to aerial application of 4488 pesticides including: 4489 (A) Spray volumes. 4490 (B) Buffers and no-spray zones. 4491 (C) Weather conditions specific to wind and inversions. 4492 (ii) Application equipment . Understand how to choose and maintain aerial application 4493 equipment, including all of the following: 4494 (A) The importance of inspecting application equipment to ensure it is proper operating 4495 condition prior to beginning an application. 4496 (B) Selecting proper nozzles to ensure appropriate pesticide dispersal and to minimize 4497 drift. 4498 (C) Knowledge of the components of an aerial application pesticid e application system, 4499 including pesticide hopp ers, tanks, pumps, and types of nozzles. 4500*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 190 of 242 [RIN 2070-AJ20] (D) Interpreting a nozzle flow rate chart. 4501 (E) Determining the number of nozzles fo r intended pesticide output using nozzle flow 4502 rate chart, aircraft speed, and swath width. 4503 (F) How to ensure nozzles are placed to co mpensate for uneven dispersal due to uneven 4504 airflow from wingtip vortices, helicopter rotor turbulence, and aircraft propeller turbulence. 4505 (G) Where to place nozzles to produce the appropriate droplet size. 4506 (H) How to maintain the application syst em in good repair, including pressure gauge 4507 accuracy, filter cleaning according to schedul e, checking nozzles for excessive wear. 4508 (I) How to calculate required and actual flow rates. 4509 (J) How to verify flow rate using fixe d timing, open timing, known distance, or a flow 4510

meter. 4511 (K) When to adjust and calib rate application equipment. 4512 (iii) Application considerations . The applicator must demons trate knowledge of factors to 4513 consider before and during applicati on, including all of the following: 4514 (A) Weather conditions that could impact ap plication by affecting ai rcraft engine power, 4515 take-off distance, and climb rate, or by promoting spray droplet evaporation. 4516 (B) How to determine wind velocity, directi on, and air density at the application site. 4517 (C) The potential impact of thermals and temperature inversions on aerial pesticide 4518 application. 4519 (vi) Minimizing drift. The applicator must demons trate knowledge of methods to 4520 minimize off-target pesticide movement, including all of the following: 4521 (A) How to determine drift potential of a product using a smoke generator. 4522 (B) How to evaluate vertical and horizont al smoke plumes to assess wind direction, 4523 speed, and concentration. 4524*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 191 of 242 [RIN 2070-AJ20] (C) Selecting techniqu es that minimize pestic ide movement out of the area to be treated. 4525 (D) Documenting special equipment configurations or flight pattern s used to reduce off4526 target pesticide drift. 4527 (v) Performing aerial application . The applicator must demonstrate competency in 4528 performing an aerial pestic ide application, includi ng all of the following: 4529 (A) Selecting a flight altitude that minimizes streaking a nd off-target pesticide drift. 4530 (B) Choosing a flight pattern that ensures applicator and bystander safety and proper 4531 application. 4532 (C) The importance of engaging and dise ngaging spray precisely when entering and 4533 exiting a predetermined swath pattern. 4534 (D) Tools available to mark swaths, such as global positioning systems and flags. 4535 (E) Recordkeeping requirements for aerial pe sticide applications including application 4536 conditions if applicable. 4537 (f) Exceptions . The requirements in § 171.103(a)-(f) of this chapter do not apply to the 4538 following persons: 4539 (1) Persons conducting laboratory researchinvolving restricted use pesticides. 4540 (2) Doctors of Medicine a nd Doctors of Veterinary Medi cine applying restricted use 4541 pesticides to patients during the course of the ordinary practice of those professions. 4542 171.105 Standards for certification of private applicators. 4543 (a) General private applicator certification. Before using or supervising the use of a 4544 restricted use pesticide, a private applicator must be certified by an appropriate certifying 4545 authority as being competent to use restricted us e pesticides for pest c ontrol in the production of 4546 agricultural commodities, which includes the ability to read and understand pesticide labeling. 4547 Certification in this general private applicator certification category alone is not sufficient to 4548*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 192 of 242 [RIN 2070-AJ20] authorize the purchase, use, or supervision of use of the restri cted use pesticide products for 4549 predator pest control listed in paragraph (b) of this section, or the use or supervision of use of the 4550 restricted use pesticides using application methods specified in paragraph (c) of this section. 4551 Persons seeking certification as private applicators must demons trate practical knowledge of the 4552 principles and practices of pest control associated withthe production of agricultural 4553 commodities and effective use of restricted use pesticides, including all of the following: 4554 (1) Label and labeling comprehension. Familiarity with pesticide labels and labeling and 4555 their functions, includin g all of the following: 4556 (i) The general format and terminol ogy of pesticide labels and labeling. 4557 (ii) Understanding instructions, warnings , terms, symbols, and other information 4558 commonly appearing on pestic ide labels and labeling. 4559 (iii) Understanding that it is a violation of Federal law to us e any registered pesticide in a 4560 manner inconsistent with its labeling. 4561 (iv) Understanding when a certified applicator must be physically present at the site of 4562 the application based on labeling requirements. 4563 (v) Understanding labeling requirements for s upervising noncertified applicators working 4564 under the direct supervision of a certified applicator. 4565 (vi) Understanding that applic ators must comply with all us e restrictions and directions 4566 for use contained in pesticide la bels and labeling, including being certified in the application 4567 method-specific category appropriate to the type and site of the application and in the predator 4568 pest control category for private applicators if applicable. 4569 (vii) Understanding the meaning of product classification as e ither general or restricted 4570 use, and that a product may be unclassified. 4571 (viii) Understanding and complying with product-specific notification requirements. 4572*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 193 of 242 [RIN 2070-AJ20] (2) Safety. Measures to avoid or minimize adverse health effects, including all of the 4573 following: 4574 (i) Understanding the terms “acute toxicity” a nd “chronic toxicity,” as well as the long4575 term effects of pesticides. 4576 (ii) Understanding that a pesticide’s risk is a function of exposure and the pesticide’s 4577 toxicity. 4578 (iii) Recognition of likely ways in which de rmal, inhalation and oral exposure may occur. 4579 (iv) Common types and causes of pesticide mishaps. 4580 (v) Precautions to prevent injury to applicat ors and other individuals in or near treated 4581

areas. 4582 (vi) Need for, and proper use of, protectiv e clothing and personal protective equipment. 4583 (vii) Symptoms of pesticide poisoning. 4584 (viii) First aid and other procedures to be followed incase of a pesticide mishap. 4585 (ix) Proper identification, storage, trans port, handling, mixing procedures, and disposal 4586 methods for pesticides and used pesticide contai ners, including precautions to be taken to prevent 4587 children from having access to pes ticides and pesticide containers. 4588 (3) Environment. The potential environmental conseque nces of the use and misuse of 4589 pesticides, including the influence of the following: 4590 (i) Weather and other climatic conditions. 4591 (ii) Types of terrain, so il, or other substrate. 4592 (iii) Presence of fish, wildlife, and other non-target organisms. 4593 (iv) Presence of pollinators. 4594 (v) Drainage patterns. 4595 (4) Pests. The proper identification and effective c ontrol of pests, in cluding all of the 4596*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 194 of 242 [RIN 2070-AJ20] following: 4597 (i) Common features of pestorganisms and characteristics of damage needed for pest 4598 recognition. 4599 (ii) Recognition of relevant pests. 4600 (iii) Pest development, biology, and beha vior as it may be relevant to problem 4601 identification and control. 4602 (5) Pesticides. Characteristics of pesticides, in cluding all of the following: 4603 (i) Types of pesticides. 4604 (ii) Types of formulations. 4605 (iii) Compatibility, synergism, persisten ce, and animal and plant toxicity of the 4606 formulations. 4607 (iv) Hazards and residues associated with use. 4608 (v) Factors that influence effectiveness or l ead to problems such as pesticide resistance. 4609 (vi) Dilution procedures. 4610 (6) Equipment. Application equipment, includi ng all of the following: 4611 (i) Types of equipment and advantages and limitations of each type. 4612 (ii) Uses, maintenance, and calibration procedures. 4613 (7) Application methods. Selecting appropriate application methods, including all of the 4614 following: 4615 (i) Methods used to apply various formula tions of pesticides, solutions, and gases. 4616 (ii) Knowledge of which application method to use in a given situation and when 4617 certification in an application me thod-specific category is requiredin accordance with paragraph 4618 (c) of this section. 4619 (iii) Relationship of application and placement of pesticides to proper use, unnecessary or 4620*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 195 of 242 [RIN 2070-AJ20] ineffective use, and misuse. 4621 (iv) Prevention of drift and pesticide loss into the environment. 4622 (8) Laws and regulations. Knowledge of all applicable St ate, Tribal, and Federal laws 4623 and regulations, including understanding and complyi ng with the Worker Protection Standard in 4624 40 CFR part 170. 4625 (9) Responsibilities for supervisor s of noncertified applicators. Certified applicator 4626 responsibilities related to supervision of noncertified applicators, includi ng all of the following: 4627 (i) Understanding and complying with requ irements in § 171.201 of this chapter for 4628 certified private applicators who supervise non certified applicators using restricted use 4629 pesticides. 4630 (ii) Providing use-specific instructions to noncertified applicator s using restricted use 4631 pesticides under the direct supe rvision of a certif ied applicator. 4632 (iii) Explaining appropriate State, Tribal, and Federal laws and regul ations to noncertified 4633 applicators working under the direct s upervision of a certified applicator. 4634 (10) Stewardship. Understanding the importance of all of the following: 4635 (i) Maintaining chemical security for restricted-use pesticides. 4636 (ii) How to communicate information about pesticide exposures and risks with 4637 agricultural workers and handlers and other relevant persons. 4638 (11) Agricultural pest control . Practical knowledge of pest control applications to 4639 agricultural commodities including all of the following: 4640 (i) Specific pests of agricultural commodities. 4641 (ii) How to avoid contamina tion of ground and surface waters. 4642 (iii) Understanding pre-harvest and restricted-entry intervals and entry-restricted periods 4643 and areas. 4644*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 196 of 242 [RIN 2070-AJ20] (iv) Understanding specific pesticide toxicity and residue potential when pesticides are 4645 applied to animal or animal product agricultural commodities. 4646 (v) Relative hazards associatedwith using pesticides on anim als or animal products based 4647 on formulation, application technique, age of animal, stress, and extent of treatment. 4648 (b) Predator pest control cate gory for private applicators. This category applies to 4649 private applicators that use or supervise the us e of sodium cyanide in a mechanical ejection 4650 device to control regulated predat ors and private applicators thatuse or supervise the use of 4651 sodium fluoroacetate in a protective collar to cont rol regulated predators. All private applicators 4652 that use or supervise the use of these restricted use pesticides for predator pest control must be 4653 specifically certified as competent by a certif ying authority in accordan ce with the following 4654 competency standards: 4655 (1) Sodium cyanide . Applicators must demonstrate comprehension of all laws and 4656 regulations applicable to the us e of mechanical ejection devices for sodium cyanide, including 4657 the restrictions on the use of sodium cyanide products ordere d by the EPA Administrator and 4658 published in the Federal Registerof (40 FR 44726, pp. 44733-44734).. Applicators must also 4659 demonstrate practical knowledge and understanding of all of the specific use restrictions for 4660 sodium cyanide devices, including safe hand ling and proper placement of the capsules and 4661 device, proper use of the antidot e kit, notification to medical personnel before use of the device, 4662 conditions of and restrictions on where devices can be used, requirements to consult FWS maps 4663 before use to avoid affecting endangered spec ies, maximum density of devices, provisions for 4664 supervising and monitoring applicat ors, required information exchange in locations where more 4665 than one agency is authorized to place devi ces, and specific requirements for recordkeeping, 4666 monitoring, field posting, proper storage, and di sposal of damaged or used sodium cyanide 4667 capsules. 4668*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 197 of 242 [RIN 2070-AJ20] (2) Sodium fluoroacetate . Applicators must demonstrate comprehension of all laws and 4669 regulations applicable to the us e of sodium fluoroacetate products , including the restrictions on 4670 the use of sodium fluoroacetate products ordere d by the EPA Administrator and published in the 4671 Federal Registerof February 8, 1984 (49 FR 4830). Applicators must also demonstrate 4672 practical knowledge and understandi ng of the specific use restrictions for sodium fluoroacetate in 4673 the livestock protection collar, including where an d when sodium fluoroacetate products can be 4674 used, safe handling and placement of collars, and practical treatment of sodium fluoroacetate 4675 poisoning in humans and domestic animals. A pplicators must also demonstrate practical 4676 knowledge and understanding of specific requ irements for field posting, monitoring, 4677 recordkeeping, proper storage of collars, disposalof punctured or leaki ng collars, disposal of 4678 contaminated animal remains, vegetation, soil, and clothing, and reporting of suspected and 4679 actual poisoning, mishap, or injury to threat ened or endangered species, human, domestic 4680 animals, or non-target wild animals. 4681 (c) Application method-specific certificat ion categories for private applicators . In order 4682 to apply or supervise the use of restricted use pesticides using anapplication method described in 4683 this paragraph (c), private applicators must demonstrate practical knowledge related to the 4684 appropriate application method as provided in this paragraph 4685 (c). This requirement is in addition to certificatio n in the general private applicator certification 4686 category specified in paragraph (a) of this section. 4687 (1) Soil fumigation application . Private applicators that us e or supervise the use of a 4688 restricted use pesticide to fumigate soil must demonstrate practical knowledge of the pest 4689 problems and pest control practices associatedwith performing soil fumigation applications, 4690 including all the following: 4691 (i) Label and labeling comprehension. Familiarity with the pesticide labels and labeling 4692*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 198 of 242 [RIN 2070-AJ20] for products used to perform soil fumi gation, including all of the following: 4693 (A) Labeling requirements specific to soil fumigants. 4694 (B) Fumigant applicators, fumigant applicat or tasks, and the safety information that 4695 certified applicators must provi de to noncertified applicators using fumigants under the direct 4696 supervision of certif ied applicators. 4697 (C) Entry-restricted period for different tarp ed and untarped field application scenarios. 4698 (D) Recordkeeping requirements impo sed by product labels and labeling. 4699 (E) Special label provisions of products containing certain ac tive ingredients. 4700 (F) Labeling requirements for fumigant mana gement plans, such as when a fumigant 4701 management plan must be in effect, how long it must be kept on file, where it must be kept 4702 during the application, and who must have access to it; the elements of a fumigation management 4703 plan and resources available to assist the applic ator in preparing a fumigation management plan; 4704 the party responsible for verifying that a fumi gant management plan is accurate; and the 4705 elements, purpose and content of a post-application su mmary, who must prepare it, and when it 4706 must be completed. 4707 (ii) Safety. Measures to minimize adverse health effects, including all of the following: 4708 (A) Understanding how certified applicators, noncertified applicators using fumigants 4709 under the direct supervision of certified applicators, field worker s, and bystanders can become 4710 exposed to fumigants. 4711 (B) Common problems and mistakes that can result in direct exposure to fumigants. 4712 (C) Signs and symptoms of human exposure to fumigants. 4713 (D) Air concentrations of a fumigant that requ ire applicators to wear respirators or to exit 4714 the work area entirely. 4715 (E) Steps to take if a fumigant app licator experiences sensory irritation. 4716*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 199 of 242 [RIN 2070-AJ20] (F) Understanding air monitoring, when it is required, and where to take samples. 4717 (G) Buffer zones, including procedures for buffer zone monitoring. 4718 (H) First aid measures to take in th e event of exposure to a soil fumigant. 4719 (I) Labeling requirements for transportati on, storage, spill clean up, and emergency 4720 response for soil fumigants, including safe dispos al of containers and contaminated soil, and 4721 management of empty containers. 4722 (iii) Soil fumigant chemical characteristics. Characteristics of soil fumigants, including 4723 all of the following: 4724 (A) Chemical characteris tics of soil fumigants. 4725 (B) Specific human exposure concerns for soil fumigants. 4726 (C) How soil fumigants change fr om a liquid or solid to a gas. 4727 (D) How soil fumigants disper se in the application zone. 4728 (E) Incompatibility concerns for tanks, hoses, tubing, and other equipment. 4729 (iv) Application . Selecting appropriate application methods and timing, including all of 4730 the following: 4731 (A) Application methods and equipment co mmonly used for each soil fumigant. 4732 (B) Water-run and non-water- run application methods. 4733 (C) Site characteristics that can be used to pr event fumigant exposure. 4734 (D) Understanding temperature inversi ons and their impact on soil fumigation 4735 application. 4736 (E) Weather conditions that could impact ti ming of soil fumigation application, such as 4737 air stability, air temperature, humidity, and wind currents, and labeling statements limiting 4738 applications during spec ific weather conditions. 4739 (F) Conducting pre-application insp ection of application equipment. 4740*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 200 of 242 [RIN 2070-AJ20] (G) Understanding the purpose and methods of soil sealing, includi ng the factors that 4741 determine which soil sealing method to use. 4742 (H) Understanding the use of tarps, including the range of tarps available, how to seal 4743 tarps, and labeling requirements fo r tarp removal and perforation. 4744 (I) Calculating the amount of product re quired for a specific treatment area. 4745 (J) Understanding the basic techniques for calibrating soil fumigation application 4746 equipment. 4747 (v) Soil and pest factors. Soil and pest factors that infl uence fumigant activity, including 4748 all of the following: 4749 (A) Influence of soil factors on fumigant vol atility and movement within the soil profile. 4750 (B) Factors that influence gaseous movement through the soil profile and into the air. 4751 (C) Soil characteristics, including how soil ch aracteristics affect the success of a soil 4752 fumigation application, assessing so il moisture, and corre cting for soil characte ristics that could 4753 hinder a successful soil fumigation application. 4754 (D) Identifying pests causing the damageto be treated by the soil fumigation. 4755 (E) Understanding the relationship betweenpest density and application rate. 4756 (F) The importance of proper application depth and timing. 4757 (vi) Personal protective equipment. Understanding what personal protective equipment is 4758 necessary and how to use it properl y, including all of the following: 4759 (A) Following labeling directions for required personal protective equipment. 4760 (B) Selecting, inspecting, us ing, caring for, replacing, and disposing personal protective 4761 equipment. 4762 (C) Understanding the types of respirators required when using specific soil fumigants 4763 and how to use them properly, including medical evaluation, fit testing, and required replacement 4764*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 201 of 242 [RIN 2070-AJ20] of cartridges and cannisters. 4765 (D) Labeling requirements and other laws appl icable to medical evaluation for respirator 4766 use, fit tests, training, and recordkeeping. 4767 (vii) Buffer zones and posting requirements. Understanding buffer zones and posting 4768 requirements, including all of the following: 4769 (A) Buffer zones and the buffer zone period. 4770 (B) Identifying who may be in a buffer zoneduring the buffer zone period and who is 4771 prohibited from being in a buffer z one during the buffer zone period. 4772 (C) Using the buffer zone table from the labe ling to determine the size of the buffer zone. 4773 (D) Factors that determine the buffer z one credits for application scenarios and 4774 calculating buffer zones using credits. 4775 (E) Distinguishing buffer zone posting and treated area posting, including the pre4776 application and post-applicati on posting timeframes for each. 4777 (F) Proper choice and placement of warning signs. 4778 (2) Non-soil fumigation applications . Private applicators that use or supervise the use of a 4779 restricted use pesticide to fumigate anythi ng other than soil must demonstrate practical 4780 knowledge of the pest problems and pest control pr actices associated with performing fumigation 4781 applications to sites other than soil, including all the following: 4782 (i) Label and labeling comprehension. Familiarity with the pesticide labels and labeling 4783 for products used to perform non-soil fumiga tion, including all of the following: 4784 (A) Labeling requirements specific to non-soil fumigants. 4785 (B) Labeling requirements for fumigant management plans such as when a fumigant 4786 management plan must be in effect, how long it must be kept on file, where it must be kept 4787 during the application, and who must have access to it; the elements of a fumigation management 4788*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 202 of 242 [RIN 2070-AJ20] plan and resources available to assist the applic ator in preparing a fumigation management plan; 4789 the party responsible for verifying that a fumi gant management plan is accurate; and the 4790 elements, purpose and content of a post-application su mmary, who must prepare it, and when it 4791 must be completed. 4792 (ii) Safety. Measures to minimize adverse health effects, including all of the following: 4793 (A) Understanding how certified applicator s, handlers, and bystanders can become 4794 exposed to fumigants. 4795 (B) Common problems and mistakes that can result in direct exposure to fumigants. 4796 (C) Signs and symptoms of human exposure to fumigants. 4797 (D) When air concentrations of a fumigant triggers handlers to wear respirators or to exit 4798 the work area entirely. 4799 (E) Steps to take if a person using a fumigant experiences sensory irritation. 4800 (F) Understanding air monitoring, when it is required, and where to take samples. 4801 (G) First aid measures to take in the event of exposure to a fumigant. 4802 (H) Labeling requirements for transportation, storage, spill cl ean-up, and emergency 4803 response for non-soil fumigants, including safe disposal of containers and contaminated 4804 materials, and managementof empty containers. 4805 (iii) Non-soil fumigant chem ical characteristics. Characteristics of non-soil fumigants, 4806 including all of the following: 4807 (A) Chemical characteris tics of non-soil fumigants. 4808 (B) Specific human exposure conc erns for non-soil fumigants. 4809 (C) How fumigants change from a liquid or solid to a gas. 4810 (D) How fumigants disperse in the application zone. 4811 (E) Incompatibility concerns for tanks, hoses, tubing, and other equipment. 4812*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 203 of 242 [RIN 2070-AJ20] (iv) Application . Selecting appropriate application methods and timing, including all of 4813 the following: 4814 (A) Application methods and equipment commonly used for non-soil fumigation. 4815 (B) Site characteristics that can be used to pr event fumigant exposure. 4816 (C) Conditions that could impact timing of non-soil fumigation application, such as air 4817 stability, air temperature, hu midity, and wind currents, and labeling statements limiting 4818 applications when specifi c conditions are present. 4819 (D) Conducting pre-application inspection of application equipment and the site to be 4820 fumigated. 4821 (E) Understanding the purpose and methods of sealing the area to be fumigated, including 4822 the factors that determine which sealing method to use. 4823 (F) Calculating the amount of product re quired for a specific treatment area. 4824 (G) Understanding the basic techniques fo r calibrating non-soil fumigation application 4825 equipment. 4826 (H) Understanding when and how to conduct ai r monitoring and when it is required. 4827 (v) Pest factors. Pest factors that influence fumi gant activity, including all of the 4828 following: 4829 (A) Influence of pest factors on fumigant volatility. 4830 (B) Factors that influence gaseous movement through the area being fumigated and into 4831 the air. 4832 (C) Identifying pests causing the dama ge to be treated by the fumigation. 4833 (D) Understanding the relationship betweenpest density and application rate. 4834 (E) The importance of proper application rate and timing. 4835 (vi) Personal protective equipment. Understanding what personal protective equipment is 4836*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 204 of 242 [RIN 2070-AJ20] necessary and how to use it properl y, including all of the following: 4837 (A) Following labeling directions for required personal protective equipment. 4838 (B) Selecting, inspecting, using, caring fo r, replacing, and disposing of personal 4839 protective equipment. 4840 (C) Understanding the types of respirators required when using specific soil fumigants 4841 and how to use them properly, including medical evaluation, fit testing, and required replacement 4842 of cartridges and cannisters. 4843 (D) Labeling requirements and other laws appl icable to medical evaluation for respirator 4844 use, fit tests, training, and recordkeeping. 4845 (viii) Posting requirements. Understanding posting requirements, including all of the 4846 following: 4847 (A) Identifying who is allowed in an area be ing fumigated or after fumigation and who is 4848 prohibited from being in such areas. 4849 (B) Distinguishing fumigant labeling-requi red posting and treated area posting, including 4850 the pre-application and post-applic ation posting timeframes for each. 4851 (C) Proper choice and placement of warning signs. 4852 (3) Aerial applications . Private applicators that use or s upervise the use of restricted use 4853 pesticides applied by fixed or ro tary wing aircraft must demons trate practical knowledge of the 4854 pest problems and pest control practices associated with performing aerial application, including 4855 all the following: 4856 (i) Labeling . Labeling requirements and restrictions specific to aerial application of 4857 pesticides including: 4858 (A) Spray volumes. 4859 (B) Buffers and no-spray zones. 4860*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 205 of 242 [RIN 2070-AJ20] (C) Weather conditions specifi c to wind and inversions. 4861 (D) Labeling-mandated recordkeeping require ments for aerial pesticide applications 4862 including application co nditions if applicable. 4863 (ii) Application equipment . Understand how to choose and maintain aerial application 4864 equipment, including all of the following: 4865 (A) The importance of inspecting application equipment to ensure it is proper operating 4866 condition prior to beginning an application. 4867 (B) Selecting proper nozzles to ensure appropriate pesticide dispersal and to minimize 4868 drift. 4869 (C) Knowledge of the components of an aerial application pesticid e application system, 4870 including pesticide hopp ers, tanks, pumps, and types of nozzles. 4871 (D) Interpreting a nozzle flow rate chart. 4872 (E) Determining the number of nozzles fo r intended pesticide output using nozzle flow 4873 rate chart, aircraft speed, and swath width. 4874 (F) How to ensure nozzles are placed to co mpensate for uneven dispersal due to uneven 4875 airflow from wingtip vortices, helicopter rotor turbulence, and aircraft propeller turbulence. 4876 (G) Where to place nozzles to produce the appropriate droplet size. 4877 (H) How to maintain the application syst em in good repair, including pressure gauge 4878 accuracy, filter cleaning according to schedul e, checking nozzles for excessive wear. 4879 (I) How to calculate required and actual flow rates. 4880 (J) How to verify flow rate using fixe d timing, open timing, known distance, or a flow 4881

meter. 4882 (K) When to adjust and calib rate application equipment. 4883 (iii) Application considerations . The applicator must demons trate knowledge of factors to 4884*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 206 of 242 [RIN 2070-AJ20] consider before and during applicati on, including all of the following: 4885 (A) Weather conditions that could impact ap plication by affecting ai rcraft engine power, 4886 take-off distance, and climb rate, or by promoting spray droplet evaporation. 4887 (B) How to determine wind velocity, directi on, and air density at the application site. 4888 (C) The potential impact of thermals and temperature inversions on aerial pesticide 4889 application. 4890 (vi) Minimizing drift. The applicator must demons trate knowledge of methods to 4891 minimize off-target pesticide movement, including all of the following: 4892 (A) How to determine drift potential of a product using a smoke generator. 4893 (B) How to evaluate vertical and horizont al smoke plumes to assess wind direction, 4894 speed, and concentration. 4895 (C) Selecting techniqu es that minimize pestic ide movement out of the area to be treated. 4896 (D) Documenting special equipment configurations or flight pattern s used to reduce off4897 target pesticide drift. 4898 (v) Performing aerial application . The applicator must demonstrate competency in 4899 performing an aerial pestic ide application, includi ng all of the following: 4900 (A) Selecting a flight altitude that minimizes streaking a nd off-target pesticide drift. 4901 (B) Choosing a flight pattern that ensures applicator and bystander safety and proper 4902 application. 4903 (C) The importance of engaging and dise ngaging spray precisely when entering and 4904 exiting a predetermined swath pattern. 4905 (D) Tools available to mark swaths, such as global positioning systems and flags. 4906 (d) Private applicator minimum age. A private applicator must be at least 18 years old. 4907 (e) Private applicator competence . The competence of each applicant for private 4908*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 207 of 242 [RIN 2070-AJ20] applicator certification mu st be determined by the certifying authority based upon the 4909 certification standards set forth in paragraphs (a) through (d) of this section in order to assure that 4910 private applicators are competent to use and supe rvise the use of restrict ed use pesticides in 4911 accordance with applicable State, Tribal, and Federal laws and regul ations. The certifying 4912 authority must use either a written examination pr ocess as described in paragraph (e)(1) of this 4913 section or a non-examination traini ng process as described in para graph (e)(2) of this section to 4914 assure the competence of private applicators inregard to the general certification standards 4915 applicable to all private applicat ors, and, if applicable, the specifi c standards for the predator pest 4916 control category and/or the standards for each ap plication method-specific category in which an 4917 applicator is to be certified, as provided for in this section. Th e certifying authority must follow 4918 the labeling requirements for sodium fluoroacetate and sodium cyanide dispensed through an M4919 44 device to determine the competence of applic ators in the predator control categories. 4920 (1) Determination of comp etence by examination . If the certifying authority uses a 4921 written examination process to determine the comp etence of private applicators, the examination 4922 process must meet all of the requirements of §171.103(a)(2). 4923 (2) Becoming competent through training without examination . Any applicant for 4924 certification as a private applicator may beco me competent by completing a training program 4925 approved by the certifying au thority. A training program to establish private applicator 4926 competence must conform to all of the following criteria: 4927 (i) Positive photo identification. Each person seeking certification must present a valid, 4928 government-issued photo identification to the certifyi ng authority or designated representative as 4929 proof of identity and age at the time of the trai ning program to be eligible for certification. 4930 (ii) Training programs for private applicator general certification and certification in 4931 application method-sp ecific categories. The training program for general private applicator 4932*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 208 of 242 [RIN 2070-AJ20] certification must cover the competency standards outlined in paragraph (a ) of this section. The 4933 training program for each application method- specific category for private applicator 4934 certification must cover the competency standards outlined in paragraph (c) of this section and 4935 must be in addition to the training program require d for general private app licator certification. 4936 § 171.107 Standards for recertification of certified applicators. 4937 (a) Determination of continued competency. Each commercial and private applicator 4938 certification shall expire 3 years af ter issuance, unless the applicator is recertified in accordance 4939 with this section. A certifying au thority may establish a shorter ce rtification period. In order for a 4940 certified applicator’s ce rtification to continue without interruption, the certified applicator must 4941 be recertified under this section before the expiration of his or her current certification. 4942 (b) Process for recertification. Minimum standards for r ecertification by written 4943 examination, or through continuing e ducation programs, are as follows: 4944 (1) Written examination. A certified applicator may be f ound eligible for recertification 4945 upon passing a written examination approved by the certifying authority and that is designed to 4946 evaluate whether the certified applicator demonstrates the level of competency required by § 4947 171.103 for commercial applicators or § 171.105 for private applicators. Th e examination shall 4948 conform to the applicable standards for exams se t forth in § 171.103(a)(2) of this chapter and be 4949 designed to test the certified applicator’s knowledge of current technologies and practices. 4950 (2) Continuing education programs. A certified applicator ma y be found eligible for 4951 recertification upon succ essfully completing a continuing education program approved by the 4952 certifying authority and de signed to ensure the applicator continues to demonstrate the level of 4953 competency required by § 171.103 for commerci al applicators or § 171.105 for private 4954 applicators. A recertification process that relies on a continuing education program to maintain 4955 applicator certification must meet all of the following criteria: 4956*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 209 of 242 [RIN 2070-AJ20] (i) The continuing education program designed for applicatorrecertification must be 4957 approved by the certifying authority as bei ng capable of ensuring continued competency. 4958 (ii) A private applicator c ontinuing education program must require the private applicator 4959 to complete six continuing education units specif ically related to the st andards of competency 4960 outlined in § 171.105(a) before the expiration of th e applicator’s certific ation to qualify for 4961 recertification. To qualify for recertification for application method- specific categories, a private 4962 applicator continuing education pr ogram must require the private applicator to complete three 4963 continuing education units specif ically related to the standard s of competency outlined in § 4964 171.105(c) for each relevant application method- specific category certif ication held by the 4965 applicator before the expiration of the applicator’s certification. 4966 (iii) A commercial applicator continuing e ducation program must require the commercial 4967 applicator to complete six contin uing education units specifically related to the core standards of 4968 competency for commercial applicators outlined in § 171.103(c) before the expiration of the 4969 applicator’s certification. In addition, a commercial applicator continuing education program 4970 must require the commercial applicator to comp lete six continuing educat ion units specifically 4971 related to the standards of co mpetency outlined in § 171.103(d), (e ), and (f) for each relevant 4972 pest control category and applic ation method-specific category of certification held by the 4973 applicator before the expiration of the appli cator’s certification inorder to qualify for 4974 recertification. 4975 (iv) Any education program, including an online or other distance education program, 4976 that grants continuing education units must have a process to ve rify the applicator’s successful 4977 completion of the educational objectives of the program and positively identify the applicator 4978 taking the continuing education units consistent w ith the requirements of §§ 171.103(a)(2)(iv) 4979 and 171.105(e)(2)(i). 4980*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 210 of 242 [RIN 2070-AJ20] Subpart C - Supervision of Noncertified Applicators 4981 § 171.201 Requirements for direct supervision of noncertified applicators by certified 4982 applicators. 4983 (a) Applicability . This section applies to any certified applicator who allows or relies on a 4984 noncertified applicator to use a restricted use pesticide under th e certified applicator’s direct 4985 supervision. 4986 (b) General requirements. 4987 (1) The certified applicator must have a pr actical knowledge of app licable Federal, State 4988 and Tribal supervisory requirements, includ ing any requirements on the product label and 4989 labeling, regarding the use of restricted us e pesticides by noncertified applicators. 4990 (2) The certified applicator must be certi fied in each category as set forth in §§ 4991 171.101(a) and (b) and 171.105(b) and (c) applicab le to the supervis ed pesticide use. 4992 (3) The certified applicator must ensure th at any noncertified applicators working under 4993 his or her direct supervision have met the training requireme nts under paragraph (c) of this 4994 section. 4995 (4) If the certified applicator is a commercial applicator, the certified applicator must 4996 prepare and maintain the records requir ed by paragraph (e) of this section. 4997 (5) The certified applicator must ensure th at all noncertified applicators working under 4998 his or her direct supervision are at least 18 years of age. 4999 (6) The certified applicator must ensurethat a method for immediate communication 5000 between the certified applicator and each noncertified applicator working under his or her direct 5001 supervision is available. 5002 (7) The certified applicator must ensure that the full labeling for the product(s) used 5003 during a supervised use is in the possession of each noncertified appli cator during the use. 5004*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 211 of 242 [RIN 2070-AJ20] (8) The certified applicator must be physic ally present at the s ite of the use being 5005 supervised when required by the product labeling. 5006 (9) The certified applicator must provide use- specific instructions for each application to 5007 each noncertified applicator, including labeling di rections, precautions, and restrictions mandated 5008 by the specific site; the interrelationship between the characteristics of the use site (e.g., surface 5009 and ground water, endangered species, local population, and risks) a nd the conditions of 5010 application (e.g., equipment, method of applicatio n, formulation, and risks); and how to use the 5011 application equipment. 5012 (10) The certified applicator must ensure that before any non certified applicator uses any 5013 equipment for mixing, loading, transferring, or appl ying pesticides, the noncertified applicator 5014 has been instructed in the safe operation of such equipment within the last 12 months. 5015 (11) The certified applicator must ensure th at before each day of use equipment used for 5016 mixing, loading, transferring, or applying pesticides is inspected for leaks, clogging, and worn or 5017 damaged parts. If worn or damaged parts or e quipment are found, the certified applicator must 5018 ensure that any damaged equipment is re paired or replaced prior to use. 5019 (12) Where the labeling of a pesticide product re quires that personal protective equipment 5020 be worn for mixing, loading, application, or any other use activities, the certified applicator must 5021 ensure that any noncertified applicator using rest ricted use pesticides under his or her direct 5022 supervision has the label-require d personal protective equipment, that the personal protective 5023 equipment is worn and used correctly for its intended purpose, and that the personal protective 5024 equipment is clean and in proper operating condition. 5025 (c) Training requirement . Before any noncertified applic ator uses a restricted use 5026 pesticide under the direct supervision of the certified applicator, the supervising certified 5027 applicator must ensure that th e noncertified applicator has me t at least one of the following 5028*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 212 of 242 [RIN 2070-AJ20] qualifications: 5029 (1) The noncertified applicator has been trai ned in accordance with paragraph (d) of this 5030 section within the last 12 months. 5031 (2) The noncertified applicator has met th e training requirements for an agricultural 5032 handler under § 170.201(c) with in the last 12 months. 5033 (3) The noncertified applicator has passed anexamination covering the core standards of 5034 competency for commercial applicators outlined in § 171.103(c) within the last 3 years. 5035 (d) Noncertified applicator training programs. 5036 (1) General noncertified applicat or training must be presented to applicators either orally 5037 from written materials or audio visually. The inform ation must be presented in a manner that the 5038 noncertified applicators can understand, such as through a translator. Th e person conducting the 5039 training must be present during th e entire training program and mu st respond to the noncertified 5040 applicators’ questions. 5041 (2) The person who conducts the training must meet at least one of the following criteria: 5042 (i) Be currently certif ied as an applicator of restrict ed use pesticides under this part. 5043 (ii) Be currently designated as a trainer of certified applicat ors or pesticide handlers by a 5044 State, Tribal, or Federal agency having jurisdiction. 5045 (iii) Have completed a pesticide safety tr ain-the-trainer program under 40 CFR part 170. 5046 (3) The noncertified applicat or training materials must include the information that 5047 noncertified applicators need to protect themse lves, other people, and the environment before, 5048 during, and after making a restri cted use pesticide applicatio n. The noncertified applicator 5049 training materials must include, at a minimum, the following: 5050 (i) Format and meaning of information c ontained in pesticide labels and labeling, 5051 including safety information, such as precautionary statements about human health hazards. 5052*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 213 of 242 [RIN 2070-AJ20] (ii) Hazards of pesticides resulting from toxicity and exposure, including acute and 5053 chronic effects, delayed eff ects, and sensitization. 5054 (iii) Routes by which pes ticides can enter the body. 5055 (iv) Signs and symptoms of co mmon types of pesticide poisoning. 5056 (v) Emergency first aid for pesticide injuries or poisonings. 5057 (vi) How to obtain emergency medical care. 5058 (vii) Routine and emergency decontamination procedures. 5059 (viii) Need for and proper use of personal protective equipment. 5060 (ix) Prevention, recognition, and first aid treatme nt of heat-related illness associated with 5061 the use of personal protective equipment. 5062 (x) Safety requirements for handling, transporting, storing, and dis posing of pesticides, 5063 including general procedures for spill cleanup. 5064 (xi) Environmental concerns such as drift, runoff, and wildlife hazards. 5065 (xii) Warnings against taking pestic ides or pesticide containers home. 5066 (xiii) Washing and changing work clothe s before physical contact with family. 5067 (xiv) Washing work clothes separately from the family’s clothes before wearing them 5068 again. 5069 (xv) Precautions required to pr otect children and pregnant women. 5070 (xvi) How to report suspected pesticide illness to the appropriate State agency. 5071 (xvii) Instructions that the certified applicat or must provide use-spec ific instructions for 5072 each application to the noncertifi ed applicator(s), including labe ling directions, precautions, and 5073 restrictions mandated by the specific site; the inte rrelationship between the characteristics of the 5074 use site (e.g., surface and ground water, endangere d species, local population, and risks) and the 5075 conditions of application (e.g., equipment, methodof application, formulation, and risks); and 5076*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 214 of 242 [RIN 2070-AJ20] how to use the application equipment. 5077 (e) Recordkeeping . For each noncertified applicator w ho uses a restricted use pesticide 5078 under a commercial applicator’s direct supervis ion, the commercial applicator supervising any 5079 noncertified applicator must coll ect and maintain at the commerci al applicator’s principal place 5080 of business for 2 years from the date of meeting the training requirements of paragraph d of this 5081 section, the following information: 5082 (1) The noncertified applicator ’s printed name and signature. 5083 (2) The date the training requirement in paragraph (d) of this section was met. 5084 (3) The name of the person who provided the training or the certifying agency, as 5085 applicable. 5086 (4) The supervising certifi ed applicator’s name. 5087 (f) Compliance date. After [date 2 years and 60 days afte r date of publication of the final 5088 rule in the Federal Register ], any certified applicat or who supervises a noncertified applicator 5089 using a restricted use pesticide under his or her direct supervision mu st comply with the 5090 requirements of this section. 5091 Subpart D- Certification Plans 5092 § 171.301 General. 5093 (a) Jurisdiction . A certification issued under a particular certifying authority’s 5094 certification plan is only valid within the ge ographical area covered by the certification plan 5095 approved by the Agency. 5096 (b) Status of certification plans approved before effective date . A certification plan 5097 approved by EPA before the effective date of th is part remains approved until [date 4 years and 5098 60 days after date of publicati on of the final rule in the Federal Register ], except as provided in 5099 § 171.301(c)(4) and (5). 5100*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 215 of 242 [RIN 2070-AJ20] (c) Compliance dates. (1) After [date 4 years and 60 days af ter date of publication of the final 5101 rule in the Federal Register ], a State, Tribe or Federal agen cy may only certify applicators of 5102 restricted use pesticides in accordance with a ce rtification plan that m eets or exceeds all of the 5103 applicable requirements of this part and has been approved by the Agency. 5104 (2) A State, Tribe or Federal agency that currently has an EPA-approved plan for the 5105 certification of applicators of restricted use pesticides and that c hooses to certify applicators of 5106 restricted use pesticides under th is part must submit to EPA for review and approval a revised 5107 certification plan that meets or exceeds all of th e applicable requirements of this part no later 5108 than [date 2 years and 60 days after dateof publication of the final rule in the Federal Register ]. 5109 (3) If the Agency approves a certification plan submitted no later than [date 2 years and 5110 60 days after date of publicati on of the final rule in the Federal Register ], a State, Tribe, or 5111 Federal agency may only certify applicators of re stricted use pesticides in accordance with the 5112 approved revised plan. 5113 (4) If after [date 2 years and 60 days after date of publication of the final rule in the 5114 Federal Register ] EPA has received but not yet approved the State, Tribal, or Federal agency 5115 certification plan revision submitted no later than [date 2 years and 60 days after date of 5116 publication of the final rule in the Federal Register ], the State, Tribe, or Federal Agency may 5117 continue to certify applicators under the certification plan approved before the rule’s effective 5118 date until such time as EPA approves a revised ce rtification plan that meets or exceeds all 5119 applicable requirements of this part. 5120 (5) States, Tribes, or Federal agencies that do not have an EPA-appr oved certification plan 5121 before the effective date of this rule may submit to EPA for review and approval a certification 5122 plan that meets or exceeds all of the applicable requirements of this part any time after the 5123 effective date of this rule. 5124*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 216 of 242 [RIN 2070-AJ20] § 171.303 Requirements for Stat e certification plans. 5125 (a) Conformance with Federal standards for cert ification of applicators of restricted use 5126 pesticides. A State may certify applicators of restricteduse pesticides only in accordance with a 5127 State certification plan submitted to and approved by the Agency. 5128 (1) The State certification planmust include a full description of the proposed process the 5129 State will use to assess applicator competency to use or supervise the use of restricted use 5130 pesticides in the State. 5131 (2) The State plan must list and describe the categories of certification from the 5132 certification categories listed in §§ 171.101(a) and (b) and 171.105( b) and (c), that will be 5133 included in the plan except that: 5134 (i) A State may omit any unneed ed certification categories. 5135 (ii) A State may designate subcategories within the categories described in §§ 171.101(a) 5136 and (b) and 171.105(c) as it deems necessary, with the exception of the predator pest control 5137 categories outlined in §§ 171.101(a)(10) and 171.105(b). 5138 (iii) A State may adopt additio nal certification categories for specific types of pest control 5139 or application methods not covered by the ex isting Federal categories described in §§ 171.101(a) 5140 and (b) and 171.105(b) and (c). 5141 (3) For each of the categories adopted pursu ant to paragraph (b)(1) of this section, the 5142 State plan must include standards for the certification of applicators of restricted use pesticides 5143 that meet or exceed those standards pres cribed by the Agency under §§ 171.101 through 5144 171.105. 5145 (4) The State standards for the recertification of applicators of restricted use pesticides 5146 must meet or exceed those standards prescribed by the Agency under § 171.107. 5147 (5) The State standards for the direct supe rvision of noncertified applicators by certified 5148*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 217 of 242 [RIN 2070-AJ20] private and commercial applicators of restricted use pesticides meet or exceed those standards 5149 prescribed by the Agency under § 171.201. 5150 (6) The State certification plan must cont ain provisions for issuance of appropriate 5151 credentials or documents by the certifying authority verifying certificati on of applicators. The 5152 credential or document mu st contain all of the following information: 5153 (i) The full name of the certified applicator. 5154 (ii) The certification, license, or cred ential number of the certified applicator. 5155 (iii) The type of certificati on (private or commercial). 5156 (iv) The category(ies), includi ng any pest control categories, application method-specific 5157 category(ies), and subcate gory(ies) in which the applicator is certified. 5158 (v) The expiration date of the certification(s). 5159 (vi) If the certification is based on a certifi cation issued by another St ate, Tribe or Federal 5160 agency, a statement identifying the State, Tribe or Federal agency certification upon which this 5161 certification is based. 5162 (7) The State certification plan must explain whether, and if so, under what 5163 circumstances, the State will certify applicators ba sed in whole or in part on their holding a valid 5164 current certification issued by a nother State, Tribe or Federal agency. Such certifications are 5165 subject to all of the following conditions: 5166 (i) A State may rely only on valid current certif ications that are issu ed directly under an 5167 approved State, Tribal or Federal agency certification plan and are not based on another 5168 certifying authority’s certification. 5169 (ii) The State certification regulations must pr ovide that any certification that is based in 5170 whole or in part on the applicat or holding a valid current certif ication issued by another State, 5171 Tribe or Federal agency terminates automati cally if the certification on which it is based 5172*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 218 of 242 [RIN 2070-AJ20] terminates for any reason. 5173 (iii) The State issuing a certif ication based in whole or in part on the applicator holding a 5174 valid current certification issued by another Stat e, Tribe or Federal agency must issue an 5175 appropriate State credential or document to the applicator in accordance w ith paragraph (a)(6) of 5176 this section. 5177 (b) Contents of a request for EPA approval of a State plan for certification of applicators 5178 of restricted use pesticides. 5179 (1) The application for Agency approval of a State certification plan must list and 5180 describe the categories of certification from the certification categories. 5181 (2) The application for Agency approval of a State certification plan must contain 5182 satisfactory documentation that the State standards for the certificati on of applicators of 5183 restricted use pesticides meet or exceed those standards prescribed by the Agency under §§ 5184 171.101 through 171.105. Such documentation must include one of the following: 5185 (i) A statement that the State has adopted th e same standards for certification prescribed 5186 by the Agency under §§ 171.101 through 171.105 and a citation of the specific State laws and/or 5187 regulations demonstrating that the St ate has adopted such standards. 5188 (ii) A statement that the State has adoptedits own standards that meet or exceed the 5189 standards for certific ation prescribed by the Agency under §§ 171.101 through 171.105. If the 5190 State selects this option, the certif ication plan must include both: 5191 (A) A list and detailed desc ription of all the categories , application method-specific 5192 categories, and subcategories to be used for certif ication of private and co mmercial applicators in 5193 the State and a citation to the spec ific State laws and/or regulati ons demonstrating that the State 5194 has adopted such categories, application method-specific categories, and subcategories. 5195 (B) A list and detailed descrip tion of all of the standards fo r certification of private and 5196*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 219 of 242 [RIN 2070-AJ20] commercial applicators adopted by the State and a citation to th e specific State laws and/or 5197 regulations demonstrating that th e State has adopted such standards. Any additional pest control 5198 categories, application-method spec ific categories, or subcategories established by a State must 5199 be included in the application for Agency approval of a State plan and mu st clearly delineate the 5200 standards the State will use to determin e if the applicator is competent. 5201 (3) The application for Agency approval of a State certification plan must contain 5202 satisfactory documentation that the State standard s for the recertificati on of applicators of 5203 restricted use pesticides meet or exceed those standards prescribed by the Agency under § 5204 171.107. Such documentation must include a statement that the State has adopted its own 5205 standards that meet or exceed the standards fo r recertification prescrib ed by the Agency under § 5206 171.107. The application for Agency approval of a certification plan must include a list and 5207 detailed description of all of the State standa rds for recertification of private and commercial 5208 applicators and a citation of the specific State laws and/or regu lations demonstrating that the 5209 State has adopted such standards. 5210 (4) The application for Agency approval of a State certificatio n plan must contain 5211 satisfactory documentation that the State standard s for the direct superv ision of noncertified 5212 applicators by certified private and commercial applicators of restri cted use pesticides meet or 5213 exceed those standards prescribed by the Agency under § 171.201. Such documentation must 5214 include one or both of th e following as applicable: 5215 (i) A statement that the State has met or exc eeded the standards for direct supervision of 5216 noncertified applicators by certifi ed private and/or commercial applicators prescribed by the 5217 Agency under § 171.201 and a citation of the specific State laws and/or regulations 5218 demonstrating that the State has adopted such standards. 5219 (ii) A statement that the Stat e prohibits noncertified applicat ors from using restricted use 5220*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 220 of 242 [RIN 2070-AJ20] pesticides under the direct supe rvision of certified priv ate and/or commercial applicators, and a 5221 citation of the specific State laws and/or regulations demonstrating thatthe State has adopted 5222 such a prohibition. 5223 (5) The application for Agency approval of a State certification planmust include all of 5224 the following: 5225 (i) A written designation of th e State agency by the Governor of that State as the lead 5226 agency responsible for being the primary certifyi ng authority and administ ering the certification 5227 plan in the State. The lead agency will serve as the central contact point for the Agency. The 5228 certification plan must identify the primary point of contact at the lead agency responsible for 5229 administering the certification plan and servi ng as the central contact for the Agency on any 5230 issues related to the State certification plan. In the event that more than one agency or 5231 organization will be responsible for performing functions under the certification plan, the plan 5232 must identify all cooperators and list the f unctions to be performed by each agency or 5233 organization, including complian ce monitoring and enforcement res ponsibilities. The plan must 5234 indicate how the plan will be coordinated by th e lead agency to ensure consistency of the 5235 administration of the certification plan throughout the state. 5236 (ii) A written opinion from the State attorney general or fr om the legal counsel of the 5237 State lead agency that states the lead agency and other cooperating ag encies have the legal 5238 authority necessary to carry out the plan. 5239 (iii) A listing of the qualified personnel that the lead agency and any cooperating agencies 5240 or organizations have to carry out the plan. The list must include the number of staff, job titles, 5241 and job functions of such personnel of th e lead agency and an y cooperating units. 5242 (iv) A commitment by the State that the le ad agency and any cooperators will ensure 5243 sufficient resources are available to carry out the applicator certif ication program as detailed in 5244*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 221 of 242 [RIN 2070-AJ20] the plan. 5245 (6) The application for Agency approval of a State certification plan must include a 5246 complete copy of all State laws and regulations re levant to the certification plan. In addition, the 5247 plan must include citations to the specific Stat e laws and regulations th at demonstrate specific 5248 legal authority for each of the following: 5249 (i) Provisions for and listing of the acts which would constitute grounds for denying, 5250 suspending and revoking certification of applicator s. Such grounds must include, at a minimum, 5251 misuse of a pesticide and falsifi cation of any records required to be maintained by the certified 5252 applicator. 5253 (ii) Provisions for reviewing, and wher e appropriate, suspending or revoking an 5254 applicator's certification based on the applicator’s conduct or a cr iminal conviction under section 5255 14(b) of FIFRA, a final order imposing civil pena lty under section 14(a) of FIFRA, or conclusion 5256 of a State enforcement action for violations of State laws or regulations relevant to the 5257 certification plan. 5258 (iii) Provisions for assessing criminal and ci vil penalties for violati ons of State laws or 5259 regulations relevant to the certification plan. 5260 (iv) Provisions for right of entry by consent or warrant by State officials at reasonable 5261 times for sampling, inspecti on, and observation purposes. 5262 (v) Provisions making it unlawful for persons other than certified applicators or 5263 noncertified applicators working unde r a certified applicator’s directsupervision to use restricted 5264 use pesticides. 5265 (vi) Provisions requiring certi fied commercial applicators to record and maintain for the 5266 period of at least two years routine operational records c ontaining information on types, 5267 amounts, uses, dates, and places of application of restricted use pesticides and for ensuring that 5268*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 222 of 242 [RIN 2070-AJ20] such records will be available to appropriate State officials. Such provisions must require 5269 commercial applicators to record and maintain, at a minimum, all of the following: 5270 (A) The name and address of the person fo r whom the restricted use pesticide was 5271 applied. 5272 (B) The location of the restrict ed use pesticide application. 5273 (C) The size of the area treated. 5274 (D) The crop, commodity, stored product, or s ite to which the restricted use pesticide was 5275 applied. 5276 (E) The time and date of the re stricted use pesticide application. 5277 (F) The brand or product name of th e restricted use pe sticide applied. 5278 (G) The EPA registration number of the restricted use pesticide applied. 5279 (H) The total amount of the restricted use pe sticide applied per location per application. 5280 (I) The name and certification number of the certified applicator that made or supervised 5281 the application, and, if applicable, the name of any noncertified applicator(s) that made the 5282 application under the direct superv ision of the certif ied applicator. 5283 (J) Records require d under § 171.201(c). 5284 (vii) Provisions requiring persons who distribute or sell restricted use pesticides to record 5285 and maintain at each individual dealership, for th e period of at least 2 ye ars, records of each 5286 transaction where a restricted use pesticide is distributed or sold to any person, excluding 5287 transactions solely between persons who are pest icide producers, registrants, wholesalers, or 5288 retail sellers, acting only in those capacities. Reco rds of each such transaction must include all of 5289 the following information: 5290 (A) Name and address of the residence or principal place of busin ess of each certified 5291 applicator to whom the restricted use pesticide wa s distributed or sold, or if applicable, the name 5292*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 223 of 242 [RIN 2070-AJ20] and address of the residence or principal place of business of each noncertified person to whom 5293 the restricted use pesticide was distributed or sold for application by a certified applicator. 5294 (B) The certification number on the certifi cation document presented to the seller 5295 evidencing the valid certification of the certified applicator authori zed to purchase the restricted 5296 use pesticide, the State, Tribe or Federal agen cy that issued the certification document, the 5297 expiration date of the certifie d applicator's certification, a nd the categories in which the 5298 applicator is certified. 5299 (C) The product name and EPA registration number of the restricted use pesticide(s) 5300 distributed or sold in the tran saction, including any applicable emergency exemption or State 5301 special local need registration number. 5302 (D) The quantity of the restricted use pesticid e(s) distributed or sold in the transaction. 5303 (E) The date of the transaction. 5304 (c) Requirement to submit reports to the Agency. The State must submit reports to the 5305 Agency in a manner and containing the information that the Agency requires, including all of the 5306 following: 5307 (1) An annual report to be submitted by the State lead agency to the Agency by the date 5308 established by the Agency that includ es all of the following information: 5309 (i) The number of new, recertified, and total applicators holding a valid general private 5310 applicator certification at the end of the last 12 month reporting period. 5311 (ii) For each application method-specific category specified in § 171.105(c), the numbers 5312 of new, recertified and total existing private appl icators holding valid curren t certifications at the 5313 end of the last 12 month reporting period. 5314 (iii) The numbers of new, recertified, and total commercial applicators certified in at least 5315 one certification category at the end of the last 12 month reporting period. 5316*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 224 of 242 [RIN 2070-AJ20] (iv) For each commercial applicator pest control certification category specified in § 5317 171.101(a), the numbers of new, recertified and total commercial applicators holding a valid 5318 certification in each of those categories at the end of the last 12 month reporting period. 5319 (v) For each application method-specific category specified in § 171.101(b), the numbers 5320 of new, recertified and total existing commercial applicators holding valid current certifications 5321 at the end of the last 12 month reporting period. 5322 (vi) If a State has established subcategorie s within any of the commercial categories, the 5323 report must include the numbers of new, recertified and total commercial applicators holding 5324 valid certifications in each of the subcategories at the end of the last 12 month reporting period. 5325 (vii) A description of any modifications ma de to the approved certification plan during 5326 the last 12 month reporting period that have not been previously evaluated by the Agency under 5327 § 171.309(a)(3). 5328 (viii) A description of any proposed change s to the certific ation plan that the State 5329 anticipates making during the nextreporting period that may aff ect the certification program. 5330 (ix) The number and descri ption of enforcement actions taken for any violations of 5331 Federal or State laws and regulatio ns involving use of restricted us e pesticides during the last 12- 5332 month reporting period. 5333 (x) A narrative summary and causal analysis of any misuse inci dents or enforcement 5334 actions related to use of restricted use pestic ides during the last 12 month reporting period. The 5335 summary should include the pesticid e name and registration number, use or site involved, nature 5336 of violation, any adverse effects, most recent date of the certified applic ator’s certification or 5337 recertification and, if applicable, the date of qualification of any noncertified applicator using 5338 restricted use pesticides under th e direct supervision of the certified applicator. This summary 5339 should include a discussion of potential change s in policy or procedure to prevent future 5340*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 225 of 242 [RIN 2070-AJ20] incidents or violations. 5341 (2) Any other reports that may be required by the Agency to meet specific needs. 5342 § 171.305 Requirements for Federal agency certification plans. 5343 (a) A Federal agency may certify applicator s of restricted use pesticides only in 5344 accordance with a Federal agency certification plan submitted to and approved by the Agency. 5345 Certification must be limited to the employees of the Federal agency cove red by the certification 5346 plan and will be valid only for those uses of restricted use pesticides conducted in the 5347 performance of the employees’ official duties. 5348 (1) The Federal agency certification plan mu st include a full description of the proposed 5349 process the Federal agency will use to assess app licator competency to use or supervise the use 5350 of restricted use pesticides. 5351 (2) Employees certified by the Federal agency must meet the standards for commercial 5352 applicators. 5353 (3) The Federal agency plan must list and desc ribe the categories of certification from the 5354 certification categories listed in§§ 171.101(a) and (b) that will be included in the plan except 5355 that: 5356 (i) A Federal agency may omit any u nneeded certification categories. 5357 (ii) A Federal agency may designate subcateg ories within the categories described in §§ 5358 171.101(a) and (b) as it deems necessary, with th e exception of the predator pest control 5359 categories outlined in §§ 171.101(a)(10). 5360 (iii) A Federal agency may adopt additional ce rtification categories for specific types of 5361 pest control or application methods not covered by the existing Federal categories described in 5362 §§ 171.101(a) and (b). 5363 (4) For each of the categories adopted pursu ant to paragraph (b)(2) of this section, the 5364*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 226 of 242 [RIN 2070-AJ20] Federal agency plan must include standards for th e certification of applicat ors of restricted use 5365 pesticides that meet or exceed those standards prescribed by the Agency under §§ 171.101 5366 through 171.103. 5367 (5) The Federal agency standards for the recertification of applicators of restricted use 5368 pesticides must meet or exceed those standards prescribed by the Agency under § 171.107. 5369 (6) The Federal agency standards for the di rect supervision of non certified applicators by 5370 certified private and commercial applicators of re stricted use pesticides meet or exceed those 5371 standards prescribed by the Agency under § 171.201. 5372 (7) The Federal agency certification plan must contain provisions for issuance of 5373 appropriate credentials or documents by the ce rtifying authority veri fying certification of 5374 applicators. The credential ordocument must contain all info rmation listed in § 171.303(a)(6), 5375 except for the requirement to list the type of certification at § 171.303(a)(6)(iii). 5376 (8) The Federal agency certification plan mu st explain whether, and if so, under what 5377 circumstances, the Federal Agency will certify app licators based in whole or in part on their 5378 holding a valid current certification issued by another State, Tr ibe or Federal agency. Such 5379 certifications are subject to all of the conditions listed at § 171.303(a)(7). 5380 (b) Contents of a request for EPA approval of a Federal agency plan for certification of 5381 applicators of restricted use pesticides. 5382 (1) The application for Agency approval of a Federal agency certification plan must list 5383 and describe the categories of certification from the certification categories. 5384 (2) The application for Agency approval of a Federal Agency certification plan must 5385 contain a statement that the Federal agency standards for certification of applicators of restricted 5386 use pesticides meet or exceed those standards prescribed by the Agency under §§ 171.101 and 5387 171.103. Such a statement must include one of the following: 5388*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 227 of 242 [RIN 2070-AJ20] (i) A statement that the Federal agency ha s adopted the same standards for certification 5389 prescribed by the Agency under §§ 171.101 through 171.103 . 5390 (ii) A statement that the Federal agency has adopted its own standards that meet or 5391 exceed the standards for certification prescribed by the Agency under §§ 171.101 through 5392 171.103. If the Federal agency selects this option, the certification plan must include both: 5393 (A) A list and detailed desc ription of all the categories , application method-specific 5394 categories, and subcategories to be used for certification of private and commercial applicators. 5395 (B) A list and detailed descrip tion of all of the standards fo r certification of commercial 5396 applicators adopted by the Federal agency. Any a dditional pest control categories, application5397 method specific categories, or subc ategories established by a Federal agency must be included in 5398 the application for Agency approval of a Federal agency plan and must clearly delineate the 5399 standards the Federal agency will use to dete rmine if the applicator is competent. 5400 (3) The application for Agency approval of a Federal agency plan must include a 5401 statement that the Federal agency has adopted st andards for recertification that meet or exceed 5402 the standards for certification prescribed by th e Agency under § 171.107. If the Federal agency 5403 adopts its own standards for recertification, the application for Agency approval of a Federal 5404 agency certification plan must include a list and detailed description of all the standards for 5405 recertification adopted by the Federal agency. 5406 (4) The application for Agency approval of a Federal Agency certification plan must 5407 contain a statement that the Federal agency st andards for direct supe rvision of noncertified 5408 applicators by certified commercial applicators meet or exceed those standards prescribed by the 5409 Agency under § 171.201, or a statement that th e Federal agency pr ohibits noncertified 5410 applicators from using restricted use pesticid es under the direct s upervision of certified 5411 commercial applicators. 5412*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 228 of 242 [RIN 2070-AJ20] (5) The application for Agency approval of a Federal agency certification plan must meet 5413 or exceed all of the applicable requirement s in § 171.303. However, in place of the legal 5414 authorities required in § 171.303(b)(6), the Federa l agency may use administrative controls 5415 inherent in the employer-employee relationshi p to accomplish the objectives of § 171.303(b)(6). 5416 The application for Agency appr oval of a Federal agency certif ication plan must include a 5417 detailed description of how the Federal agency will exercise its administrative authority, where 5418 appropriate to deny, suspend or revoke certificates of employees who misuse pesticides, falsify 5419 records or violate relevant provi sions of FIFRA. Similarly, the application for Agency approval 5420 of a Federal agency certification plan must in clude a commitment that the Federal agency will 5421 record and maintain for the period of at leas t two years routine operational records containing 5422 information on types, amounts, uses, dates, and places of application of restricted use pesticides 5423 and that such records will be available to St ate and Federal officials. Such recordkeeping 5424 requirements must require Federal agency empl oyees certified as commercial applicators to 5425 record and maintain, at a minimum, all of the records specified in § 171.303(b)(6)(vi). 5426 (c) The application for Agency approval of a Federal agency certification plan must 5427 include a commitment by the Federal agency to submit an annual report to the Agency in a 5428 manner that the Agency requires that in cludes all of the following information: 5429 (1) The numbers of new, rece rtified, and total commercial applicators certified in at least 5430 one certification category at the end of the last 12 month reporting period. 5431 (2) For each commercial app licator certification category specified in § 171.101(a), the 5432 numbers of new, recertified and total commercial applicators holding a valid certification in each 5433 of those categories at the end of the last 12 month reporting period. 5434 (3) For each application me thod-specific category specifiedin § 171.101(b) chapter, the 5435 numbers of new, recertified and total existing commercial applicators holding valid current 5436*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 229 of 242 [RIN 2070-AJ20] certifications at the end of the last 12 month reporting period. 5437 (4) If the Federal agency has established subcategories within any of the commercial 5438 categories, the report must include the numbers of new, recertified and total commercial 5439 applicators holding valid certifications in each of those subcategories at the end of the last 12 5440 month reporting period. 5441 (5) A description of any modifications made to the approved certification plan during the 5442 last 12 month reporting period thathave not been previously evaluated under § 171.309(a)(3). 5443 (6) A description of any proposed changes to the certification plan that may affect the 5444 certification program that the Federal agency anticipates making during the next reporting 5445 period. 5446 (7) The number and description of enforcement actions taken for any violations of 5447 Federal or State laws and regulatio ns involving use of restricted us e pesticides during the last 12- 5448 month reporting period. 5449 (8) A narrative summary of misuse incidents or enforcement activities related to use of 5450 restricted use pesticides dur ing the last twelve-month reporting period. This section should 5451 include a discussion of potential changes in policy or procedure to prevent future incidents or 5452 violations. 5453 (d) The application for Agency approval of a Federal agency certification plan must 5454 include a commitment by the Federal agency to su bmit any other reports that may be required by 5455 the Agency to meet specific needs. 5456 (e) If applicators ce rtified under the Federal agency planwill make any applications of 5457 restricted use pesticides in Stat es or Indian country, the applic ation for Agency approval of a 5458 Federal agency certification plan must meet the following additional requirements: 5459 (1) The Federal agency plan must have a provision that affirms Federal agency certified 5460*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 230 of 242 [RIN 2070-AJ20] applicators will comply with all applicable State and Tribal pestic ide laws and regulations of the 5461 jurisdiction in which the restricted pesticide is be ing used when using restricted use pesticides in 5462 States or Indian country, includ ing any substantive State or Tribal standards in regard to 5463 qualifications for commercial applicator certificati on that exceed the Federal agency’s standards. 5464 (2) The Federal agency plan must have a provision for the Federal agency to notify the 5465 appropriate EPA regional office and State or Tribal pesticide authority in the event of misuse or 5466 suspected misuse of a restricted use pesticid e by a Federal agency employee and any pesticide 5467 exposure incident involvi ng human or environmental harm that may have been caused by an 5468 application of a restricted use pestic ide made by a Federal agency employee. 5469 (3) The Federal agency plan must have a provision for the Federal agency to cooperate 5470 with the Agency and the State or Tribal pesticide authority in any investigation or enforcement 5471 action undertaken in connection wi th an application of a restri cted use pesticide made by a 5472 Federal agency employee. 5473 § 171.307 Certification of applicators in Indian country. 5474 All applicators of restricted use pesticides in Indian country musthold a certification valid in that 5475 area of Indian country, or be working under the di rect supervision of a certified applicator whose 5476 certification is valid in that ar ea of Indian country. An Indian Tribe may certify applicators of 5477 restricted use pesticides in I ndian country only pursuant to a certification plan approved by the 5478 Agency that meets the requirements of paragraph (a) or (b) of this se ction. The Agency may 5479 implement a Federal certification plan, pursuant to paragraph (c) of this section and § 171.311, 5480 for an area of Indian country not covered by an approved plan. 5481 (a) An Indian Tribe may choose to allow pe rsons holding currently valid certifications 5482 issued under one or more specified State, Tribal , or Federal agency certification plans to use 5483 restricted use pesticides with in the Tribe’s Indian country. 5484*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 231 of 242 [RIN 2070-AJ20] (1) A certification plan under paragraph (a) mu st consist of a writt en agreement between 5485 the Tribe and the relevant EPA Region(s) that contains the fo llowing information: 5486 (i) A detailed map or legal description of the ar ea(s) of Indian country covered by the 5487 plan. 5488 (ii) A listing of the State(s), Tribe(s) or Federal agency(ies ) upon whose certifications the 5489 Tribe will rely. 5490 (iii) A description of any Tribal law, regulation, or code relating to application of 5491 restricted use pesticides in the covered area of Indian country, includ ing a citation to each 5492 applicable Tribal law, regulation, or code. 5493 (iv) A description of the pr ocedures and relevant authoriti es for carrying out compliance 5494 monitoring under and enforcement of the plan, including: 5495 (A) A description of the Agency and Tribal roles and procedures for conducting 5496 inspections. 5497 (B) A description of the Agency and Trib al roles and procedures for handling case 5498 development and enforcement actions and actio ns on certifications, including procedures for 5499 exchange of information. 5500 (C) A description of the Agency and Tribal roles and procedures for handling complaint 5501 referrals. 5502 (v) A description and copy of any separate agreements relevant to administering the 5503 certification plan and carrying out related compliance monitoring and enforcement activities. The 5504 description shall include a listi ng of all parties involved in the separate agreement and the 5505 respective roles, responsibi lities, and relevant authorities of those parties. 5506 (2) To the extent that an Indian Tribe is precluded from asserting criminal enforcement 5507 authority, the Federal government will exercise primary criminal enforcement authority for 5508*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 232 of 242 [RIN 2070-AJ20] certification plans under paragraph (a) of this section. The Tribe and the relevant EPA region(s) 5509 shall develop a procedure whereby the Tribe willprovide potential investigative leads to EPA 5510 and/or other appropriate Federal agencies in an appropriate a nd timely manner. This procedure 5511 shall encompass, at a minimum, all circumstance s in which the Tribe is incapable of exercising 5512 relevant criminal enforcement requirements. This procedure shall be included as part of the 5513 agreement between the Tribe and relevant EPA Regi on(s) described in paragraph (a)(1) of this 5514 section. 5515 (3) A plan for the certification of applicator s under paragraph (a) of this section shall not 5516 be effective until the agreement between the Tribe and the relevant EPA Region(s) has been 5517 signed by the Tribe and the appropriate EPA Regional Administrator(s). 5518 (b) An Indian Tribe may choose to devel op its own certification plan for certifying 5519 private and commercial applicators to use or su pervise the use of restricted use pesticides. 5520 (1) A certification plan under paragraph (b) of this section shall cons ist of a written plan 5521 submitted by the Tribe to the Agency for approval that includes all of the following information: 5522 (i) A detailed map or legal description of the ar ea(s) of Indian country covered by the 5523 plan. 5524 (ii) A demonstration that the plan meets all requirements of § 171.303 applicable to State 5525 plans, except that the Tribe’s plan will not be required to meet the requirements of § 5526 171.303(i)(3) with respect to provisi ons for criminal penalties, or any other requirement for 5527 assessing criminal penalties. 5528 (2) To the extent that an Indian Tribe is precluded from asserting criminal enforcement 5529 authority, the Federal government will exercise primary criminal enforcement authority for 5530 certification plans under paragraph (b) of this section. The Tribe and the relevant EPA Region(s) 5531 shall develop a procedure whereby the Tribe willprovide potential investigative leads to EPA 5532*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 233 of 242 [RIN 2070-AJ20] and/or other appropriate Federal agencies in an appropriate a nd timely manner. This procedure 5533 shall encompass, at a minimum, all circumstance s in which the Tribe is incapable of exercising 5534 relevant criminal enforcement requirements and shall be described in a memorandum of 5535 agreement signed by the Tribe and the re levant EPA Regional Administrator(s). 5536 (3) A plan for the certification of applicator s under paragraph (b) of this section shall not 5537 be effective until the memorandum of agreement re quired under paragraph (b)(2) of this section 5538 has been signed by the Tribe and the relevant EPA Region(s) and the plan has been approved by 5539 the Agency. 5540 (c) In any area of Indian country not covered by an approved certification plan, the 5541 Agency may, in consultation with the Tribe(s) affected, implement an EPA-administered 5542 certification plan under § 171.311 for certifying private and commerci al applicators to use or 5543 supervise the use of rest ricted use pesticides. 5544 (1) Prior to publishing a notice of a proposed EPA-administered certif ication plan for an 5545 area of Indian country in th e Federal Register for review and comment under § 171.311(d)(3), 5546 the Agency shall notify the relevant Indian Tr ibe(s) of EPA’s intentto propose the plan. 5547 (2) The Agency will not implement an EPA-ad ministered certification plan for any area 5548 of Indian country where, prio r to the expiration of the noti ce and comment period provided under 5549 § 171.311(d)(3), the chairperson or equivalent electedleader of the releva nt Tribe provides the 5550 Agency with a written statement of the Tribe’s po sition that the plan should not be implemented. 5551 § 171.309 Modification and withdraw al of certification plans. 5552 (a) Modifications to appro ved certification plans. A State, Tribe, or Federal agency may 5553 make modifications to its approved certification plan, provided that all of the following 5554 conditions are met: 5555 (1) Determination of plan compliance. Before modifying an appr oved certification plan, 5556*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 234 of 242 [RIN 2070-AJ20] the State, Tribe, or Federal agency must de termine that the proposed modifications will not 5557 impair the certification plan’s compliance with th e requirements of this part or any other Federal 5558 laws or regulations. 5559 (2) Requirement for Agency notification. The State, Tribe, or Federal agency must notify 5560 the Agency of any plan modifications within 90 days after the final Stat e, Tribal, or Federal 5561 agency modifications become effective or when it submits its required annual report to the 5562 Agency, whichever occurs first. 5563 (3) Additional requirements for s ubstantial modificati ons to approved certification plans. 5564 Before making any substantial modifications to an approved certification plan, the State, Tribe or 5565 Federal agency must consult with the Agency and obtain Agency approv al of the proposed 5566 modifications. The Agency shall make a written determination regarding the modified 5567 certification plan’s compliance with the requireme nts of this part. Substantial modifications 5568 include the following: 5569 (i) Deletion of a mechanism for certification and/or recertification. 5570 (ii) Establishment of a ne w private applicator subcateg ory, commercial applicator 5571 category, or commercial applicator subcategory. 5572 (iii) Any other changes that the Agency has notified the State, Trib al or Federal agency 5573 that the Agency considers to be are substantial modifications. 5574 (b) Withdrawal of approval. If at any time the Agency determines that a State, Tribal, or 5575 Federal agency certification plan do es not comply with the requireme nts of this part or any other 5576 Federal laws or regulations, or th at a State, Tribal, or Federal agency is not administering the 5577 certification plan as approved unde r this part, or that a State is not carrying out a program 5578 adequate to ensure compliance with FIFRA section 19(f), the Agency may withdraw approval of 5579 the certification plan. Before withdrawing approv al of a certification plan, the Agency will notify 5580*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 235 of 242 [RIN 2070-AJ20] the State, Tribal, or Federal agency and provi de the opportunity for an informal hearing. If 5581 appropriate, the Agency may allow the State, Trib e, or Federal agency a reasonable time, not to 5582 exceed 90 days, to take corrective action. 5583 § 171.311 EPA-administered applicatorcertification programs. 5584 (a) Applicability. This section applies in any State or area of Indian country where there is 5585 no approved State or Tribal ce rtification plan in effect. 5586 (b) Certification requirement. In any State or area of Indian country where EPA 5587 administers a certification plan, any person who uses or supervises the use of any restricted use 5588 pesticide must meet one of the following criteria: 5589 (1) A commercial applicator must be certifi ed in each category and subcategory, if any, 5590 and each application method, if any, as described in the EPA-administered plan, for which the 5591 applicator is applying or s upervising the application of restricted use pesticides. 5592 (2) A private applicator must be certified, including in each application method, if any, as 5593 described in the EPA-administered plan, for whic h the applicator is appl ying or supervising the 5594 application of restri cted use pesticides. 5595 (3) A noncertified applicator may only use a restricted use pesticide under the direct 5596 supervision of an applicator ce rtified under the EPA-administeredplan, in accordance with the 5597 requirements in § 171.201, and only for uses au thorized by that certified applicator's 5598 certification. 5599 (c) Implementation of EPA-administered plans in States

. 5600 (1) In any State where this section is app licable, the Agency, in consultation with the 5601 Governor, may implement an EPA-administered plan for the certification of applicators of 5602 restricted use pesticides. 5603 (2) Such a plan will meet the appli cable requirements of § 171.303. Prior to the 5604*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 236 of 242 [RIN 2070-AJ20] implementation of the plan, the Agency will publi sh in the Federal Register for review and 5605 comment a summary of the proposedEPA-administered plan for th e certification of applicators 5606 and will generally make available copies of th e proposed plan within the State. The summary 5607 will include all of the following: 5608 (i) An outline of the propos ed procedures and requirements for private and commercial 5609 applicator certification and recertification. 5610 (ii) A description of the proposed cate gories and subcategorie s for certification. 5611 (iii) A description of any proposed conditions for the recognition of State, Tribal, or 5612 Federal agency certifications. 5613 (iv) An outline of the proposed arra ngements for coordination and communication 5614 between the Agency and the State regarding appl icator certifications and pesticide compliance 5615 monitoring and enforcement. 5616 (d) Implementation of EPA-administe red plans in Indian country

. 5617 (1) In any area of Indian country where this section is appli cable, and consistent with the 5618 provisions of § 171.309(c), the Agency, in consultati on with the appropriate Indian Tribe(s), may 5619 implement a plan for the certification of app licators of restricted use pesticides. 5620 (2) An EPA-administered plan may be im plemented in the Indian country of an 5621 individual Tribe or multipl e Tribes located within a specified geographic area. 5622 (3) Such a plan will meet the applicab le requirements of § 171.309(c). Prior to the 5623 implementation of the plan, the Agency will publi sh in the Federal Register for review and 5624 comment a summary of the proposedEPA-administered plan for th e certification of applicators 5625 and will generally make available copies of th e proposed plan within the area(s) of Indian 5626 country to be covered by the proposed plan. The summary will include all of the following: 5627 (i) A description of the area(s) of Indian country to be covered by the proposed plan. 5628*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 237 of 242 [RIN 2070-AJ20] (ii) An outline of the proposed procedures and requirements for private and commercial 5629 applicator certification and recertification. 5630 (iii) A description of the proposed cate gories and subcategorie s for certification. 5631 (iv) A description of any proposed conditions for the recognition of State, Tribal, or 5632 Federal agency certifications. 5633 (v) An outline of the proposed arrang ements for coordination and communication 5634 between the Agency and the relevant Tribe(s) re garding applicator certif ications and pesticide 5635 compliance monitoring and enforcement. 5636 (e) Denial, suspension, modification, or revocation of a certification. 5637 (1) The Agency may suspend all or part of a certified applicator’s certification issued 5638 under an EPA-administered plan or, after opportunity for a hearing, may deny issuance of, or 5639 revoke or modify, a certified applic ator’s certification is sued under an EPA-administered plan, if 5640 the Agency finds that the certifie d applicator has been convicted under section 14(b ) of the Act, 5641 has been subject to a final orde r imposing a civil penalty under se ction 14(a) of the Act, or has 5642 committed any of the following acts: 5643 (i) Used any registered pesticide in a manner inconsistent with its labeling. 5644 (ii) Made available for use, or used, any registered pesticid e classified for restricted use 5645 other than in accordance with section 3(d) of the Act and any regulations promulgated 5646 thereunder. 5647 (iii) Refused to keep and maintain any records required pursuan t to this section. 5648 (iv) Made false or fraudulent records, invoi ces or reports. 5649 (v) Failed to comply with any limitations or restrictions on a valid current certificate. 5650 (vi) Violated any other provi sion of the Act and the regula tions promulgated thereunder. 5651 (vii) Allowed a noncertified applicator to use a restricted use pesticide in a manner 5652*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 238 of 242 [RIN 2070-AJ20] inconsistent with the requirements in § 171.201. 5653 (viii) Violated any provision of a State, Trib al or Federal agency certification plan or its 5654 associated laws or regulations. 5655 (2) If the Agency intends to deny, revoke, or modify a certified applicator’s certification, 5656 the Agency will: 5657 (i) Notify the certified applicat or of all of the following: 5658 (A) The ground(s) upon which the denial, revocation, or modification is based. 5659 (B) The time period during which the denial, revocation or modification is effective, 5660 whether permanent or otherwise. 5661 (C) The conditions, if any, unde r which the certified applicator may become certified or 5662 recertified. 5663 (D) Any additional conditions the Agency may impose. 5664 (ii) Provide the certified applic ator an opportunity to request an informal hearing prior to 5665 final Agency action to deny, revoke or modify the certification. 5666 (3) If a hearing is requested by a certified applicator pursuant to paragraph (e)(2)(ii) of 5667 this section, the Agency w ill do all of the following: 5668 (i) Notify the certified app licator of the legal and factual grounds upon which the action 5669 to deny, revoke or modify the certification is based. 5670 (ii) Provide the certified app licator an opportunity to offer written statements of facts, 5671 explanations, comments and arguments relevant to the proposed action. 5672 (iii) Provide the certified applicator such other procedural opportunities as the Agency 5673 may deem appropriate to ensure a fair and impartial hearing. 5674 (iv) Appoint an attorney in the Agency as Presiding Officer to conduct the hearing. No 5675 person shall serve as Presiding Officer if he or she has had any prior conn ection with the specific 5676*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 239 of 242 [RIN 2070-AJ20] case. 5677 (4) The Presiding Officer appointed pursuant to paragraph (e)(3)(iv) of this section shall 5678 do all of the following: 5679 (i) Conduct a fair, orderly and impartial hearing, without unnecessary delay. 5680 (ii) Consider all relevant evidence, expl anation, comment and argument submitted to the 5681 Agency pursuant to paragraphs (e)(3 )(ii) and (iii) of this section. 5682 (iii) Promptly notify the partie s of the final decision and order. Such an order is a final 5683 Agency action subject to judicial review in accordance with Section 16 of the Act. 5684 (5) If the Agency determines that the public health, interest or welfare warrants 5685 immediate action to suspend the ce rtified applicator’s ce rtification, the Agency will do all of the 5686 following: 5687 (i) Notify the certified app licator of the ground(s) upon wh ich the suspension action is 5688 based. 5689 (ii) Notify the certified applicator of th e time period during which the suspension is 5690 effective. 5691 (iii) Notify the certified applicator of th e Agency’s intent to revoke or modify the 5692 certification, as appropriate, in accord with paragraph (e)(2) of this section. If such revocation or 5693 modification notice has not previously been issu ed, it will be issued at the same time the 5694 suspension notice is issued. 5695 (iv) In cases where the act constituting grounds for suspension of a certification is neither 5696 willful nor contrary to the public interest, health, or safety, th e certified applicator may have 5697 additional procedural righ ts under 5 U.S.C. 558(c). 5698 (6) Any notice, decision or order issued by the Agency under paragraph (e) of this 5699 section, and any documents filed by a certified applicator in a h earing under para graph (e)(2)(ii) 5700*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 240 of 242 [RIN 2070-AJ20] of this section, shall be available to the public except as otherwise provi ded by section 10 of the 5701 Act or by part 2 of this chapter. Any such hearing at which oral testimony is presented shall be 5702 open to the public, except that the Presiding Officer may exclude the public to the extent 5703 necessary to allow presentation of information that may be entitled to confidentiality under 5704 section 10 of the Act or under part 2 of this chapter. 5705 (f) Restricted use pesticide dealer reporting and recordkeeping requireme nts, availability 5706 of records, and failure to comply

. 5707 (1) Reporting requirements. Each restricted use pesticide retail dealer in a State or area of 5708 Indian country where the Agency implements anEPA-administered planmust do both of the 5709 following: 5710 (i) Report to the Agency the business name by which the restricted use pesticide retail 5711 dealer operates and the name and business address of each of his or her dealerships. This report 5712 must be submitted to the appropriate EPA Region al office no later than sixty 60 days after the 5713 EPA-administered plan becomes effective or 60 days after the date the person becomes a 5714 restricted use pesticide retail de aler in an area where an EPA-ad ministered plan is in effect, 5715 whichever occurs later. 5716 (ii) Submit revisions to the initial report to the appropriate EPA Regional office reflecting 5717 any name changes, additions or deletions of dealerships. Revisions must be submitted to the 5718 appropriate EPA Regional office within 10 days of the occu rrence of such change, addition or 5719 deletion. 5720 (2) Recordkeeping requirement. A restricted use pesticide retail dealer is required to 5721 created and maintain records of each sale of re stricted use pesticides to any person, excluding 5722 transactions solely between persons who are pest icide producers, registrants, wholesalers, or 5723 retail sellers, acting only in those capacities. Eachrestricted use pesticid e retail dealer must 5724*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 241 of 242 [RIN 2070-AJ20] maintain at each individual dealership records of each transaction where a restricted use pesticide 5725 is distributed or sold by that dealership to a ny person. Records of each su ch transaction must be 5726 maintained for a period of 2 years after the date of the transaction and must include all of the 5727 following information: 5728 (i) Name and address of the residence or principal place of busin ess of each certified 5729 applicator to whom the restricted use pesticide wa s distributed or sold, or if applicable, the name 5730 and address of the residence or principal place of business of each noncertified person to whom 5731 the restricted use pesticide was distributed or sold, for application by a certified applicator. 5732 (ii) The certification number on the certif ication document presented to the seller 5733 evidencing the valid certification of the certified applicator authori zed to purchase the restricted 5734 use pesticide, the State, Tribe or Federal agen cy that issued the certification document, the 5735 expiration date of the certified applicator's certification, and the categories in which the certified 5736 applicator is certified. 5737 (iii) The product name and EPA registration number of the restricted use pesticide(s) 5738 distributed or sold in the tran saction, including any applicable emergency exemption or State 5739 special local need registration number, if applicable. 5740 (iv) The quantity of the restricted use pesticid e(s) distributed or sold in the transaction. 5741 (v) The date of the transaction. 5742 (3) Availability of required records. Each restricted use pestic ide retail dealer must, upon 5743 request of any authorized officer or employee of the Agency, or other authorized agent or person 5744 duly designated by the Agency, furnish or permit such person at all reasonable times to have 5745 access to and copy all records required to be maintained under this section. 5746 (4) Failure to comply. Any person who fails to comply with the provisions of this section 5747 may be subject to civil or criminal sanctions, under section 14 of the Act, or 18 U.S.C. 1001. 5748*** EO12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During the Review***

Page 242 of 242 [RIN 2070-AJ20] (g) Compliance date. The only EPA-administered certification plans that will be effective 5749 after [date 60 days after date of publication of the final rule in the Federal Register ] are those 5750 approved by the Administrator af ter [date 4 years and 60 days af ter date of publication of the 5751 final rule in the Federal Register ]. 5752