[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR171.7]

[Page 242-245]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 171--CERTIFICATION OF PESTICIDE APPLICATORS--Table of Contents
 
Sec. 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

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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

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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 Secs. 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 Sec. 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 Sec. 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 
Sec. 171.4(b) and the points covered in the appropriate specific 
standards set forth in Sec. 171.4(c).
    (D) For each category and subcategory listed under 
Sec. 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 Sec. 171.5(a), 
including the five requirements listed in Sec. 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 Sec. 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 Secs. 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 Sec. 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,

[[Page 245]]

conforming to the standards set forth in Sec. 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 (Sec. 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. (Sec. 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 Sec. 171.7 (a) through 
(e).

[40 FR 11702, Mar. 12, 1975]