[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

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 

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



[[Page 247]]



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 Sec. Sec.  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 Sec. Sec.  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



[[Page 248]]



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 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;



[[Page 249]]



    (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



[[Page 250]]



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



[[Page 251]]



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]