RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 130e]
Commercial Manure Hauler and Broker Certification
[37 Pa.B. 194]
[Saturday, January 13, 2007]The Department of Agriculture (Department) amends Chapter 130e (relating to commercial manure hauler and broker certification) to read as set forth in Annex A.
Statutory Authority
The Department adopts this final-form rulemaking under the Commercial Manure Hauler and Broker Certification Act (act) (3 P. S. §§ 2010.1--2010.12) and under the specific authority of section 3 of the act (3 P. S. § 2010.3) regarding the commercial manure hauler and broker certification program.
Section 3(a)(1) of the act charges the Department, in consultation with the State Conservation Commission (Commission) and the Nutrient Management Advisory Board (Board), with the duty of establishing ''. . . within 18 months of the effective date of this act . . . a commercial manure hauler and broker certification program . . . . The department shall by regulation establish such terms, conditions and fees for certification as it deems appropriate.'' With regard to the certification program, the regulations are required, at a minimum, to address laws and regulations pertaining to manure application, information necessary for understanding and following a nutrient management plan and nutrient balance sheet, training in the development and filing of a nutrient balance sheet, best management practices with respect to manure hauling and application, safety procedures, calibration of application rates for various types of equipment, setback requirements, nutrient runoff concerns, incorporation techniques, recordkeeping requirements necessary to meet the act and 3 Pa.C.S. Chapters 3 and 5 (relating to local regulation; and nutrient management and odor management). In addition, the Department has the authority to approve training and education programs developed by The Pennsylvania State University and other educational institutions or entities that meet the requirements of the act and this final-form rulemaking.
Purpose of the Final-Form Rulemaking
The final-form rulemaking is required to establish a certification program through which persons hauling or applying manure generated by an agricultural operator can obtain the certification required by the act. The final-form rulemaking sets forth procedures and requirements regarding the certification of commercial manure haulers and brokers; establishes fees and delineates course and certification requirements; provides for various levels of certification; denotes application, approval and appeal procedures for persons seeking certification; sets forth criteria for approval of training and education programs developed by The Pennsylvania State University and other educational institutions or entities; and details recordkeeping requirements necessary to meet the requirements of the Nutrient Management Act and the act. It must be noted that the Nutrient Management Act was repealed and replaced by the act of July 6, 2005 (P. L. 112, No. 38), codified at 3 Pa.C.S. Chapters 3 and 5, which took effect July 6, 2005.
Comment and Responses
The proposed rulemaking was published at 35 Pa.B. 6751 (December 17, 2005). Interested persons were originally invited to submit written comments regarding the proposed rulemaking within 30 days following publication. At the request of the regulated community, the Commission and the Board, the Department extended the comment period to 60 days. The extension was published at 36 Pa.B. 288 (January 21, 2006). In addition, the Department continued to meet with the Board and the Commission to illicit comments on subsequent drafts of the rulemaking. The Department also published an advanced notice of final rulemaking (ANFR) at 36 Pa.B. 4505 (August 12, 2006). Persons who commented during the proposed rulemaking stage were sent letters informing them of the ANFR and where to go to view the revised rulemaking. Comments received as a result of the ANFR and the Department's responses appear in a separate part of the Comment and Response document, which accompanies this final-form rulemaking.
Due to the length of the Comment and Response document (141 pages), this document will not be published in the Pennsylvania Bulletin. The Comment and Response document is available for review on the Department's website at www.agriculture.state.pa.us. To request a hard copy of the Comment and Response document, contact Johan Berger, Commercial Manure Broker and Hauler Program, (717) 772-4189.
Fiscal Impact
Commonwealth. The final-form rulemaking imposes additional fiscal impacts upon the Commonwealth for administration and enforcement. The final-form rulemaking requires the Department to commit an additional amount of time and manpower to the development or overview and approval, or both, of commercial manure broker and commercial manure hauler certification courses, training manuals, in-classroom and out of classroom examinations, development and review of continuing education courses, oversight of certification and recertification course providers, oversight of continuing education credit course providers and oversight and enforcement of the recordkeeping, certification, recertification and other general provisions of the final-form rulemaking.
Political subdivisions. The final-form rulemaking imposes no additional costs and has no fiscal impact upon political subdivisions. The final-form rulemaking does not impose additional burden of enforcement of review on political subdivisions.
Private sector. The final-form rulemaking imposes additional costs on the regulated community (commercial manure brokers and haulers). The additional costs to the regulated community will be certification fees necessary to obtain the certification requirements required by the act and the final-form rulemaking. In addition, the regulated community will be subject to the additional costs of attending continuing education courses and attaining the proper amount of continuing education credits required to comply with the commercial manure hauler and broker certification regulations. The regulated community will also face costs associated with the additional recordkeeping requirements established by the act and this final-form rulemaking.
General public. The final-form rulemaking imposes no costs and has no fiscal impact on the general public, except that agricultural operators or exporters of manure may be subject to increased costs charged by commercial manure haulers and brokers as a result of the certification requirements imposed by the act and the final-form rulemaking.
Paperwork Requirements
The final-form rulemaking will not result in a substantial increase of paperwork. The Department, through the interim certification program, already developed the necessary application forms, training courses and training course manuals, test booklets for every level of certification, nutrient balance sheet scenarios, sign-in forms for certification courses and testing and tests for all levels of certification. The Department will need to develop or approve continuing education credit courses as well as recordkeeping forms and notification letters and enforcement documents.
Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Additional Information
Further information is available by contacting the Department of Agriculture, Commercial Manure Broker and Hauler Program, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attn: Johan Berger, (717) 772-4189.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 7, 2005, the Department submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 6751, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Agriculture and Rural Affairs Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the 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 November 29, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 30, 2006, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to adopt this final-form rulemaking 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 the comments received were considered.
(3) The revisions that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 35 Pa.B. 6751.
(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 statutes, orders that:
(1) The regulations of the Department, 7 Pa. Code Chapter 130e, are amended by amending §§ 130e.1 and 130e.2 and by adding §§ 130e.3--130e.9, 130e.11, 130e.12, 130e.21, 130e.22, 130e.31, 130e.32, 130e.41, 130e.42, 130e.51, 130e.52, 130e.61 and 130e.71 to read as set forth in Annex A.
(2) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and Office of Attorney General for approval as required by law.
(3) The Secretary of Agriculture shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(4) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 7777 (December 16, 2006).)
Fiscal Note: 2-150. (1) General Fund; (2) Implementing Year 2006-07 is $37,000; (3) 1st Succeeding Year 2007-08 is $37,000; 2nd Succeeding Year 2008-09 is $38,500; 3rd Succeeding Year 2009-10 is $40,000; 4th Succeeding Year 2010-11 is $41,600; 5th Succeeding Year 2011-12 is $43,300; (4) 2005-06 Program--N/A; 2004-05 Program--N/A; 2003-04 Program--N/A; (7) Department of Agriculture--General Government Operations; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 130e. COMMERCIAL MANURE HAULER AND BROKER CERTIFICATION Subch.
A. GENERAL PROVISIONS
B. CERTIFICATION
C. RECORDKEEPING
Subchapter A. GENERAL PROVISIONS Sec.
130e.1. Scope. 130e.2. Definitions. 130e.3. Fees. 130e.4. Prohibition. 130e.5. Authority, duties and prohibitions. 130e.6. Possession of certificate and contracts. 130e.7. Notice of change in business or certification. 130e.8. General training requirements for certification. 130e.9. Approval of other training programs. § 130e.1. Scope.
This chapter prescribes procedures relating to the certification of commercial manure haulers and brokers. This chapter includes the establishment of fees, delineates the requirements for certification of commercial manure haulers and brokers, and sets forth criteria for approval of accredited certification programs.
§ 130e.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Commercial Manure Hauler and Broker Certification Act (3 P. S. §§ 2010.1--2010.12).
Act 38 of 2005--The act of July 6, 2005 (P. L. 112, No. 38), known as Act 38 of 2005 (3 Pa.C.S. Chapters 3 and 5 (relating to local regulation; and nutrient management and odor management)).
Act 38 of 2005 regulations--The regulations associated with Act 38 of 2005 found in 25 Pa. Code Chapter 83, Subchapter D (relating to nutrient management).
Agricultural operation or operation--The management and use of farming resources for the production of crops, livestock or poultry.
Agricultural operator--A person that has management control of an agricultural operation.
BMP--Best management practice--A practice as defined by Act 38 of 2005 (see 3 Pa.C.S. § 503 (relating to definitions)) and its implementing regulations in 25 Pa. Code Chapter 83 (see 25 Pa. Code § 83.201 (relating to definitions)).
Board--The Nutrient Management Advisory Board created under section 10 of Act 38 of 2005. See 3 Pa.C.S. § 510 (relating to Nutrient Management Advisory Board).
CAFO--Concentrated animal feeding operation--An agricultural operation that meets the criteria established by the Department of Environmental Protection under 25 Pa. Code § 92.1 (relating to definitions).
CAO--Concentrated animal operation--An agricultural operation that meets the criteria established under the authority of Act 38 of 2005 (see 3 Pa.C.S. § 503) and its implementing regulations in 25 Pa. Code Chapter 83 (see 25 Pa. Code § 83.201).
Certificate year--The period from January 1--December 31.
Certification--The completion of all requirements of a commercial manure hauler or broker contained in this chapter and final approval of the Department.
Clean Streams Law--The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
Commerce--The exchange of goods, productions or property of any kind; the buying, selling and exchanging of articles. Intercourse by way of trade between different peoples or states and citizens or inhabitants thereof, including the purchase, sale and exchange of commodities and the instrumentalities by which commerce is promoted and carried on.
Commercial--Relates to or is connected with trade or commerce in general; involving dealings between persons in the nature of purchase and sale. Normally the sale, exchange or purchase is intended for profit.
Commercial manure broker--A person that is not working for or under the control of an agricultural operator and that assumes temporary control or ownership of manure from an agricultural operation and arranges for transport to and utilization at an importing operation or other location.
Commercial manure hauler--A person that transports or land applies manure as a contract agent for an agricultural operator or commercial manure broker under the direction of the operator or broker.
Commission--The State Conservation Commission established under the Conservation District Law (3 P. S. §§ 849--864).
Competency--Demonstrating a thorough level of knowledge and understanding of the requirements of the act and this chapter as evidenced by successfully meeting the applicable requirements of Subchapter B (relating to certification).
Conservation district--A county conservation district established under the Conservation District Law.
Department--The Department of Agriculture of the Commonwealth.
Importer or importing operation--A person who receives and utilizes or processes manure not produced by poultry or livestock under the management control of that person.
Manure--
(i) The excreta, in liquid or solid form, of livestock, including cattle, sheep, hogs, goats, horses, poultry and fur bearing animals with or without the bedding, litter, straw, washwater and other refuse materials, dirt and waste ordinarily mixed or commingled with it.
(ii) For purposes of this chapter, the definition does not include chemical fertilizers, plant or soil amendments, compost or biosolids.
Nutrient--
(i) A substance or recognized plant nutrient, element or compound that is used or sold for its plant nutritive content or its claimed nutritive value.
(ii) The term includes livestock and poultry manures, compost used as fertilizer, commercially manufactured chemical fertilizers, biosolids or combinations thereof.
Nutrient balance sheet--A crop management BMP developed to protect surface and groundwater quality by providing the calculations for determining the appropriate rate, method and timing of application of manure to crop land, hayland and pasture, to meet the purposes of Act 38 of 2005.
Nutrient management plan--A written site-specific plan that incorporates BMPs to manage the use of manure and other plant nutrients for crop production and water quality protection consistent with the criteria established under Act 38 of 2005.
Nutrient management specialist--A person satisfying the requirements of the Department's Nutrient Management Certification Program in Chapter 130b (relating to nutrient management certification).
Person--An individual, sole proprietorship, partnership, association, firm, corporation, labor organization, trustee, receiver or other legal entity.
Recertification--The completion of all continuing education requirements and acquisition of the necessary continuing education credits in the manner and within the time frame set forth in this chapter.
Secretary--The Secretary of Agriculture of the Commonwealth.
Supervise or supervision--To be in contact with the Level 1 or Level 2 certified commercial manure hauler by means of a cell phone, two-way radio or other electronic device or means which allows direct communication between the Level 1 or Level 2 certified commercial manure hauler and the certified commercial manure broker of certified Level 3 hauler.
Volunteer operation--An agricultural operation that voluntarily meets the requirements of Act 38 of 2005.
§ 130e.3. Fees.
(a) Certification fees. Certification fees are nonrefundable. The following fees, which are calendar year fees, for each category and level of certification apply:
(1) Level 1 commercial manure broker. A triennial fee of $325 for a Level 1 commercial manure broker certificate.
(2) Level 2 commercial manure broker. A triennial fee of $350 for a Level 2 commercial manure broker certificate.
(3) Level 1 commercial manure hauler. An annual fee of $10 for a Level 1 commercial manure hauler certificate.
(4) Level 2 commercial manure hauler. A triennial fee of $60 for a Level 2 commercial manure hauler certificate.
(5) Level 3 commercial manure hauler. A triennial fee of $300 for a Level 3 commercial manure hauler certificate.
(b) Disposition of fees and penalties. Fees and penalties collected under the act and this chapter will be utilized to pay for administration of the act and this chapter. Fees and penalties collected under the act and this chapter will be deposited into an account created within the Nutrient Management Fund established by section 512 of Act 38 of 2005 (relating to Nutrient Management Fund) (See 3 Pa.C.S. § 512.).
§ 130e.4. Prohibition.
(a) No commercial manure hauler or commercial manure broker may transport or land apply manure in this Commonwealth on behalf of an agricultural operation, regardless of where the manure is generated, unless the hauler or broker has satisfied the following requirements:
(1) Successfully completes the certification requirements established by this chapter.
(2) Receives the appropriate certification from the Department.
(3) Continues to maintain certification as required by the act and in this chapter.
(4) Continues to have a valid certification, which has not been suspended or revoked by the Department.
(5) Continues to operate within the confines and authority of the level of certification he has received.
(b) Only those persons involved in commercial manure hauling or brokering are required to be certified to transport and land apply manure. The following are examples of noncommercial activities that do not require a person to obtain certification under the act or this chapter:
(1) An agricultural operator or an employee hauling or land applying manure generated by animals on an agricultural operation owned or leased by that agricultural operator to land owned or leased by that agricultural operator or to land owned or leased by another agricultural operator when no financial compensation is involved.
(2) An agricultural operator or an employee hauling or land applying manure, generated on a farm owned by another agricultural operator, to land owned or leased by that agricultural operator, when no financial compensation is involved.
(3) An agricultural operator or an employee hauling or land applying manure, generated on a farm owned by another agricultural operator, onto land owned by another agricultural operator, when no financial compensation is involved.
(4) An agricultural operator utilizing the equipment of another agricultural operator or equipment owned or leased by a group of agricultural operators to haul or land apply manure to land owned or leased by that agricultural operator or by another agricultural operator, when no financial compensation is involved.
(5) A CAO, CAFO or volunteer operator or an employee hauling or land applying manure generated by animals to land owned or leased by that CAO or CAFO operator, so long as it is part of his approved nutrient management plan.
(6) A CAO, CAFO or volunteer operator or an employee hauling or land applying manure generated by animals on an agricultural operation owned or leased by that agricultural operator to land owned or leased by another agricultural operator or importing agricultural operator, so long as it is part of the CAO, CAFO or volunteer operator's approved nutrient management plan and there is no financial compensation involved.
§ 130e.5. Authority, duties and prohibitions.
(a) Commercial manure broker.
(1) Authority. A person certified as a commercial manure broker under this chapter is authorized to assume temporary control or assume ownership of manure from an agricultural operation and to perform the following duties and activities:
(i) Level 1 certified commercial manure broker. A person certified under this chapter as a Level 1 commercial manure broker is authorized to arrange transport of manure to and utilization of manure at an importing operation or other location. Utilization of manure at an importing operation or other location includes land application of manure on an importing operation or other location. A Level 1 certified commercial manure broker is authorized to direct and supervise a Level 1 certified commercial manure hauler under contract with the Level 1 certified commercial manure broker with regard to transportation and stacking of manure. A Level 1 certified commercial manure broker is authorized to direct and supervise a Level 2 certified commercial manure hauler, employed by or under contract with the broker, in the land application of manure.
(ii) Level 2 certified commercial manure broker. A person certified under this chapter as a Level 2 commercial manure broker is authorized to carry out all of the duties of a Level 1 commercial manure broker. A Level 2 certified commercial manure broker is further authorized to develop nutrient balance sheets for importing operations in accordance with this chapter and in accordance with the standards established by the State Conservation Commission under Act 38 of 2005 and 25 Pa. Code Chapter 83, Subchapter D (relating to nutrient management).
(2) Duties.
(i) In accordance with section 4(b) of the act (3 P. S. § 2010.4(b)), a commercial manure broker shall, when land-applying manure on behalf of an agricultural operator, required under section 5 of the act (3 P. S. § 2010.5) to utilize a certified manure hauler or certified manure broker, do so only in accordance with an approved nutrient management plan or nutrient balance sheet.
(ii) In accordance with section 5(2) of the act (3 P. S. § 2010.5(2)), a commercial manure broker that enters into a contract with a CAO, CAFO or volunteer operation shall provide, no later than the time of transfer of the manure, copies of the nutrient balance sheet to both the importing operation and to the county conservation districts in the counties in which the importing and exporting operations are located.
(3) Prohibition. Certification under this chapter does not bestow authority upon a commercial manure broker to develop a nutrient management plan for another person, review that plan or make recommendations with regard to manure application that are outside the manure application standards in the approved nutrient management plan or nutrient balance sheet for the particular importing operation or other location.
(b) Commercial manure hauler.
(1) Authority. A person certified as a commercial manure hauler under this chapter is authorized to transport or land apply, or both, manure as a contract agent for an agricultural operator or certified commercial manure broker under the direction of the agricultural operator or certified commercial manure broker and to perform the following duties and activities:
(i) Level 1 commercial manure hauler. A person certified under this chapter as a Level 1 commercial manure hauler is authorized to transport manure as a contract agent or employee of and under the direction and supervision of an agricultural operator or a certified commercial manure broker or a Level 3 certified commercial manure hauler.
(ii) Level 2 certified commercial manure hauler. A person certified under this chapter as a Level 2 commercial manure hauler is authorized to transport manure as a contract agent or employee of and under direction of an agricultural operator or a certified commercial manure broker or Level 3 commercial manure hauler. A Level 2 certified commercial manure hauler is authorized to land apply manure at an importing operation or other location only under the following conditions:
(A) As an employee or contract agent of and under the direction and supervision of a certified commercial manure broker, as set forth in subsection (a)(1).
(B) As an employee or contract agent of and under the direction and supervision of a Level 3 certified commercial manure hauler, as set forth in subparagraph (iii).
(iii) Level 3 certified commercial manure hauler. A person certified under this chapter as a Level 3 commercial manure hauler is authorized to transport and land apply manure as a contracted agent for and under the direction of an agricultural operator or certified commercial manure broker. A Level 3 certified commercial manure hauler has the authority to direct and supervise Level 1 and Level 2 certified commercial manure haulers.
(2) Duties. In accordance with section 4(b) of the act, a commercial manure hauler shall, when land applying manure on behalf of an agricultural operator required under section 5 of the act to utilize a certified manure hauler or certified manure broker, do so only in accordance with an approved nutrient management plan or nutrient balance sheet.
(3) Prohibitions. Certification under this chapter does not bestow authority upon a commercial manure hauler to develop a nutrient balance sheet or nutrient management plan for another person, review that plan or make recommendations with regard to manure application that are outside the manure application standards in the approved nutrient management plan or nutrient balance sheet for the particular importing operation or other location.
§ 130e.6. Possession of certificate and contracts.
(a) Possession of certificate. Certified commercial manure brokers and certified commercial manure haulers shall carry on their person or in the vehicle being utilized to transport or land apply, or both, manure, a copy of their current certificate.
(b) Contracts. The certification number of the commercial manure broker or commercial manure hauler entering into a contract or agreement with an agricultural operator shall be included in any contract or agreement entered into by that commercial manure broker or commercial manure hauler to transport or land apply, or both, manure.
§ 130e.7. Notice of change in business or certification.
Certified commercial manure brokers and certified commercial manure haulers shall notify the Department in writing of any anticipated or proposed change in duties or responsibilities which will require a higher level of certification. The notification shall be sent prior to the person engaging in the activities requiring a higher level of certification. The person shall meet all of the requirements of the higher level of certification prior to engaging in the activities associated with the higher level of certification.
§ 130e.8. General training requirements for certification.
(a) General training criteria. For purposes of certification, the training program developed and administered or approved by the Department will, at a minimum, address the following topics:
(1) Laws and regulations pertaining to manure application.
(2) Information necessary for understanding and following a nutrient management plan and nutrient balance sheet.
(3) BMPs with respect to manure hauling and application, transport safety procedures, calibration of application rates for various types of application equipment, setbacks from water sources and property lines, nutrient runoff concerns and incorporation techniques.
(4) Recordkeeping by certified manure haulers or brokers necessary to meet the regulatory requirements of the act and Act 38 of 2005.
(b) Nutrient balance sheet. Certified manure broker training must include procedures necessary for the development and filing of a nutrient balance sheet.
§ 130e.9. Approval of other training programs.
The Department may approve, for purposes of training and education, programs developed by The Pennsylvania State University and other educational institutions or entities that meet the requirements of the act and this chapter. The educational institution or entity shall submit an application developed by the Department, along with the specific criteria of the training program it has developed. An educational institution or entity may also submit an application, developed by the Department, to administer Department approved or developed training and testing for Level 2 commercial manure haulers.
Subchapter B. CERTIFICATION
COMMERCIAL MANURE BROKERS Sec.
130e.11. Determination of competence. 130e.12. Certification requirements.
COMMERCIAL MANURE HAULERS--LEVEL 1
130e.21. Determination of competence. 130e.22. Certification requirements.
COMMERCIAL MANURE HAULERS--LEVEL 2
130e.31. Determination of competence. 130e.32. Certification requirements.
COMMERCIAL MANURE HAULERS--LEVEL 3
130e.41. Determination of competence. 130e.42. Certification requirements.
CONTINUING EDUCATION REQUIREMENTS
130e.51. Commercial manure broker and hauler continuing education requirements. 130e.52. Continuing education credit course providers.
DENIAL, SUSPENSION AND REVOCATION OF COMMERCIAL MANURE BROKER OR HAULER CERTIFICATES
130e.61. Denial, suspension and revocation of certificates.
COMMERCIAL MANURE BROKERS § 130e.11. Determination of competence.
(a) Commercial manure broker certification. Determination of competence for Level 1 and Level 2 commercial manure brokers shall be based on the successful completion of the certification course and a proctored written examination as set forth in this section. Certification requirements for a commercial manure broker include a Department developed or approved certification course and proctored written examination, both of which shall be administered in a classroom setting. The certification course shall be completed prior to the applicant taking the written examination or the nutrient balance sheet writing course. A person certified and in good standing as a commercial nutrient management specialist or a public nutrient management dual specialist under the Department's nutrient management certification regulations in Chapter 130b (relating to nutrient management certification), meets the requirements to be certified as a Level 1 commercial manure broker.
(b) Additional requirements for a Level 2 commercial manure broker certification. In addition to completing the requirements for and attaining a Level 1 commercial manure broker certification, an applicant for Level 2 commercial manure broker certification shall be required to attend appropriate nutrient management plan writing certification courses related to nutrient balance sheet development and then pass a proctored nutrient balance sheet examination administered or approved by the Department. The nutrient management plan writing courses have been developed under the Nutrient Management Certification Program in Chapter 130b. The nutrient balance sheet examination will be developed or approved by the Department and shall be administered as a proctored classroom examination. The applicant for a Level 2 commercial manure broker certification shall first complete the required nutrient management plan writing courses, before being eligible to take the Nutrient Balance Sheet Examination. The Nutrient Balance Sheet Examination must require the applicant for the Level 2 commercial manure broker certification to develop a nutrient balance sheet based on an importing farm scenario developed or approved by the Department. A person certified and in good standing as a commercial nutrient management specialist or a public nutrient management dual specialist under the Department's nutrient management certification regulations in Chapter 130b, meets the requirements to be certified as a Level 1 commercial manure broker and may be certified as a Level 2 commercial manure broker upon taking the necessary nutrient management plan writing courses, related to nutrient balance sheet development, and passing the appropriate testing criteria.
(c) Certification course. The certification course must, at a minimum, address the applicant's understanding, competence and proficiency with regard to the following topics:
(1) Laws and regulations pertaining to manure application, including pertinent provisions of Act 38 of 2005 and Act 38 of 2005 regulations. The Clean Streams Law and applicable regulations in 25 Pa. Code Chapter 102 (related to erosion and sedimentation control), the Manure Management Manual and the protection of agricultural operations from nuisance suits and ordinances under the act of June 10, 1982 (P. L. 454, No. 133) (3 P. S. §§ 951--957).
(2) Basic nutrient management and manure management protocols and requirements and soil fertility and management.
(3) Courses presenting information necessary for understanding and properly reading and applying the provisions of a nutrient management plan and nutrient balance sheet. The courses must cover manure handling and testing, land application information, manure application setback requirements and maps contained in nutrient balance sheets and nutrient management plans. The courses must include examples and hands on experience in reading, interpreting and properly applying the provisions of a nutrient management plan and nutrient balance sheet.
(4) BMPs with respect to manure hauling and land application of manure, such as the minimum legal setback requirements from water sources, including wells, groundwater, surface waters, wetlands, public water supplies, perennial and intermittent streams and property lines, controlling nutrient runoff, installing riparian buffers, updating and following erosion and sedimentation control plans, seasonal manure application concerns and incorporation and no-till farming techniques.
(5) Recordkeeping requirements necessary to meet the statutory and regulatory requirements of the act and Act 38 of 2005.
(6) Courses teaching development and filing of a nutrient balance sheet and appropriate manure production application and testing information, manure application setback requirements and maps contained in a nutrient management plan. These courses must cover the filing requirements set forth in the act and require the applicant to display competence in reading and properly interpreting the provisions of a nutrient management plan and nutrient balance sheet and actual development of a nutrient balance sheet.
(7) Community relations and public image awareness, to encourage dialogue and promote cooperation.
(8) Basic awareness of safety issues related to manure management, manure handling and biosecurity, as well as, transport safety procedures and highway and equipment safety.
(9) Understanding emergency action plans.
(10) Proper calibration techniques and requirements for all types of equipment normally utilized to land apply manure, to assure proper application rates.
(11) Understanding of land application issues, such as incorporation, compaction and winter application.
(12) Understanding the proper placement of stacking areas and temporary storage of manure.
(d) Certification course and written examination. The Department or an approved educational institution or entity, as provided for in the act, may develop and administer the training courses and proctor the written examinations. The certification courses and examinations will be offered at least twice per calendar year, or more often as deemed necessary by the Department. The certification courses and examinations will be offered at various locations across this Commonwealth in a manner that will insure Statewide coverage and access. At a minimum, the successful completion of the examination will demonstrate the applicant's understanding of transport and land application of manure on agricultural operations and the applicant's technical knowledge and proficiency relating to interpretation and implementation of nutrient management plans and nutrient balance sheets, as well as, the applicant's knowledge of recordkeeping requirements. The written examination must, at a minimum, address all topics and areas required to be addressed by the certification course, as set forth in subsection (c).
(e) Other examinations. The Department may approve the use of written examinations other than the Pennsylvania Commercial Manure Broker and Hauler Examination, if the written examinations meet the requirements in subsection (d).
§ 130e.12. Certification requirements.
(a) General. The act and this chapter establish four general criteria for commercial manure brokers.
(1) A person acting as a commercial manure broker shall obtain certification as a commercial manure broker prior to assuming temporary control or ownership of manure from an agricultural operation or arranging for transportation to or utilization of manure at, or both, an importing operation or other location.
(2) A person acting as a commercial manure broker shall maintain certification under the requirements of the certification program.
(3) When acting as a contract agent for an agricultural operator required by section 5 of the act (3 P. S. § 2010.5) to use a certified commercial manure hauler or certified commercial manure broker, the commercial manure broker shall land apply the manure in accordance with and based upon an approved nutrient management plan or a nutrient balance sheet developed by a certified nutrient management specialist or a Level 2 certified commercial manure broker.
(4) Commercial manure brokers shall maintain the records of the manure they broker, transport or land-apply as required by this chapter and the recordkeeping requirements of the nutrient management regulations in 25 Pa. Code §§ 83.341--83.344 (relating to recordkeeping and informational requirements).
(b) Application for Level 1 commercial manure broker certification.
(1) Submission of application. Submission of the required examination for certification as a Level 1 commercial manure broker shall act as the application for a Level 1 commercial manure broker certificate. After receiving and scoring the examination, the Department will send written notice to the applicant. The written notice will inform the applicant whether the applicant passed or failed the examination. If the applicant has passed the examination, the written notice will include a temporary certificate. The temporary certificate will be valid for 30 days from the date of receipt. The holder of the temporary certification shall forward the appropriate certification fees to the Department within the 30-day time period. Upon receipt of the appropriate certification fees, the Department will mail the final certification to the holder of the temporary certificate.
(2) Certified nutrient management plan writer. A person certified and in good standing as a commercial nutrient management specialist or a public nutrient management dual specialist under the Department's nutrient management certification regulations in Chapter 130b (relating to nutrient management certification), meets the requirements to be certified as a Level 1 commercial manure broker and may be certified as a Level 2 commercial manure broker as set forth in § 130e.11(b) (relating to determination of competence). Upon receiving a letter requesting certification, along with the certification fee, the Department will verify the applicant's nutrient management plan writer certification and good standing. Upon verification of this criteria, the Department will issue the appropriate final certification.
(c) Application for Level 2 commercial manure broker certification.
(1) Submission of application. An applicant for a Level 2 commercial manure broker certification shall complete the appropriate nutrient management plan writing certification courses, related to nutrient balance sheet development, and then pass a proctored nutrient balance sheet examination administered or approved by the Department, as set forth in § 130e.11(b). Submission of the required examination for certification as a Level 2 commercial manure broker shall act as the application for a Level 2 commercial manure broker certificate. After receiving and scoring the examination, the Department will send written notice to the applicant. The written notice will inform the applicant whether he passed or failed the examination. If the applicant has passed the examination, the written notice will include a temporary certificate. The temporary certificate will be valid for 30 days from the date of receipt. The holder of the temporary certification shall forward the appropriate certification fees to the Department within the 30-day time period. Upon receipt of the appropriate fees, the Department will mail the final certification to the holder of the temporary certificate.
(2) Certified nutrient management plan writer. A person certified and in good standing as a commercial nutrient management specialist or a public nutrient management dual specialist under the Department's nutrient management certification regulations in Chapter 130b, meets the requirements to be certified as a Level 1 commercial manure broker and may be certified as a Level 2 commercial manure broker, upon taking the necessary nutrient management plan writing courses related to nutrient balance sheet development, and passing the appropriate testing criteria. After receiving a letter requesting certification, along with the certification fee, the Department will verify the applicant's nutrient management plan writer certification and good standing and that the appropriate courses and tests have been taken and passed. Upon verification of this criteria, the Department will issue the appropriate final certification.
(d) Denial of certification.
(1) If an applicant for a Level 1 or Level 2 commercial manure broker certification is denied, the Department will notify the applicant, in writing and specifically set forth the reasons for the denial.
(i) When a Level 1 commercial manure broker applicant is denied, the applicant shall be allowed to take the next available Level 1 commercial manure broker written examination and submit an application, in the manner required by subsection (b), to the Department without having to repeat the certification course required by § 130e.11(a). If the applicant fails to pass the written examination for a second time, the applicant shall be required to again meet all of the requirements established under § 130e.11(a) and take the next available written examination, prior to resubmission of an application for certification as a Level 1 commercial manure broker.
(ii) When an applicant seeks a Level 2 commercial manure broker certification and fails the nutrient balance sheet examination, the applicant shall be allowed to take the next available nutrient balance sheet examination. If the applicant fails to pass the nutrient balance sheet examination for a second time, the Department will again notify the applicant, in writing of the denial and the reason for the denial. To again be considered for a Level 2 commercial manure broker certification, the applicant shall be required to satisfy the requirements in § 130e.11(b).
(e) Level 1 commercial manure broker to Level 2 commercial manure broker.
(1) A Level 1 certified commercial manure broker may attain a Level 2 commercial manure broker certification by meeting the requirements established under § 130e.11(b). To be eligible to apply, the applicant shall be currently certified as a Level 1 commercial manure broker or a commercial nutrient management specialist or a public nutrient management dual specialist and in good standing.
(2) The Department will notify an applicant in writing of approval or denial of an application as set forth in subsection (d).
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