Title of Regulation: 2VAC5-685. Regulations Governing Pesticide Applicator Certification under Authority of Virginia Pesticide Control Act (amending 2VAC5-685-70).

Statutory Authority: § 3.2-3906 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 28, 2013.

Effective Date: September 12, 2013.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia authorizes the Board of Agriculture and Consumer Services to adopt regulations in accordance with Title 3.2 of the Code of Virginia regarding agriculture, animal care, and food. Subdivision 4 of § 3.2-3906 of the Code of Virginia authorizes the board to adopt regulations to establish training, testing, and standards for certification of commercial pesticide applicators.

Purpose: The Department of Agriculture and Consumer Services (VDACS) oversees the testing of individuals who desire to become commercial pesticide applicators. 2VAC5-685, Regulations Governing Pesticide Applicator Certification Under Authority of Virginia Pesticide Control Act, establishes the categories and subcategories in which a commercial pesticide applicator may be certified. Certification in the fumigation of soil and agricultural products subcategory and the chemigation subcategory currently requires concurrent certification in the agricultural plant pest control category. This requirement was necessary when each of these subcategories did not have its own separate manual and exam. Now that a manual and exam for both the fumigation of soil and agricultural products subcategory and the chemigation subcategory have been developed, concurrent certification in the agricultural plant pest control category is no longer necessary. This regulation assists in ensuring that commercial pesticide applicators have the necessary knowledge to enable them to properly use pesticides. The proper use of pesticides is essential to protect the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Process: This rulemaking will remove an unnecessary regulatory requirement for concurrent certification for two subcategories of commercial pesticide applicators. Representatives from pesticide trade groups, growers, and pesticide educators commented favorably on this proposal. Consequently, as this regulatory action will eliminate an unnecessary requirement, the department expects this action to be noncontroversial. Both of these subcategories each have a separate exam. As such, individuals conducting fumigation of soil and agricultural products or chemigation will continue to be tested and certified.

Substance: This regulatory action will remove from 2VAC5-685-70 the requirement of concurrent certification in the agricultural plant pest control category for the subcategories of (i) fumigation of soil and agricultural products and (ii) chemigation.

Issues: The primary advantage of this action for businesses and the agency is the elimination of an unnecessary regulatory requirement for concurrent certification for two subcategories of commercial pesticide applicators. This regulation action poses no disadvantage to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes to remove from Section 70 of 2VAC5-685, Regulations Governing Pesticide Applicator Certification Under Authority of Virginia Pesticide Control Act, the requirement of concurrent certification in the agricultural plant pest control category for the subcategories of (1) fumigation of soil and agricultural products, and (2) chemigation.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The Department of Agriculture and Consumer Services (Department) oversees the testing of individuals who desire to become commercial pesticide applicators. The Regulations Governing Pesticide Applicator Certification Under Authority of Virginia Pesticide Control Act establish the categories and subcategories in which a commercial pesticide applicator may be certified. Certification in two subcategories, (1) fumigation of soil and agricultural products and (2) chemigation, currently requires concurrent certification in the agricultural plant pest control category. This requirement was necessary when each of these subcategories did not have its own separate manual and exam. Now that a manual and exam for both the fumigation of soil and agricultural products subcategory and the chemigation subcategory have been developed, concurrent certification in the agricultural plant pest control category is no longer necessary.

Therefore, the Board proposes to no longer require concurrent certification in the agricultural plant pest control category for certification in the aforementioned two subcategories. The proposed change will potentially save both time and fees for individuals desiring certification in fumigation or chemigation, but not agricultural plant pest control. The applicants will no longer have to spend the time necessary for studying and taking the agricultural plant pest control exam, nor wait for the Department to process the application. The Department estimates that the proposed repeal of the concurrent certification will save applicants anywhere from two to four weeks from the removal of studying, exam taking, and application processing associated with the agricultural plant pest control certification. To become a commercial applicator, an individual must first pass a core examination that deals with general principles of pesticide safety and knowledge of appropriate federal and state laws and regulations, and then demonstrate competency in a particular type of pest control by passing the appropriate category examination(s). The certification fee allows applicators to take not only the core exam but also exams in as many other categories as they wish to during a given testing session. If an applicant wishes to certify in an additional category later on, he/she would pay a separate fee. By removing the requirement for concurrent certification, applicators would have fewer exams to take, thus making it more likely that they would complete those exams during one testing session, thereby reducing the fees they pay. The certification fee for the first testing session is $70. The fee per additional testing session, if needed, is $35.

Businesses and Entities Affected. Currently, 74 applicators are certified in the fumigation subcategory and 35 applicators are certified in the chemigation subcategory. Approximately 32 businesses will be affected by this regulatory action.¹ The Department estimates that all of the 32 firms are small businesses.

Localities Particularly Affected. The proposed repeal of these regulations does not particularly affect specific localities.

Projected Impact on Employment. The proposed repeal of the concurrent certification in agricultural plant pest control requirement will significantly reduce the time necessary to become certified in fumigation or chemigation. This may increase the supply of available workers, particularly for temporary jobs. This may in practice result in a small increase in the total number of individuals employed in fumigation or chemigation.

Effects on the Use and Value of Private Property. The proposed repeal of the concurrent certification in agricultural plant pest control requirement will save time and in some cases fees for individuals desiring certification in fumigation or chemigation,

Small Businesses: Costs and Other Effects. The proposed repeal of the concurrent certification in agricultural plant pest control requirement will save time and in some cases fees for employees of small firms that provide fumigation or chemigation services.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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¹ Estimate provided by the Virginia Department of Agriculture and Consumer Services

Agency's Response to Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments remove the requirement that a commercial applicator be concurrently certified in the agricultural plant pest control category for the subcategories of (i) fumigation of soil and agricultural products and (ii) chemigation.

Part III
Categories of Pesticide Applicator Certification

2VAC5-685-70. Categories for commercial applicator certification.

A. Commercial applicators must be certified in one or more of the following commercial applicator categories or subcategories:

1. Agricultural pest control.

a. Agricultural plant pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in production of agricultural crops, or on grasslands, or noncrop agricultural lands.

b. Agricultural animal pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides on agriculturally related animals.

c. Fumigation of soil and agricultural products. This subcategory is for commercial applicators who will be using or supervising the use of pesticides for soil fumigation in production of an agricultural commodity and the application of pesticides for fumigation of agricultural products. Certification in this subcategory requires concurrent certification in the agricultural plant pest control category.

d. Chemigation. This subcategory is for commercial applicators who will be using or supervising the use of pesticides through an irrigation system. Certification in this subcategory requires concurrent certification in the agricultural plant pest control category.

2. Forest pest control. This category is for commercial applicators who will be using or supervising the use of pesticides in forests, forest nurseries, and seed orchards.

3. Ornamental and turf pest control.

a. Ornamental pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in the maintenance and production of ornamental trees, shrubs, and flowers in and out-of-doors.

b. Turf pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in the production and maintenance of turf, including, but not limited to, turf in golf courses, residential lawns, parks, and cemeteries.

4. Seed treatment (excluding fumigation). This category is for commercial applicators who will be using or supervising the use of pesticides on seeds.

5. Aquatic pest control.

a. Aquatic pest control - general. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in or on standing or running water, for the express purpose of controlling pests. This excludes applicators engaged in public health related activities included in subdivision 8 of this subsection, public health pest control.

b. Marine antifoulant paints. This subcategory is for commercial applicators who will be using or supervising the use of marine antifoulant paints containing tributyltin or other restricted use pesticides.

6. Right-of-way pest control. This category is for commercial applicators who will be using or supervising the use of pesticides in the maintenance of public rights-of-way and in the maintenance of fence lines, structural perimeters or other similar areas.

7. Industrial, institutional, structural, and health-related pest control.

a. General pest control (excluding fumigation). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control household type pests, pests that inhabit or infest structures, stored products, and residential food preparation areas, and pests capable of infesting or contaminating foods and foodstuffs at any stage of processing facilities.

b. Wood-destroying pest control (excluding fumigation). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control organisms that destroy structures made of wood.

c. Fumigation. This subcategory is for commercial applicators who will be using or supervising the use of fumigant-type pesticides.

d. Vertebrate pest control (excluding structural invaders). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control vertebrate pest animals.

e. Sewer root pest control. This subcategory is for commercial applicators who use pesticides for sewer line root control.

8. Public health pest control. This category is for commercial applicators who will be using or supervising the use of pesticides for the management and control of pests having medical and public health significance.

9. Regulatory pest control. This category is for federal, state, and local governmental employee applicators who will be using or supervising the use of pesticides in the control of regulated pests.

10. Demonstration and research pest control. This category is for commercial applicators who will be demonstrating the proper use and techniques of application of pesticides (including classroom demonstration), or who will be supervising such demonstration. It also includes applicators who will be conducting pesticide research on greenhouse or field plots.

11. Aerial pesticide application. This category is for commercial applicators who will be using or supervising the use of any pesticide applied by fixed- or rotary-wing aircraft.

12. Wood preservation and wood product treatment. This category is for commercial applicators who will be using or supervising the use of pesticides at treating plants and sawmills for preservative treatment of wood and wood products.

13. Miscellaneous. This category is to be used to designate categories or subcategories of commercial applicators using specific pesticides or uses for which the U.S. EPA may mandate certification in order to allow for the pesticide or use.

B. A commercial applicator certified in one category and seeking initial certification in one or more additional categories shall meet the certification requirements of each of the new categories in which he desires certification.

FORMS (2VAC5-685)

Commercial Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev. 07/12)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination - B, Form VDACS-07218 (eff. 1/09)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 5/13)

Commercial Pesticide Applicator Certification Exam bubble answer sheet, 2003

Private Pesticide Applicator Certification Exam bubble answer sheet, 2003

Private Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination at Department of Motor Vehicles Customer Service Center (eff. 1/09)

Power of Attorney (not dated)

Power of Attorney (rev. 5/09)

Proof of Additional Category Specific Training for Registered Technicians (eff. 3/12)

Application for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (eff. 5/09)

Pesticide Registered Technician Application Form VDACS-07212 (eff. 1/09)