[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: 40CFR171.7]



[Page 242-244]

 

                   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 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



[[Page 243]]



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 Sec. Sec.  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).



[[Page 244]]



    (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 Sec. Sec.  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, 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]