Yesterday, the U.S. Environmental Association (EPA) published the final Certification & Training (C&T) rule amending 40 CFR part 171. The rule will raise the Federal standards for applicator competency, including testing, certification and continuing education, in an effort to provide assurances that certified applicators and noncertified applicators under their direct supervision are competent to use pesticides in a manner that will not cause unreasonable adverse effects. The rule will go into effect on February 12, 2017, but there will be a lengthy implementation period.

NPMA has been actively engaged with the C&T rule since it was first published in August of 2015 and we are happy to announce that several of the issues raised by NPMA and other industry allies have been addressed and changed in the final rule. The final rule is significantly less prescriptive than the proposed rule allowing State Lead Agencies (SLAs) more time and flexibility in implementing new regulations, but there remains several changes that will impact the structural pest management industry.

NPMA is closely reviewing the entire 409 page final rule but in an effort to inform our membership we have provided the below as preliminary analysis highlighting some of the key provisions that will impact the structural pest management industry:

Continuing Education Units; Renewal Period and Amounts per Category: The final rule has extended the maximum certification period from three years (proposed rule) to five years (final rule). Additionally, EPA has eliminated the proposed six continuing education units (CEUs) requirement per category to maintain certification. Rather, the final rule establishes a framework for certifying authorities (state regulators) to develop a recertification program within their jurisdiction, which has been in place since EPA initially delegated this authority to States under FIFRA in the 1970s. The state certification program must ensure that applicators maintain a level of competency. NPMA strongly opposed mandating minimum federal quantifiable CEU requirements. 

Definition of "use":  In the proposed rule EPA broadly defined "use" as in "to use a pesticide" which included the overly broad term "arranging for the application of pesticides" which has since been removed. The final rule states:

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

(a) Pre-application activities involving mixing and loading the pesticide.

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

(c) Other pesticide-related 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 waters, pesticide containers, and other pesticide-containing materials."

The final definition limits the pre-application activities to mixing and loading the pesticide.

Site-Specific Instructions: The proposed rule required providing "site specific" instructions for non-certified applicators. In the final rule EPA clarifies "use-specific instructions" as the information and requirements specific to a particular pesticide product or work site that an applicator needs to use a Restricted Use Product (RUP) in accordance with applicable requirements without causing unreasonable adverse effects. EPA’s intention is that the certified applicator make the noncertified applicator aware of labeling requirements and site-specific conditions that are critical for safe use, or that may not be obvious and/or could be problematic. The final rule does not require the supervising certified applicator to be physically present but does place a burden to ensure the safe use.

Therefore, it is up to the supervising certified applicator to familiarize him or herself with the application site (first-hand or through reliance on others) and provide the noncertified applicator the particular use and site-specific information necessary to prevent unreasonable adverse effects.

Non-Certified Applicator Training: EPA proposed requiring annual safe handling training for non-certified applicators using RUPs and provided options to complete this training by satisfying the Worker Protection Standards (WPS) annual handler training or complete the core exam once every three years.

The final rule maintains this new annual safe handling requirement for non-certified applicators and provides options to complete 1.) WPS annual handler training 2.) A similar training with details outlined in the rule 3.) Complete training approved by the certifying authority or 4.) Hold a certification in another category.

NPMA commented on the need to create flexibility and guidance in what constitutes safe handling training for commercial applicators rather than agriculture applicators. NPMA will be working closely with EPA to ensure the resources and opportunities are available to properly conduct these annual trainings. NPMA is scrutinizing this component of the rule and will provide further clarification, concerning content and qualifications to provide the training.

New Applicator Certification Categories: In the final rule, EPA has added categories for both private and commercial applicators covering aerial application, soil fumigation, non-soil fumigation. In the proposed rule, applicators were required to maintain a certification in a "core category" in addition to one of the newly proposed categories, which has been removed. Aerial application, soil fumigation, and non-soil fumigation are now stand-alone certification categories and do not necessarily require concurrent certification in another existing category.

Testing; Government ID Requirement, "Closed Book", Online Testing: EPA proposed requiring certifying authorities to verify the identity of persons seeking certification or recertification by checking a government-issued photo identification for each candidate. The final rule requires certifying authorities to verify the identity of persons seeking certification or recertifying by checking a government-issued photo identification or by using another comparably reliable proof of identity approved by the certifying authority.  

The final rule has removed the "closed book" requirement for certification and recertification requirements and defers to the certifying authority to permit reference materials approved by the certifying authority. 

The final rule does not prohibit the use of online training programs or electronic verification procedures; however, EPA is not prepared at this time to establish by regulation, specific standards for online training and education or electronic verification. EPA confirms that the term "in writing" as used in the final rule is intended to encompass both paper-based and computer-based formats.

Applicator 18 Year Age Requirement: The final rule establishes a minimum age of 18 for private and commercial applicators. The final rule also establishes a minimum age of 18 for noncertified applicators working under the supervision of private and commercial applicators with a limited exception; the final rule establishes a minimum age of 16 for a noncertified applicator using agricultural RUPs under the supervision of a private applicator who is a member of the noncertified applicator’s immediate family

Implementation Date: Initially EPA proposed requiring certifying authorities two years to submit a certification plan to EPA.  The final rule adjusts the proposed implementation timeframe to provide additional flexibility.  In the final rule EPA has extended the time period to submit new certification plans to three years from implementation period. EPA will then have up to two years to approve the certification plan and during this time period the existing certification plan will remain in effect.  Certifying authorities will have the ability to request additional time based on specific circumstances.  

NPMA will be conducting further analysis in the coming days/weeks but the final rule is a positive alternative to the proposed rule. The final rule will have varying impacts from state-to-state but it is clear that as an industry our voice was heard and the issues that were of most concern to our industry were addressed. NPMA will continue to work with EPA and state regulatory officials over the course of the next 60 days to ensure accurate interpretation of the final rule and then begin the process of assisting in implementing the rule over the course of the next several years.  

Many states may be required to make changes or to re-document their certification procedures and protocols with EPA. NPMA will work closely with federal and state agencies to minimize the impact on the structural pest management industry and ensure the proper training and safe use of pesticides. NPMA will provide updates and additional resources as needed. 

Please contact the public policy team at publicpolicy@pestworld.org if you have any questions.  

 

For a detailed comparison between the proposed rule and the final rule, click here.