Title 40

SECTION 171.303

171.303 Requirements for State certification plans.

§ 171.303 Requirements for State certification plans.

(a) Conformance with Federal standards for certification of applicators of restricted use pesticides. A State may certify applicators of restricted use pesticides only in accordance with a State certification plan approved by the Agency. The State certification plan must meet all of the following requirements:

(1) The State certification plan must include a full description of the proposed process the State will use to assess applicator competency to use or supervise the use of restricted use pesticides in the State.

(2) The State certification plan must specify which of the certification categories listed in § 171.101 will be included in the plan.

(i) A State certification plan may omit any unneeded certification categories.

(ii) A State certification plan may designate subcategories within the categories described in §§ 171.101 and 171.105(b) through (f) as it deems necessary.

(iii) A State certification plan may include additional certification categories not covered by the existing Federal categories described in §§ 171.101 and 171.105(b)-(f).

(iv) A State certification plan may combine the categories described in § 171.101(m) through (n) into a single general fumigation category for commercial applicators.

(v) A State certification plan may combine the categories described in § 171.105(d) through (e) into a single general fumigation category for private applicators.

(3) For each of the categories adopted pursuant to paragraph (b)(1) of this section, the State certification plan must include standards for the certification of applicators of restricted use pesticides that meet or exceed those standards prescribed by the Agency under §§ 171.101 through 171.105, except as provided in paragraph (a)(4) of this section.

(4) A State may adopt a limited use category for commercial applicators. A limited use category covers a small number of commercial applicators engaged in a use that does not clearly fit within any of the commercial applicator categories specified pursuant to paragraph (b)(2) of this section, and allows only the use of a limited set of restricted use pesticides by specific application methods. A State adopting a limited use category must include all of the following in its certification plan:

(i) A definition of the limited use category, specifying the restricted use pesticide(s), use sites, and specific application methods permitted.

(ii) An explanation of why it is not practical to include the limited use within any of the commercial applicator categories specified pursuant to paragraph (b)(2) of this section.

(iii) A requirement that candidates for certification in a limited use category pass the written examination covering the core standards at § 171.103(c) and demonstrate practical knowledge of the principles and practices of pest control and proper and effective use of restricted use pesticide(s) covered by the limited use category.

(iv) Specific competency standards for the limited use category.

(v) The process by which applicators must demonstrate practical knowledge of the principles and practices of pest control and proper and effective use of the restricted use pesticides authorized under the limited use category based on the competency standards identified in paragraph (a)(4)(iv) of this section. This does not have to be accomplished by a written examination.

(vi) A description of the recertification standards for the limited use category and how those standards meet or exceed the standards prescribed by the Agency under § 171.107.

(vii) A description of the limited use certification credential. The credential must clearly state that the applicator is only authorized to purchase and use the specific restricted use pesticide(s) identified in that credential.

(5) The State certification plan must include standards for certification examinations that meet or exceed the standards prescribed by the Agency under § 171.103(a)(2), including a description of any alternative identification that a State will authorize in addition to a valid, government-issued photo identification.

(6) The State certification plan must include standards for the recertification of applicators of restricted use pesticides that meet or exceed those standards prescribed by the Agency under § 171.107.

(7) The State certification plan must include standards for the direct supervision of noncertified applicators by certified private and commercial applicators of restricted use pesticides that meet or exceed those standards prescribed by the Agency under § 171.201, or must state that use by noncertified applicators is not permitted.

(8) The State certification plan must describe the credentials or documents the State certifying authority will issue to each certified applicator verifying certification.

(9) A State may waive any or all of the procedures specified in § 171.103, § 171.105, and § 171.107 of this part when certifying applicators in reliance on valid current certifications issued by another State, Tribal, or Federal agency under an EPA-approved certification plan. The State certification plan must explain whether, and if so, under what circumstances, the State will certify applicators based in whole or in part on their holding a valid current certification issued by another State, Tribe or Federal agency. Such certifications are subject to all of the following conditions:

(i) A State may rely only on valid current certifications that are issued under an approved State, Tribal or Federal agency certification plan.

(ii) The State has examined the standards of competency used by the State, Tribe, or Federal agency that originally certified the applicator and has determined that, for each category of certification that will be accepted, they are comparable to its own standards.

(iii) Any State that chooses to certify applicators based, in whole or in part, on the applicator having been certified by another State, Tribe, or Federal agency, must include in its plan a mechanism that allows the State to terminate an applicator's certification upon notification that the applicator's original certification terminates because the certificate holder has been convicted under section 14(b) of FIFRA or has been subject to a final order imposing a civil penalty under section 14(a) of FIFRA.

(iv) The State issuing a certification based in whole or in part on the applicator holding a valid current certification issued by another State, Tribe or Federal agency must issue an appropriate State credential or document to the applicator.

(b) Contents of an application for EPA approval of a State plan for certification of applicators of restricted use pesticides.

(1) The application for Agency approval of a State certification plan must list and describe the categories of certification.

(2) The application for Agency approval of a State certification plan must contain satisfactory documentation that the State standards for the certification of commercial applicators meet or exceed those standards prescribed by the Agency under §§ 171.101 and 171.103. Such documentation must include one of the following:

(i) A statement that the State has adopted the same standards for certification of commercial applicators prescribed by the Agency under §§ 171.101 and 171.103 and a citation of the specific State laws and/or regulations demonstrating that the State has adopted such standards.

(ii) A statement that the State has adopted its own standards that meet or exceed the standards for certification of commercial applicators prescribed by the Agency under §§ 171.101 and 171.103. If the State selects this option, the application for Agency approval of a State certification plan must include all of the following:

(A) A list and detailed description of all the categories and subcategories to be used for certification of commercial applicators in the State and a citation to the specific State laws and/or regulations demonstrating that the State has adopted such categories and subcategories.

(B) A list and detailed description of all of the standards for certification of commercial applicators adopted by the State and a citation to the specific State laws and/or regulations demonstrating that the State has adopted such standards. Any additional categories or subcategories established by a State must be included in the application for Agency approval of a State plan and must clearly describe the standards the State will use to determine if the applicator has the necessary competency.

(C) A description of the State's commercial applicator certification examination standards and an explanation of how they meet or exceed the standards prescribed by the Agency under § 171.103(a)(2).

(3) The application for Agency approval of a State certification plan must contain satisfactory documentation that the State standards for the certification of private applicators meet or exceed those standards prescribed by the Agency under § 171.105. Such documentation must include a statement that the State has adopted its own standards that meet or exceed the standards for certification of private applicators of restricted use pesticides prescribed by the Agency under § 171.105. The application for Agency approval of a State certification plan must include all of the following:

(i) A list and detailed description of all the categories and subcategories to be used for certification of private applicators in the State and a citation to the specific State laws and/or regulations demonstrating that the State has adopted such categories and subcategories.

(ii) A list and detailed description of all of the standards for certification of private applicators adopted by the State and a citation to the specific State laws and/or regulations demonstrating that the State has adopted such standards. Any additional categories or subcategories established by a State must be identified in the application for Agency approval of a State plan and the application must clearly describe the standards the State will use to determine if the applicator has the necessary competency.

(iii) If private applicator certification is based upon written examination, a description of the State's private applicator certification examination standards and an explanation of how those meet or exceed the standards prescribed by the Agency under § 171.103(a)(2).

(iv) If private applicator certification is based upon training, an explanation of how the quantity, content, and quality of the State's training program ensure that a private applicator demonstrates the level of competency required § 171.105 for private applicators, addressing, at the minimum, all of the following factors:

(A) The quantity of training required to become certified as a private applicator.

(B) The content that is covered by the training and how the State ensures that required content is covered.

(D) How the State ensures the ongoing quality of the training program for private applicator certification.

(4) The application for Agency approval of a State certification plan must contain satisfactory documentation that the State standards for the recertification of applicators of restricted use pesticides meet or exceed those standards prescribed by the Agency under § 171.107. Such documentation must include a statement that the State has adopted its own standards that meet or exceed the standards for recertification prescribed by the Agency under § 171.107. The application for Agency approval of a State certification plan must include all of the following:

(i) A list and detailed description of all of the State standards for recertification of private and commercial applicators, including the elements described in § 171.303(b)(4)(ii) through (iv), and a citation of the specific State laws and/or regulations demonstrating that the State has adopted such standards.

(ii) The certification period, which may not exceed five years.

(iii) If recertification is based upon written examination, a description of the State's process for reviewing, and updating as necessary, the written examination(s) to ensure that the written examination(s) evaluates whether a certified applicator demonstrates the level of competency required by § 171.103 for commercial applicators or § 171.105 for private applicators.

(iv) If recertification is based upon continuing education, an explanation of how the quantity, content, and quality of the State's continuing education program ensures that a certified applicator continues to demonstrate the level of competency required by § 171.103 for commercial applicators or § 171.105 for private applicators, including but not limited to:

(A) The quantity of continuing education required to maintain certification.

(B) The content that is covered by the continuing education program and how the State ensures the required content is covered.

(C) The process the State uses to approve continuing education courses or events, including information about how the State ensures that any continuing education courses or events verify the applicator's successful completion of the course or event.

(D) How the State ensures the ongoing quality of the continuing education program.

(5) The application for Agency approval of a State certification plan must contain satisfactory documentation that the State standards for the direct supervision of noncertified applicators by certified private and commercial applicators of restricted use pesticides meet or exceed those standards prescribed by the Agency under § 171.201. Such documentation may include one or more of the following as applicable:

(i) A statement that the State has adopted the standards for direct supervision of noncertified applicators by certified private and/or commercial applicators prescribed by the Agency under § 171.201 and a citation of the specific State laws and/or regulations demonstrating that the State has adopted such standards.

(ii) A statement that the State prohibits noncertified applicators from using restricted use pesticides under the direct supervision of certified private and/or commercial applicators, and a citation of the specific State laws and/or regulations demonstrating that the State has adopted such a prohibition.

(iii) A statement that the State has adopted standards for direct supervision of noncertified applicators by certified private and/or commercial applicators that meet or exceed the standards prescribed by the Agency under § 171.201, a citation of the specific State laws and/or regulations demonstrating that the State has adopted such standards, and an explanation of how the State standards meet or exceed the standards prescribed by the Agency under § 171.201.

(6) The application for Agency approval of a State certification plan must include all of the following:

(i) A written statement by the Governor of the State designating a lead agency responsible for administering the State certification plan. The lead agency will serve as the central contact point for the Agency. The State certification plan must identify the primary point of contact at the lead agency responsible for administering the State certification plan and serving as the central contact for the Agency on any issues related to the State certification plan. In the event that more than one agency or organization will be responsible for performing functions under the State certification plan, the application for Agency approval of a State plan must identify all such agencies and organizations and list the functions to be performed by each, including compliance monitoring and enforcement responsibilities. The application for Agency approval of a State plan must indicate how these functions will be coordinated by the lead agency to ensure consistency of the administration of the State certification plan.

(ii) A written opinion from the State attorney general or from the legal counsel of the State lead agency that states that the lead agency and other cooperating agencies have the legal authority necessary to carry out the State certification plan.

(iii) A listing of the qualified personnel that the lead agency and any cooperating agencies or organizations have to carry out the State certification plan. The list must include the number of staff, job titles, and job functions of such personnel of the lead agency and any cooperating organizations.

(iv) A commitment by the State that the lead agency and any cooperators will ensure sufficient resources are available to carry out the applicator certification program as detailed in the State certification plan.

(v) A document outlining the State's proposed approach and anticipated timeframe for implementing the State certification plan after EPA approves the State certification plan.

(7) The application for Agency approval of a State certification plan must include a complete copy of all State laws and regulations relevant to the State certification plan. In addition, the application for Agency approval of a State plan must include citations to the specific State laws and regulations that demonstrate specific legal authority for each of the following:

(i) Provisions for and listing of the acts which would constitute grounds for denying, suspending, and revoking certification of applicators. Such grounds must include, at a minimum, misuse of a pesticide, falsification of any records required to be maintained by the certified applicator, a criminal conviction under section 14(b) of FIFRA, a final order imposing civil penalty under section 14(a) of FIFRA, and conclusion of a State enforcement action for violations of State laws or regulations relevant to the State certification plan.

(ii) Provisions for reviewing, and where appropriate, suspending or revoking an applicator's certification based on any of the grounds listed in the plan pursuant to paragraph (b)(7)(i) of this section, or a criminal conviction under section 14(b) of FIFRA, a final order imposing civil penalty under section 14(a) of FIFRA, or conclusion of a State enforcement action for violations of State laws or regulations relevant to the State certification plan.

(iii) Provisions for assessing criminal and civil penalties for violations of State laws or regulations relevant to the State certification plan.

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

(v) Provisions making it unlawful for persons other than certified applicators or noncertified applicators working under a certified applicator's direct supervision to use restricted use pesticides.

(vi) Provisions requiring certified commercial applicators to record and maintain for the period of at least two years routine operational records containing information on types, amounts, uses, dates, and places of application of restricted use pesticides and for ensuring that such records will be available to appropriate State officials. Such provisions must require commercial applicators to record and maintain, at a minimum, all of the following:

(A) The name and address of the person for whom the restricted use pesticide was applied.

(B) The location of the restricted use pesticide application.

(D) The crop, commodity, stored product, or site to which the restricted use pesticide was applied.

(E) The time and date of the restricted use pesticide application.

(F) The brand or product name of the restricted use pesticide applied.

(G) The EPA registration number of the restricted use pesticide applied.

(H) The total amount of the restricted use pesticide applied per location per application.

(I) The name and certification number of the certified applicator that made or supervised the application, and, if applicable, the name of any noncertified applicator(s) that made the application under the direct supervision of the certified applicator.

(J) Records required under § 171.201(e).

(vii) Provisions requiring restricted use pesticide retail dealers to record and maintain at each individual dealership, for the period of at least two years, records of each transaction where a restricted use pesticide is distributed or sold to any person, excluding transactions solely between persons who are pesticide producers, registrants, wholesalers, or retail sellers, acting only in those capacities. Records of each such transaction must include all of the following information:

(A) Name and address of the residence or principal place of business of each certified applicator to whom the restricted use pesticide was distributed or sold, or if applicable, the name and address of the residence or principal place of business of each noncertified person to whom the restricted use pesticide was distributed or sold for application by a certified applicator.

(B) The certification number on the certification document presented to the seller evidencing the valid certification of the certified applicator authorized to purchase the restricted use pesticide, the State, Tribe or Federal agency that issued the certification document, the expiration date of the certified applicator's certification, and the category(ies) in which the applicator is certified relevant to the pesticide(s) sold.

(C) The product name and EPA registration number of the restricted use pesticide(s) distributed or sold in the transaction, including any applicable emergency exemption or State special local need registration number.

(D) The quantity of the restricted use pesticide(s) distributed or sold in the transaction.

(E) The date of the transaction.

(c) Requirement to submit reports to the Agency. The State must agree to submit the following reports to the Agency in a manner and containing the information that the Agency requires:

(1) An annual report to be submitted by the State lead agency to the Agency by the date established by the Agency that includes all of the following information:

(i) The number of new general private applicator certifications and recertifications issued during the last 12 month reporting period, and total number of applicators holding a valid general private applicator certification at the end of the last 12 month reporting period.

(ii) For each private applicator category specified in the certification plan, the numbers of new certifications and recertifications issued during the last 12 month reporting period, and the total number holding valid certifications in each category at the end of the last 12 month reporting period.

(iii) The numbers of new commercial applicator certifications and recertifications issued during the last 12 month reporting period, and the total number of applicators certified in at least one commercial applicator certification category at the end of the last 12 month reporting period.

(iv) For each commercial applicator certification category or subcategory specified in the certification plan, the numbers of new certifications and recertifications issued during the last 12 month reporting period, and the total number of commercial applicators holding a valid certification in each category or subcategory at the end of the last 12 month reporting period.

(v) A description of any modifications made to the approved certification plan during the last 12 month reporting period that have not been previously evaluated by the Agency under § 171.309(a)(3).

(vi) A description of any proposed changes to the certification plan that the State anticipates making during the next reporting period that may affect the certification program.

(vii) A summary of enforcement activities related to the use of restricted use pesticides during the last 12 month reporting period.

(2) Any other reports reasonably required by the Agency in its oversight of restricted use pesticides.