RULES AND REGULATIONS
Title 7—AGRICULTURE
DEPARTMENT OF AGRICULTURE
[ 7 PA. CODE CH. 128 ]
Pesticides
[40 Pa.B. 7044]
[Saturday, December 11, 2010]The Department of Agriculture (Department) amends Chapter 128 (relating to pesticides) to read as set forth in Annex A. This final-form rulemaking is adopted under the specific authority in section 7(b)(2) of the Pennsylvania Pesticide Control Act of 1973 (act) (3 P. S. § 111.27(b)(2)) to promulgate appropriate regulations for the safe handling, transportation, use, storage, display, distribution and disposal of pesticides.
Purpose
The final-form rulemaking clarifies, updates and, in some instances, deletes the existing pesticide regulations to ensure the regulated community has a better understanding of the regulatory requirements and to maintain the Department's statutory mandate to protect the public health and welfare. Some of the amendments were also included to make the regulations gender neutral, bring the existing requirements into compliance with changes in Commonwealth law and comply with additional restrictions put forth by the United States Environmental Protection Agency (EPA). Additional requirements are included for State registration of EPA accepted pesticides, especially in the areas regarding sales of restricted use pesticides (RUP) and the identification of individuals seeking to sell or receive RUPs. These amendments were added to address homeland security issues.
The Department also rescinded several sections to ease the requirements on applicators and provide substantial cost savings to the Commonwealth and commercial and public pesticide application business. As a result of years of public and pesticide industry input, the Department incorporated many of the suggested comments and other changes to the regulations. The industry's input has been vital in producing reasonable and prudent regulations designed to protect the public health and welfare of the citizens of this Commonwealth.
Comments and Responses
Notice of proposed rulemaking was published at 39 Pa.B. 5564 (September 26, 2009), affording the public, the General Assembly and the Independent Regulatory Review Commission (IRRC) the opportunity to offer comments. Comments were received from IRRC, the Pennsylvania State University (PSU) and PennAg Industries Association (PennAg). A summary of those comments and the Department's response follows.
Comment 1. PennAg and its associated agribusinesses offered its general support for the proposed rulemaking. Based upon its input, review and discussions with various stakeholders throughout the industry, PennAg believes the final-form rulemaking to be fair and equitable to all parties involved.
Response. The Department acknowledges these comments and agrees that with the final-form rulemaking, the Department will be able to continue its regulatory oversight of the Pesticide Program.
Comment 2. IRRC expressed several concerns regarding the statutory and regulatory provisions regarding a pesticide dealer and the Department's proposed regulations creating the new licensure category for a pesticide dealer manager. Specifically, IRRC questioned whether the creation of the pesticide dealer manager's licensure category in §§ 128.2, 128.3(a)(1), 128.10 and 128.12 was consistent with the act.
Response. There is no doubt that the General Assembly vested the Secretary of Agriculture with substantial statutory and regulatory authority to regulate, among other things, the distribution of pesticides. See section 7(b)(2) of the act. Given the heighted Federal and State level of concern with terroristic activity, one main area of regulatory deficiency the Department wanted to address in this final-form rulemaking was the possible illicit distribution and use of certain pesticides, especially the illicit use of RUPs which pose a substantially greater threat to human health. In its broad statutory authority to adopt appropriate regulations for carrying out the act, the Department believes that the language provides ample authority to create a subcategory of licensure under the pesticide dealer license. In fact, in section 12(e) of the act (3 P. S. § 111.32(e)), the General Assembly contemplated that a pesticide dealer would have an agent or employee and that pesticide dealer would be ''responsible for the acts of each person employed by him in the solicitation and sale of pesticides and all claims and recommendations for use of pesticides.''
Presently, to purchase RUPs, an individual needs to be a certified applicator or a pesticide dealer. In accordance with existing regulations, a certified applicator shall successfully complete a written examination demonstrating competence in the use and handling of pesticides. However, in stark contrast, a pesticide dealer's license may be easily obtained by simply completing a form and paying the necessary fee. Therefore, the Department determined, with the concurrence of the industry, to place an additional requirement on pesticide dealer licensees, that is, employment of a pesticide dealer manager. This new requirement serves two purposes: 1) it introduces the written examination component into the pesticide dealer license process; and 2) it assures the Department that a person employed by a pesticide dealer has demonstrated an understanding of the distribution, use and safe handling of pesticides.
The Department agrees with IRRC that use of the term ''license'' in connection with a pesticide dealer manager might be confusing in that there is already a license requirement for pesticide dealers. Accordingly, the Department decided to replace ''license'' with ''certificate'' in this final-form rulemaking.
Comment 3. IRRC questioned why the $15 annual fee for a pesticide dealer manager exceeds the $10 annual fee for a pesticide dealer in section 12(b) of the act.
Response. As described in comment 2, the pesticide dealer manager annual certification will involve more administrative costs to the Department in processing applications, administering and verifying the successful completion of a written examination and overseeing other eligibility requirements. The Department believes that the imposition of a $15 annual fee to defray the administrative costs to the Commonwealth is reasonable.
Comment 4. While PSU supported the vast majority of the Department's proposed regulations, it nevertheless specifically questioned the Department's proposed amendments to § 128.41(a)(1) (relating to requirements for certification), which include the use of a pesticide exempted from Federal registration. PSU also expressed concern that, by its own interpretation, since it uses pesticides in educational and research programs, all of its employees who use pesticides would be required to be public applicators. Finally, PSU expressed concern with what it perceived as inconsistent prior notification language regarding five types of applications in § 128.85a(a)(1) (relating to ornamental or turf application notification).
Response. As to the Federal exemption issue, the Department believes that its regulation serves as a clarification, not a change to the existing regulations. Pesticides classified by the EPA as so-called ''25(b)'' products are still by their very definition ''pesticides'' in that those products are marketed to kill, control, eradicate or otherwise mitigate pests. The Federal 25(b) exemption is for Federal registration only. The Commonwealth, along with 38 other states, currently requires State registration of these same pesticides/products as the Department believes it is vital to the health and safety of the citizens of this Commonwealth, especially individuals on the Hypersensitivity List, for the Department to maintain regulatory control over these types of pesticides. The Department does not agree with PSU's interpretation that all of its employees would be required to be public applicators under the proposed amendment since campus housing or food service do not fall within parameters of pesticide use in its educational and research programs. Accordingly, the Department declines to delete the language at this time. The Department is, of course, willing to revisit the issue at a later date should the need arise.
As to the inconsistency of the prior notification language, the Department agrees and made the appropriate changes to the final-form rulemaking.
Comment 5. With respect to proposed § 128.53(b) (relating to recordkeeping), IRRC asked the Department to explain the purpose of requiring pesticide application businesses to keep and maintain copies of personal identification records. IRRC also requested the Department clarify how the records must be secured and whose records are required to be maintained and secured.
Response. The recordkeeping requirements in § 128.53 are meant to pertain to registered pesticide application technicians who are employed by a pesticide application business. The Department added language in subsection (b) to clarify this. The purpose of verifying, documenting and maintaining personal identification records of an employee's (technician) identity is to prevent or at least minimize the potential for misrepresentation of identity in an attempt to gain access to pesticides for illicit purposes. Given the heightened security issues at the Federal and State levels, the Department does not believe that requiring the pesticide business to document and secure its technician's personal information is either burdensome or onerous.
As there are numerous methods to maintain and secure documents, the Department has allowed the pesticide application business to decide for itself the best method to secure those documents within the scope of its business practice. The Department added a provision to require the pesticide application business to secure the identification documents against identity theft. This change has been made to the final-form rulemaking.
Comment 6. With respect to proposed § 128.85a, IRRC raised five separate concerns with multiple questions regarding the provision's clarity. IRRC recommend that the Department ''review Subsection (a) so that it provides a logical notice process and sufficient notice to neighbors who may be concerned about the application of a pesticide near their dwelling.'' IRRC's comments were broken out in three distinct categories (notification, mutual border/contiguous lands and Request for notification shall expire on December 31), which the Department will address as follows in this order.
Response. The Department agrees with IRRC's concerns regarding the clarity of § 128.85a(a) and the applicable subparagraphs. When applicable, the Department amended final-form subsection (a).
Notification
Comment 7. IRRC noted that the written request for notification process in subsection (a)(1) was not clear. In its comment, IRRC posed several questions regarding this paragraph, which the Department answers as follows.
Response. As to § 128.85a(a)(1), the term ''person'' includes any resident who wishes to be notified of future pesticide applications to lawn, turf, ornamental or shade trees on neighboring property. There is no responsibility on the pesticide application business to provide notice if a request is not made. A pesticide application business, which has been requested to provide notification, can make the application, but if it has not properly notified the requester, the pesticide application business has run afoul of the Department's pesticide regulations.
Comment 8. IRRC stated that the proposed language in subsection (a)(1)(i) as to whom notice should be given was confusing. IRRC queried how the pesticide business would know or verify that the list provided was complete or accurate.
Response. Regarding § 128.85a(a)(1)(i), the list of properties need only include those properties that the requester is concerned about. It does not have to be a complete list of all neighboring properties.
Comment 9. IRRC questioned what was implied by ''The notification requirement becomes effective 7 days following receipt of the request. . . .''
Response. Regarding § 128.85a(a)(1)(ii), it is the ''requirement to notify'' which becomes effective 7 days following receipt of the written request. The general notification requirement, as part of the regulation, is always in effect. The 7 days can be construed as a grace period to afford companies to continue operations while putting their notification mechanism in place.
Comment 10. Subsection (a)(2) only requires a 12-hour notice ''upon receiving a written request at least 7 days prior to the application date.'' IRRC inquired whether the 12-hour notice would be required if a written request was received less than 7 days before the date of application.
Response. Regarding § 128.85a(a)(2), the person requesting notification shall submit the written request for notification at least 7 days prior to the pesticide application. This allows time for the pesticide application business to identify the location of its customers in relation to the neighboring properties of the requester. For a request to be valid, the requester only has to make the request once a year for each neighboring property where notification is desired. If the request is received less than 7 days prior to the pesticide application, the pesticide application business is not required to notify the requester of that application. Any valid request for notification shall be honored and provided to the requester at least 12 hours prior to the pesticide application. This allows the requester time to make any preparations necessary prior to the actual pesticide application.
Comment 11. IRRC questioned the sufficiency of the 10-day period within which the pesticide application business has to provide copies of the pesticide labels.
Response. Regarding § 128.85a (a)(3), the requirement to provide a pesticide label within 10 days of a written request is consistent with the standard within the industry and consistent with other sections of the Department's pesticide regulations, for example, § 128.112(a)(2)(iv) (relating to notification of hypersensitive individuals). The information provided as part of the notification process, at least 12 hours prior to the application, including the brand name of the pesticide and EPA registration number, is sufficient for a requester to obtain information regarding potential effects from exposure to the particular pesticides. The type of information regarding effects on pregnancies, children, well water and pets would not necessarily be expressly stated on the pesticide label. Therefore, the 10-day time period would have no effect on the information.
Mutual border/contiguous lands
Comment 12. IRRC and PSU offered the same comment regarding the proposed language about the written request for notification to list the ''premises sharing a mutual border.''
Response. Regarding § 128.85a(a)(1)(i), the Department agrees with IRRC's observation that there is not a distance limitation between the requesters property line and the application site. The language has been amended to set a distance of 100 feet consistent with other notification requirements in the regulations.
Comment 13. IRRC recommends that the Department use only one clearly defined term regarding contiguous lands.
Response. The Department agrees with IRRC's recommendation. The Department deleted the term ''contiguous lands'' from § 128.85a(a)(2) in this final-form rulemaking.
Request for notification shall expire on December 31
Comment 14. IRRC questioned the practicality of the December 31 deadline for the expiration of the request for notification. IRRC recommended the Department consider a different method of expiration.
Response. Regarding § 128.85a(b), the Department believes that a December 31 expiration for all notification requests is reasonable and necessary for efficient administration of the notification process by pesticide application businesses. Allowing random 12-month expiration dates would place an unreasonable bookkeeping requirement on pesticide application businesses. Moreover, there are virtually no pesticide applications that fall under this notification requirement (ornamental and turf) made during the winter months. Accordingly, the Department declines to implement this recommendation.
Summary of Technical Changes to the Final-Form Rulemaking
During its review of public comments, the Department noticed that § 128.42(14)—(25) (relating to categories of commercial and public applicators) had been renumbered by the Pennsylvania Code and Bulletin staff in the proposed rulemaking. In its proposed rulemaking, the Department specifically deleted existing category No. 14 and reserved that number to maintain other numbered categories in proper sequence. The Department understands that subsections are not normally reserved in rulemakings. However, the renumbering of those paragraphs would have a significant negative administrative and recordkeeping impact on the Department's applications, written examinations and other licensing information, as the Department would have to change its records to reflect the new category numbers. The Department discussed the resolution of this matter with representatives of the Pennsylvania Code and Bulletin staff. With their cooperation, the Department would like to maintain the numbering of § 128.42 as proposed by the Department.
The Department discovered a typographical error in proposed § 128.102(a)(2) (relating to protected designated areas). The Department incorrectly referenced 58 Pa. Code § 75.2 (relating to threatened species) as ''endangered'' species, when it should have been ''threatened'' species. The Department made that technical change to the final-form rulemaking at the recommendation of the Pennsylvania Code and Bulletin staff.
Fiscal Impact
Commonwealth
The Department has determined that the final-form rulemaking will have little or no adverse financial impact on the Commonwealth since all funds budgeted for the Pesticide Program are derived from the Pesticide Restricted Account. The funds in the Pesticide Restricted Account are obtained from licensing, permitting and registration fees and civil penalties placed upon pesticide manufacturers, dealers and applicators doing business in this Commonwealth.
There will, however, be some cost savings in the amount of time needed to review and process Hypersensitivity Registries as a result of the reduced number of times the registry is published.
Political subdivisions
The final-form rulemaking will not impose costs and will not have adverse fiscal impact on political subdivisions.
Private sector
The final-form rulemaking will have a direct fiscal impact on the private sector. Specifically, pesticide manufacturers will have increased fees for the registration of their pesticide product. Pesticide dealers will also have an increased fee. The final-form rulemaking will, however, provide some cost savings to the private sector by raising the insurance deductible levels.
General public
The final-form rulemaking will not have fiscal impact on the general public.
Paperwork Requirements
The final-form rulemaking will not appreciably increase the paperwork burden of the Department or other government units or citizens, including the regulated community, since there are already paperwork recordkeeping requirements in the existing regulations.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Contact Person
Individuals who need information about the final-form rulemaking should contact the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: David Scott.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 15, 2009, the Department submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 5564, to IRRC and the Chairpersons of the House and Senate Committees on Agriculture and Rural Affairs for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 6, 2010, the final-form rulemaking was approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 7, 2010, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to amend the regulations has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments that were received were considered.
(3) The amendments that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 39 Pa.B. 5564.
(4) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 128, are amended by deleting §§ 128.83, 128.85, 128.86 and 128.87; by adding §§ 128.10, 128.12, 128.13, 128.83a, 128.85a and 128.107; and by amending §§ 128.2, 128.3, 128.11, 128.24, 128.31—128.35, 128.41—128.45, 128.51—128.53, 128.61—128.65, 128.71, 128.72, 128.81, 128.82, 128.84, 128.88, 128.91, 128.101—128.104, 128.106, 128.111 and 128.112 to read as set forth in Annex A.
(b) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
RUSSELL C. REDDING,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 6226 (October 23, 2010).)
Fiscal Note: Fiscal Note 2-149 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 128. PESTICIDES
Subchapter A. GENERAL PROVISIONS § 128.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.21—111.61).
Application site—The specific location where a pesticide is applied.
Applicator certificate—A form issued by the Department to a commercial or public applicator following the successful completion of a certification examination or other certification requirements.
Area-wide application—A nonagricultural pesticide application to areas of 25 or more contiguous acres or a nonagricultural pesticide application made by or at the direction of a governmental entity to properties of more than one person.
Available if and when needed—The ability of a certified applicator to communicate with a person applying pesticides under his supervision so that the certified applicator can provide instructions and exercise control over the application and can be at the application site within 5 hours of receiving notification that his physical presence is necessary.
Business—A governmental entity or commercial establishment for profit or not-for-profit. For a pesticide application business having more than one place of business or operating under more than one name within this Commonwealth, each place of business and each name shall be considered a separate business. For a State or Federal entity, each district or region will be considered a separate business.
Common access area—The areas within a school building where students/attendees normally congregate, assemble or frequent during normal academic instruction or extracurricular activities. The term does not include areas such as kitchens, boiler rooms, utility/maintenance rooms and areas which are physically blocked or restricted from student/attendee access.
Constructive notification—A person shall be deemed to have received notification if an adult residing in the same dwelling unit is so notified; orally, or by certified mail, or by a message left on an answering device activated by contacting the residence, including electronic mail or facsimile.
Current registry—The Pesticide Hypersensitivity Registry with the most recent effective date.
Department—The Department of Agriculture of the Commonwealth.
Dosage or rate of application—The concentration of each pesticide, such as, a percent, ounces or quarts per gallon, pounds per 100 gallons, applied to a specific application site or target such as a crop, ornamental, cut stump, weed, animal, utility pole, reported as gallons per acre, pounds per 1,000 square feet, ounces per linear foot, ounces per cubic foot or ounces per animal.
EPA—The United States Environmental Protection Agency.
FIFRA—Federal Insecticide, Fungicide, and Rodent- icide Act of 1947 (7 U.S.C.A. §§ 136—136y).
Fumigant—A pesticide that when released forms a gas.
General use pesticide—A pesticide not classified for restricted use.
Governmental entity—An executive or independent agency or unit of the Commonwealth, or local agency, including a county, a city, a borough, town, township, school district, municipal authority or political subdivision thereof.
Integrated pest management—The managed use of combined pest control alternatives, including cultural, mechanical, biological and chemical, to most effectively prevent or reduce to acceptable levels damage caused by pests.
Land contiguous to a restricted use pesticide application site—Premises which share a mutual border with the premises upon which the application site is located. The term does not include premises located more than 100 feet from the application site.
Perimeter treatment—
(i) The application of pesticide to the exterior of a structure to a maximum distance of 10 feet from the structure, unless the pesticide label clearly states otherwise, to prevent pests from invading the structure.
(ii) The term excludes tamper resistant bait stations.
Person—An individual, partnership, association, corporation or any organized group of persons whether incorporated or not.
Pesticide dealer manager—An owner or individual employed by a licensed pesticide dealer who is responsible for storage and distribution of restricted use pesticides.
Pesticide end-use dilution—Pesticide material resulting from the dilution of a registered pesticide according to label direction.
Pesticide hypersensitivity—Excessive or abnormal sensitivity to pesticides.
Primary residence—An individual's legal residence.
Prior notification—
(i) Notification of a proposed application of pesticides given not more than 45 days and not less than 14 days prior to the date of application which contains the following information:
(A) The proposed date of application.
(B) The municipalities where the proposed application sites are located.
(C) The name, address and telephone number of the pesticide application business to whom requests for additional information should be directed.
(ii) A request for prior notification shall expire on December 31 in the year in which it is made.
Private park—Privately owned outdoor real estate which includes a recreational area for use by the public, including an area with restricted access.
Production of an agricultural commodity—The term includes activities involved in the raising of plants or animals and their products. The term does not include the protection or maintenance of harvested crops, slaughtered livestock or plant and animal products unless the protection or maintenance is carried out by the original producer of the agricultural commodity, who is a private applicator, or another private applicator.
Public park—Publicly owned outdoor real estate which includes a recreational area for use by the public, including an area with restricted access.
Recreational area—An outdoor place of relaxation, play or exercise.
Restricted use pesticide—The term includes the following:
(i) A pesticide classified for restricted use under section 3(d) of FIFRA (7 U.S.C.A. § 136(d)).
(ii) A pesticide designated by the Secretary for restricted use under section 7(b)(6) of the act (3 P. S. § 111.27(b)(6)).
School—A public, nonpublic or licensed private elementary or secondary school wherein a resident of this Commonwealth may fulfill the compulsory school attendance requirements and which meets the applicable requirements of Title IV of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000c) (Public Law 88-352, 78 Stat. 241). The term also includes a kindergarten or preschool program operated by a school and a child day care center operating under a certificate of compliance issued by the Department of Public Welfare.
Secondary location—An address where an individual may be located other than the individual's primary residence, limited to the following:
(i) Place of employment.
(ii) School.
(iii) Vacation home.
Secretary—The Secretary of the Department.
Service container—A container other than the original labeled container of a registered pesticide used for the purpose of holding, storing or transporting an original registered pesticide material or a pesticide end-use dilution.
Specific site application—A nonagricultural pesticide application made by or at the direction of a person to property owned or rented by that person.
Swimming pool—An outdoor or indoor place used for bathing or for amateur, professional or recreational swimming, excluding single-family residential pools.
Therapeutic swimming pool—An indoor swimming pool or spa with a water temperature above 85° F used solely for the rehabilitation or medically recommended treatment.
Under the direct supervision of—The term includes the following:
(i) For a commercial or public certified applicator, the application of a pesticide by a registered pesticide application technician acting with the instructions and under the control of a certified applicator who is responsible for the actions of the technician and who is available when needed; or the application of a pesticide by a nonregistered or noncertified person acting with the instructions and under the continuous voice and visual control of a certified applicator who is responsible for the actions of the person and physically present at the application site. The supervising applicator shall be certified in the appropriate category relating to the application.
(ii) For a private certified applicator, the application of a restricted use pesticide by a noncertified person acting under the instructions and control of a certified applicator who is responsible for the actions of that person and who is available when needed.
Upon written request—The term includes a notice of inspection issued by the Department.
Use, or cause to be used, a pesticide inconsistent with its labeling—The use of a pesticide in a manner not permitted by its labeling. This phrase does not include:
(i) Applying a pesticide at a dosage, concentration or frequency less than that specified on its labeling.
(ii) Applying a pesticide against a target pest not specified on the labeling if the application is to the crop, animal or site specified on the labeling unless the labeling specifically states that the pesticide may only be used for the pests specified on the labeling.
(iii) Employing a method of application not prohibited by the labeling.
(iv) Mixing a pesticide with a fertilizer where the mixture is not prohibited by the labeling.
Worker Protection Standard—Includes all provisions of the Federal Worker Protection Standard as set forth in 40 CFR Part 170 (relating to worker protection standard).
§ 128.3. Fees.
(a) Pesticide dealer's license. The annual fee for a pesticide dealer's license is $10 per location. The fee for a duplicate pesticide dealer's license is $3.
(1) The annual fee for a pesticide dealer manager's certificate is $15 per individual.
(2) The fee for a duplicate pesticide dealer manager's certificate is $3.
(b) Pest management consultant's license. The annual fee for a pest management consultant's license is $25. The fee for a duplicate pest management consultant license is $8.
(c) Pesticide application business' license. The annual fee for a pesticide application business' license is $35. The fee for a duplicate pesticide application business license is $8.
(d) Commercial applicator's certificate. The annual fee for the commercial applicator's certificate is $40. When the initial certification requires examination, no fee will be charged. The fee for a duplicate commercial applicator's certificate is $10. If an applicator is employed by more than one pesticide application business, a separate certificate and fee is required.
(e) Public applicator's certificate. The triennial fee for a public applicator's certificate is $10. A fee is not required when the initial certification requires examination. The fee for a duplicate public applicator's certificate is $3.
(f) Examination fees. Examination fees are nonrefundable. The following examination fees, with payment made in advance, will be charged:
(1) Commercial/public applicator's core examination—$50.
(2) Commercial/public applicator's category examination—$10.
(3) Pesticide dealer manager's examination—$50.
(4) Private applicator's examination—no charge.
(5) Pest management consultant's examination—no charge except that a fee of $5 will be charged if an examination is requested on other than a regularly scheduled examination date.
(g) Registration fee for a pesticide application technician.
(1) Commercial pesticide application technician. An annual registration fee of $30 will be charged to register a commercial pesticide application technician with the Department. The fee for a duplicate technician registration is $7.
(2) Public pesticide application technician. An annual registration fee of $20 will be charged to register a public pesticide application technician with the Department. The fee for a duplicate technician registration is $7.
(h) Private applicator's permit. The triennial fee for a private applicator's permit is $10. The fee for a duplicate private applicator's permit is $3. A fee will not be charged for a special permit which may be issued in conjunction with the private applicator's permit.
(i) Product registration. The annual fee to register a pesticide is $250.
Subchapter B. LICENSES, CERTIFICATES AND PERMITS
PESTICIDE DEALERS § 128.10. Licensing requirements for pesticide dealer.
(a) A person may not purchase or attempt to purchase a restricted use pesticide for resale or distribution unless the person has a current and valid pesticide dealer license.
(b) Each pesticide dealer shall, at all times, employ at least one individual who possesses a valid pesticide dealer manager certificate.
(1) A licensed pesticide dealer shall notify the Department in writing within 15 days of a change in its license information including the employment status of its pesticide dealer manager certificate holder.
(2) A licensed pesticide dealer shall return to the Department within 15 days the voided pesticide dealer manager's certificate of an employee that is no longer employed by the pesticide dealer. If the pesticide dealer manager's certificate issued by the Department is not available, the pesticide dealer shall notify the Department in writing within 15 days of the employee's termination and provide an explanation of why the certificate is unavailable and the last known home address for the individual.
(c) A pesticide dealer may not distribute a restricted use pesticide unless the receiver provides proof of appropriate valid certification or license and proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the person's signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
§ 128.11. Recordkeeping.
(a) A pesticide dealer shall keep for each distribution of a restricted use pesticide a record containing the following information:
(1) The name and address of the customer and his applicator's certificate number or business or dealer's license number.
(2) The brand name of the restricted use pesticide.
(3) The EPA registration number of the restricted use pesticide.
(4) The amount of the restricted use pesticide.
(5) The date of the distribution.
(6) Signature and identification information of the individual accepting delivery.
(b) A record required to be kept under this section shall be completed within 24 hours of the distribution in written or printable form, maintained for at least 3 years and shall be made immediately available to the Department upon request or immediately available to medical personnel in an emergency.
§ 128.12. Issuance of a pesticide dealer manager certificate.
(a) The Department will issue a pesticide dealer manager certificate to an applicant 18 years of age or older, upon verification of passing a written competency examination and payment of the appropriate fee. Renewal of the dealer manager certificate will be based on receipt by the Department of an application accompanied by the appropriate fee.
(b) If a pesticide dealer manager fails to renew the certificate for a period of 1 or more years, the pesticide dealer manager shall reestablish eligibility as described in § 128.13 (relating to determination of competence).
(c) The certificate for a pesticide dealer manager will expire on December 31st of each year.
(d) For currently licensed pesticide dealer locations, the requirements for employment of a pesticide dealer manager certificate holder will become effective December 11, 2011. Initial examination fee will be waived until December 11, 2011. The requirements for a pesticide dealer manager certificate holder will be immediately effective for pesticide dealer locations licensed on or after December 11, 2010.
(e) The pesticide dealer manager certificate is only valid when the certificate holder is employed by the licensed pesticide dealer indicated on the certificate. A new certificate will be issued without charge if the certificate holder is subsequently employed by a different licensed pesticide dealer and has not lost eligibility as set forth in subsections (b) and (c).
§ 128.13. Determination of competence.
(a) At least one individual at each pesticide dealer location shall show competence in the storage and distribution requirements for restricted use pesticides. Competence will be determined on the basis of a written examination. The examination will include the following:
(1) Safety.
(2) Labeling and label comprehension.
(3) Storage and security.
(4) Spill control.
(5) Transportation.
(6) Pesticide disposal.
(7) Recognition of pesticide poisoning symptoms and first aid.
(b) An application to take an examination shall be filed along with the appropriate fee with the Department at least 10 working days prior to the date of the examination.
(c) The examination will be proctored. Successful completion of the examination will entitle a person to hold a pesticide dealer managers certificate. An opportunity will be provided to retake an examination if a passing grade has not been achieved.
(d) The applicant shall provide to the proctor proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the person's signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
(e) A person may not use reference materials during an examination unless approved by the Department or its designated agents.
(f) An application for a new pesticide dealer manager's certificate will be accepted throughout the calendar year. A full year's license fee will be required for a portion of a year, except that the Department may issue a certificate for an additional year when a new application is filed during the last 2 months of the certificate year.
PEST MANAGEMENT CONSULTANTS § 128.24. Recordkeeping.
(a) A pest management consultant shall keep for each instance in which he provides technical advice, supervision or aid or makes a recommendation to the user of a restricted use pesticide, the following information:
(1) The name and address of the person for whom this service was provided.
(2) The brand name of the pesticides recommended to be used.
(3) The amount of the pesticides recommended to be used.
(4) The dosage or rate of the pesticides recommended to be used.
(5) The date on which this service was provided.
(b) A record required to be kept under this section shall be maintained for at least 3 years and shall be made immediately available to the Department upon request or to medical personnel in an emergency.
PESTICIDE APPLICATION BUSINESSES § 128.31. Licensing requirements.
(a) A pesticide application business may not be operated without first obtaining a pesticide application business license.
(b) The license period shall end on December 31 each year, except that the Department may issue a license for the following year when an initial license application is filed during the last 2 months of a licensing year.
(c) A pesticide application business shall prominently display on every vehicle involved in the pesticide application phase of its business the license number assigned by the Department. The number must be in figures at least 3 inches high and be located on both sides of the vehicle at a readily visible location in a contrasting color.
(d) A licensed business shall notify the Department in writing within 15 days of a change in information in its application for licensing, or if it is no longer engaged in the application of pesticides.
(1) A licensed pesticide application business shall return to the Department within 15 days the voided applicator certification or register technician card of an employee that is no longer employed by the pesticide application business.
(2) If the certification or registered technician card issued by the Department is not available, the pesticide application business shall notify the Department in writing within 15 days of the employee termination and provide an explanation of why the card is unavailable and the last known home address for the individual.
(e) A business that meets the definition of a commercial applicator as defined in section 4(6)(C) of the act (3 P. S. § 111.24(6)(C)) may not apply a pesticide without having a valid certified applicator physically present at the application site unless all application personnel on site are valid registered technicians.
(f) If the application business includes aerial applications, the applicant shall provide proof of compliance with the Federal Aviation Administration regulations as described in 14 CFR Part 137 (relating to agricultural aircraft operations).
§ 128.32. Categories of business licenses.
A commercial or public business shall identify in its application those business categories in which it desires to operate. A business shall employ for each business category in which it makes a pesticide application at least one applicator who is certified in a specific applicator category recognized under the general business category and shall limit its applications to those applicator categories in which it employs at least one certified applicator. The business categories are listed in paragraphs (1)—(10). The applicator categories recognized under a particular business category are listed under that business category.
(1) Category (A)—Agricultural Plant Pest Control.
01 Agronomic Crops
02 Fruits and Nuts
03 Vegetable Crops
05 Forest Pest Control
08 Seed Treatment
(2) Category (B)—Agricultural Animal Pest Control.
04 Agricultural Animals
(3) Category (C)—Ornamental and Turf Pest Control.
06 Ornamental and Shade Trees
07 Lawn and Turf
22 Interior Plantscape
(4) Category (D)—Aquatic Pest Control.
09 Aquatic Pest Control
24 Swimming Pools
26 Sewer Root Control
(5) Category (E)—Right-of-Way Pest Control.
10 Right-of-Way and Weeds
(6) Category (F)—Industrial, Institutional, Structural and Health Related.
11 Household and Health Related
12 Wood Destroying Pests
14 (Reserved)
15 Public Health Vertebrate Pest Control
16 Public Health Invertebrate Pest Control
19 Wood Preservation
23 Park or school Pest Control
(7) Category (G)—Fumigation.
13 Structural Fumigation
20 Commodity and Space Fumigation
21 Soil Fumigation
(8) Category (H)—Demonstration and Research.
18 Demonstration and Research Pest Control
(9) Category (I)—Regulatory.
17 Regulatory Pest Control
(10) Category (J)—Aerial Applicator.
25 Aerial Applicator
§ 128.33. Assignment of work.
A pesticide application business may not allow an individual to make a pesticide application in an applicator category in which the individual has not been certified as an applicator or trained and registered as a technician.
§ 128.34. Financial responsibility.
(a) The Department will consider a certificate of insurance from an insurer or surety to be evidence of financial responsibility if the insurer or surety is licensed to do business under section 1605 of the Insurance Company Law of 1921 (40 P. S. § 991.1605), or otherwise permitted by Federal law or the Insurance Department to do business in this Commonwealth, if the following conditions are met:
(1) The certificate of insurance includes the name of the insurance company, policy number, insurance amount, type of coverage afforded and exclusions relating to damage arising from the use of pesticides and expiration date of the policy.
(2) The minimum comprehensive general liability insurance provided is $100,000 for each occurrence of bodily injury liability and $100,000 for each occurrence of property damage liability. A policy may be written with combined limits if the limits equal or exceed the sum of the individual limits.
(3) The certificate indicates coverage for completed operations and includes a statement indicating that the coverage applies to pesticide application.
(4) The maximum deductible amount does not exceed $2,500 of the combined policy limits. If a pesticide application business has not satisfied the deductible amount in a prior claim, the policy may not contain a deductible amount.
(5) A current certificate of insurance is forwarded to the Department at each insurance renewal date which sets forth the same information specified in paragraphs (1)—(4).
(b) A pesticide application business desiring to qualify as a self-insurer may submit a written proposal of self-insurance to the Department for approval.
(1) The proposal shall include the following:
(i) A master self-insurance and security agreement.
(ii) A balance sheet and income statement which shall reflect the actual financial condition of the business as of the last complete calendar or fiscal year preceding the date of the proposal. These documents shall be prepared in accordance with generally accepted accounting principles and shall be certified by a certified public accountant.
(2) A business will not be approved as a self-insurer unless it posts certain collateral with the Department. This paragraph does not apply to government agencies or authorities.
(3) The minimum required security that shall be furnished to the Department is $500,000.
(4) Only the following will be accepted as valid collateral for self-insurance purposes:
(i) United States currency, including United States Treasury bills, United States Treasury notes or other negotiable obligations of the United State Government. United States Savings Bonds are not negotiable.
(ii) Evidence of escrow deposits in Federal or State banks, credit unions or savings and loan associations if Federally insured. Escrow deposits shall be established for the sole purpose of providing security to meet the duties of a self-insurer.
(iii) Irrevocable letters of credit issued by a bank in this Commonwealth or another bank as approved by the Department.
(iv) Surety bonds issued by insurers authorized or eligible to do business in this Commonwealth.
(v) Bonds or other negotiable obligations issued by a state, subdivision or instrumentality of a state in the United States, if not in default as to principal or interest.
(vi) Corporate bonds, issued by an entity other than the proposed self-insurer, rated A or better by Moody's Bond Record, Moody's Investors Service, Inc.
(vii) Other security approved upon petition to the Department.
(5) The Department will hold the collateral furnished for the benefit of the persons to whom the self-insurer is obligated.
(i) The self-insurer shall pay for obligations incurred under the act by assets readily reduced to liquid assets, such as demand deposits, time deposits, negotiable instruments and other assets which may be readily reduced to liquid form.
(ii) If the self-insurer is not able to discharge its obligations, the self-insurer may petition the Department to release the collateral posted as is necessary to satisfy the obligations of the self-insurer.
(iii) If withdrawals from collateral are required, the self-insurer shall replace the security within 72 hours from the date of withdrawal, to retain its certificate as a self-insurer.
(6) A self-insurer shall annually furnish to the Department a report of claims incurred during the preceding calendar year.
(7) Upon approval by the Department of a self-insurance proposal, a self-insurance certificate will be issued to the self-insurer. The certificate shall be renewed annually, after review that the Department deems appropriate.
(c) If the evidence of financial responsibility furnished by a pesticide application business no longer complies with this section, the business shall immediately provide other evidence of financial responsibility which complies with this section. If it fails to do so, the Secretary may revoke its license.
§ 128.35. Recordkeeping.
(a) A pesticide application business shall keep for every application of a pesticide a record containing the following information:
(1) The date of application. For a pesticide requiring a reentry time, the date of application must include the hour completed. For continuous applications, such as swimming pools and chemigation, the record must include start and finish dates and the total amount of pesticide products used during that time period. For each addition of a pesticide to the system, an entry to the record is required.
(2) The name and address of the customer and the address and location of the application site if different from the address of the customer.
(3) The brand name of the pesticides used.
(4) The EPA product registration number.
(5) The total amount of every pesticide used in pounds, ounces, gallons, liters, applied to a treated area.
(6) The dosage or rate of application, of every pesticide used.
(7) The names and the certification or technician's registration number of each person making or supervising the application. When applicable the names of noncertified/nonregistered persons involved in the application.
(8) The identification of the application site, including the specific field or land area and the crop and size of the area treated for pesticides used in the production of an agricultural commodity.
(b) When a restricted use pesticide is used in the production of an agricultural commodity, a copy of the record required under this section shall be provided by the application business to the customer within 30 days of the pesticide application.
(c) Pesticide product and application information shall be made immediately available to medical personnel in an emergency.
(d) A pesticide application record must be completed in written or printable form no later than 24 hours after the application date and made immediately available to the Department upon request.
(e) A record required to be kept under this section shall be maintained for at least 3 years.
COMMERCIAL AND PUBLIC APPLICATORS § 128.41. Requirements for certification.
(a) A person is deemed to be a commercial or public applicator and required to be certified if one or more of the following criteria are met:
(1) A person who applies or supervises the application of a pesticide on an easement or on the property or premises of another (other than his employer). This includes the use of a pesticide exempted from Federal registration under § 128.91 (relating to EPA approval required).
(2) A person who applies or supervises the use of a restricted use pesticide on property owned by him or his employer when not applied for the purpose of producing an agricultural product.
(3) A person who applies or supervises the application of a pesticide to the following locations or who is involved in the following types of application:
(i) Fumigation—Includes a person who uses fumigants except a person who meets the definition of a private applicator.
(ii) Golf courses—Includes a person who uses pesticides in the establishment and maintenance of a golf course.
(iii) Public and private parks—Includes a person who uses a pesticide in a recreational or campground area of a public or private park.
(iv) Educational and research institutions—Includes a person employed by a public or private educational and research facility that uses pesticides in its educational or research programs.
(v) Playgrounds and athletic fields—Includes a person who applies a pesticide to a public playground or an athletic field.
(vi) Apartment dwellings—Includes an owner of an apartment building or an employee of an owner who applies a pesticide other than a disinfectant to an apartment structure of four or more units. Commercial certification is not required if the owner or employee resides in the apartment structure and applies general use pesticides to the unit in which he resides.
(vii) Schools—Includes a person who uses a pesticide on school property, except for the use of disinfectants and sanitizers within the school building.
(viii) Swimming pools—Includes a person who uses a pesticide in the care and maintenance of swimming pools or water recreation facilities associated with a public or private park, excluding lakes, ponds, rivers or streams.
(b) The following are exceptions to subsection (a)(3)(viii):
(1) Disinfectants and sanitizers not used for water treatment.
(2) The use of general use pesticides in the care and maintenance of a swimming pool at a private single-family residence.
(3) The use of a general use pesticide by an owner or employee in the care or maintenance of a swimming pool used solely as a therapeutic swimming pool.
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