[Code of Federal Regulations]
[Title 40, Volume 20]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR171.11]

[Page 246-251]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 171--CERTIFICATION OF PESTICIDE APPLICATORS--Table of Contents
 
Sec. 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

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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 Sec. 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 
Sec. 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 Sec. 171.3(b). Determination of competency in 
each category shall conform to the requirements of Sec. 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 Sec. 171.4 (b) and (c) and Sec. 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 
Sec. 171.4(b) and the standards for supervision found in Sec. 171.6. In 
addition, specific category and subcategory examinations will be given, 
based on the appropriate category or subcategory standards found in 
Sec. 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;

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    (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 Secs. 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 Secs. 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 Sec. 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

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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 for two years for commercial 
applicators and three years for private applicators, or until the 
expiration date of the original Federal, State or Tribal certificate, 
whichever occurs first.
    (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

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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

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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]

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