ASSISTANCE FOR PESTICIDE ENFORCEMENT AND APPLICATOR CERTIFICATION PROGRAMS

AUTHORITY: Secs. 4 and 23, Federal Insecticide, Fungicide, and Rodenticide Act, as amended by Pub. L. 95-396, 92 Stat. 819 (7 U.S.C. 136b and 136u).

SOURCE: Sections 35.750-35.786 appear at 45 FR 73869, Nov. 6, 1980, unless otherwise noted.

§ 35.750 Scope and purpose.

Sections 35.750 through 35.786 establish policies and prodedures for providing financial assistance to States and Indian Tribes for the establishment, development, improvement, and maintenance of pesticide enforcement programs, and for certification of pesticide applicators, as authorized by Section 23 of the Federal Insecticide, Fungicide and Rodenticide Act, as amended. This program is listed in the Catalog of Federal Domestic Assistance as program number 66.700, Pesticide Enforcement Program Grants. These regulations supplement EPA General Grant Regulations and Procedures in Part 30 of this chapter, §§ 35.400 through 35.425 of this chapter, which apply to all EPA program grants, and regulations governing the certification of pesticide applicators in Part 171 of this chapter.

As used in the Assistance for Pesticide Enforcement and Application Certification Program Regulations:

(a) "Act" means the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 et sec.)

(b) "Applicant" means a State or Indian Tribe which has filed an application for financial assistance.

(c) "Indian Tribe" means any Indian Tribe, band, pueblo or community, including Native villages and Native groups as defined in the Alaska Native Claims Settlement Act, which is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs.

(d) "Recipient" means a State or Indian Tribe which has been awarded financial assistance under the Act.

(e) "State" means one of the States of the United States, the District of

(a) State agencies. EPA will award assistance to the State agency designated by the Governor under section 4(a) of the Act and implementing EPA regulations or such other State agency as the Governor may designate and the Regional Administrator may approve. Where the designated State agency does not have adequate authority or capability to carry out all requirements of this subpart, the designated State agency shall pass EPA funds on to one or more other State agencies through the mechanism of interagency agreements, with approval of the Regional Administrator, for the performance of enforcement or other responsibilities of the State under the program plan. EPA will not award assistance to the designated State agency unless authorized representatives of all the State agencies obligated to perform tasks under the terms of the financial assistance agreement have entered into a State interagency agreement stating the responsibilities of each State agency.

(b) Indian Tribes. EPA will award assistance to Indian Tribes which the Regional Administrator determines have adequate authority and capability to carry out the requirements of this subpart.

§ 35.753 A-95 clearinghouse review.

Applicants for financial assistance shall comply with all applicable requirements of the Office of Management and Budget (OMB) Circular A95 in accordance with § 30.305 of this chapter.

§ 35.755 Application submission.

An applicant for assistance shall submit an application containing the program plan required by § 35.775 to the appropriate EPA Regional Office in accordance with § 30.315 of this chapter, no later than July 1 of each year. If the grantee does not submit

the proposed grant application and program plan by 90 days preceding the budget period for which the program application is prepared, the Regional Administrator may reduce the tentative allotment by one-twelfth for each month delay.

§ 35.758 Application evaluation.

The Regional Administrator will evaluate each application in accordance with criteria provided in the EPA annual guidance (see § 35.404). The Regional Administrator will respond to each applicant within 30 calendar days of EPA receipt of the application. EPA will use the following criteria in application evaluation, as supplemented by the EPA annual guidance:

(a) The extent of an applicant's demonstrated need for establishing, developing, improving, or maintaining a comprehensive pesticide enforcement and applicator certification program within the applicant's jurisdiction;

(b) The extent to which the applicant's proposed program demonstrates a potential for long-term beneficial impact upon human health and the environment within the applicant's jurisdiction;

(c) The extent, the past level of effectiveness, and the likelihood of future success of the applicant's pesticides program.

§ 35.761 Allotments and distribution of funds.

(a) The Administrator will issue to each Regional Administrator, as a part of the EPA annual guidance, tentative regional allowances for the fiscal year. The tentative regional allowance will be based on the appropriation requested by the President. As soon as practicable after funds are appropriated, the Administrator will issue to each Regional Administrator a final regional allowance.

(b) The annual guidance will specify program approval criteria which the Regional Administrator will use in distributing funds among the eligible applicants in each region consistent with § 35.764(a).

(c) The Administrator may provide in the annual guidance that specified portions of available funding will be

available only for one or more program elements, as, for example, applicator certification or producer establishment inspections, or pesticide misuse investigations and enforcement.

§ 35.762 Enforcement funds.

Enforcement funds which the Administrator determines will be available in each Fiscal Year for allotments among the regions for financial assistance under section 23(a)(1) of the Act will be allotted on the basis of factors, and appropriate relative weightings, which will be identified each year in the annual guidance. These factors include population; number of farms; number of pesticide producers; number of commercial and private applicators; and incentive factors designed to assure that the Regional Administrator has the ability to encourage and reward highly successful programs.

§ 35.763 Applicator certification funds.

(a) The Administrator will determine the annual distribution of applicator certification funds by means of a formula. The formula will provide for an equal base amount for each State with the remainder of the funds distributed primarily on the basis of such factors as the number of private and commercial applicators, the number of farms, recertification activities and other workload factors identified in the annual guidance. Funds will be transferred to the Regions with specific State allocations derived from the formula. Upon receipt of the funds, the Region will inform the States of the amount of funds allocated to them by the formula. States will then be given an opportunity to submit applications for the amount allocated. Grant applications received from the States will be reviewed by the Regional Office in accordance with each State's plan for certification required by Part 171 of this chapter. Those applications which meet the criteria found in the State plan and provide for appropriate State matching funds shall be approved.

(b) When the extent of Indian Tribes participation in the certifica

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tion program stabilizes, Indian Tribes I will have funds allocated to them by the same formula which is applied to the States.

§ 35.764 Amount of assistance and reallocation.

(a) Amount of assistance. The Regional Administrator shall review each application prior to award of assistance to determine whether it may be approved under the requirements of §§ 35.750 through 35.786, and to determine the reasonableness of the estimated costs of carrying out the approved elements of the program. If the Regional Administrator's evaluation of the applicant's program submission reveals that an output commitment is not consistent with the funding anticipated under § 35.761 or national priorities contained in the EPA annual guidance, the Regional Administrator shall negotiate with the applicant to change the output commitment or to adjust the funding amount. If, however, an applicant proposes a different set of outputs from those suggested by the EPA annual guidance due to unique pesticide problems, the Regional Administrator may approve the program provided the Regional Administrator determines that the outputs can and should be achieved and that the proposed funding for the unique pesticide problems is justified. In no event may the Regional Administrator exceed the regional allowance.

(b) Reallocation-(1) Enforcement. Unobligated funds remaining after negotiations with the recipients within a region may be used for supplementary awards to other recipients within that region. Funds not obligated by the Regional Administrator within six months following the date of the final advice of allowance for that region will revert to the Administrator for reallocation to regions which can demonstrate a need for funds in excess of their final regional allowance.

(2) Applicator certification. Unobligated funds for certification programs remaining after negotiations with recipients within a region, and deobligated funds, will revert to the Administrator. The Administrator will use such funds for reallotment to accom

plish objectives of the applicator certification program.

(3) Limitations. Subject to the limitations contained in the Appropriations Act, allocations to States that fail or decline to assume primary enforcement responsibility for pesticide use violations may be used in whole, or in part, by the Administrator to implement a pesticide enforcement program in those States.

§ 35.767 Rate of Federal assistance.

(a) Enforcement activities. The Federal share of enforcement activities shall not exceed 85 percent of the total allowable program plan costs.

(b) Applicator certification activities. The Federal share of applicator certification activities will not exceed 50 percent of the anticipated allowable cost of the program plan.

§ 35.769 Reduction of amount.

(a) If the Regional Administrator's program evaluation reveals that the recipient will not achieve or has not achieved the outputs specified in the approved program, an effort should be made to renegotiate outputs through mutual agreement. If agreement is not reached, the Regional Administrator may reduce the amount of assistance in proportion to the estimated program cost to produce such outputs, consistent with § 30.920 of this chapter. This provision does not limit the Regional Administrator's right to take other appropriate actions authorized by §§ 30.915 and 30.920.

(b) A State shall be notified prior to any reduction in the amount of Federal support. This notification shall include the reasons for reduction and, if appropriate, what steps the State must take to regain funding.

§ 35.771 Budget period.

The budget period shall be the Federal fiscal year.

§ 35.775 Program plan.

An applicant shall submit to the Regional Administrator an application containing a program plan which satisfies the requirements of this Regulation and contains planned accomplishments. The program plan shall include

the program elements listed in § 35.778, unless the Regional Administrator, with the concurrence of the Assistant Administrator for Enforcement, otherwise agrees. The purpose of the program plan is to relate the use of available resources (both Federal and non-Federal) to the achievement of planned accomplishments. The program plan shall describe how the planned accomplishments address the pesticide problems in the applicant's jurisdiction and how the planned accomplishments are consistent with the objectives of the Act. Information on the program elements contained in each submission shall be presented in summary form and shall include:

(a) The planned accomplishments;

(b) The resources to be expended to produce the planned accomplishments, including anticipated Federal and non-Federal financial and technical assistance; and

(c) A timetable for the performance of outputs.

§ 35.778 Program elements.

Guidance concerning output requirements of the program elements below will be included in EPA's annual guidance under § 35.404. Under § 35.764(a) the Regional Administrator may approve an applicant's proposal to alter or add to the list of program elements below. The applicant's program plan must be developed so that the program elements are free from redundant or inconsistent outputs. The program plan shall identify specific outputs (ie., the planned accomplishments) to be achieved during the year within the following major program elements (common outputs may be developed for overlapping program areas).

(a) Administration and program development. This program element will provide for planning, development and coordination of activities for program management, including general program direction and supervision; development of staffing and budget needs; development and evaluation of basic State legislation, regulations, and policies; and public participation.

(b) Enforcement. An enforcement program should include the following elements:

(1) Surveillance. Collection of samples and other evidence regarding pesticides which have been packaged, labeled, and released for shipment; collection of samples and other evidence regarding pesticides which are being used or are held for use; and producer establishment, marketplace, import, export and pesticide use inspections.

(2) Laboratory capability. Provision for the analysis of all samples collected during surveillance activities using Association of Official Analytical Chemists methods or other test methods approved by EPA. In accordance with Federal Management Circular FMC 74-4, provision may be made for rearrangement and alteration of facilities as specifically required for the program. The cost of constructing new buildings will not be allowable.

(3) Training. Training of inspectors, laboratory personnel or case preparation officers regarding EPA establishment, marketplace and use inspection and sample collection procedures, EPA analytical methods and chain of custody standards, and case-development procedures.

(4) Enforcement. Establishment and implementation of procedures for administrative and judicial enforcement of Federal and non-Federal pesticide regulations, including revocation of certification and provision for supplying evidence gathered by the recipient to EPA to support prosecution in cooperation with or by Federal authorities. (c) Applicator certification. An applicator certifiction program must provide for certification of private and commercial applicators as set forth in the approved State plan to use and supervise the use of restricted use pesticides, for training in the use of new techniques in pest control, and for their introduction through the certification process. The program element may provide training intended to complement and supplement the training conducted under the Memorandum of Understanding and the Interagency Cooperative Issuance between EPA and USDA and through cooperative agreements between USDA and the State Cooperative Extension Services

as provided by section 23(c) of FIFRA, 7 U.S.C. 136u(c).

(d) Public Participation and Information. Each program plan must include an element for public participation. This element must include a program to inform and educate the public as to the actions the applicant plans to take in regard to pesticide enforcement and applicator certification. Provision will be made for consultation with the public in significant decisions in program plan implementation. Following significant decisions in the course of program plan implementation, the recipient shall prepare a summary of its responses to public comment and shall make these available to the public. The recipient's public participation activities shall be summarized in its end-of-year review. EPA's public participation policy should be consulted for specific requirements.

§ 35.782 Program evaluation.

(a) Mid-year evaluation. Each Regional Administrator and the recipient shall jointly conduct a mid-year onsite evaluation meeting to review and evaluate the program accomplishments of the current budget period under § 35.410.

(b) End-of-year evaluation. Generally within 30 days after the end of the budget period, each Regional Administrator and recipient shall jointly conduct an evaluation meeting to review and evaluate the accomplishments for the year.

(c) Evaluation report. The Regional Administrator shall prepare a written report of each evaluation generally within 15 working days of the meeting. The recipient shall be allowed 15 working days from the date of receipt to concur with or comment on the findings.

§ 35.786 Reporting.

The recipient shall submit reports to the Regional Administrator showing work performed under an assistance agreement.

(a) The following information shall be submitted quarterly:

(1) Establishment inspections; (2) Marketplace inspections;

(3) Use observations;

(4) Import sampling:

(5) Experimental use permit inspections;

(6) Sample collections;

(7) Chemical analysis of samples;

(8) Enforcement actions;

(9) Accomplishment of any other outputs.

(b) Reports for the second and fourth quarters shall include the total number of applicators, private and commercial, by category, currently certified; number of applicators, private and commercial, by category, certified during the last reporting period; and the number of applicators, private and commercial, by category, recertified during the last reporting period.