1.5 Supervising Noncertified Applicators, Exemptions & Restricted Use Pesticide Access

1.5 Supervising Noncertified Applicators, Exemptions & Restricted Use Pesticide Access

Quick Answer: A certified applicator remains legally responsible for every restricted use pesticide (RUP) application a noncertified applicator makes under direct supervision. Before the work starts, the supervisor must be certified in each category covering the use, confirm the helper qualified within the last 12 months, confirm the helper was instructed in the equipment within the last 12 months, confirm the helper is at least 18 (16 only for an immediate family member supervised by a private applicator, non-fumigant, non-aerial), give use-specific instructions the helper can understand, guarantee access to the labeling and clean labeling-required PPE, verify equipment condition before each day of use, and keep a means of immediate communication open. Commercial applicators must document the helper's qualifications and keep the record two years at the principal place of business. North Dakota's own exemptions in NDCC 4.1-33-16 cover nonrestricted use pesticides applied under direct supervision, laboratory research, physicians and veterinarians, and nonrestricted-use antimicrobials.

Why This Is a Core Competency

40 CFR 171.103(c)(9) makes "responsibilities of supervisors of noncertified applicators" one of the ten core competency areas every commercial and public applicator must demonstrate. Exam questions come from four sub-points: complying with the supervision requirements in 40 CFR 171.201, keeping pesticide safety training records for noncertified applicators who use RUPs, providing use-specific instructions, and explaining applicable state, tribal, and federal laws to those workers.

The underlying idea is simple and worth memorizing: certification does not transfer, but liability does. The noncertified applicator may hold the wand, but the certified applicator's name, number, and certificate are on the line.

Definitions You Must Separate

The Supervisor's Checklist (40 CFR 171.201)

Before the season or the hire

1. Hold the right certification. The supervising certified applicator must be certified in each category applicable to the supervised use. You cannot supervise a right-of-way application on a certificate that only covers seed treatment.
2. Know the supervisory rules. The supervisor must have practical knowledge of the applicable federal, state, and tribal supervisory requirements, including any requirements on the product label and labeling.
3. Verify qualification. Before any RUP use, confirm the noncertified applicator has met at least one of these within the required period:
   • completed noncertified applicator training in the last 12 months;
   • met the agricultural handler training requirements of 40 CFR 170.501 in the last 12 months;
   • met requirements set by the certifying authority that meet or exceed the training standard; or
   • is a certified applicator who simply is not certified for this type of application or in this jurisdiction.
4. Verify equipment instruction. The person must have been instructed within the last 12 months in the safe operation of any equipment they will use to mix, load, transfer, or apply pesticides.
5. Verify age. The minimum age is 18. The single exception is 16, and only when all three conditions hold: the person works under the direct supervision of a private applicator who is an immediate family member; the product is not a fumigant, sodium cyanide, or sodium fluoroacetate; and the application is not aerial.

Before each supervised use

1. Labeling access. Ensure the noncertified applicator has access to the applicable product labeling at all times during use.
2. Personal protective equipment. Where the labeling requires PPE for mixing, loading, application, or any other use activity, ensure the person has clean, labeling-required PPE in proper operating condition and that it is worn and used correctly.
3. Use-specific instructions. Provide instructions specific to the site and the pesticide, covering labeling directions, precautions, and requirements for that use and site, and explaining how site characteristics (surface and ground water, endangered species, local population) and application conditions (equipment, method, formulation) may increase or decrease the risk of adverse effects. The instructions must be given in a manner the noncertified applicator can understand — which in practice can mean a translator.
4. Equipment condition. Before each day of use, ensure equipment used to mix, load, transfer, or apply pesticides is in proper operating condition as the manufacturer intended, and can be used without risk of reasonably foreseeable adverse effects.
5. Communication. Ensure a means to immediately communicate with the certified applicator is available to each supervised noncertified applicator.
6. Physical presence. Be physically present at the site whenever the product labeling requires it — some labels state that a certified applicator must be physically present or must personally apply the product.

Recordkeeping (commercial applicators)

40 CFR 171.201(e) requires a commercial applicator to create or verify the existence of records documenting how each noncertified applicator qualified, before allowing the supervised use, and to keep them accessible at the principal place of business for two years from the date of the supervised RUP use.

Exceptions (40 CFR 171.201(f)): the supervision requirements do not apply to persons conducting laboratory research involving RUPs, or to physicians and veterinarians applying RUPs to patients in the ordinary course of practice.

North Dakota Certification Exemptions (NDCC 4.1-33-16)

North Dakota's statute adds its own exemptions. Certification requirements do not apply to:

1. An individual applying nonrestricted use pesticides under the direct supervision of a private or commercial applicator, unless the pesticide label requires that a certified applicator personally apply the product. A pesticide is applied under direct supervision if it is applied by an individual acting under the instruction and control of a certified applicator who is physically available if needed; the certified applicator need not be present when the pesticide is applied. Direct supervision of an application using aircraft requires that the pilot be appropriately certified.
2. A competent person applying a restricted use herbicide under the direct supervision of a private applicator, unless the herbicide label requires personal application by a certified applicator. Here the private applicator must be available if needed, even though not physically present.
3. Persons conducting laboratory-type research using restricted use pesticides.
4. A doctor of medicine or a doctor of veterinary medicine applying a pesticide as a drug or medication in the course of normal practice.
5. An individual applying nonrestricted-use antimicrobial pesticides.

Read exemption 1 carefully against the commercial/public rule: since August 1, 2001 North Dakota has required commercial and public applicators to be certified even for general use pesticides. The exemption protects the helper working under a certified applicator's instruction and control — it does not let a business apply pesticides for hire without a certified applicator behind the operation.

Restricted Use Pesticide Access and the Dealer's Gatekeeping Role

Supervision rules only work if RUPs reach the right hands. Two provisions close the loop:

• NDCC 4.1-33-13(1)(o): it is a violation to distribute any restricted use pesticide to a person who is not properly certified to use or purchase it.
• NDCC 4.1-33-13(1)(p): it is a violation to buy, use, or supervise the use of any pesticide without first complying with the certification requirements of the chapter, unless otherwise exempted.

Dealers therefore must positively identify RUP purchasers with trustworthy proof of identification and record the purchaser's name, address, certification number and signature, the certification class and expiration date, and the state, tribe, or federal agency that issued the certification. If the RUP will be delivered to someone other than the certified purchaser, the dealer must keep a completed and signed authorization to receive restricted use pesticides form on file for that purchaser for the current year.

Explaining the Law to Your Crew

The fourth sub-point of the core standard — explaining pertinent state, tribal, and federal laws and regulations to noncertified applicators — is the one most applicators neglect. A practical pre-season briefing covers:

• "The label is the law," and where the labeling for each product lives on the truck.
• The 24-hour North Dakota application-record deadline and what fields must be filled in.
• The pesticide incident report duty: report within 24 hours to the Agriculture Commissioner any incident that could cause adverse effects to humans, animals, or the environment.
• Who to call, immediately, and the fact that a means of immediate communication with the certified applicator must always be available.
• The rule against applying pesticide to another person's property without permission of the owner or lessee (NDCC 4.1-33-13(1)(i)).

Independent Preparation Notice

This study guide is an independent educational publication developed by OpenExamPrep. It is not affiliated with, sponsored by, endorsed by, or produced in partnership with the North Dakota Department of Agriculture, North Dakota State University Extension, or the EPA.