Part 171 Certification of Pesticide Applicators

PART 171—CERTIFICATION OF PESTICIDE APPLICATORS


Contents
§171.1   General.
§171.2   Definitions.
§171.3   Categorization of commercial applicators of pesticides.
§171.4   Standards for certification of commercial applicators.
§171.5   Standards for certification of private applicators.
§171.6   Standards for supervision of noncertified applicators by certified private and commercial applicators.
§171.7   Submission and approval of State plans for certification of commercial and private applicators of restricted use pesticides.
§171.8   Maintenance of State plans.
§171.9   Submission and approval of Government Agency Plan.
§171.10   Certification of applicators on Indian Reservations.
§171.11   Federal certification of pesticide applicators in States or on Indian Reservations where there is no approved State or Tribal certification plan in effect.

Authority: 7 U.S.C. 136i and 136w.

Source: 39 FR 36449, Oct. 9, 1974, unless otherwise noted.

§171.1   General.

This section deals with the certification of applicators of restricted use pesticides.

§171.2   Definitions.

(a) Terms used in this subpart have the same meaning as in the Act. In addition, the following definitions are applicable to all aspects of the certification of pesticide applicator program in this part:

(1) The term accident means an unexpected, undesirable event, caused by the use or presence of a pesticide, that adversely affects man or the environment.

(2) The term Act means the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (86 Stat. 973), and other legislation supplementary thereto and amendatory thereof.

(3) The term Administrator means the Administrator of the Environmental Protection Agency, or any office or employee of the Agency to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.

(4) The term Agency, unless otherwise specified, means the United States Environmental Protection Agency.

(5) The term agricultural commodity means any plant, or part thereof, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by man or animals.

(6) The term calibration of equipment means measurement of dispersal or output of application equipment and adjustment of such equipment to control the rate of dispersal, and droplet or particle size of a pesticide dispersed by the equipment.

(7) The term certification means the recognition by a certifying agency that a person is competent and thus authorized to use or supervise the use of restricted use pesticides.

(8) The term certified applicator means any individual who is certified to use or supervise the use of any restricted use pesticides covered by his certification.

(9) The term commercial applicator means a certified applicator (whether or not he is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by the definition of “private applicator.”

(10) The term compatibility means that property of a pesticide which permits its use with other chemicals without undesirable results being caused by the combination.

(11) The term competent means properly qualified to perform functions associated with pesticide application, the degree of capability required being directly related to the nature of the activity and the associated responsibility.

(12) The term common exposure route means a likely way (oral, dermal, respiratory) by which a pesticide may reach and/or enter an organism.

(13) The term environment means water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among them.

(14) The term forest means a concentration of trees and related vegetation in non-urban areas sparsely inhabited by and infrequently used by humans; characterized by natural terrain and drainage patterns.

(15) The term hazard means a probability that a given pesticide will have an adverse effect on man or the environment in a given situation, the relative likelihood of danger or ill effect being dependent on a number of interrelated factors present at any given time.

(16) The term host means any plant or animal on or in which another lives for nourishment, development, or protection.

(17) The term non-target organism means a plant or animal other than the one against which the pesticide is applied.

(18) The term ornamental means trees, shrubs, and other plantings in and around habitations generally, but not necessarily located in urban and suburban areas, including residences, parks, streets, retail outlets, industrial and institutional buildings.

(19) The term practical knowledge means the possession of pertinent facts and comprehension together with the ability to use them in dealing with specific problems and situations.

(20) The term private applicator means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or his employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person.

(21) The term protective equipment means clothing or any other materials or devices that shield against unintended exposure to pesticides.

(22) The term regulated pest means a specific organism considered by a State or Federal agency to be a pest requiring regulatory restrictions, regulations, or control procedures in order to protect the host, man and/or his environment.

(23) The term restricted use pesticide means a pesticide that is classified for restricted use under the provisions of section 3(d)(1)(C) of the Act.

(24) The term standard means the measure of knowledge and ability which must be demonstrated as a requirement for certification.

(25) The term State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.

(26) The term susceptibility means the degree to which an organism is affected by a pesticide at a particular level of exposure.

(27) The term toxicity means the property of a pesticide to cause any adverse physiological effects.

(28) The term under the direct supervision of means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified applicator who is responsible for the actions of that person and who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.

(b) Limited. The following definitions apply only to dealers, dealerships and transactions in States or on Indian Reservations where EPA conducts a Federal Pesticide Applicator Certification Program.

(1) The term restricted use pesticide retail dealer means any person who makes available for use any restricted use pesticide, or who offers to make available for use any such pesticide.

(2) The term make available for use means to distribute, sell, ship, deliver for shipment, or receive and (having so received) deliver, to any person. However, the term excludes transactions solely between persons who are pesticide producers, registrants, wholesalers, or retail sellers, acting only in those capacities.

(3) The term dealership means any site owned or operated by a restricted use pesticide retail dealer where any restricted use pesticide is made available for use, or where the dealer offers to make available for use any such pesticide.

(4) The term uncertified person means any person who is not holding a currently valid certification document indicating that he is certified under section 11 of FIFRA in the category of the restricted use pesticide made available for use.

(5) The term principal place of business means the principal location, either residence or office, in the State in which an individual, partnership, or corporation applies pesticides.

[39 FR 36449, Oct. 9, 1974, as amended at 48 FR 53974, Nov. 29, 1983; 73 FR 75599, Dec. 12, 2008]

§171.3   Categorization of commercial applicators of pesticides.

(a) Procedure. Categories of applicators (other than private) using or supervising the use of restricted use pesticides are identified below. State systems of applicator identification shall adopt these categories as needed, along with such appropriate subcategories as are necessary to meet the particular requirements of the State.

(b) Categories—(1) Agricultural pest control—(i) Plant. This category includes commercial applicators using or supervising the use of restricted use pesticides in production of agricultural crops, including without limiting the foregoing, tobacco, peanuts, cotton, feed grains, soybeans and forage; vegetables; small fruits; tree fruits and nuts; as well as on grasslands and non-crop agricultural lands.

(ii) Animal. This category includes commercial applicators using or supervising the use of restricted use pesticides on animals, including without limiting the foregoing, beef cattle, dairy cattle, swine, sheep, horses, goats, poultry, and livestock, and to places on or in which animals are confined.

Doctors of Veterinary Medicine engaged in the business of applying pesticides for hire, publicly holding themselves out as pesticide applicators, or engaged in large-scale use of pesticides are included in this category.

(2) Forest pest control. This category includes commercial applicators using or supervising the use of restricted use pesticides in forests, forest nurseries, and forest seed producing areas.

(3) Ornamental and turf pest control. This category includes commercial applicators using or supervising the use of restricted use pesticides to control pests in the maintenance and production of ornamental trees, shrubs, flowers, and turf.

(4) Seed treatment. This category includes commercial applicators using or supervising the use of restricted use pesticides on seeds.

(5) Aquatic pest control. This category includes commercial applicators using or supervising the use of any restricted use pesticide purposefully applied to standing or running water, excluding applicators engaged in public health related activities included in category 8 below.

(6) Right-of-way pest control. This category includes commercial applicators using or supervising the use of restricted use pesticides in the maintenance of public roads, electric powerlines, pipelines, railway rights-of-way or other similar areas.

(7) Industrial, institutional, structural and health related pest control. This category includes commercial applicators using or supervising the use of restricted use pesticides in, on, or around food handling establishments, human dwellings, institutions, such as schools and hospitals, industrial establishments, including warehouses and grain elevators, and any other structures and adjacent areas, public or private; and for the protection of stored, processed, or manufactured products.

(8) Public health pest control. This category includes State, Federal or other governmental employees using or supervising the use of restricted use pesticides in public health programs for the management and control of pests having medical and public health importance.

(9) Regulatory pest control. This category includes State, Federal or other governmental employees who use or supervise the use of restricted use pesticides in the control of regulated pests.

(10) Demonstration and research pest control. This category includes: (i) individuals who demonstrate to the public the proper use and techniques of application of restricted use pesticides or supervise such demonstration, and (ii) persons conducting field research with pesticides, and in doing so, use or supervise the use of restricted use pesticides. Included in the first group are such persons as extension specialists and county agents, commercial representatives demonstrating pesticide products, and those individuals demonstrating methods used in public programs. The second group includes: State, Federal, commercial and other persons conducting field research on or utilizing restricted use pesticides.

(c) Other categories and subcategories. Any State submitting a plan pursuant to this section for the certification of applicators, as provided for below, may designate such subcategories within the above 10 categories as it deems necessary. In addition, a State may delete a category not needed or may request the Administrator's approval of additional major categories.

§171.4   Standards for certification of commercial applicators.

(a) Determination of competency. Competence in the use and handling of pesticides shall be determined on the basis of written examinations, and, as appropriate, performance testing, based upon standards set forth below and which are approved by the Administrator. Such examination and testing shall include the general standards applicable to all categories (§171.4(b)) and the additional standards specifically identified for each category or subcategory (if any) in which an applicator is to be classified (§171.4(c)). State standards must conform and be at least equal to those prescribed herein. In developing the details of standards at the State level and in structuring examinations, it is important to recognize and reflect the extent of competency appropriate and necessary to a particular category.

(b) General standards for all categories of certified commercial applicators. (1) All commercial applicators shall demonstrate practical knowledge of the principles and practices of pest control and safe use of pesticides. Testing shall be based on examples of problems and situations appropriate to the particular category or subcategory of the applicator's certification and the following areas of competency:

(i) Label & labeling comprehension. (a) The general format and terminology of pesticide labels and labeling;

(b) The understanding of instructions, warnings, terms, symbols, and other information commonly appearing on pesticide labels;

(c) Classification of the product, general or restricted; and

(d) Necessity for use consistent with the label.

(ii) Safety. Factors including:

(a) Pesticide toxicity and hazard to man and common exposure routes;

(b) Common types and causes of pesticide accidents;

(c) Precautions necessary to guard against injury to applicators and other individuals in or near treated areas;

(d) Need for and use of protective clothing and equipment;

(e) Symptoms of pesticide poisoning;

(f) First aid and other procedures to be followed in case of a pesticide accident; and

(g) Proper identification, storage, transport, handling, mixing procedures and disposal methods for pesticides and used pesticide containers, including precautions to be taken to prevent children from having access to pesticides and pesticide containers.

(iii) Environment. The potential environmental consequences of the use and misuse of pesticides as may be influenced by such factors as:

(a) Weather and other climatic conditions;

(b) Types of terrain, soil or other substrate;

(c) Presence of fish, wildlife and other non-target organisms; and

(d) Drainage patterns.

(iv) Pests. Factors such as: (a) Common features of pest organisms and characteristics of damage needed for pest recognition;

(b) Recognition of relevant pests; and

(c) Pest development and biology as it may be relevant to problem identification and control.

(v) Pesticides. Factors such as:

(a) Types of pesticides;

(b) Types of formulations;

(c) Compatibility, synergism, persistence and animal and plant toxicity of the formulations;

(d) Hazards and residues associated with use;

(e) Factors which influence effectiveness or lead to such problems as resistance to pesticides; and

(f) Dilution procedures.

(vi) Equipment. Factors including: (a) Types of equipment and advantages and limitations of each type; and

(b) Uses, maintenance and calibration.

(vii) Application techniques. Factors including:

(a) Methods of procedure used to apply various formulations of pesticides, solutions, and gases, together with a knowledge of which technique of application to use in a given situation;

(b) Relationship of discharge and placement of pesticides to proper use, unnecessary use, and misuse; and

(c) Prevention of drift and pesticide loss into the environment.

(viii) Laws and regulations. Applicable State and Federal laws and regulations.

(c) Specific standards of competency for each category of commercial applicators. Some of the factors referenced in paragraph (b) of this section are of particular importance because of the different types of activities carried out by applicators in each category. Such factors must be especially stressed and specifically reflected in State certification standards, as appropriate. For example, practical knowledge of drift problems should be required of agricultural applicators but not of seed treatment applicators. The latter, however, should be particularly knowledgeable of the hazards of the misuse of treated seed and the necessary precautionary techniques. Many applicators in §171.3(b) (8), (9), and (10) will have had considerable formal education, training and experience in preparation for their positions. Their competency with respect to the use and handling of pesticides will have been determined by examining boards of their professional scientific societies utilizing standards which equal or exceed those prescribed herein. Such standards should be consulted by States in developing their State standards for certification of such applicators under these regulations. Commercial applicators in each category shall be particularly qualified with respect to the practical knowledge standards elaborated below:

(1) Agricultural pest control—(i) Plant. Applicators must demonstrate practical knowledge of crops grown and the specific pests of those crops on which they may be using restricted use pesticides. The importance of such competency is amplified by the extensive areas involved, the quantities of pesticides needed, and the ultimate use of many commodities as food and feed. Practical knowledge is required concerning soil and water problems, pre-harvest intervals, re-entry intervals, phytotoxicity, and potential for environmental contamination, non-target injury and community problems resulting from the use of restricted use pesticides in agricultural areas.

(ii) Animal. Applicators applying pesticides directly to animals must demonstrate practical knowledge of such animals and their associated pests. A practical knowledge is also required concerning specific pesticide toxicity and residue potential, since host animals will frequently be used for food. Further, the applicator must know the relative hazards associated with such factors as formulation, application techniques, age of animals, stress and extent of treatment.

(2) Forest pest control. Applicators shall demonstrate practical knowledge of types of forests, forest nurseries, and seed production in their State and the pests involved. They should possess practical knowledge of the cyclic occurrence of certain pests and specific population dynamics as a basis for programming pesticide applications. A practical knowledge is required of the relative biotic agents and their vulnerability to the pesticides to be applied. Because forest stands may be large and frequently include natural aquatic habitats and harbor wildlife, the consequences of pesticide use may be difficult to assess. The applicator must therefore demonstrate practical knowledge of control methods which will minimize the possibility of secondary problems such is unintended effects on wildlife. Proper use of specialized equipment must be demonstrated, especially as it may relate to meteorological factors and adjacent land use.

(3) Ornamental and turf pest control. Applicators shall demonstrate practical knowledge of pesticide problems associated with the production and maintenance of ornamental trees, shrubs, plantings, and turf, including cognizance of potential phytotoxicity due to a wide variety of plant material, drift, and persistence beyond the intended period of pest control. Because of the frequent proximity of human habitations to application activities, applicators in this category must demonstrate practical knowledge of application methods which will minimize or prevent hazards to humans, pets, and other domestic animals.

(4) Seed-treatment. Applicators shall demonstrate practical knowledge of types of seeds that require chemical protection against pests and factors such as seed coloration, carriers, and surface active agents which influence pesticide binding and may affect germination. They must demonstrate practical knowledge of hazards associated with handling, sorting and mixing, and misuse of treated seed such as introduction of treated seed into food and feed channels, as well as proper disposal of unused treated seeds.

(5) Aquatic pest control. Applicators shall demonstrate practical knowledge of the secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of restricted use pesticides used in this category. They shall demonstrate practical knowledge of various water use situations and the potential of downstream effects. Further, they must have practical knowledge concerning potential pesticide effects on plants, fish, birds, beneficial insects and other organisms which may be present in aquatic environments. These applicators shall demonstrate practical knowledge of the principles of limited area application.

(6) Right-of-way pest control. Applicators shall demonstrate practical knowledge of a wide variety of environments, since rights-of-way can traverse many different terrains, including waterways. They shall demonstrate practical knowledge of problems on runoff, drift, and excessive foliage destruction and ability to recognize target organisms. They shall also demonstrate practical knowledge of the nature of herbicides and the need for containment of these pesticides within the right-of-way area, and the impact of their application activities in the adjacent areas and communities.

(7) Industrial, institutional, structural and health related pest control. Applicators must demonstrate a practical knowledge of a wide variety of pests, including their life cycles, types of formulations appropriate for their control, and methods of application that avoid contamination of food, damage and contamination of habitat, and exposure of people and pets. Since human exposure, including babies, children, pregnant women, and elderly people, is frequently a potential problem, applicators must demonstrate practical knowledge of the specific factors which may lead to a hazardous condition, including continuous exposure in the various situations encountered in this category. Because health related pest control may involve outdoor applications, applicators must also demonstrate practical knowledge of environmental conditions, particularly related to this activity.

(8) Public health pest control. Applicators shall demonstrate practical knowledge of vector-disease transmission as it relates to and influences application programs. A wide variety of pests is involved, and it is essential that they be known and recognized, and appropriate life cycles and habitats be understood as a basis for control strategy. These applicators shall have practical knowledge of a great variety of environments ranging from streams to those conditions found in buildings. They should also have practical knowledge of the importance and employment of such non-chemical control methods as sanitation, waste disposal, and drainage.

(9) Regulatory pest control. Applicators shall demonstrate practical knowledge of regulated pests, applicable laws relating to quarantine and other regulation of pests, and the potential impact on the environment of restricted use pesticides used in suppression and eradication programs. They shall demonstrate knowledge of factors influencing introduction, spread, and population dynamics of relevant pests. Their knowledge shall extend beyond that required by their immediate duties, since their services are frequently required in other areas of the country where emergency measures are invoked to control regulated pests and where individual judgments must be made in new situations.

(10) Demonstration and research pest control. Persons demonstrating the safe and effective use of pesticides to other applicators and the public will be expected to meet comprehensive standards reflecting a broad spectrum of pesticide uses. Many different pest problems situations will be encountered in the course of activities associated with demonstration, and practical knowledge of problems, pests, and population levels occurring in each demonstration situation is required. Further, they should demonstrate an understanding of a pesticide-organism interactions and the importance of integrating pesticide use with other control methods. In general, it would be expected that applicators doing demonstration pest control work possess a practical knowledge of all of the standards detailed in §171.4(b). In addition, they shall meet the specific standards required for paragraphs (c) (1) through (7) of this section as may be applicable to their particular activity.

Persons conducting field research or method improvement work with restricted use pesticides should be expected to know the general standards detailed in 171.4(b). In addition, they shall be expected to know the specific standards required for paragraphs (c) (1) through (9) of this section, applicable to their particular activity, or alternatively, to meet the more inclusive requirements listed under “Demonstration.”

(d) Special standards. This space reserved for possible issuance of Special Standards.

(e) The above standards do not apply to the following persons for purposes of these regulations. (1) Persons conducting laboratory type research involving restricted use pesticides; and

(2) Doctors of Medicine and Doctors of Veterinary Medicine applying pesticides as drugs or medication during the course of their normal practice.

§171.5   Standards for certification of private applicators.

(a) Competence in the use and handling of pesticides by a private applicator will be determined by procedures set forth below. State standards must conform and be at least equal to those prescribed herein. As a minimum requirement for certification, a private applicator must show that he possesses a practical knowledge of the pest problems and pest control practices associated with his agricultural operations; proper storage, use, handling and disposal of the pesticides and containers; and his related legal responsibility. This practical knowledge includes ability to:

(1) Recognize common pests to be controlled and damage caused by them.

(2) Read and understand the label and labeling information—including the common name of pesticides he applied; pest(s) to be controlled, timing and methods of application; safety precautions; any pre-harvest or re-entry restrictions; and any specific disposal procedures.

(3) Apply pesticides in accordance with label instructions and warnings, including the ability to prepare the proper concentration of pesticide to be used under particular circumstances taking into account such factors as area to be covered, speed at which application equipment will be driven, and the quantity dispersed in a given period of operation.

(4) Recognize local environmental situations that must be considered during application to avoid contamination.

(5) Recognize poisoning symptoms and procedures to follow in case of a pesticide accident.

(b) Such competence of each private applicator shall be verified by the responsible State agency through the administration of a private applicator certification system which ensures that the private applicator is competent, based upon the standards set forth above, to use the restricted use pesticides under limitations of applicable State and Federal laws and regulations. A certification system shall employ a written or oral testing procedure, or such other equivalent system as may be approved as part of a State plan.

(1) In any case where a person, at the time of testing for certification, is unable to read a label, the responsible State agency may employ a testing procedure, previously approved by the Administrator, which can adequately assess the competence of such person with regard to all of the above standards. Certification must be related and limited to the use and handling of each individual pesticide for which he desires certification at any time. Therefore, the applicator will be authorized to use only the pesticide(s) for which he has demonstrated competence. A specific procedure is required for §171.5(a)(2) relating to label comprehension, with testing designed to assure his knowledge of the following:

(i) Understanding of the label and labeling information including those items indicated in that subsection.

(ii) Sources of advice and guidance necessary for the safe and proper use of each pesticide related to his certification.

(2) [Reserved]

§171.6   Standards for supervision of noncertified applicators by certified private and commercial applicators.

(a) Certified applicators whose activities indicate a supervisory role must demonstrate a practical knowledge of Federal and State supervisory requirements, including labeling, regarding the application of restricted use pesticides by noncertified applicators.

The availability of the certified applicator must be directly related to the hazard of the situation. In many situations, where the certified applicator is not required to be physically present, “direct supervision” shall include verifiable instruction to the competent person, as follows: (1) Detailed guidance for applying the pesticide properly, and (2) provisions for contacting the certified applicator in the event he is needed. In other situations, and as required by the label, the actual physical presence of a certified applicator may be required when application is made by a noncertified applicator.

(b) [Reserved]

§171.7   Submission and approval of State plans for certification of commercial and private applicators of restricted use pesticides.

If any State, at any time, desires to certify applicators of restricted use pesticides, the Governor of that State shall submit a State plan for that purpose. The Administrator shall approve the plan submitted by any State, or any modification thereof, if the plan in his judgment—

(a) Designates a State agency as the agency responsible for administering the plan throughout the State. Since several other agencies or organizations may also be involved in administering portions of the State plan, all of these shall be identified in the State plan, particularly any other agencies or organizations responsible for certifying applicators and suspending or revoking certification. In the extent that more than one governmental agency will be responsible for performing certain functions under the State plans, the plans shall identify which functions are to be performed by which agency and indicate how the program will be coordinated by the lead agency to ensure consistency of programs within the State. The lead agency will serve as the central contact point for the Environmental Protection Agency in carrying out the certification program. The numbers and job titles of the responsible officials of the lead agency and cooperating units shall be included.

(b) Contains satisfactory assurances that such lead agency has or will have the legal authority and qualified personnel necessary to carry out the plan:

(1) Satisfactory assurances that the lead agency or other cooperating agencies have the legal authority necessary to carry out the plans should be in the form of an opinion of the Attorney General or the legal counsel of the lead agency. In addition:

(i) The lead agency should submit a copy of each appropriate State law and regulation.

(ii) In those States where any requisite legal authorities are pending enactment and/or promulgation, the Governor (or Chief Executive) may request that a State plan be approved contingent upon the enactment and/or promulgation of such authorities. Plans approved on a contingency basis will be subject to such reasonable terms and conditions, concerning the duration of the contingency approval and other matters, as the Administrator may impose. During the period of the contingency approval, the State will have an approved certification program and may proceed to certify applicators, who will then be permitted to use or supervise the use of pesticides classified for restricted use under FIFRA, as amended.

(iii) The State plan should indicate by citations to specific laws (whether enacted or pending enactment) and/or regulations (whether promulgated or pending promulgation) that the State has legal authorities as follows:

(A) Provisions for and listing of the acts which constitute grounds for denying, suspending, and revoking certification of applicators, and for assessing criminal and/or civil penalties. Such grounds should include, at a minimum, misuse of a pesticide and falsification of any records required to be maintained by the certified applicator.

(B) Provisions for reviewing an applicator's certification to determine whether suspension or revocation of the certification is appropriate in the event of criminal conviction under section 14(b) of the amended FIFRA, a final order imposing civil penalty under section 14(a) of the amended FIFRA, or conclusion of a State enforcement action.

(C) Provisions for right-of-entry by consent or warrant by appropriate State officials at reasonable times for sampling, inspection, and observation purposes.

(D) Provisions making it unlawful for persons other than certified applicators or persons working under their direct supervision to use restricted use pesticides.

(E) Provisions requiring certified commercial applicators to keep and maintain for the period of at least two years routine operational records containing information on kinds, amounts, uses, dates, and places of application of restricted use pesticides; and for ensuring that such records will be available to appropriate State officials.

(2) Satisfactory assurances that the lead agency and any cooperating organizations have qualified personnel necessary to carry out the plan will be demonstrated by including the numbers, job titles and job functions of persons so employed.

(c) Gives satisfactory assurances that the State will devote adequate funds to the administration of the plan.

(d) Provides that the State agency will make reports to the Administrator in a manner and containing information that the Administrator may from time to time require, including:

(1) An annual report to be submitted by the lead agency, at a time to be specified by the State, to include the following information:

(i) Total number of applicators, private and commercial, by category, currently certified; and number of applicators, private and commercial, by category, certified during the last reporting period.

(ii) Any changes in commercial applicator subcategories.

(iii) A summary of enforcement activities related to use of restricted use pesticides during the last reporting period.

(iv) Any significant proposed changes in required standards of competency.

(v) Proposed changes in plans and procedures for enforcement activities related to use of restricted use pesticides for the next reporting period.

(vi) Any other proposed changes from the State plan that would significantly affect the State certification program.

(2) Other reports as may be required by the Administrator shall be submitted from time to time to meet specific needs.

(e) Contains satisfactory assurances that the State standards for the certification of applicators of pesticides conform to those standards prescribed by the Administrator under §§171.1 through 171.6. Such assurances should consist of:

(1) A detailed description of the State's plan for certifying applicators and a discussion of any special situations, problems, and needs together with an explanation of how the State intends to handle them. The State plan should include the following elements as a minimum:

(i) For commercial applicators:

(A) A list and description of categories and subcategories to be used in the State, such categories to be consistent with those defined in §171.3.

(B) An estimate of the number of commercial applicators by category expected to be certified by the State.

(C) The standards of competency elaborated by the State. These shall conform and be at least equal to those prescribed in §171.4 for the various categories of applicators utilized by the State. The standards shall also cover each of the points listed in the general standards in §171.4(b) and the points covered in the appropriate specific standards set forth in §171.4(c).

(D) For each category and subcategory listed under §171.7(e)(1)(i)(A), either submission of examinations or a description of the types and contents of examinations (e.g., multiple choice, true-false) and submission of sample examination questions; and a description of any performance testing used to determine competency of applicators.

(ii) For private applicators:

(A) An estimate of the number of private applicators expected to be certified by the State.

(B) The standards of competency elaborated by the State. These shall conform and be at least equal to those prescribed in §171.5(a), including the five requirements listed in §171.5(a) (1) through (5).

(C) Types and contents of examinations and/or submission of detailed description of methods other than examination used to determine competency of private applicators.

(D) A description of any special procedure of testing that a State develops to determine the competency of a private applicator who is unable to read the label as prescribed in §171.5(b)(1).

(2) A provision for issuance by the State of appropriate credentials or documents verifying certification of applicators.

(3) If appropriate, a description of any existing State licensing, certification or authorization programs for private applicators or for one or more categories of commercial applicators may be included. If these programs are determined by EPA to meet standards of competency prescribed by §§171.1 through 171.6, States may certify applicators so licensed, certified or authorized without any additional demonstration of competency provided:

(i) The commercial applicators who were licensed, certified, or authorized have demonstrated their competency based on written examinations and, as appropriate, performance testing, conforming to the standards set forth in §171.4, and

(ii) The private applicators who were licensed, certified, or authorized have demonstrated their competency by written or oral testing procedures or other acceptable equivalent system, conforming to the standards set forth in §171.5.

(4) A statement that the State accepts Federal employees qualified under the Government Agency Plan (GAP) as fully meeting the requirements for certification by that State; or a description of any additional requirements these employees must meet to apply restricted use pesticides in that State. Any such additional requirements shall be consistent with and shall not exceed standards established for other comparable applicators in that State.

(i) Until such time as the GAP has been fully developed and approved by EPA, this statement (§171.7(e)(4)) is not required. However, within 60 days after final approval of the GAP, the State should forward such a statement for inclusion in its State plan.

(5) A description of any cooperative agreements a State has made with any Indian Governing Body to certify or assist in the certification of applicators not subject to State jurisdiction. (§171.10).

(6) A description of any arrangements that a State has made or plans to make relating to reciprocity with other States or jurisdictions for the acceptance of certified applicators from those States or jurisdictions. However, those arrangements should meet these conditions:

(i) The State according reciprocity should provide for issuance of an appropriate document verifying certification based upon the certifying document issued by the other States or jurisdictions.

(ii) The State according reciprocity should have enforcement procedures that cover out-of-State applicators determined to be competent and certified within the State or jurisdiction.

(iii) The detailed State or jurisdiction standards of competency, for each category identified in the reciprocity arrangement should be sufficiently comparable to justify waiving an additional determination of competency by the State granting reciprocity.

(f) In responding to the preceding requirements, a State may describe in its State plan other regulatory activities implemented under State laws or regulations which will contribute to the desired control of the use of restricted use pesticides by certified applicators. Such other regulatory activities, if described, will be considered by the Administrator in evaluating whether or not a State's certified applicator program satisfies the requirements of §171.7 (a) through (e).

[40 FR 11702, Mar. 12, 1975]

§171.8   Maintenance of State plans.

(a) Any State certification program approved under §171.7 shall be maintained in accordance with the State plan approved under that section. Accordingly, the State plan should include:

(1) Provisions to assure that certified applicators comply with standards for the use of restricted use pesticides and carry out their responsibility to provide adequate supervision of noncertified applicators.

(2) Provisions to ensure that certified applicators continue to meet the requirements of changing technology and to assure a continuing level of competency and ability to use pesticides safely and properly.

(b) An approved State plan and the certification program carried out under such plan may not be substantially modified without the prior approval of the Administrator. A proposed change may be submitted for approval at any time but all applicable requirements prescribed by these Regulations must be satisfied for the modification to be eligible for approval by the Administrator.

(c) Whenever the Administrator determines that a State is not administering the certification program in accordance with the State plan approved under §171.7, he shall so notify the State and provide for a hearing at the request of the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of the plan.

[40 FR 11704, Mar. 12, 1975]

§171.9   Submission and approval of Government Agency Plan.

This section is included to provide for certain Federal employees including those whose duties may require them to use or supervise the use of restricted use pesticides in a number of States.

(a) Sections 171.1 through 171.8 will, with the necessary changes, apply to the Government Agency Plan (GAP) for determining and attesting to the competency of Federal employees to use or supervise the use of restricted use pesticides.

(b) Federal employees qualified under the GAP shall:

(1) Be prepared to present the Federal form issued to them attesting to their competency to appropriate State officials.

(2) Fulfill any additional requirements States may have enumerated in their State plans as provided for under §171.7(e)(4).

(c) The employing Federal agency shall ensure that certified employees using or supervising the use of restricted use pesticides within a Federal facility are subject to the same or equivalent provisions prescribed under §171.7(b)(1)(iii) (A)-(E).

[40 FR 11704, Mar. 12, 1975]

§171.10   Certification of applicators on Indian Reservations.

This section applies to applicators on Indian Reservations.

(a) On Indian Reservations1 not subject to State jurisdiction the appropriate Indian Governing Body2 may choose to utilize the State certification program, with the concurrence of the State, or develop its own plan for certifying private and commercial applicators to use or supervise the use of restricted use pesticides.

1The term Indian Reservation means any federally-recognized reservation established by Treaty, Agreement, Executive Order, or Act of Congress.

2The term Indian Governing Body means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

(1) If the Indian Governing Body decides to utilize the State certification program, it should enter into a cooperative agreement with the State. This agreement should include matters concerning funding and proper authority for enforcement purposes. Such agreement and any amendments thereto shall be incorporated in the State plan, and forwarded to the Administrator for approval or disapproval.

(2) If the Indian Governing Body decides to develop its own certification plan, it shall be based on either Federal standards (§§171.1 through 171.8) or State standards for certification which have been accepted by EPA. Such a plan shall be submitted through the United States Department of the Interior to the EPA Administrator for approval.

(b) On Indian Reservations where the State has assumed jurisdiction under other Federal laws, anyone using or supervising the use of restricted use pesticides shall be certified under the appropriate State certification plan.

(c) Non-Indians applying restricted use pesticides on Indian Reservations not subject to State jurisdiction shall be certified either under a State certification plan accepted by the Indian Governing Body or under the Indian Reservation certification plan.

(d) Nothing in this section is intended either to confer or deny jurisdiction to the States over Indian Reservations not already conferred or denied under other laws or treaties.

[40 FR 11704, Mar. 12, 1975]

§171.11   Federal certification of pesticide applicators in States or on Indian Reservations where there is no approved State or Tribal certification plan in effect.

(a) Applicability. This section applies to persons in any State and on any Indian Reservation where, because there is no approved State or Tribal certification plan in effect, the Administrator implements an EPA plan for the Federal certification of applicators of restricted use pesticides.

(b) Certification requirement. In any State or on any Indian Reservation where this section is applicable, any person who uses or supervises the use of any pesticide classified for restricted use must be certified in accordance with this section. However, a competent person who is not certified may use a restricted use pesticide under the direct supervision of a certified applicator for uses authorized by the certified applicator's certification. Private applicator certification shall authorize only those uses, or the supervision of those uses, described in §171.2(t). Commercial applicator certification shall authorize only those uses, or the supervision of those uses, included within the specific category(ies) or subcategory(ies), described in §171.3(b) or an applicable Federal plan, in which the applicator is certified.

(c) Certification of commercial applicators—(1) Categories for commercial applicators. Categories referred to in this section are the same as those listed in §171.3(b). Determination of competency in each category shall conform to the requirements of §171.4(a).

(2) Subcategories. The Administrator may adopt subcategories as he or she deems necessary, consonant with the needs of the individual State or Reservation.

(3) Standards for certification. The standards of competency for certification of commercial applicators under this section are the same as those listed in §171.4 (b) and (c) and §171.6.

(4) Certification procedure. An individual who desires to be certified or recertified under this paragraph shall complete the EPA certification form and submit the form to the appropriate EPA Regional Office. In order to be initially certified as a commercial applicator under this paragraph, an individual must take and pass written examinations approved by the Administrator and administered by the Administrator or any other party approved by him or her. A general examination will be given, based on the general standards found in §171.4(b) and the standards for supervision found in §171.6. In addition, specific category and subcategory examinations will be given, based on the appropriate category or subcategory standards found in §171.4(c) and the applicable Federal plan. The Administrator will notify the individual in writing of the results of the examinations within 45 days unless special circumstances justify a longer time period. The Administrator will issue to each person who has passed a general examination and one or more category or subcategory examinations a commercial applicator certificate covering each category and subcategory in which he or she has qualified. A commercial applicator certificate is valid for a period of three years from the date of issuance, unless earlier suspended or revoked by the Administrator (two years from the date of issuance, in the case of certificates issued prior to [effective date of amended rule]), and is valid within the State or Indian Reservation named on the certificate.

(5) Re-examination. Individuals failing to pass the required certification examination(s) may be re-examined after notification of failure. An individual seeking re-examination need take only the examination(s) which he or she originally failed.

(6) Renewal of commercial applicator certification. A certified commercial applicator may qualify for recertification by taking and passing written examinations as specified in paragraph (c)(4) of this section, or by successfully completing any available training program approved for this purpose by the Administrator. Recertification procedures must be completed by the certified commercial applicator during the twelve month period preceding the expiration date of his or her certificate.

(7) Recordkeeping requirements. (i) Each self-employed certified commercial applicator, each firm employing a certified commercial applicator, and each person who contracts with a certified commercial applicator (or his or her employer) to have a restricted use pesticide applied on property owned or operated by another person shall keep and maintain at their principal place of business true and accurate records of the use of restricted use pesticides, providing the following information:

(A) Name and address of the person for whom the pesticide was applied;

(B) Location of the pesticide application;

(C) Target pest(s);

(D) Specific crop or commodity, as appropriate, and site, to which the pesticide was applied;

(E) Year, month, day, and time of application;

(F) Trade name and EPA registration number of the pesticide applied;

(G) Amount of the pesticide applied and percentage of active ingredient per unit of the pesticide used; and

(H) Type and amount of the pesticide disposed of, method of disposal, date(s) of disposal, and location of the disposal site.

(ii) Availability of required records. Each certified commercial applicator shall keep all records required under this paragraph current and shall make such records available for inspection and copying by representatives of EPA for a period of at least two years from the date of use of the pesticide.

(d) Certification of private applicators—(1) Certification procedures. An individual who desires to be certified or recertified under this paragraph shall complete the EPA certification form and submit the form to the appropriate EPA Regional Office. In order to be certified or recertified as a private applicator to use restricted use pesticides, an individual must be determined competent with respect to the use and handling of pesticide. Standards for such determination are the same as those listed in §§171.5 and 171.6. The Administrator will offer one or more of the following certification options, including at least one option which does not require the applicator to take an examination—

(i) Approved training course. The individual may successfully complete an approved training course. Approved training courses may include courses sponsored by EPA, State cooperative extension services, State vocational agricultural courses, or private educational groups. Each training course for certification must be approved for that purpose by the Administrator and include, at a minimum, coverage of the private applicator standards listed in §§171.5 and 171.6, and a demonstration that the individual has successfully completed the training course. Subject to the approval of the Administrator, this demonstration may be accomplished by completion of a no pass/no fail written questionnaire or a workbook, receipt of a passing grade in an approved course offered by an educational institution, or any other equivalent procedure.

(ii) Written examination. The individual may pass a written examination approved by the Administrator and administered by the Administrator or any other party approved by him or her.

(iii) Self-study program. The individual may successfully complete a self-study learning program approved by the Administrator and administered by the Administrator or any other party approved by him or her.

(iv) Non-reader certification. Non-readers may be certified for specific use(s) of a single product by successfully completing an approved training course as specified in (d)(1) (i) of this section, or by passing an oral examination approved by the Administrator and administered by the Administrator or any other party approved by him or her. Such training or testing shall incorporate a specific procedure relating to label comprehension, as described in §171.5(b)(1).

(2) Issuance of certificates. The Administrator will issue a private applicator certificate to each individual who successfully completes any available certification option. Individuals who, for any reason, fail to complete successfully a certification option may attempt to complete the same option or, if available, an alternative option. A private applicator certificate is valid for a period of four years from the date of issuance (three years from the date of issuance, in the case of certificates issued before [effective date of amended rule]), unless earlier suspended or revoked by the Administrator, and is valid within the State or Indian Reservation named on the certificate.

(3) Renewal of private applicator certification. A certified private applicator may qualify for recertification by successfully completing any available certification option during the twelve month period preceding the expiration date of his or her certificate.

(e) Recognition of other certificates. The Administrator may issue a certificate to an individual possessing any other valid Federal, State, or Tribal certificate without further demonstration of competency. The individual shall submit the EPA certification form and written evidence of valid certification to the appropriate EPA Regional Office. The Administrator may deny issuance of such certificate if the standards of competency for each category or subcategory identified in the other Federal, State, or Tribal certificate are not sufficiently comparable to justify waiving further demonstration of competency. The Administrator may revoke, suspend, or modify such certificate if the Federal, State, or Tribal certificate upon which it is based is revoked, suspended, or modified. Unless suspended or revoked, a certificate issued under this paragraph is valid until the expiration date of the Federal, State, or Tribal certificate.

(f) Denial, suspension, modification or revocation of a certificate. (1) The Administrator may suspend all or part of a certificate issued pursuant to this section, or, after opportunity for a hearing, may deny issuance of, or revoke or modify, a certificate issued pursuant to this section, if he or she finds that the applicant or certificate holder has been convicted under section 14(b) of the amended FIFRA, has been subject to a final order imposing a civil penalty under section 14(a) of the amended FIFRA, or has committed any of the following acts:

(i) Used any registered pesticide in a manner inconsistent with its labeling;

(ii) Made available for use, or used, any registered pesticide classified for restricted use other than in accordance with section 3(d) of the amended FIFRA and any regulations promulgated thereunder;

(iii) Refused to keep and maintain any records required pursuant to this section;

(iv) Made false or fraudulent records, invoices or reports;

(v) Failed to comply with any limitations or restrictions on or in a duly issued certificate; or,

(vi) Violated any provision of the amended FIFRA and the regulations promulgated thereunder.

(2) If the Administrator decides to deny, revoke, or modify a certificate, he or she will:

(i) Notify the applicant or certificate holder of:

(A) The ground(s) upon which the denial, revocation or modification is based;

(B) The time period during which the denial, revocation or modification is effective, whether permanent or otherwise;

(C) The conditions, if any, under which the individual may become certified or recertified; and,

(D) Any additional conditions the Administrator may impose.

(ii) Provide the applicant or certificate holder an opportunity to request a hearing prior to final Agency action to deny, revoke or modify the certificate.

(3) If a hearing is requested by an applicant or certificate holder pursuant to paragraph (f)(2)(ii) of this section, the Administrator will:

(i) Notify the affected applicant or certificate holder of those assertions of law and fact upon which the action to deny, revoke or modify the certificate is based;

(ii) Provide the affected applicant or certificate holder an opportunity to offer written statements of facts, explanations, comments, and arguments relevant to the proposed action;

(iii) Provide the affected applicant or certificate holder such other procedural opportunities as the Administrator may deem appropriate to ensure a fair and impartial hearing; and

(iv) Appoint an attorney in the Agency as Presiding Officer to conduct the hearing. No person shall serve as Presiding Officer if he or she has had any prior connection with the specific case.

(4) The Presiding Officer appointed pursuant to paragraph (f)(3)(iv) of this section shall:

(i) Conduct a fair, orderly, and impartial hearing, without unnecessary delay;

(ii) Consider all relevant evidence, explanation, comment, and argument submitted pursuant to paragraphs (f)(3)(ii) and (iii) of this section; and,

(iii) Promptly notify the affected applicant or certificate holder of his or her decision and order. Such an order is a final Agency action subject to judicial review in accordance with Section 16 of the amended FIFRA.

(5) If the Administrator decides to suspend all or part of a certificate, he or she will:

(i) First determine that the public health, interest or welfare warrants immediate action to suspend the certificate;

(ii) Notify the certificate holder of the ground(s) upon which the suspension action is based;

(iii) Notify the certificate holder of the time period during which the suspension is effective; and,

(iv) Notify the certificate holder of his or her intent to revoke or modify the certificate, as appropriate, in accord with paragraph (f)(2) of this section. If such revocation or modification notice has not previously been issued, it will be issued at the same time the suspension notice is issued.

(6) In cases where the act constituting grounds for suspension, revocation, or modification of a certificate is neither willful nor contrary to the public interest, health, or safety, the affected certificate holder may have additional procedural rights under 5 U.S.C. 558(c).

(7) Any notice, decision, or order issued by the Administrator under paragraph (f) of this section, and any documents filed by an applicant or certificate holder in a hearing under paragraph (f) of this section, shall be available to the public except as otherwise provided by section 10 of the amended FIFRA or by part 2 of this title. Any such hearing at which oral testimony is presented shall be open to the public, except that the Presiding Officer may exclude the public to the extent necessary to allow presentation of information which may be entitled to confidentiality under section 10 of the amended FIFRA or under part 2 of this title.

(g) Pesticide dealer reporting and recordkeeping requirements, availability of records, and failure to comply—(1) Reporting requirements. Each person who is a restricted use pesticide retail dealer in a State or on an Indian Reservation where the Administrator conducts the applicator certification and training program shall:

(i) Report to the Environmental Protection Agency (EPA) the business name by which the restricted use pesticide retail dealer operates, and the name and business address of each of his dealerships. For dealers or dealerships in Nebraska this initial report must be submitted to EPA, Region VII, 324 E. 11th Street, Kansas City, MO 64106. For dealers or dealerships in Colorado this initial report must be submitted to EPA, Region VIII, 1860 Lincoln Street, Denver, Colorado 80295. This report shall be submitted to the appropriate EPA regional office no later than 60 days after the date the person first becomes a restricted use pesticide retail dealer, or within 60 days after the publication of the effective date of this final rule, whichever date is later.

(ii) Submit revisions to the initial report to the appropriate EPA regional office listed above reflecting any name changes, additions or deletions of dealerships. Revisions shall be submitted to EPA within 10 days of the occurrence of such change, addition or deletion.

(2) Recordkeeping requirement. Recordkeeping is required when making restricted use pesticides available to:

(i) Certified applicators. Each restricted use pesticide retail dealer shall maintain at each individual dealership records of each transaction where a restricted use pesticide is made available for use by that dealership to a certified applicator. Record of each such transaction shall be maintained for a period of 24 months after the date of the transaction, and shall include the following information:

(A) Name and address of the residence or principal place of business of each person to whom the pesticide was made available for use.

(B) The certification number on the document evidencing that person's certification, the State (or other governmental unit) that issued the doucment, the expiration date of the certification, and the categories in which the applicator is certified, if appropriate.

(C) The product name, EPA registration number, and the State special local need registration number, granted under section 24(c) of the FIFRA (if any) on the label of the pesticide.

(D) The quantity of the pesticide made available for use in the transaction.

(E) The date of the transaction.

(ii) Uncertified persons. No dealer or dealership may make a restricted use pesticide available to an uncertified person unless he can document that the restricted use pesticide will be used by a certified applicator, and he maintains the records required in this subsection. Each restricted use pesticide retail dealer shall maintain records at each individual dealership of each transaction where a restricted use pesticide was made available to an uncertified person for use by a certified applicator. Records of each such transaction shall be maintained for a period of 24 months after the date of the transaction, and shall include the following information:

(A) The name and address of the residence or principal place of business of the uncertified person to whom the restricted use pesticide is made available for use by a certified applicator.

(B) The name and address of the residence or principal place of business of the certified applicator who will use the restricted use pesticide.

(C) The certified applicator's certification number, the State (or other governmental unit) that issued his certification document, the expiration date of the certification, and the categories in which the applicator is certified, if appropriate.

(D) The product name, EPA registration number, and the State special local need registration number, granted under section 24(c) of the FIFRA (if any) on the label of the pesticide.

(E) The quantity of the pesticide made available for use in the transaction.

(F) The date of the transaction.

(G) At the time of each transaction, EPA recommends that the dealer obtain the information required in paragraph (g)(2)(ii) (A) through (C) of this section and assure himself that the restricted use pesticide is made available for use by a certified applicator by examining one of the following sets of documents:

(1) The original of the certified applicator's certification document, and a driver's license or other State, county, or Tribal identification document issued to the uncertified person to whom the restricted use pesticide is made available.

(2) A photocopy or facsimile of the certified applicator's certification document, together with a statement signed by the certified applicator authorizing the uncertified person to purchase the restricted use pesticide on his behalf, and a driver's license or other State, county, or Tribal identification document issued to the uncertified person to whom the restricted use pesticide is made available.

(3) A photocopy or facsimile of the certified applicator's certification document, together with a copy of a signed contract or agreement, between the uncertified person to whom the restricted use pesticide is being made available for use and the identified certified applicator, which provides for the use of the restricted use pesticide by the identified certified applicator, and a driver's license or other State, county, or Tribal identification document issued to the uncertified person to whom the restricted use pesticide is made available.

(3) Availability of required records. Each pesticide dealer shall, upon request of any officer or employee of EPA duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to and copy all records required to be maintained under this section.

(4) Failure to comply. Any person who fails to comply with the provisions of this rule may be subject to civil or criminal sanctions, under section 14 of the Act, or 18 U.S.C. 1001. Violations include failure to submit or falsification of any report required under this paragraph, failure to maintain or falsification of records as required under this section, and making available for use any pesticide classified for restricted use to a person who is not a certified commercial applicator other than in accordance with these regulations and section 3(d) of the amended FIFRA or rules promulgated thereunder.

[43 FR 24837, June 8, 1978, as amended at 48 FR 29855, June 29, 1983; 48 FR 53974, Nov. 29, 1983; 49 FR 17759, Apr. 25, 1984; 58 FR 34203, June 23, 1993; 77 FR 39642, July 5, 2012]

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