NCC Comments Regarding Pesticide Applicator Certification

January 22, 2015

OPP Docket
Environmental Protection Agency Docket Center (EPA/DC), (28221T)
1200 Pennsylvania Ave. NW
Washington, DC 20460-0001

Michelle Arling, Field and External Affairs Division (7506P)
Office of Pesticide Programs
Environmental Protection Agency
1200 Pennsylvania Ave. NW,
Washington, DC 20460–0001
Re: Docket ID No. EPA–HQ–OPP–2011-0183.

Dear Ms. Arling:

The National Cotton Council (NCC) appreciates the opportunity to comment on the Environmental Protection Agency's proposed rule, Pesticides; Certification of Pesticides.

The NCC is the central organization of the United States cotton industry.Its members include producers, ginners, cottonseed processors and merchandizers, merchants, cooperatives, warehousers and textile manufacturers.A majority of the industry is concentrated in 17 cotton-producing states stretching from Virginia to California. The NCC represents producers who cultivate between 10 and 14 million acres of cotton.Annual cotton production, averaging approximately 16 to 20 million 480-lb bales, is valued at more than $5 billion at the farm gate.The downstream manufacturers of cotton apparel and home furnishings are located in virtually every state. Farms and businesses directly involved in the production, distribution and processing of cotton employ more than 230,000 workers and produce direct business revenue of more than $27 billion.Accounting for the ripple effect of cotton through the broader economy, direct and indirect employment surpasses 420,000 workers with economic activity well in excess of $120 billion. In addition to the cotton fiber, cottonseed products are used for livestock feed, and cottonseed oil is used as an ingredient in food products as well as being a premium cooking oil.

VI. Revise Private Applicator Certification Standards

A.Enhance Private Applicator Certification Standards

Quoting from EPA's proposal,

"EPA is proposing to enhance the competency standards for private applicators to more specifically define the necessary knowledge and skills to be demonstrated by private applicators to become certified."…"The EPA is proposing a set of competency standards substantially parallel to the core standards for commercial applicators in the current rule with the addition of some points from the agricultural plant category and information particularly relevant to private applicators, such as WPS"…."However, FIFRA requires that EPA establish separate standards for commercial and private applicators, thereby prohibiting EPA from using the same core competency standards for commercial and private applicators."

The NCC respectfully points out to EPA that the statements imply that EPA is attempting to circumvent FIFRA by making private applicator standards comparable to commercial applicator standards.While the EPA has noted that some stakeholders have encouraged the two be equal, the reasoning provided does not justify the change.The statement that private applicators have the same access to restricted use pesticides (RUPs) as commercial applicators does not establish that the two perform equal public service nor does it suggest the same public risk from inappropriate training.Commercial applicators provide service to a broad clientele, many with high public traffic.The knowledge level for a commercial applicator to be prepared to make safe application to diverse structures and habitats with various levels of activity should be higher than for agricultural private applicators.The agency has not demonstrated a need for this change.The NCC does not agree with the proposed changes.

B.Strengthen Private Applicator Certification Requirements

"…EPA proposes to require that persons seeking certification as private applicators complete a training program approved by certifying authority that covers the standards of competency for private applicators or pass a written exam administered by the certifying authority." "…recognize a provision in FIFRA that prohibits EPA from requiring private applicators to take an exam to establish competency."

Again, the NCC respectfully submits that the EPA seems to be engaged in actions to circumvent FIFRA. The EPA notes that 42 states require private applicators to pass a written exam. That is at the discretion of individual states. Rather than recognizing the states' rights, the EPA desires to define the competency requirements if a test is used—however, this is not the role of the EPA under FIFRA.EPA is prohibited by FIFRA from requiring exams and the Agency is interfering with states' rights by attempting to force all states to standardize the test to the level the EPA desires.

The NCC also is concerned that the EPA seems to be attempting to enforce testing by creating an excessive training requirement if examination are not used. EPA did not justify the cost of the proposal, which is estimated to be $3.7 million annually. Even though EPA notes 42 states require examinations, EPA did not report or demonstrate measurable benefits for those requirements in those states.

The NCC urges EPA not to adopt this costly rule (which we believe may be underestimated) and to recognize states' rights to evaluate their individual need that may not be the same for other states.

C.Eliminate Non-Reader Certification for Private Applicators

The NCC has no comment.

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

EPA notes the existing rule has no category requirements for private applicators.EPA proposes to add application method-specific certification categories for private and commercial applicators that use RUPs to conduct soil fumigation, non-soil fumigation, and aerial applications.

The EPA notes that some states have adopted such requirements already, but the EPA does not show where these additional requirements have resulted in additional public safety benefits. The EPA notes that some states have few aerial applicators. The NCC encourages the EPA to allow states to evaluate their own needs and respond independently. The EPA should not engage in adding additional burdens on the states when some states may not even need additional requirements.The added costs further strain state departments without evidence to justify the need for the additional burden. The EPA should not engage in attempts to equalize requirements across all states, but should implement minimum standards only if evidence demonstrates benefit. However, the NCC does not find EPA's proposal to demonstrate benefits of this additional burden.

VIII. Establish Predator Control Categories for Commercial and Private Applicator Certification

EPA proposes to add categories for both private and commercial applicators to use two mammalian predator control methods:Sodium fluoroacetate and sodium cyanide in an M-44 device. The NCC recognizes the EPA desires "to codify the current standards of competency outlined in the specific registration decisions for each of these pesticides."

The NCC agrees that a specific category requiring the specific training for those intending to use the products is appropriate.

IX. Establish Requirements to Ensure Security and Effectiveness of Exam and Training Administration

EPA "proposes to require that applicator certification exams for initial certification and recertification be closed book, proctored, and that the identity of each test taker be verified. The identity of the applicant must also be verified where the State or other agency certifies or recertifies applicators based on training rather than an exam."

Again, the NCC suggests that the EPA refrain from any rule associated with exams for private applicators. The NCC believes that EPA's activities to dictate the standard of an exam that EPA is prohibited from requiring is an obvious attempt to bypass FIFRA regulations. The NCC argues that EPA should allow states to continue to make those decisions because these requirements are not within the authority of EPA.

The NCC does understand EPA's desire to ensure security, and agrees that a valid, government issued photo identification should be required for training participation before issuance of certification.

The EPA has not demonstrated in the proposal any evidence that "effectiveness of training" is lacking; therefore NCC does not see justification for adding new regulations within the authority of EPA.

X.Strengthen Standards for Noncertified Applicators Working Under the Direct Supervision of Certified Applicators

A.Enhance Competence of Noncertified Applicators Working Under the Direct Supervision of Certified Applicators

"EPA proposes to enhance protections for noncertified applicators, i.e., those who use RUPs under the direct supervision of a certified applicator, and to ensure that RUPs are used in a manner that does not pose unreasonable adverse effects to the applicator, bystanders, or the environment by Expanding the training content, offering alternative to the training requirement, and requiring periodic retraining." The estimated annual cost is $6.6 million for non-certified applicators working under the direct supervision of a commercial applicator, and $639,000 per year for noncertified applicators working under the direct supervision of private applicators.

EPA has not demonstrated cause for this cost, nor has the agency demonstrated the cost will accomplish any added value to the existing rule.

i.Expanding training content

EPA proposes to add to the training requirements for noncertified applicators. The majority of the additional training being proposed is already required by the Worker Protection Standards. The NCC believes this additional cost and burden should not be adopted.

ii.Offering alternatives to the training requirement.

"EPA proposes to offer two alternative mechanisms for establishing the competency of noncertified applicators who apply RUPs under the direct supervision of a certified applicator:"

1-Meet the handler training requirements of WPS

2-Passing the exam on core standards of competency for certified commercial applicators

Again, the NCC does not believe EPA has demonstrated a need or benefit for this proposed change and encourages EPA not to adopt the change which would be costly in time and money.

iii.Requiring periodic retraining

EPA proposes to require annual retraining. EPA's justification relies on studies that indicate how quickly retention of material diminishes. The NCC suggests that EPA is assuming the information is not practiced on a regular basis.These type activities would provide active retention of relevant protection because of the routine use after training.

The NCC encourages EPA to adopt the proposed alternative of allowing states to determine what training or qualifications are appropriate. The NCC believes this would allow flexibility for tailored training based on needs rather than the costly program proposed. As to EPA's concern that allowing states' control would result in differing levels of protection, the NCC would argue that will happen regardless. Some states are going to be different, possibly because they have particular needs based on differing pesticide use in their state (i.e. residential, fruit/vegetable, nursery, or row crop agriculture).EPA has not demonstrated that the current rule "lacks" minimum protection, and should not adopt the proposed costly rule based on equalizing requirements for all states.

B.Establish Qualifications for Training Providers

"EPA proposes to require that noncertified applicator training be provided by a currently certified applicator, a State-designated trainer of certified applicators, or a person who has completed a train-the-trainer course under the WPS."…"Allowing State-designated trainers of applicators and those who have completed a WPS pesticide safety train-the-trainer program would provide flexibility to the certified applicator and offer a variety of options to ensure noncertified applicators are trained."

The NCC reiterates the agency has not demonstrated the need for this change. But if a change occurs, EPA should minimize the burden and cost. Allowing State-designated trainers of applicators and those who have completed a WPS pesticide safety train-the-trainer program seems practical.

C.Establish Qualifications for Certified Applicators Supervising Noncertified Applicators

EPA proposes to establish specific requirements for the supervising applicator. EPA proposes to require: 1) Certified applicators who supervise noncertified applicators to be certified in the category of the supervised application; 2) certified applicators ensure that noncertified applicators under their direct supervisor have satisfied one of the qualification methods discussed in X.B.; 3) for specific methods, the certified applicator to provide a copy of all applicable labeling to each noncertified applicator for each supervised application; 4) ensure that means are available for immediate communication between the certified applicator and the noncertified applicator working under their direct supervision, including site specific precautions and how to use the equipment; and 5) explain and comply with all labeling restrictions.

EPA believes the costs are negligible partially because "the current requirements to provide detained guidance for applying the pesticide properly and the proposed requirement to provide application-specific instructions are substantially similar" and because CTIA "wireless penetration in the United States was 102%."

First, NCC reiterates the overall lack of justification for the numerous proposed changes in X. Second, NCC disagrees that costs will be negligible. It appears EPA is citing wireless adoption which suggests that people already have a phone that can be used. However, NCC argues that most individuals do not agree to provide business items for their employer and would request reimbursement or separate service.

The NCC suggests that the requirements to qualify as a certified applicator should be sufficient to qualify the individual to supervise. NCC believes EPA is proposing redundant requirements without any substantiation of needs or any demonstration that the change will meet the need.

The NCC does not agree with EPA's proposal to require the certified applicator to provide a copy of the labeling to the non-certified applicator. The NCC understands and appreciates the significance of the product labeling, but the WPS standards abundantly cover this point without another redundant regulation to require additional documentation of distributing the massive set of papers associated with product labeling.

EPA's last part of the above proposed requirements, "explain and comply with all labeling restrictions" should be stricken. EPA clearly recognizes the redundancy of the statement.

XI. Expand Commercial Applicator Recordkeeping to Include Noncertified Applicator Training

EPA proposes to require commercial applicators to maintain records of noncertified applicator training for two years." FIFRA prohibits EPA from issuing regulations that require private applicators to maintain records.Therefore, EPA in not proposing to make the recordkeeping requirements outlined in this unit apply to private applicators."

The NCC has no comment.

XII. Establish a Minimum Age for Certified Applicators

"EPA proposes to establish a minimum age of 18 for persons to become certified as commercial and private applicators."

The NCC encourages EPA to adopt an alternative consideration that would allow flexibility for family owned farms. The NCC encourages EPA to establish a minimum age of 16 for private applicators working on a farm owned by an immediate family member. The NCC urges EPA to recognize the decision process will still be predominantly controlled by the farm owner which will provide oversight that provides a layer of protection EPA is not considering.

XIII. Establish a minimum age for Noncertified Applicators Working under the Direct Supervision of Certified Applicators

"EPA proposes to require that noncertified applicators who use RUPs under direct supervision of a certified applicator be at least 18 years old.… The proposed age restriction would include a requirement of commercial applicators supervising the noncertified applicator to record the training and the birth date of any noncertified applicator using RUPs under their direct supervision."

In response, EPA is referred to the NCC's previous comments in XII.

XIV. Establish a National Certification Period and Standards for Recertification

A.National Recertification Period

EPA proposes to establish a maximum certification period of 3 years.This would require all applicators to renew their certification, i.e., recertify, at least every 3 years.

The NCC encourages EPA to allow states flexibility that meets protection objectives and does not place undue financial costs on the states. EPA has not provided any argument of safety concern or deficiency that would be addressed by this proposed change. EPA seems to continue to argue "standardize across states" but does not seem to appreciate that some states enjoy greater state budget while others have budget constraints. States and activities within states are not the same.EPA should allow states to carry out their duties without mandating additional costs that are not justified by EPA's traditional reliance on data and science. Additionally, EPA should acknowledge that training followed by daily routine practice as part of a professional career enhances retention above training on a periodic basis only.

B.Recertification Requirements

"EPA proposes to require State, Tribal, and Federal agencies to require applicators to complete a continuing education program that meets or exceeds specific standards or to pass exams related to their certification(s) in order to be recertified." These requirements include:

-establish minimum number of CEUs in core area and each category;

-establish standard length of a CEU;

-requirement that at least half of the CEUs must be earned 18 months preceding expiration of certification.

EPA proposes to allow states to require recertification only by exam.

EPA proposes to require that private applicators CE program require instructions in the general competency standards as well as each relevant application method-specific category.This includes:

-private applicator would need to earn a minimum of 6 CEUs of instruction covering content proposed every 3 years to maintain core certification;

-earn an additional 3 CEUs for soil fumigation, non-soil fumigation, or aerial application or predator control category every 3 years;

-require commercial applicator to earn 6 CEUs related to core certification every 3 years;

-for each category applicator is certified in, obtain at least 6 CEUs specific to that category every 3 years.

EPA proposes to allow applicators to earn CEUs in a program administered by states, tribes, federal agencies: Certifying authority would need certification plan detailing how it would review and approve content for CEU and how it would ensure that applicators satisfy the requirements

EPA proposes to set 50 minutes of active training time as the standard for a CEU.

Cost estimates:

Commercial applicators $6.5 million per year

Private applicators $16.8 million per year

The NCC does not believe EPA has demonstrated a deficiency in the current process that would be corrected by this costly proposed change. The NCC is concerned that EPA is attempting to place a large burden on the process in order to entice the adoption of exams – which EPA cannot mandate on private applicators. The NCC urges EPA to stay within the intent of the law and to not adopt this proposed change.

XV. Revise State Certification Plan Requirements

EPA proposes to revise the provisions covering the submission, approval, and maintenance of State plans.

i.State plan modification to implement proposed changes

-add provisions to ensure that State plans conform to new standards of proposed rule

ii.Program reporting and accountability

-require states to provide information (listed below) on annual basis

-Numbers of new, recertified, and total applicators holding private certification

-Numbers of new, recertified, and total private applicators for each application method-specific category

-Numbers of new, recertified, and total commercial applicators with core and one category certification

-Numbers of new, recertified, and total commercial applicators by each commercial applicator certification category

-Numbers if a state has established subcategories

-Description of any modifications to the approved state plan

-Description of proposed changes to certification plans

-Number and description of enforcement actions

-Narrative summary

iii.Civil and criminal penalty authority

-EPA proposes to revise the regulation to expressly require that States have both civil and criminal penalty provisions.

iv.Commercial applicators recordkeeping

-EPA proposes to clarify what records commercial applicators must maintain.

v.RUP dealer recordkeeping

-EPA proposes to require States to have provisions requiring RUP retail dealers to keep and maintain at each individual dealership, for a period of at least two years, records of each transaction where a RUP is distributed or sold by that dealership to any person.EPA specifies information to be included in the transaction.

vi.Certified applicator credentials

-EPA proposes to require States to issue appropriate credentials or documents verifying certification of applicators as well as specifying content to be included.

vii.Reciprocal applicator certification

-EPA proposes to require State certification plans to specify whether the State would certify applicators based, in whole or in part, on the applicators having been certified by another State, Tribe, or Federal Agency.

viii.State plan maintenance, modification and withdrawal

-EPA proposes to replace the existing provisions related to maintenance, modification, and withdrawals of State certification plans.

The NCC does not believe EPA has justified many of the proposed changes and therefore many aspects of this proposed change are not necessary. The NCC believes the EPA continues to propose demands on state budgets that are not justified and are not warranted. The NCC proposes EPA should not impose any additional burdens on states unless EPA will provide full reimbursement of costs to the State.

The NCC does not understand EPA's proposal to require States have both civil and criminal penalty authority. EPA provides no context or example to support this proposed change other than to say "EPA has concerns that in the absence of either civil or criminal penalty provisions, a State would not have an adequate range of enforcement options…" The NCC believes the EPA should provide justification for proposed changes, and that "concerns" should not merit justification.

The NCC does not understand EPA's proposal regarding RUP dealer recordkeeping. The EPA acknowledges that all 50 states have RUP dealer recordkeeping requirements, but says EPA proposes this "Federal standard to ensure consistency across the States".EPA has not identified the existence of any deficiencies or justification for the proposed change.

The NCC urges EPA to refrain from unjustified changes and recognize states are likely to have differing requirements, but that states are capable of identifying needed changes if deficiencies arise. EPA should not mandate changes that place unnecessary burdens on states.

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

EPA proposes to delete from the current regulations the section on GAP (40 CFR 171.9) and to codify EPA's 1977 policy on review and approval of Federal agency plans.

The NCC has no position.

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

EPA proposes to revise the mechanisms for establishing applicator certification programs in Indian country. First the proposal would revise the current option for Tribes to rely on State certification by eliminating the requirement for Tribes to enter into cooperative agreements with states. This option would be replaced by an option to enter into agreements with EPA Regional offices.

Second, EPA proposes to clarify that EPA can include multiple Tribes and/or multiple geographic areas of Indian country under one single EPA-administered plan. Third, the proposal would update the requirement for Tribal plans by requiring those Tribes that choose to manage their own certification plan to adopt the new standards being proposed for State and Federal agency certification plans in regard to initial certification and recertification of private and commercial applicators and the training and supervision of noncertified applicators who apply RUPs under the direct supervision of a certified applicator. The proposal would also eliminate current requirements for States to include in their State certification plans references to any agreements with Tribes for recognizing the States' certificates.

The NCC has no position.

XVIII. Revise Provisions for EPA-Administered Plans

EPA proposes to revise the current section outlining the requirements for an EPA-administered Federal certification plan to incorporate the proposed changes to State certification plans related to RUP applicator certification, recertification, and noncertified applicator qualifications, as well as plan reporting and maintenance requirements.

The NCC has no position.

XIX. Revise Definitions and Restructure 40 CFR part 171

EPA proposes to revise the definitions in the certification regulation to add several new definitions and to eliminate several unnecessary definitions.

Revised definitions: "compatibility," "dealership," "non-target organism," "ornamental," "principal place of business," and "toxicity."

Compatibility mean the extent to which a pesticide can be combined with other chemicals without causing undesirable results.

Dealership means any establishment owned or operated by a restricted use pesticide retail dealer where restricted use pesticides are distributed or sold.

Non-target organism means any plant, animal or other organism other than the target pests which a pesticide is intended to affect.

Ornamental means trees, shrubs, flowers, and other plantings intended primarily for aesthetic purposes in and around habitations, buildings and surrounding grounds, including, but not limited to, residences, parks, streets, and commercial, industrial, and institutional buildings.

Principal place of business means the principal location, either residence or office, where a person conducts a business of applying restricted use pesticides. A person who applies restricted use pesticides in more than one State or area of Indian country may designate a location within a state or area of Indian country as its principal place of business for that State or area of Indian country.

Toxicity mean the property of a pesticide that refers to the degree to which the pesticide and its related derivative compounds are able to cause an adverse physiological effect on an organism as a result of exposure.

New definitions: "application," "application method," "fumigants," "fumigation," "Indian country," "Indian Tribe," "noncertified applicator," "personal protective equipment," "use," "use-specific instructions."

Application means the dispersal of a pesticide on, in, at, or around a target site.

Application method mean the application of a pesticide using a particular type of equipment, mechanism, or device, including, but not limited to, ground boom, air-blast sprayer, wand, and backpack sprayer, as well as methods such as aerial, chemigation, and fumigation.

Fumigant means any pesticide product that is a vapor or gas, or forms a vapor or gas upon application, and whose pesticidal action is achieved through the gaseous or vapor state.

Fumigation means the application of a fumigant.

Indian country means:

(1)All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.

(2)All dependent Indian communities within the borders of the United States whether within the original subsequently acquired territory thereof, and whether within or without the limits of a State.

(3)All Indian allotments, the Indian titles to which have not been extinguished, including rights-or-way running through the same.

Indian Tribe or Tribe means any Indian or Alaska Native Tribe, band, nation, pueblo, village, or community included in the list of Tribes published by the Secretary of the Interior pursuant to the Federally Recognized Indian Tribe List Act.

Noncertified applicator means any person who is not certified in accordance with this part to use or supervise the use of restricted use pesticides in the pertinent jurisdiction, but who is using restricted use pesticides in under the direct supervision of a person certified as a commercial or private applicator in accordance with this part.

Personal protective equipment means any devices and apparel that are worn to protect the body from contact with pesticides or pesticide residues, including, but not limited to, coveralls, chemical-resistant suits, chemical-resistant gloves, chemical-resistant footwear, respirators, chemical-resistant aprons, chemical-resistant headgear, and protective eyewear.

Use, as in "to use a pesticide", means any of the following:

(1)Pre-application activities, including, but not limited to:

(i)Arranging for the application of the pesticide.

(ii)Mixing and loading the pesticide.

(iii)Making the necessary preparations for the application of the pesticide, including, but no limited to, responsibilities related to providing training, a copy of a label and use-specific instructions to noncertified applicators, and complying with any applicable requirements under 40 CFR part 170.

(2)Applying the pesticide, including, but not limited to, supervising the use of a pesticide by a noncertified applicator.

(3)Post-application activities, including, but not limited to, transporting or storing pesticide containers that have been opened, cleaning equipment, and disposing of excess pesticides, spray mix, equipment wash water, pesticide containers, and other materials contaminated with or containing pesticides.

Use-specific instructions means the information and requirements specific to a particular pesticide product or work site that are necessary in order for an applicator to use the pesticide in accordance with applicable requirements and without causing unreasonable adverse effects.

Definitions to be deleted:"Agency", "forest", "uncertified person", and "hazard".

The NCC is extremely concerned that the EPA's proposed definition of "use" would include many individuals employed as secretaries, clerks, etc. The proposed definition is inappropriately broad with "Arranging for the application". In addition, the NCC urges EPA to clarify the statement "supervising the use of a pesticide by a noncertified applicator" in order to reflect more than a chain of command. The NCC assumes EPA is referring to situations where a certified applicator is supervising a noncertified applicator. The NCC additionally argues that properly rinsed containers and properly cleaned equipment should not be included within the term "use" because the contaminants have been removed. The NCC is aware the National Pest Management Association (NPMA) has provided similar comments with greater depth. The NCC urges EPA to carefully review NPMA's comments and do not adopt this proposed definition.

XX. Implementation

EPA proposes to make the final rule effective 60 days after promulgated rule is published in the Federal Register.Compliance with certain provisions of the rule would be delayed.

The NCC believes most of EPA's proposed rules should not be adopted. However, for those that are adopted, the NCC urges EPA to allow 12 months before their implementation in order to ensure adequate training material, notification, and preparedness are in place.

The NCC appreciates the opportunity to provide these comments to the Docket EPA-HQ-OPP-2011-0183 Pesticide:Certification of Applicators.The NCC believes the majority of the proposed changes are not based on a demonstration of a need, or justification, but do contain extreme costly burdens, especially for state agencies. The NCC urges EPA to avoid regulations for which EPA cannot demonstrate a deficiency in the current process, especially when those regulations pass additional costs to state agencies.

Respectfully submitted,

Reece Langley
VP – Washington Operations