On January 4, 2017, the Environmental Protection Agency (EPA) finalized a rule establishing new competency and recertification requirements for certified applicators of restricted use pesticides
under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
The rule was initially set to take effect a few weeks ago, but since January, EPA has delayed the effective date twice
—first until March 21, 2017 and now until May 22, 2017. Delays aside, the Final Rule will take effect eventually, so EHS managers responsible for FIFRA compliance should know what’s in it. Let’s take a look.
FIFRA Background: 4 Categories of Pesticides
First, EPA divides pesticides into four categories under FIFRA: general-use pesticides (which anyone can buy and use), restricted use (must be a certified applicator or under the supervision thereof), severely restricted (very limited uses allowed), and banned (illegal to have or use as a pesticide in the United States). This new rule applies to applicators of restricted-use pesticides. So what does the new rule entail?
Private Applicator Competency Standards – 40 CFR 171.105(a)
Private applicators (i.e., farmers and other agricultural growers) who apply restricted-use pesticides to their own land will now be subject to many of the same competency requirements as commercial applicators (those who apply pesticides on a for-hire basis). These will include:
- “Core competency” standards.
- Standards specifically applicable to pesticides used in agriculture.
- Standards only relevant to private applicators.
In addition, the new rule expands requirements for proving competency. In this context, competency can include, but is not limited to, reading pesticide labels, identifying pests, selecting appropriate application procedures, and understanding the law and regulations. However, the new rule removes the previously existing “non-reader certification” option that allowed certification by oral exam (rather than written) to use a single pesticide product.
New Categories of Certification – 40 CFR 171.101 (k)–(o) and 171.105 (d)–(f)
In addition to the already existing ten categories of certification found at 40 CFR 171.3, the EPA is adding the following categories:
- Aerial application
- Soil fumigation
- Non-soil fumigation
- Sodium fluoroacetate dispensed through livestock protection collars
- Sodium cyanide dispensed through mechanical ejection devices
Certifying authorities (i.e., State programs) are not required to adopt these new categories of certification, although they are highly encouraged to do so.
Recertification Standards and Intervals – 40 CFR 171.107
The EPA has now set a maximum recertification time frame of five years for both commercial and private applicators. Certifying authorities must develop a recertification program if one does not already exist. The program may include a testing component.
Non-Certified Applicators Under Supervision – 40 CFR 171.201
Non-certified applicators have always been allowed to apply restricted-use pesticides under the supervision of a certified applicator without needing to show core competency. The new rule requires non-certified applicators to show competency in one of four ways:
- Complete specific training.
- Satisfy handler requirements under EPA’s Agricultural Worker Protection Standard (WPS).
- Satisfy State requirements if more stringent than Federal ones.
- Be certified in the use of a different category.
The supervising applicator must verify that non-certified applicators meet the new competency requirements and keep records related to the training of non-certified applicators.
Minimum Age – 40 CFR 171.103 and 171.105
The new rule establishes 18 years as the minimum age to become a certified applicator or to be a non-certified applicator under the supervision of a certified applicator. Non-certified applicators under the supervision of a certified applicator may be 16 years of age if the certified applicator is a direct relation and certain other conditions are met.
The new rule had a Federal effective date of March 6, 2017, until a White House memorandum
instructed Federal agencies, including EPA, to delay the effective dates of this and other Final Rules until March 21, 2017. Last week, EPA delayed the effective date further, until May 22, 2017, along with the effective dates for four other recent Final Rules
. Unless rescinded or delayed again, once the new May 22 Federal effective date passes, states will be required to adopt the more stringent portions of this new rule.
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