Statements of Basis, Specific Statutory Authority and
Purpose for rulemaking activity from 1968 through 1991 are no longer in the
Departments files and are presumably in the state archives.
18.01.
January 17, 1992 - Effective
March 1, 1992
These rules are adopted by the Commissioner of the Department
of Agriculture pursuant to his authority under §
35-10-118, C.R.S. (1991
Supp.).
The purpose of these rules is to: revise the licensing
procedures for commercial applicators pursuant to §
35-10-118(2) (b), (c), and
(d); revise the licensing procedures for
qualified supervisors pursuant to §
35-10-118(2)(b) and
(c); adopt registration procedures for
limited commercial and public applicators pursuant to §
35-10-118(2) (b) and
(c); adopt licensing procedures for certified
operators pursuant to §
35-10-118(2)(b), (2) (c) and (4)
; and adopt technician training requirements
pursuant to §
35-10-118(2),
§
35-10-106(l)(c),
and §
35-10-110(3) of
the Pesticide Applicators' Act, Title 35 Article 10, C.R.S. (1991
Supp.).
Most issues encountered when developing these rules were
neither exclusively factual nor exclusively policy. Consequently most issues
were considered as both factual and policy.
Factual issues encountered when developing these rules
include:
1. Commercial applicators are
subcontracting with commercial applicators to perform pesticide applications.
This activity can be divided into, two categories. First, there are
subcontracts involving applications in the categories for which both commercial
applicators are licensed. An example of this would be a commercial applicator
licensed in agricultural weed control, but who has ground application equipment
only, subcontracting with a qualified licensee applications for agricultural
weed control that require application by air. Second, there are subcontracts
involving applications for which the contracting commercial applicator is not
licensed, but the subcontracting commercial applicator is. An example of this
would be a commercial applicator licensed only in turf weed control
subcontracting with a commercial applicator licensed in industrial and right of
way applications for weed control in that category. Enforcement questions have
arisen as to whom is responsible for such applications, i.e., the contracting
applicator, the subcontracting applicator, or both.
2. A certificate of good standing from the
Secretary of State will establish that an applicant for license is a bonafide
business prior to issuance of such license.
3. In trying to define the level at which
registration of public applicators should occur, the myriad of political
subdivisions that may not need to register, nor choose to do so, while a sister
subdivision may be required to do so by their use of restricted use pesticides
was considered. It was decided to let each political entity determine what
subdivision best described them as public applicators.
4. Expiration dates issued from the date of
licensing have little meaning to the license holder. The birth date of the
qualified supervisor and certified operator was chosen for the expiration date
of their licenses, except for licenses issued pursuant to §
35-10-118(4).
5. The revised statute requires restricted
use pesticides to be applied by a licensed qualified supervisor, licensed
certified operator, or under the on site supervision of a licensed qualified
supervisor. In the agricultural categories the pesticides being applied are
often classified as restricted use. It is not uncommon for commercial
applicators to employ individuals for short periods of time during the growing
season to apply pesticides. The application equipment utilized often holds only
one person. Therefore the individual applying restricted use pesticides from
equipment holding only one person must be licensed as a qualified supervisor or
certified operator. Many individuals working on this basis are licensed to use
or supervise the use of restricted use pesticides in other states. Such
licenses were issued pursuant to examination and/or continuing education.
Because of the circumstances necessitating speedy issuance of credentials and
the prior existence of similar credentials from other jurisdictions, it was the
opinion of the advisory committee and the department that a certified
operator's license could be reciprocal. In addition, in order to allow for
emergency circumstances and still have assurance of competency, the provision
for administration of an examination by the qualified supervisor so a person
could apply restricted use pesticides for ten days was included.
6. When considering the requirements for
continuing education the topics needed to be relevant and the opportunity to
spread out the training was considered, as well as what areas were necessary to
be updated every three years and how much credit was needed in each of these
areas.
7. The factual issues
considered when writing rules for technician training included who is a
technician, the topics each type of technician should have knowledge about and
be familiar with, the hours of training needed to adequately cover said topics,
what is used and how the business operates, how the classroom vs. on the job
training should be divided and who is responsible for the training and who can
train.
Policy issues encountered when developing theses rules
include:
1. Consideration of whom to
hold responsible when a licensed commercial applicator is subcontracting with
another licensed commercial applicator.
2. Not defining political subdivisions allows
flexibility in the administration of registering public applicators.
3. In considering the continuing education
requirements it was decided to allow credits vs. hours and not to assign time
increments to the credits. This was done because an update in one area where
there has been little change may be adequately covered in a minimum amount of
time, whereas an update on another topic may require several hours to be
considered adequate.
4. In relation
to technician training the goal was to provide competent technicians using
pesticides to assure proper application and minimization of hazards while not
being overly burdensome or eliminating competition through regulation. The
manner in which each business operates was also considered, i.e. the
differences between an agricultural, turf, ornamental and structural
business.
18.02.
January 31,1992 - Effective February 1, 1992
This rule is adopted under the Pesticide Applicators' Act
pursuant to §
35-10-118 and pertains to the
administration enforcement of the licensing provisions authorized under
Pesticide Applicators' Act.
During the 1990 legislative session, article
10 of title
35 was repealed and reenacted. Sections
35-10-105 - 107,
35-10-109 - 110, and
35-10-113 -116 revised the types
licenses issued to pesticide applicators by the department of agriculture and
manner in which they are issued. The revisions included registration by limited
commercial and public applicators under certain circumstances, licensing of
certified operators, and training requirements for technicians.
These rules allow the Commissioner to comply with those
provisions.
The notice and hearing requirements of §
24-4-103 of the Colorado
Administrative Procedures Act have been met. In accordance with the timelines
established for rule making the effective date for these rules will fall after
the beginning of spray season. Therefore, the immediate adoption of Part 1. -
5. is imperatively necessary for the preservation of public health, safety, and
welfare.
18.03.
September 17, 1993 - Effective October 30, 1993
These rules are adopted by the Commissioner of the Department
of Agriculture pursuant to his authority under §
35-10-118, C.R.S. (1992
Supp).
The purpose of these rules is to:
(1) set the annual licensing fee for
commercial applicators pursuant to
35-10-118(2)(d);
to permit the use of a termiticide only in accordance with label directions;
and to houseclean the existing rules by correcting incorrect citations,
eliminate conflicting provisions, correcting misspellings, etc.
Factual issues encountered when developing the rule setting
the annual license fee for commercial applicators include:
1. In 1983 the legislature repealed and
reenacted the Pesticide Applicators' Act. The 1983 statute established the
Pesticide Applicators' fund for the purposes of administration and enforcement
of the program. It also set the licensing fee for a commercial applicator's
license at $250.00.
2. In 1990 the
legislature repealed and reenacted the Pesticide Applicators' Act. The current
statute authorizes the Commissioner to set the amount of the license fee for a
commercial applicator, business license, not to exceed $250.00 through
licensing year 1991 and $350.00 thereafter.
3. The licensing fee for a commercial
applicator's business license has not been raised since 1983.
4. Program costs now exceed revenues and the
fund balance has been depleted.
Policy issues encountered when developing the rule setting
the annual license fee for commercial applicators include:
1. The fee structure for the commercial
pesticide applicator program has been carefully considered by the Department
and the Pesticide Advisory Committee. After reviewing the projected shortfall
and various fee increases it was decided that the most prudent course at this
tune was to increase the annual commercial applicator business license fee $100
in order to help reduce the shortfall and continue the program
services.
2. The remainder of the
projected shortfall will be addressed by program cost reductions.
3. In addition the Department and the
Advisory Committee will continue to study the program's fee structure for
further refinement and recommendations.
Factual issues encountered when developing the rule
pertaining to the use of termiticides include:
1. Under Section 2 (ee) of the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) a pesticide application may
be made at less than labeled rate as long as the label does not prohibit such
an application and it is made in accordance with other label
directions.
2. Many applications
made for the control of termites are made at less than the labeled rate. This
is especially true for pretreat applications.
3. To date there is no scientific data to
support the efficacy of using a termiticide at less than the labeled
rate.
4. Consumers, especially
pretreat customers, may be purchasing termite control, assuming a protection
has been afforded them when in actuality very little termiticide has been
applied.
5. Efficacy studies at
less than the current labeled rate are being performed.
6. If the studies show efficacy at less than
labeled rates, then this rule will be reconsidered.
Policy issues encountered when developing the rule pertaining
to the use of termiticide include:
1.
The issue of applications at less than the rates stated on any label was
considered. It was decided to limit the rule to termiticide applications
only.
2. The issue is one of
consumer protection and the potential for fraudulent applications if the 2 (ee)
policy is continued as it relates to termiticides.
3. The Federal Insecticide, Fungicide and
Rodenticide Act clearly authorizes a state to be more restrictive than the Act,
but not less. This rule is more restrictive and falls well within statutory
authority.
Factual issues encountered when developing the housekeeping
measures included incorrect citations, misspellings, conflicting provisions and
unclear provisions exist in the current rules.
Policy issues encountered when developing the housekeeping
measures included the necessity of maintaining correct rules.
18.04.
July 28, 1994 - Effective September 30, 1994
These rules are adopted by the Commissioner of the Department
of Agriculture pursuant to his authority under §
35-10-118, C.R.S. (1993
Supp.)
The purpose of the rules is to: create a mixer/loader
category pursuant to
35-10-118(2) (b);
clarify the qualifications for licensing in the wood destroying organisms
category pursuant to
35-10-118(2) (b);
clarify the definition of technician to include flaggers for purposes of
technician training; and correct the terminology in the requirements for
licensing as a qualified supervisor/certified operator.
Most issues encountered when developing these rules were
neither exclusively factual nor exclusively policy. Consequently most issues
were considered as both factual and policy.
Factual issues' encountered when developing these rules
include:
1. It is not unusual for
commercial applicators licensed in the agricultural categories, especially
aerial applicators, to employee individuals who only mix and load the
pesticides being used. These employees do not evaluate pest problems, make
recommendations, sell services, etc. Many of the pesticides used by applicators
licensed in the agricultural pest control categories are restricted use
pesticides. This means the employee can only handle these pesticides if they
are licensed as a certified operator or qualified supervisor, or if a licensed
qualified supervisor is on site. In order to obtain a license an individual
must successfully complete a general examination and category specific
examinations. The category specific examinations include questions on pests,
hosts, pest control and various subjects related to evaluating pest problems,
making recommendations, selling services, etc. Since mixer/loaders do not
perform these functions, and will not perform them, the category specific
examinations are difficult for them to successfully complete and irrelevant to
their job. The subjects on the general examination cover the topics in which an
individual acting strictly as a mixer/loader would need to be
knowledgeable.
2. To control
termites a structure may be treated prior to completion or a finished structure
may be treated. The skills and knowledge needed to perform these two different
types of applications are vastly different. The language setting out the
experience for licensing in the wood destroying organism control category was
nebulous. An individual with only pre-treat experience and knowledge could be
licensed to perform any wood destroying organism control application whether or
not he had any post-treat experience. Only a few commercial applicators perform
termite applications because of the cost of the equipment and specialization of
the service.
3. The code of federal
regulations associated with the Federal, Insecticide, Fungicide and Rodenticide
Act (FIFRA) has been amended to include expanded worker protection regulations.
These regulations cover all handlers including flaggers.
Policy issues encountered when developing these rules
include:
1. In relation to
establishing a new mixer loader category we had to consider how to comply with
both the letter and the intent of the statute without being unduly burdensome
on the industry.
2. In relation to
defining more specifically the experience needed for licensing in the wood
destroying organism category the potential for restraint of trade had to be
considered.
18.05.
January 19, 1995 - Effective March 2, 1995
This rule is adopted by the Commissioner of the Department of
Agriculture pursuant to his authority under §
35-10-118, C.R.S. (1994
Supp.)
The purpose of the rule is to correct a typographical error
in the existing rule. Factual issues encountered when developing these rules
include:
A typographical error was discovered in the Part 9.02 (b) of
the rules. This rule as published states "Such field experience shall have been
obtained within the five years immediately preceding the applicant's
application for licensing as a qualified supervisor.
Policy issues encountered when developing these rules
include:
To be consistent with Part 9.02 and with the original intent
of the rule the error needed to be corrected.
18.06.
July 23, 1996 - Effective August
30, 1996
STATUTORY AUTHORITY: These emergency rules are adopted by the
Commissioner of the Colorado Department of Agriculture (the "Commissioner")
under the authority of §
35-10-118(2) and (9)
C.R.S. (1995), and in accordance with §
24-4-103(6)
C.R.S. (1988, 1995 Supp.).
STATEMENT OF REASON: The reasons for adopting these emergency
rules is to:
(1) create a sub-category
for the use of the pesticide metam-sodium to control roots in sewers pursuant
to §3510-118 (2)(b), and set out the standards and criteria associated
with the establishment of such a sub-category;
(2) repeal Part 8.04 and amend related
language in the existing rules concerning mixer/loaders in order to be
consistent with amendments to the Pesticide Applicators' Act derived from
Colorado Senate Bill 96-086, which became law effective July 1, 1996; and
(3) make miscellaneous technical
amendments to conform the existing rules to the amendments hereby adopted.
On June 23,1996, the Commissioner ordered that proceedings be
instituted for the adoption of new permanent rules and regulations pertaining
to these matters, and notice was published on July 10,1996, in accordance with
applicable law, for a hearing on such proposed new permanent rules and
regulations to be held on July 30, 1996, at 9:00 a. m., at the Department of
Agriculture, Division of Plant Industry Testing Room, 700 Kipling Street, Suite
4000, Lakewood, Colorado 80215-5894.
NEED FOR EMERGENCY RULES: These emergency rules pertaining to
the creation of a sub-category for the use of metam-sodium to control roots in
sewers, the standards and criteria associated with the establishment of such a
sub-category, and the technical amendments in furtherance thereof, are made
necessary by action of the U.S. Environmental Protection Agency ("EPA"). The
EPA recently classified the pesticide metam-sodium as a restricted use
pesticide when used to control roots in sewers. Applicators wishing to purchase
or use this pesticide must now be certified to do so. I is imperative that
these emergency rules be adopted in order to permit the Colorado Department of
Agriculture, Division of Plant Industry to license and regulate the activities
of pesticide applicators who wish to use metam-sodium for root control in
sewers pending the conclusion of the formal rule-making proceedings initiated
by the Commissioner for the adoption of permanent rules and regulation on this
subject.
The emergency rules pertaining to the repeal of Part 8.04 and
the amendment of related language in the existing rules concerning
mixer/loaders, and the technical amendments in furtherance thereof, are
necessary to conform the existing rules and regulations with amendments to the
Pesticide Applicators' Act derived from Colorado Senate Bill 96-086, which
became law effective July 1,1996, pending the conclusion of the formal
rule-making proceeding initiated by the Commissioner for the adoption of
permanent rules and regulations on this subject.
Based on the foregoing, the Commissioner hereby finds that
immediate adoption of these rules is imperatively necessary to comply with
state law and federal regulations, and for the preservation of public health,
safety and welfare and that compliance with the formal rule- making
requirements of §
24-4-103 would be contrary to the
public interest.
EFFECTIVE DATE: These emergency rules will be effective on
the date adopted by the Commissioner, and shall remain in effect for ninety
(90) days thereafter.
18.07.
September 25, 1996 - Effective
November 30, 1996
Statutory Authority: These permanent rules are adopted by the
Commissioner of the Colorado Department of Agriculture pursuant to his
authority under C.R.S. §
35-10-118(2), (4) and (9)
(1995, as amended).
Purpose: The purpose of these permanent rules is to:
(1) create a sub-category for the use of the
pesticide metam sodium to control roots in sewers pursuant to C.R.S. §
35-10-118(2)(b),
and set out the standards and criteria associated with the establishment of
such a sub- category:
(2) repeal
Part 8.04 and amend related language in the existing rules concerning
mixer/loaders in order to be consistent with amendments to the Pesticide
Applicators' Act derived from Colorado Senate Bill 96-086, which became law
effective July 1, 1996;
(3) revise
the recordkeeping requirements Part 6.03(e);(4) clarify the language in Part
2.49 concerning the issuance of reciprocal licenses; and
(5) make miscellaneous technical amendments
to conform the existing rules to the amendments hereby adopted and to correct
grammatical errors.
Basis: Some of the issues encountered in the promulgation of
these permanent rules were neither exclusively factual nor exclusively of a
policy nature. Consequently, some issues were considered as both factual and of
a policy nature.
The factual and policy issues encountered in adopting these
permanent rules include:
1. Factful
Issue(s): The U.S. Environmental Protection Agency (EPA) recently classified
the pesticide metam sodium as a restricted-use pesticide when used to control
roots in sewers. Applicators wishing to purchase or use this pesticide must now
be certified to do so.
Policy Issue(s): This classification by the EPA has made it
necessary to create a new sub- category of aquatic applicators for the
application of metam sodium for root control in sewers. In establishing this
sub-category, consideration had to be given to complying with both the letter
and the intent of the Pesticide Applicators' Act (the Act) without being unduly
burdensome on the industry or the agency.
2. Factual Issue(s): Colorado SB 96-086
amended C.R.S. 3510-103(15)(a) (II) of the Act to amend the definition of
"technician" to include individuals who exclusively mix and/or load pesticides.
This makes the mixer/loader sub-category in the agricultural classification
unnecessary.
3. Factual Issue(s):
Part 6.03 of the existing rules requires licensed entities to identify the
pesticide product they are using. Recording the EPA registration number of the
pesticide product is a permitted method under the existing rule, but not
required.
Policy Issue(s): Generally, the EPA registration number can
more accurately identify a product than the manner in which a licensee may
choose to describe the product name, and under the adopted rule, is a required
method of identifying the pesticide.
4. Factual Issue(s): Part 2.49 describes the
procedure by which an individual certified or licensed by another jurisdiction
can obtain a Colorado license as a certified operator issued through
reciprocity. The existing language in this part does not make it clear that the
issuance of such a license can only be done through re-application, since the
Colorado Department of Agriculture is not the original issuing agency. The
adopted rule clarifies this point.
18.08.
March 13, 1997 - Effective April
30, 1997
Statutory Authority:
These permanent rules are proposed for adoption by the
Commissioner of the Colorado Department of Agriculture pursuant to his
authority under the Pesticide Applicators' Act (the "Act") at C.R.S.
§§
35-10-118(2), (5) and (9)
(1995, 1996 Supp.).
Purpose:
The purpose of these proposed permanent rules is to: amend
the definition of the term "abut"; conform the rules and regulations to the
amended statutory definition of the term "limited commercial applicator";
repeal Section 2.42 ; to clarify the language in Section 2.45 regarding when a
qualified supervisor may be licensed as a certified operator in an additional
category without payment of the application fee for the certified operator's
license; consolidate the turf categories into a single category under the
ornamental classification, and modify the continuing education requirements
therefor; consolidate the ornamental categories into a single category under
the ornamental classification, and modify the continuing education requirements
therefor; expand, under certain circumstances, the customer notification
requirements for pesticide applications at a commercial site; create a new
category named "Interior Plant Pest Control" within the structural pest control
classification, and establish standards therefor; establish requirements for
the identification of service containers; amend the requirements for
registration of pesticide sensitive persons pertaining to the statement of
proof of medical justification, the frequency for submitting such statement,
and payment of the administrative fee for registration; create a Part 15 for
rules and regulations pertaining to enforcement, and establish a definition for
the phrase "substantial danger or harm to public health and safety, to
property, or to the environment" as required by Senate Bill 96-086, which
amended C.R.S. §
35-10-121 by adding subsection
(2.5); and make miscellaneous technical amendments to conform the existing
rules to the amendments hereby proposed.
Factual and Policy Issues
The factual and policy issues encountered in the proposal of
these permanent rules are as follows:
(1). Senate Bill 96-086 amended C.R.S. §
35-10-112(l)(c),
which deals with requirements for notifying persons who reside on property
abutting the site of a pesticide application. The amendment provides that two
property sites that would be considered abutting but for the fact that they are
separated by an alley are for the purposes of this section to be deemed
abutting. This statutory change requires amendment of the term "abut" in
Section 1.02 of the rules in order to make it consistent with this statutory
amendment.
(2). Senate Bill 96-086
amended C.R.S. §
35-10-112(l)(a),
which pertains to the registry of pesticide-sensitive persons. This amendment
requires that the proof of medical justification for inclusion on the registry
be made by a physician licensed in the state of Colorado, that it be updated
every two (2) years, and that the administrative fee for registration be
repealed. These statutory changes require conforming amendments to the
following sections of the rules: Sections 1.02(e), 12.01, 12.04, and
12.05.
(3). Senate Bill 96-086
amended C.R.S. §
35-10-103(8),
which defines the term "limited commercial applicator." This amendment expands
the definition of the term to include persons engaged in applying pesticides in
the course of conducting a business on property leased, as well as property
owned by the person or the person's employer. This statutory change requires a
conforming amendment in Section 2.18 of the rules.
(4). Section 2.42 of the rules is repealed
because it was needed only for a limited time in order to facilitate the
administrative transition from the previous licensing system to the current
one.
(5). Section 2.45 of the rules
is amended only to clarify its provisions. No substantive change to this rule
is intended.
(6). The ornamental
classification now in effect has the following categories: Turf Insect Control,
Turf Plant Disease Control, Turf Weed Control, Ornamental Insect Control and
Ornamental Plant Disease Control. The three turf pest control categories all
pertain to working on one type of site, namely turf, except for weed control in
ornamental beds. The two ornamental categories cover a wide range of sites, but
labels for pesticide products used on these types of sites often state the site
as "ornamentals" and do not distinguish between various hosts such as locust,
elm, etc. A qualified supervisor or certified operator working in any of the
current turf categories needs to be aware of symptoms indicative of
environmental, cultural practice and pest stresses in the related turf
categories in order to properly diagnose a problem and recommend the correct
solution. This also applies to a qualified supervisor or certified operator
working in any of the current ornamental categories.
The proposed amendments to Section 9.01 of the rules
consolidates the three turf categories into a single category, and consolidates
the two ornamental categories into a single category. This consolidation will
require persons who wish to be licensed in either of these categories to
possess a broader range of knowledge covering what was previously divided into
separate categories. Thus, one examination for each of the two consolidated
categories (i.e., turf and ornamental) will be given rather than the multiple
examinations currently given for each of the five separate categories described
above.
Also, because of the broader range of knowledge required for
each of these consolidated categories, the continuing education requirements
for these consolidated categories will be increased from one to two credits.
This change is reflected in the amendments to Section 4.01, which will be
phased in beginning January 1, 1998.
These proposed amendments to Section 9.01 require the
technical conforming amendments that are proposed for Sections 9.02 and 9.03,
and 5.7 through 5.21, inclusive.
(7). Senate Bill 90-086 amended C.R.S. §
35-10-112(2) (d)
by adding sign posting notification requirements where a commercial or limited
commercial applicator makes a pesticide application to a commercial site when
the owner or agent of the owner is not present at the site. The proposed
amendments to Section 9.04 of the rules are intended to broaden the
notification requirements of that rule (which are unrelated to the statutory
sign posting requirements) to specifically address the situation where a
pesticide application is made to a commercial site when the owner or agent of
the owner is not present.
(8). The
number of interior plants in public structures has gradually increased over the
last twenty years. Over time, more and more caretakers of these interior plants
have come under the regulation of the Colorado Department of Agriculture with
respect to the application of pesticides. These interior plant caretakers have
had to qualify for licensing in categories that are not entirely applicable to
the circumstances in which they work (e.g., Ornamental Insect Control and
Ornamental Plant Disease Control, which cover exterior plants). The addition of
an Interior Plant Pest Control category will correct this situation. It will
also provide the Colorado Department of Agriculture and the public with a
greater assurance that the qualified supervisors, certified operators and
technicians working in this category are qualified to do so.
Consideration was given to the placement of this category in
either the ornamental classification or the structural pest control
classification. Since pesticide applications to indoor plants are made inside
buildings and other structures, this new category was placed in the structural
pest control classification because the hazards related to such applications
and the precautions that need to be taken when making them are more closely
related to that classification than the ornamental classification.
The addition of this new category is reflected in the
proposed Section 10.01 of the rules. The amendments to Sections 10.03 and
Sections 5.25 through 5.28, inclusive, are technical amendments made to conform
those rules to the addition of this new category.
(9). Under certain circumstances licensees
under the Act transfer pesticides into smaller containers in order to perform
or facilitate its application. For example, a structural pest control operator
may purchase a 10 gallon pail of rodent bait and provide each of his
technicians with a one gallon container of the bait taken from the 10 gallon
container. Additionally, certain application equipment is of a size that can be
carried and handled by one individual, e.g., a one gallon sprayer used to spot
treat weeds in turf. The industry refers to these containers as "service
containers." At one point in time the EPA had an operating policy which
detailed the requirements for marking service containers so the material in it
could be identified. EPA's operating policy was rescinded and is no longer in
force.
A new rule requiring the identification of service containers
is necessary and appropriate for the public's health, safety and welfare now
mat the EPA's operating policy has been rescinded. In establishing the
requirements for marking service containers, consideration had to be given
about providing information essential for safety and welfare without being
unduly burdensome on the industry, and without conflicting with existing
federal regulations. This new rule appears in the proposed Section
11.08.
(10). Senate Bill
96-086 amended C.R.S. §
35-10-121 by adding subsection
(2.5), which relates to enforcement proceedings brought under the Act. This
subsection (2.5) requires the Colorado Commissioner of Agriculture to define
the phrase "substantial danger or harm to public health and safety, to
property, or to the environment." In response to this statutory amendment, the
rules are amended to add a Part 15. Enforcement, and to define the foregoing
phrase in proposed Section 15.01.
18.09.
February 11, 2004 - Effective
May 3, 2004
Statutory Authority
The amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture pursuant to his
authority under the Pesticide Applicators' Act, (the "Act"). §§
35-10-118(2)(a)(b)(c), (5), and
(9), C.R.S.
Purpose
The purpose of these proposed rule amendments is to: In Part
1, add the definition of "in the possession of to clarify the proposed rule
7.06, that requires the applicator to have label information at the site of any
pesticide application; in Part 2, amend Rule 2.10 by requiring all categories
to have on file at the time of submission of an application for renewal of a
license, evidence of liability insurance which is in force at the time of the
application; amend Rules 2.15 and 2.16 by adding a requirement for a written
provision in contracts that incidentally require a pesticide application, that
notes that a licensed subcontractor will be used for any pesticide application
the primary contractor is not licensed for; in Part 4, delete Rule 4.1 that
expired on January 1, 1998 and remove language from the version of Rule 4.1
noting the effective date of the current Rule; delete the version of Rule 4.5
that expired on January 1, 1993 and remove language from Rule 4.5 noting the
effective date of the current Rule; in Part 5, amend Rule 5.1 by clarifying
that the definitions outlined in 5.1 apply to all technician training outlined
in Part 5 of the Rule; amend Rule 5.1 by adding the definition of a "new hire
experienced technician" and "on-going experienced applicator technician" to
clarify training differences outlined in Part 5; amend Rules 5.5, 5.10, 5.15,
5.20, 5.23, and 5.27 to clarify that training requirements outlined in each
section pertain to on-going experienced applicator technicians and that
on-going training must be conducted each year after the first season of
experience; amend Rules 5.6, 5.11, 5.16, 5.21, 5.24, and 5.28 to clarify that
the training requirements outlined in each section pertain to new hire
experienced technicians; amend Rules 5.9 and 5.18 to clarify the amount of on
the job training hours that must be conducted by a licensed qualified
supervisor or certified operator; in Part 6, amend Rule 6.02 to require limited
commercial and public applicators to maintain records of all pesticide
applications they make; amend Rule 6.03 by adding a requirement that the record
of application must have the name of the person(s) who made the application;
amend Part 6 by adding a new Rule 6.04 requiring any applicator performing wood
destroying insect control for termites to keep and maintain records in addition
to those outlined and proposed in Rule 6.03 ; in Part 7, amend Rule 7.02 by
adding requirements for commercial and public applicators to identify their
ATV/off-road application equipment; amend Rule 7.02 by adding requirements for
public applicators to identify their application equipment; amend Part 7 by
adding a new Rule 7.06 to require that a copy of the label for the pesticide in
use be in the possession of the applicator at the site of application; in Part
8, amend Rules 8.01 to clarify that additional licensure in the turf and
ornamental categories is required when performing applications in forest or
rangeland areas that come within 50 feet of residential or commercial
structures; amend Rule 8.01 by deleting the language "in programs" and "large
scale" to clarify that the Public Health category applies to any pesticide
application performed for disease vector control; in Part 11, amend Rule 11.08
to require the name of the applicator in addition to the existing service
container labeling requirements; in Part 13, amend Rule 13.04 to clarify that
notification signs must be posted within multi-unit residential and commercial
properties in a conspicuous manner to prevent children or adults from entering
a treated area; and make miscellaneous technical amendments to conform the
existing rules to the amendments hereby proposed.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1) Amendments and
additions being made in Parts 1,2,4, 5, 6 and 8 are necessary to correct and
clarify existing language, delete out dated and irrelevant language, and
correct and clarify ambiguous language to reflect the regulatory intent of the
existing licensure, business, record keeping, and training
requirements.
2) A new Rule is
proposed in Part 6 to require the signature of the applicator on the service
record to help the CDA identify the technician, certified operator, or
qualified supervisor responsible for each application during
investigations.
3) In the last 10
years the termite activity in Colorado has increased. A high level of knowledge
and experience in building construction, treatment techniques, and termite
biology is needed when performing these applications. Since these applications
are made in areas where the consumer can not verify the quality of the
application and consumers generally do not possess the knowledge to know the
correct steps and procedures to eradicate or control a termite infestation, it
is easy for commercial applicators to defraud the consumer. The proposed Rule
6.04 will require applicators to record information specific to termite
applications that will allow the CDA to confirm that all treatments were
performed to label requirements and industry standards.
4) In recent years the Pesticide Application
industry has begun using All Terrain Vehicles (ATV's) to perform applications
in areas that are inaccessible to standard application vehicles. Under the
current Rule 7.02, these ATV's meet the specifications that require the vehicle
to be identified, but due to their size applicators have been unable to comply.
The proposed Rule addresses this issue and modifies the equipment
identification requirements so applicators can identify their equipment, which
will ensure the public and the CDA can identify these applicators.
5) Currently under Rule 7.02, public
applicators are not required to identify their application equipment. Each year
the CDA receives a number of inquiries and complaint calls pertaining to public
entities that are performing pesticide applications that the CDA office staff
must research to determine jurisdictional authority. A new Rule is proposed to
require public applicators to identify their application equipment to enable
the public and CDA to easily identify the public entity in the field, which
will reduce public concern and minimize the CDA staff time required to identify
currently registered public applicators.
6) Pine Beetle eradication has become a
priority for the State of Colorado. As the Pine Beetle infestation has spread,
more applications are being performed on private property where the trees are
no longer being maintained as part of a forest, but rather as ornamental trees
for aesthetics. Applications performed around residential and commercial
structures create a higher likelihood that persons or pets may come in contact
with the treated area. Ornamental applicators are trained in the precautions
needed when making applications around structures, and under
35-10-112 of the PAA are required
to post notification at the time of an application. The current Forest category
does not address the hazard identification and safety precautions needed when
performing pesticide applications in close proximity to inhabited structures.
An amendment to Rule 8.01, Forest Pest Control, is proposed to require
applicators to hold the appropriate ornamental license, which addresses the
safety, hazard, and notification requirements needed when performing
applications close to an inhabited structure. The Rangeland Pest Control
category, 8.01(g), has the same safety concerns when pesticide applications are
made around inhabited structures for insect or noxious weed control. The
Rangeland category requirements will be identical to the Forest category except
that licensure in the Turf category will be required.
7) Rule 11.08 currently requires that any
service container be labeled to identify the contents within. Since these
service containers are in many cases left at the customer's residence (i.e.:
rodent bait stations) or can be inadvertently left behind or left unattended by
an applicator, the CDA is proposing an amendment to Rule 11.08 that will
require the name of the licensee on the label. In case of an emergency this
will provide the name of the licensee so pertinent information for the
unattended product (i.e.: labels and Material Safety Data Sheets) can be
obtained and the responsible licensee can be quickly contacted to take
appropriate remedial action.
8)
Currently turf and ornamental applicators are only required to post a
notification flag at each entryway to a property regardless of its size or the
number of buildings on it. Each year the CDA receives calls from pesticide
sensitive individuals or concerned parents complaining of turf or ornamental
applications that have been performed at their apartment complex and their
child or pet, unbeknownst to them at the time, entered a treated area. The
current rule in Part 13 does not specify that a flag(s) must be posted within
the common areas of multi-unit residential or commercial properties. The
proposed amendment to Rule 13.04 will help ensure that any person entering a
common area that has been treated with pesticides will be able to see a flag
notifying them of that application.
18.10.
October 19, 2006 - Effective
January 1, 2007
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture pursuant to his
authority under the Pesticide Applicators' Act, (the "Act"). §§
35-10-118(2)(a)(b)(c), (5), and
(9), C.R.S.
Purpose
The purpose of these proposed rules is to make conforming
amendments is to address statutory changes made to the Pesticide Applicators'
Act as a result of House Bill 1239, The Pesticide Applicators' Act Sunset
Review Pesticide Applicators' Bill, and House Bill 1274, The Pesticide
Applicators' Act Pesticide Private Applicators License Bill. The purpose of the
proposed Rules is to:
- Make miscellaneous technical amendments to conform the
existing rules to the amendments proposed;
- Add language to reinstate an pesticide applicator license
within 180 days;
- Outline the private applicator examination and licensure
requirements and provisions;
- Address examination security provisions for commercial and
private applicators;
- Create continuing education requirements as it pertains to
private applicators;
- Specify recordkeeping requirements for commercial,
registered limited commercial, registered public applicators and licensed
private applicators;
- Clarify the pesticide storage requirements of commercial
applicators, registered limited commercial applicators, limited public
applicators, and private applicators;
- Specify pesticide sensitive notification requirements and
provisions that apply to turf and ornamental applicators vs. structural
applicators;
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1) House Bill
1274 amended C.R.S. §
35-10-104 to expand the authority
of the Colorado Department of Agriculture to regulate the use of pesticides by
all persons in the State of Colorado. As a result of H.B. 1274, amendments and
additions made in Parts 2, 3, 4, 5, 6, 7, 8, 11,12, and 13 and associated Rules
are necessary to clarify what Part and Rule applies to "registered' or
"licensed" persons and/or entities in the State of Colorado. Other changes
include spelling and miscellaneous technical amendments to conform the existing
rules to the proposed amendments.
2) House Bill 1274 amended C.R.S. §
35-10-103 to add the definition of
a private applicator, which defines a private applicator as a person who "uses
or supervises the use of a pesticide for producing an "agricultural commodity."
C.R.S. §
35-10-114.5 requires any person
who uses or supervises the use of a restricted use pesticide shall possess a
valid private applicator license issued by the Commissioner. There is no State
definition of "agricultural commodity" for CDA to refer to when it must
determine if a private applicator is raising an agricultural commodity prior to
certifying and issuing a private applicator license. CDA needs to verify that
the license is being obtained and will be used in the manner intended. Upon
request from EPA Region VIII, Part 1 was amended to create Rule 1.02, which
defines an "agricultural commodity". The definition will help clarify for CDA
and applicants that a private applicator must be engaged in the production of
an "Agricultural Commodity", as defined, to qualify to obtain a private
applicator license which will allow them to purchase, apply, and supervise the
use of restricted use pesticides on property they own or lease.
3) House Bill 1239 amended C.R.S. §
35-10-116(6) of
the Act to give the CDA the authority to "reinstate" an applicators license,
within 180 days of its expiration, on the condition that all continuing
education requirements had been met prior to the expiration date. The currant
language in Rule 2.46 addressed renewal requirements only. Rule 2.46 is amended
by adding the licensure reinstatement provisions, outlined in C.R.S. §
35-10-116(6), for
added clarity that an applicator may "reinstate" a license if certain
provisions are met.
4) House Bill
1274 amended C.R.S. §
35-10-115, which authorizes the
CDA to begin issuing licenses to private applicators on and after January 1,
2007 and by adding a new statutory provision, C.R.S. §
35-10-114.5, requiring any person
acting as a private applicator using or supervising the use of restricted use
pesticides be licensed as a private applicator by the Commissioner. Rule 2.50
is being repealed because it created a loophole that did not allow the CDA to
enforce the provisions of the Act and Rules for someone acting as a certified
operator if: they were a new employee, completed the private applicator exam
issued by EPA Region VIII, their employer notified the department within 3 days
and they completed the certified operator test within 14 days from their
initial employment. EPA Region VIII will no longer be issuing private
applicator licenses after January 1, 2007 and the CDA no longer wants to
continue to allow a person to act in the capacity of a certified operator,
which allows applications of RUPs in categories their employer is licensed in,
without taking a closed book test, verifying that they have core knowledge of
laws and regulations, applicator safety, public safety, environmental
protection, use of pesticides, and pesticides and their families, to apply a
"higher risk" pesticide in the general public.
5) House Bill 1274 amended C.R.S. §
35-10-115, which authorizes the
CDA to begin issuing licenses to private applicators on and after January 1,
2007. A new statutory provision, C.R.S. §
35-10-114.5, requires any person
acting as a private applicator using or supervising the use of restricted use
pesticides be licensed as a private applicator by the Commissioner. Under H.B.
1274, C.R.S. §
35-10-117(1)(a)
was amended to make it unlawful for any person to perform acts that require
licensure as a private applicator. C.R.S. §
35-10-118(2)(b) and (c)
authorize the Commissioner adopt Rules to
establish qualifications for issuance and reinstatement of any license issued
under the Act. These statutory changes require conforming amendments by the
creation of a new Subpart D, part 2.48 through 2.58, which addresses private
applicator licensure requirements, submission of information requirements,
examination requirements, fee requirements, renewal and reinstatement
provisions, supervision, licensure upgrades and reciprocity.
6) Under C.R.S. §
35-10-118(2)(c)
the Commissioner is authorized to adopt Rules for any disciplinary actions
authorized under Title 35, Article 10. Part 2, Subpart E, "Licensure Actions,
Suspension, Denial, Revocation", Rule 2.59, was existing language that was
moved from Part 7 of the Rules. This Rule outlines actions that constitute
grounds for denying, suspending or revoking a business entity's license or
registration or an individual's license. This section was moved from Part 7 to
Part 2, which outlines business licensure and registration requirements and
individual license issuance and renewal requirements, for clarity.
7) Add language to coincide with H.B. 1239,
C.R.S. §
35-10-118(3)(c),
by adding clarifying language stating the commissioner or "his or her
designated administrator shall" administer a general examination to qualified
supervisors and certified operators and add "private applicator" to the current
examination administration provisions set forth in Rule 3.1 and 3.2 to include
private applicators as a result of H.B. 1279.
8) Repeal Rule 3.3, to remove unnecessary
language from the Rule pertaining to when the examinations will be administered
by the Commissioner.
9) Part 3,
Rule 3.8, was amended by adding language to the existing exam security
provisions, creating a section (a) pertaining to commercial applicators and a
new section (b) pertaining to private applicators. Rule 3.8 outlines
examination security provisions to prevent the content of CDA's closed book
commercial examinations from being disseminated by any person. Old language
stated that an applicant or licensee could not remove examination material, but
did not clearly make it a violation if an applicant cheated on the exam by
bringing in outside information to reference during the test. New language has
been added to make this a violation for any applicant or licensee.
RULE 3.8 currently states that an applicant or licensee shall
not cause the "nature of" any exam question to be disseminated. It can be
argued that any person that has ever taken an exam and then does
pre-certification training for his or her company may unavoidably disseminate
the "nature of" an exam question. The CDA feels the intent of Rule 3.8 was to
prevent blatant dissemination of examination questions. Therefore, the words,
"the nature of" were removed to more clearly define that an exam question or
answer may not be disseminated to any person.
The private applicator exam is an open book test, which is
not currently required to be proctored. Rule 3.8, outlines private applicator
exam security provisions and was created to address circumstances that have
been brought to the CDA's attention that, in some instances, a private
applicator has had someone else fill out their test answer sheet (a spouse or
family member) or may have attended a workshop where the administrator
blatantly gave them the answers to the exam. This Rule is established to make
it a violation for any person to disseminate the answers of the private
applicator exam to an applicant or licensee or to allow someone other than the
applicant or licensee to fill out the examination form.
10) Amend Part 4, Subpart A's title, "General
Continuing Education Requirements for Qualified Supervisor and Certified
Operator" to clarify that subpart A pertains only to qualified supervisors and
certified operators.
11) Amend Part
4, Rule 4.3, to wordsmith the current notification of continuing education
workshop provision for clarity and in Rule 4.5 language to clarify that the
continuing education provisions must cover topics from subject areas and
subtopics outlined in Subparts C through I, in Part 4 of the Rules.
12) Amend Part 4, Subpart B, Rule 4.6 through
4.10, to comply with H.B. 1274, C.R.S. §
35-10-116(2) and
§
35-10-118(5) by
adding new language outlining continuing education requirements pertaining to
private applicators. Subpart B outlines the number of continuing education
credits needed, course approval requirements, course notification provisions,
workshop sponsor reporting requirements, and that the continuing education
provisions must cover topics from subject areas and subtopics outlined in
Subpart C through H, in Part 4 of the Rules.
13) Amend Part 6, Records, of the Rules by
the creation of a Subpart A and Subpart B.
Subpart A outlines the current recordkeeping requirements for
commercial, registered limited commercial and registered public
applicators.
Pursuant to H.B. 1279, C.R.S.
35-10-111, which added
recordkeeping requirements for private applicators that use restricted use
pesticides (RUP), the CDA has amended Part 6 by creating a Subpart B, Rule
6.05, which requires private applicators to maintain records of RUP
applications, the elements of such records are currently required by the USDA
under the Code of Regulations, 7 C.F.R., Part 110 (2006), which C.F.R. is
referenced in Rule 6.05. C.R.S.
35-10-111 requires records to be
kept for a minimum of 3 years, 1 year more than the USDA requirement, which is
noted in Rule 6.05.
14) Part
7; amend Rule 7.02, by changing "licensee" from singular to plural to encompass
private applicators. Clarifying statement.
15) Part 7, amend Rule 7.05 by adding
language to exempt private applicators from this provision which requires
licensed commercial, registered limited commercial, and registered public
applicator employees to have a copy of the pesticide label at the site of
application in case a question pertaining to the use of product, PPE,
precautions, etc. come up during the course of the application. Adding this
requirement for private applicators is not needed since all mixing, loading,
and use are conducted on the private applicator's property and the pesticide
product label should be on the property site for reference when questions
arise.
16) Amend Part 11, with the
creation of a new Subpart A and Subpart B to clarify pesticide storage
requirements for commercial applicators, registered limited commercial
applicators, registered public applicators, and private applicators.
Subpart A, Rules 11.01 through 11.08, is existing language
that outlines storage requirements and equipment identification for commercial,
registered limited commercial, and registered public applicators.
Subpart B, is new language that is specific to licensed
private applicators. H.B. 1274, C.R.S.
35-10-117(1)(i)
makes it a violation of the Act to store a pesticide in a manner inconsistent
with label directions. Subpart B, Rules 11.09 through 11.11, reiterates this
statutory provision, due to the fact that the pesticides licensed private
applicators will be storing may be restricted use pesticides, by stressing that
pesticides should be stored in a manner as to prevent an unreasonable risk to
persons, property or animals, that they are stored in a manor that prevents
damage to the container or label, and if stored in an outdoor pesticide storage
area that the pesticide is protected from the elements to prevent the risk of
damage to the container or label and avoid the creation of an unreasonable risk
to persons, property, or animals.
17) H.B. 1239 amended C.R.S.
35-10-112 by expanding the
notification of pesticide sensitive individuals to structural pest control
operators. Part 12 of the Rules was amended to create a new Subpart A and
Subpart B.
Subpart A, Rule 12.06 and 12.07, retains existing language
pertaining to turf and ornamental notification requirements.
Subpart B, Rule 12.08 through 12.10, outlines the structural
notification requirements for giving prior notice, methods that notice may be
given, instructions if notification attempts fail, and emergency and specific
product formulations that are exempt from the notification provision, created
under H.B. 1239 and allowed under C.R.S.
35-10-112(2)(e)
of the Act.
18.11.
August 12, 2008 - Effective September 30, 2008
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a)(b)(c), (4), (5), and
(9), C.R.S.
Purpose
The purpose of these proposed rules is to:
1. Amend Rule 2.12 and 2.30 to define
adequate supervision by establishing a qualified supervisor to certified
operator/technician ratio.
2. Amend
Rule 2.32 to clarify that any person who uses any pesticide without supervision
while employed by a commercial, registered limited commercial or registered
public applicator, must be licensed as a qualified supervisor.
3. Amend Rule 2.49 to clarify that licensed
private applicators may only apply restricted use pesticides for the production
of an agricultural commodity.
4.
Amend Rule 2.59 clarify that an individual licensed in another jurisdiction
outside Colorado may become licensed as a private applicator without
examination.
5. Amend Rule 9.04 to
clarify turf and ornamental notification provisions when making applications to
multi-unit residential units when no on-site management person is
present.
6. Create a new Rule 15.02
ad 15.03 to clarify that any person using a restricted use pesticide must be
licensed as a qualified supervisor, certified operator or a private
applicator.
7. Fix typographical
errors, including:
Correct Rule 2.36 by replacing the word "retirements" with
"requirements"
Clarify language in Rule 2.48
Correct Rule 2.50 by changing the stated date of license
renewal eligibility from January 1, 2006, to January 1, 2007
Clarify Rule 8.04 by adding the omitted words "new hire" to
the experienced technician language.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1) Rule 2.12 and
2.30 states that if a licensee's or registrant's business operation is so
extensive that one individual cannot "adequately" supervise all pest control
recommendations, soliciting, mixing and loading, and applications of
pesticides, more than one qualified supervisor must be employed by the
licensee. CDA has historically interpreted this as requiring at least one
qualified supervisor for each seven technicians, in order to ensure that s/he
has the time and ability to provide the necessary on-site guidance and respond
to an accident involving a pesticide spill posing a threat to health or the
environment. Under the current Rule, which does not mandate a specific ratio of
qualified supervisors to technicians, CDA has observed commercial applicators
employing as many as 40 technicians in multiple business locations under the
supervision of one qualified supervisor.
CDA is proposing to amend Rule 2.12 and Rule 2.30 to increase
the maximum number of technicians that a qualified supervisor may supervise to
fifteen (15), of which no more than eight (8) may be unlicensed technicians and
clearly state that a qualified supervisor must be available while any
technician is using a pesticide.
2) The current Rule 2.32 does not clearly
state that any person working for a commercial, registered limited commercial
or registered public applicator, must be licensed as a qualified supervisor to
"use" any pesticide, as defined in Part 1.02(i) of the Rules, without
supervision.
3) There have been
questions as to the scope of pesticide use authorized under a Private
Applicator license. CDA is proposing to amend Rule 2.49 by adding language to
clarify that, consistent with EPA's interpretation of FIFRA, it is a violation
of the PAA to use a private applicator license to use restricted use pesticides
for other purposes than raising an "agricultural commodity," as that term is
defined in Rule 1.02(k).
4) Rule
2.59 is the provision that allows qualified out-of-state licensed private
applicators to reciprocate their license without having to take the Colorado
private applicator exam. As currently phrased, however, this Rule states that a
private applicator from another state may "perform" restricted use pesticide
applications in Colorado without holding a Colorado license. That conflicts
with §
35-10-114.5, C.R.S., which
requires any Private Applicator using restricted use pesticides to have a
Colorado license. The requirement in Rule 2.59 was intended to be similar to
the provision for qualified supervisors and certified operators in Rule 2.48.
CDA, therefore, is proposing to amend Rule 2.59 to correctly
state, "An individual certified or licensed by another jurisdiction outside
Colorado as a private applicator may obtain a Colorado private applicator
license without passing an examination..." and amend Rule 2.48 to make the
language of the two provisions consistent.
5) Rule 9.04 requires an applicator to leave
a written statement at the time of application that a pesticide has been
applied stating the pesticide or pesticides applied, the date of application,
and any precautionary information for each person residing on the property, and
to provide this same written statement to the owner of the site or agent of the
owner of the site if s/he is not present. The current rule does not clearly
address notification of residents of multi-unit residential dwellings
(apartments, condos, townhomes, etc) where there is no property manager
on-site.
CDA is proposing to amend Rule 9.04 to specify the manner in
which notification must be provided when making applications at multi-unit
dwellings when no on-site management is present at the site.
6) Now that it has jurisdiction over all
pesticide use, CDA believes it is useful to clearly state in a new Rule 15.02
that any person using a restricted use pesticide must be licensed as a
qualified supervisor, certified operator or a private applicator.
7) Rule 2.36 contains a typographical error.
Rule 2.36 currently states, "the Commissioner may waive part of the experience
retirements..." The Rule should read, "the Commissioner may waive part of the
experience requirements."
8) Rule
2.50 contains a typographical error. Rule 2.50 currently states, "Licenses
issued by the Environmental Protection Agency prior to January 1, 2006 cannot
be renewed." The Rule should read, "Licenses issued by the Environmental
Protection Agency prior to January 1, 2007 cannot be renewed".
9) In promulgating Rule 8.04 cDA
inadvertently omitted the words "new hire." These words are necessary clarify
that the required technician training hours outlined in 8.04(f)(1 - 4) apply to
a "new hire" experienced technician, as defined in Part 5, Rule 5.1
(b)(1).
18.12.
December 9, 2008 - Effective January 30, 2009
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(b),
C.R.S.
Purpose
The purpose of these proposed rules is to:
Amend Rule 15.02 to clarify that any applicator technician
may use a restricted use pesticide under the on-site supervision of a qualified
supervisor and mix and load a restricted use pesticide under the supervision of
a qualified supervisor.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
The Office of Legislative Legal Services review of the
Department's recently adopted new Rule 15.02, which went into effect on October
1, 2008, determined that the Rule was more restrictive with respect to the
supervisory requirements for the mixing and loading of a restricted use
pesticide by a technician than the Act itself. The new proposed Rule 15.02
Eliminates this conflict by distinguishing the mixing and loading of a
restricted use pesticide from its actual application.
18.13.
October 21, 2010 - Effective
November 30, 2010
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a)
& (b), C.R.S.
Purpose
The purpose of these proposed rules is to amend conflicting
language between the Rule and statute in regards to sales technicians. All
other proposed Rule amendments add clarification to the current interpretation,
enforcement and intent of the existing Rules. Specifically:
1) Part 1.02 (f) is amended to add the
definition of "pasture".
2) Part
5.2 is amended to allow sales of a restricted use pesticide "under the
supervision" of a qualified supervisor once all required training has been met,
in accordance with statute.
3) Part
8.01, agricultural licensure classifications, are being amended to add
additional examples of the types of applications allowed in each licensure
category.
4) Part 12.06, ornamental
notification, is being amended to more clearly explain pesticide sensitive
person notification requirements.
5) A new 15.04 is being created to clearly
state that a pesticide applicator must hold the appropriate category of
licensure to use or supervise the use of a restricted use pesticide.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1. The CDA has
found that the current licensure category descriptions do not provide a clear
explanation of similar geographic areas. To help distinguish between Rangeland
and Agricultural pasture areas, a new Part 1.2(f) is being created to add the
definition of "pasture" is to help clarify the difference between agricultural
applications vs. rangeland applications in Part 8.
2. The current language in Rule Part 5.2,
that outlines technician training requirements and the allowed activities of a
sales technician, conflicts with the statutory definition of a technician in
§
35-10-103(15)(a)(III),
C.R.S. The amendment will match the Rule with the statutory definition to allow
sales of a restricted use pesticide "under the supervision" of a qualified
supervisor once all required training has been met.
3. Agricultural licensure classifications are
explained in Part 8.01 of the Rules. The CDA has found that the current
licensure category descriptions do not provide a clear explanation of similar
geographic areas, therefore making it difficult for an applicator to know what
licensure category they must hold. Part 8.01 (f), (g) and (i), which are the
Forest Pest Control, Rangeland Pest Control and Industrial and Right-of-Way
Pest Control licensure categories have similar geographic and landscape
features, but are inherently different based on the site of application and the
types of applications occurring in each area. Part 8.01 (f), (g) and (i) are
being amended to add additional examples of the types of geographic or
landscape features found in each of these categories to provide additional
guidance to pesticide applicators on what category they must carry to perform
applications in these areas.
4.
§
35-10-112(1)(c)(I),
C.R.S. and Part 12.06, ornamental notification, currently state that a
pesticide sensitive person must be notified of "any" turf or ornamental
application occurring to an abutting property. Each separate application, in
accordance with §
35-10-111, C.R.S., record-keeping
requirements, requires a separate record be kept for each separate application.
In situations where two abutting properties are being treated on the same day,
the CDA has interpreted that the notification requirement that "any"
application would require the applicator to inform the pesticide sensitive
person of each separate application taking place. Part 12.06, ornamental
notification, is amended to more clearly state that a pesticide applicator must
notify the pesticide sensitive person of each and every location where
pesticide applications are being made and in a manner that the pesticide
sensitive person can identify which abutting property is being treated to take
the necessary precautions to avoid adverse effects to themselves or their
property.
5. The PAA requires all
persons who want to obtain a qualified supervisor, certified operator or
private pesticide applicator license to pass an examination and license in the
pesticide application category in which they intend to make RUP applications.
The PAA also requires that a business must have a qualified supervisor in its
employment in the pesticide category(s) it intends to make commercial
applications in. The intent in the business and applicator licensure
requirements is that the applicator be restricted to use pesticides intended
for and perform commercial activities only in the licensure category(s) held. A
new Part 15.04 is being created to clearly state that a pesticide applicator
must hold the appropriate category of licensure to use or supervise the use of
a restricted use pesticide. This amendment will clearly state this rather than
having to reference multiple areas of the PAA.
18.14.
June 11, 2013 - Effective July
30, 2013
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a)
& (b), and (9.5) C.R.S.
Purpose
The purpose of these proposed Rules is to clarify the Rule in
regards to solicitations made prior to entering into a contract, create a new
Rule to require that a record of active Endangered Species Bulletins be
maintained and add a new Rule defining devices that produce a pesticide; which
when used for hire require a commercial pesticide applicator license. All other
proposed Rule amendments add clarification to the current interpretation,
enforcement and intent of the existing Rules. Specifically:
1. Parts 2.15 and 2.16 are amended to clarify
when solicitations to subcontract incidental pesticide applications can be made
by a business that is not acting as and is not licensed as a commercial
applicator.
2. Part 2.60 creates a
new Rule defining the Private Applicator category and license
purpose.
3. Part 6.03(k) creates a
new Rule to require commercial applicators to maintain a record of any active
Endangered Species Bulletin.
4.
Part 7.05 is amended to clarify what labeling must be in the applicator's
possession when applications are being performed and exempt Endangered Species
Bulletins from this requirement.
5.
Parts 8, 9 and 10 are amended to add the numeric category reference to each
pesticide licensure category.
6.
Parts 8.01(f),(g) and (h) and Part 10.01 (b) are amended to clarify which pests
may be treated under these categories.
7. Part 10.02 is amended to correctly state
the licensure category.
8. Part
15.05 creates a new Rule requiring that devices that produce a pesticide, such
as carbon monoxide, that when used for hire to control a pest requires a
commercial applicator license.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1. Part 2.15
allows a business that does not apply pesticides for hire to enter into a
contract that incidentally requires the application of pesticides as long as
there is a written provision in the contract expressly stating that the
business will subcontract the application to a licensed applicator. Part 2.16
similarly allows a business that applies pesticides for hire and is licensed as
a commercial applicator to subcontract applications that require a qualified
supervisor licensed in a category not held by the business's own qualified
supervisors, to subcontract the work if the contract expressly discloses that
plan. Absent such statements, the Department would consider such contracts to
constitute violations of the statutory provision, §
35-10-117(1)(c),
C.R.S., which makes it a violation of the Act to present oneself to be
qualified to perform or to solicit pesticide related services without a "valid
commercial license." The Department realizes that in order to enter into such
contracts, businesses must necessarily engage in some form of a solicitation -
i.e., they must make an offer to their potential customers, whether oral or
written. These amendments to Parts 2.15 and 2.16 clarify that a business
proposing to enter into a contract with such a subcontracting provision must
also disclose that they will subcontract pesticide applications that require
licensure beyond what they hold at the time of the solicitation.
2. Part 2.60 is being created as a result of
amendments being made to Parts 8, 9 and 10, to add the numeric categories for
all pesticide licensure categories. When creating the language to classify a
Private Applicator license as Category 401, the Department felt that stating
the purpose of this licensure category would more clearly define what the
license may be used for and match the category classification definitions in
Parts 8, 9 and 10 of the Rules.
3.
Part 6.03(i) creates a new Rule to require commercial applicators to maintain a
record of any active Endangered Species Bulletin.
The Environmental Protection Agency in recent years has added
Endangered Species (ES) specific language to certain pesticide labels that
require pesticide applicators to obtain and abide by the Endangered Species
Protection Bulletin. The requirements in an ES Bulletin are enforceable because
compliance is mandated by the label. Therefore, applicators must follow all
requirements on the ES Bulletin and failure to do so would be a label violation
under both the Federal Insecticide, Rodenticide and Fungicide Act (FIFRA) and
the PAA. In addition, as a condition of the EPA enforcement grant CDA is
required to verify compliance with all elements of the label. EPA also has
specified in our grant that the CDA must determine applicator compliance with
the Endangered Species Act by verifying that applicators are referencing the ES
Bulletins when required. In 2012 Colorado's first ES Bulletins for Rozol
Prairie Dog Bait came into existence and ES Bulletin language is showing up on
labels regularly now. The best way for CDA to verify that an applicator has
referenced the ES Bulletin and followed all use restrictions for the pesticide,
county and month the application was made is to require that the applicator
maintain a copy of any active Bulletin that pertains to applications they have
made in their records. A record of the Bulletin will only be required to be
maintained when there is an active Bulletin for the product, county and month
in which the application took place.
4. The intent of Part 7.05 is to require an
applicator to have the original or a copy of the original pesticide label and
any additional labeling directions in the possession of the applicator at the
time of an application so all use directions are available at the job site.
Currently Part 7.05 states, "...a copy of the pesticide label and any attached
labeling for each product in use shall be in the possession of the
commercial...applicator..." The word "attached" no longer represents how labels
and labeling may be accessed with new technologies. Labels and labeling are now
more likely to be downloaded from the registrant's or EPA's website and
maintained electronically. Some products do not have labeling physically
"attached" to a product. Therefore, the Department feels that changing the word
"attached" to the word "associated" would clearly state the requirement of Part
7.05, which is to have copies of the pesticide label and all of its associated
labeling. The word "copies" does not designate or restrict the form or manner
in which the label copy must be in the applicator's possession.
The definition of "labeling" found in the Pesticide Act in
relation to the Endangered Species (ES) Bulletins excludes "current official
publications" of the EPA. ES Bulletins are publications of EPA that are not
created and distributed with the pesticide label. CDA is proposing to add a
clarifying statement that, for the purposes of Part 7.05, ES Bulletins are not
required to be in the possession of the applicator at the time of the
application, since an ES Bulletin is not "labeling". It should be noted,
however, that any requirements in an ES Bulletin are enforceable because
compliance is mandated the label. Therefore, applicators must still follow all
requirements on the ES Bulletin just as any other requirement on the label and
failure to do so would be a violation of the PAA. CDA felt clarification is
needed in Part 7.05 so applicators understand that although they must have a
copy of the label in their possession at the time of application, they are not
required to have the ES Bulletin in their possession. CDA is proposing to amend
Part 7.05 to clearly state the ES Bulletin is not required to be in the
applicator's possession at the time of an application.
5. Parts 8, 9 and 10 are amended to add the
numeric category reference to each pesticide licensure category. CDA routinely
refers to pesticide applicator licensure categories with a numeric reference in
publications, enforcement documents, license documents, examination documents,
etc.; i.e.: Category 101, Agricultural Insect Control. CDA is proposing that
all licensure category descriptions in Parts 8, 9 and 10 be amended to reflect
the appropriate numeric category reference number to ensure Department
publications, administrative documents and enforcement documents legally
coincide.
6. Recently the question
was brought to the Department's attention, asking if rodents can be treated in
rangeland areas with the Rangeland Pest Control Category vs. the Outdoor
Vertebrate Control Category. The licensure category description in the
Rangeland category is a very broad, stating that this category is for the
"application of pesticides to rangeland". Arguably this language would allow
the applications of any pesticide, including those applied to rodents in
Rangeland areas. However, the Outdoor Vertebrate licensure category clearly
states that the Outdoor Vertebrate Pest Control category must be held to apply
pesticides to control outdoor vertebrate pests, regardless of the site they
inhabit; adding to the confusion.
The original intent of the Rangeland category was for the
application of pesticides to rangeland areas for pests other than rodents,
i.e.: weeds, insects, etc. The Outdoor vertebrate category was intended to
apply pesticides for the control of vertebrate pests, regardless of the site
they may be found (i.e.: water, rangeland, structures, pasture, right-of-way,
etc.). During our review, we found this broad statement not only in the
Rangeland category but also in the Forestry and Aquatic categories, making the
licensure requirements confusing unless the applicator reads the Outdoor
Vertebrate licensure category with these other definitions. Even then, it is
not clear if the Outdoor Vertebrate Pest Control license would be
needed.
The other licensure categories do have specific descriptions
as to what that licensure category does and does not allow. For example:
8.01(a) Agricultural Insect Control: the application of
pesticides to agricultural plants, including applications performed on
pastures, croplands and non-crop agricultural lands, to control invertebrate
pests, including insects, mites, slugs, snails, and nematodes.
8.01(j) Public Health Pest Control: the application of
pesticides for control of disease vectors, except vertebrates.
9.01(a) Turf Pest Control: the application of pesticides
to:
(1) turf to control invertebrate
pests, including insects, mites, slugs, snails, and nematodes, or to control
plant diseases or weeds; or
(2)
ornamental beds to control weeds.
The CDA is proposing that the Rangeland Pest Control and
Forest Pest Control category definitions be amended to clearly state that these
categories allow the application of pesticides to be applied to control pests
"except vertebrates", as similarly stated in the Public Health Pest Control
Category.
During our discussion with the Pesticide Advisory Committee
it was pointed out that amphibian and fish pest control is currently under the
Outdoor Vertebrate Control category. It was recommended that the Department
allow these vertebrate pests to be treated under the Aquatic Pest Control
license, since the pesticide applications are being made directly to water. The
Department agreed with this reasoning and therefore is proposing to clarify the
licensure requirements for controlling vertebrate pests in and out of water in
the Part 8.01(h), Aquatic Pest Control and Part 10.01(b), Outdoor Vertebrate
Pest Control.
7.
CDA recently identified a discrepancy in Part 10.02, which outlines the
structural pest control experience requirements for licensure as a qualified
supervisor. The current language incorrectly references the
Residential/Commercial Pest Control licensure category, found in Rule 10.01
(d), as "household pest control". The Department believes this was an oversight
in the terminology when the Rule was originally enacted, since nowhere in the
PAA is "household pest control" referenced as a license category. CDA proposes
to amend Part 10.02 to remove the reference to "household pest control" and
correctly state the licensure category referenced in Part 10.01(d),
Residential/Commercial Pest Control.
8. In FY 2012 it was brought to the attention
of the Department that a licensed commercial applicator wanted to use a device,
called the Pressurized Exhaust Rodent Control (PERC), to convert gasoline to
carbon dioxide (and other gases) and then pump carbon monoxide into a building
void (in a strip mall) to treat bird mites and other pests associated with a
bird infestation. The PERC is a device intended to only control rodents; it
generates carbon monoxide with an attached engine, pressurizes it into a large
tank, and the gas is then pumped into rodent burrows. The directions prohibit
use on structures and recommend the applicator maintain a 150 ft. buffer from
structures.
Under
35-10-118 (9.5) - Powers and
duties of the Commissioner, adopted as a result of the 2006 Sunset review, it
states:
The Commissioner shall designate by rule which devices, when
operated for hire, require the operator to be licensed as a commercial
applicator. Licensure shall be required only for the use of those devices that,
as determined by the Commissioner, may constitute a significant risk to public
health or safety.
Since the CDA does not currently have any devices in Rule
designated to require licensure, the CDA has no regulatory authority over
individuals using these devices. Therefore, the CDA cannot require licensure
when using these devices for hire or take any enforcement action on a
commercial applicator when the device is used incorrectly, even when it would
cause a risk to the public's health or safety.
The CDA is proposing the creation of a new Rule 15.05 that
requires licensure for the use of any device that generates/produces a
pesticide as defined in the Pesticide Applicators' Act §
35-10-103(10),
C.R.S., to help ensure public safety, by requiring applicators have the proper
training and licensing to use any device for hire that produces a pesticide. In
addition, Rule 15.05 requires the applicator to use the device in accordance
with the manufacturer's directions.
18.15.
February 12, 2014 - Effective
March 30, 2014
Statutory Authority
These amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a)
& (b), and (9.5), C.R.S.
Purpose
The purpose of these proposed Rules is to clarify the
procedures that must be used when operating a device that produces a pesticide,
specifically carbon monoxide; which when used for hire requires a Commercial
Applicator license. Specifically:
1)
Part 1.02 is amended to add the definition of a device that is regulated under
this article.
2) Parts 6.01 and
6.03 are amended to reference record keeping requirements for the use of a
device that generates a pesticide in Part 15.07 of these Rules.
3) Parts 10.04 and 10.05 are amended to
include devices in the post application notification requirements.
4) Part 15.05 is amended and creates new
Rules clarifying the pest and sites of application allowed with a device that
generates a pesticide.
5) Parts
15.06 (a) and (b) create new Rules that outline the procedures and requirements
a Commercial Applicator must follow when making applications within specified
distances from occupied structures.
6) Part 15.07 creates a new Rule specifying
the records Commercial Applicators that use devices that generate a pesticide
must maintain.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1) In FY 2012 it
was brought to the attention of the Department that a licensed Commercial
Applicator wanted to use a device, called the Pressurized Exhaust Rodent
Control (PERC), to convert gasoline to carbon monoxide (and other gases) and
then pump carbon monoxide into a building void (in a strip mall) to treat bird
mites and other pests associated with a bird infestation. The PERC is a device
intended to only control rodents; it generates carbon monoxide with an attached
engine, pressurizes it into a large tank, and the gas is then pumped into
rodent burrows. The directions prohibit use on structures and recommend the
applicator maintain a 150 ft. buffer from structures.
Section 35 -10-118 (9.5), C.R.S., powers and duties of the
commissioner, adopted as a result of the 2006 Sunset review, states:
The Commissioner shall designate by rule which devices, when
operated for hire, require the operator to be licensed as a commercial
applicator. Licensure shall be required only for the use of those devices that,
as determined by the Commissioner, may constitute a significant risk to public
health or safety.
The CDA passed a new Rule on July 30, 2013, to require
licensure for any person that uses any device that generates/produces a
pesticide as defined in the Pesticide Applicators' Act §
35-10-103(10),
C.R.S., to help ensure public safety by requiring applicators to have the
proper training and licensing to use any device for hire that produces a
pesticide. This rule also requires commercial applicators to follow label
directions for such devices.
2) After
the Rule hearing it was brought to the attention of the Department that current
device directions may restrict applications around and up to a structure,
impacting a Commercial Applicator's business negatively.
3) After the Rule hearing it was brought to
the attention of the Department that these devices could be built by an
individual and no "directions" would be associated with these devices used for
hire, therefore there would be no way to ensure the device would be used in a
manner that would not create an unsafe situation for the public.
4) In the normal registration process of a
pesticide the Environmental Protection Agency (EPA) assesses the risk of using
a pesticide and directs registrants on what labeling use directions or
restrictions are needed. EPA only requires manufacturers of devices to register
their device with EPA and they register an EPA establishment number. With
respect to devices, EPA does not review their efficacy or risk created by their
use. Neither does it review or require directions for use to be submitted to or
approved by them. Therefore, to ensure public safety, this requirement fell on
the Department and necessitated the development of these Rules.
5) The Department obtained input from USDA
and the Colorado Department of Public Health and Environment (CDPHE) when
creating this Rule. CDPHE generated modeling data showing the potential amount
of carbon monoxide that could leak into a structure. This data showed that in
certain circumstances carbon monoxide levels could rise to deadly levels within
minutes and create a situation where adverse impacts to health and safety were
possible, including death.
6) Part
1.02 (m) was created to define devices for which licensure is required and link
their definition to "pesticides". This allowed all PAA licensure and business
requirements for the use of a pesticide for hire to be extended to devices
being used for hire where applicable.
7) Parts 6.01 and 6.03 were amended to
clarify that recordkeeping requirements pertaining to the use of a device that
requires licensure are outlined in Part 15.07 of the Rule.
8) Parts 10.04 and 10.05 were amended to
address customer notification requirements for the use of devices that require
licensure. The Rule now requires licensees using a device requiring licensure
to meet similar notification requirements to the customer as for other
pesticide applications, including providing the date and time of application
and any precautionary statements from the device directions.
9) Part 15.05 was amended to clarify that it
is a violation to use a device that generates a pesticide in a manner
inconsistent with these Rules. It requires that these devices may only be used
for burrowing rodent control and that the Commissioner may approve other uses
if the Commissioner can determine that such use will not pose a risk to the
public health or safety.
10) Part
15.06 was created to allow device applications up to the foundation of occupied
structures. Part 15.06 (a) specifies the distances within which additional
precautions must be taken. The additional precautions outlined in 15.06(b) are
intended to ensure that occupants of structures will not be exposed to carbon
monoxide in situations where carbon monoxide accidentally leaks into a
structure. The precautions include evacuating the structure and require the
applicator to "clear" the structure with a carbon monoxide monitoring device
prior to allowing any occupants back into the structure. Part 15.06(b) also
requires information be provided to the customer on carbon monoxide poisoning
symptoms and directions to evacuate and seek medical attention, should they
have symptoms following the application.
11) Part 15.07 was created to require
recordkeeping of device applications. These recordkeeping requirements will
allow the Department to investigate the proper use of a device in the case of a
complaint and to ensure applicators are complying with the application
precautions and requirements outlined in Part 15.06.
18.16.
Adopted November 10, 2015 -
Effective December 30, 2015.
Statutory Authority
These amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-109(2) and
35-10-118(2),
C.R.S.
Purpose
The purpose of these proposed Rules is to adopt new Rules
to:
(1) meet the requirements of
training specified in SB 15-119;
(2) re-define commercial business
locations;
(3) create a new Post
Harvest Potato Pest Control licensure category;
(4) allow for electronic notification of
pesticide applications and;
(5)
make necessary conforming language changes. Specifically:
(1) Rule 1.02 is amended to add the
definition of a "ready to use pesticide".
(2) Rule 5 is amended to fix a typographical
error from previous Rules.
(3) Rule
5.02 is amended to clarify that the technician training required in Rule 5.02
does not apply to non-registered limited commercial applicator and
non-registered public applicators.
(4) Rule 10.01 is amended to create a new
Post Harvest Potato Pest Control category and provides for the award of the
category for existing licensees holding the Stored Commodities Treatment
category and for licensure and renewal requirements after January 1,
2016.
(5) Parts 8, 9 and 10 are
amended to allow for electronic notification of pesticide
applications.
(6) Part 11 is
amended to correctly state new terminology regarding "safety data
sheets".
(7) Update address of the
Department.
(8) Create a new Part
16 to address training requirements as a result of SB 15-119 for non-registered
limited commercial applicators and non-registered public applicators. This Part
outlines what training is required for the use of certain general use
pesticides, when training is required, how training can be met and
recordkeeping requirements.
(9)
These amendments incorporate changes as a result of the Department's Regulatory
Efficiency Review Process.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
(1) The current
Stored Commodities Treatment category focuses on the fumigation and treatment
of raw grains in storage facilities; such as silos and grain bins. It was
brought to the Department's attention that post-harvest potato treatments,
which have been conducted under the current Stored Commodities category since
the 90's, are significantly different in the equipment required and knowledge
needed to conduct these specialized pesticide applications. The Department
verified this and in the course of considering this licensure category found
several other states that have significant potato agricultural industries have
a specific post-harvest potato treatment licensure category. Since the
Department's current Stored Commodities Treatment category does not adequately
address post-harvest potato treatments and due to the complexity and knowledge
needed to perform these applications, the Department is proposing this new
licensure category. The study guide and exam was done in cooperation with
post-harvest potato treatment applicators.
(2) The proposed Rule 10.01 will provide for
licensees with the current Stored Commodities treatment category to be awarded
the Post-Harvest Potato Treatment category, because under the Stored
Commodities category they were already allowed to perform these applications
prior to the creation of this new licensure category, and outlines the time
frames when examination, continuing education and renewal are
required.
(3) The Department was
approached by industry to consider a Rule change to allow required notices of
pesticide applications outlined in Rules 8.03, 9.04 and 10.06 to be provided
electronically to their customers. As technology has evolved more commercial
applicator customers request that these notices of pesticide applications be
sent via electronic means, rather than posting a written paper notification on
a door that they may never enter. The proposed Rules in 8.03, 9.04 and 10.06
provide a means for commercial applicators to confirm and maintain a record
that their customer has requested an electronic notice and clarifies the
circumstances when an electronic notice can and cannot be used in place of
written notification.
(4) Rule
10.07 is a new Rule addressing notification in multi-unit structures when
common areas have been treated, which had previously not clearly required
posting. The Department added this additional clarification due to on-going
complaints that structural applications made to common areas are not adequately
communicated to persons living in the structure who must pass through these
areas to gain entry to their unit.
(5) As a result of SB 15-119, a new Part 16
has been created to address the new training requirements for any owner or
designee of a non-registered limited commercial applicator and any employee of
a non-registered public applicator making applications with a general use
pesticide. During the Department's discussions with the Department of
Regulatory Agencies, this recommendation was made to address concerns expressed
during the Pesticide Applicator Act Sunset review by those that felt that a
higher level of training should be required for non-registered limited
commercial and non-registered public applicators that make similar pesticide
applications as those made by commercial applicators and who are held to a
higher standard of training and knowledge. Additional training for individuals
making pesticide applications in areas that are considered "sensitive sites",
such as schools and health care facilities, were a concern as well. The
Department took into consideration comments received from industry and during
the legislative session that antimicrobial pesticides, i.e.: cleaning products,
or those that were packaged in a ready to use containers that do not require
mixing or loading of the pesticide into separate containers and limit the user
to smaller quantities that limit potential exposures to the end user or public
were beyond the scope of pesticide use that should require this additional
training.
(6) The Department is
proposing the following new Rules to address SB 15-119. Rule 1.02 provides the
definition of a "ready to use" pesticide. Rule 16.01 outlines the scope of whom
this Rule applies to. Rule 16.02 clarifies what general use pesticides require
training to use. Rule 16.03 clarifies what general use pesticides do and do not
require training. Rule 16.04 outlines what core pesticide safety training
subjects must be covered and the manner in which the training may be met. Rule
16.05 clarifies how often the training must be conducted and Rule 16.06
outlines how long records of the training must be maintained.
(7) The Rules are being amended to address
typographical errors, make conforming language changes and update verbiage to
current regulatory references.
18.17.
Adopted February 10,
2016-Effective March 30, 2016
Statutory Authority
Amendments to these Rules are proposed for adoption by the
Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to his
authority under the Pesticide Applicators' Act ( "PAA") Sections
35-10-118(2),
35-10-117(1)(i)
and 35-10-117(2)(a),
C.R.S.
Purpose
The purpose of these Rules is to establish the criteria for
determining which pesticides may be used in the cultivation of cannabis to
prevent unsafe use. They also change the recordkeeping period for Private
Applicators. Specifically these Rules:
(1) Create a new Part 17 which specifically
addresses the use of pesticides in the production of cannabis;
(2) Create a new Rule 17.01 which establishes
definitions specific to "cannabis", "human consumption", and
"tolerances";
(3) Create a new Rule
17.02 which provides that the Department will publish the list of pesticides
that meet the criteria for use on cannabis;
(4) Create a new Rule 17.03 which provides
that all pesticides used in the cultivation of cannabis must be registered with
the Department;
(5) Create a new
Rule 17.04 which establishes the criteria for determining which pesticides may
be legally used in the cultivation of cannabis in accordance with Sections
35-10-117(1)(i) and
(2)(a), C.R.S., which prohibits the use of
pesticides in an unsafe manner;
(6)
Create a new Rule 17.05 which allows the Commissioner to prohibit the use of
any pesticide product on cannabis if he determines that such use may pose a
significant threat to public health and safety or the environment, even though
it otherwise satisfies the criteria for use on cannabis in Rule 17.04;
and
(7) Update Rule 6.05 to match
the two year private applicator recordkeeping requirement in the PAA.
Factual Policy and Issues
The factual policy and issues encountered when developing
these Rules include:
(1) The use of
pesticides in Colorado is regulated under the Pesticide Applicators' Act,
Sections 35-10-101 - 128, C.R.S. Pesticide
regulation is based on the labeling of the pesticide product, the language of
which is enforceable under the PAA. Because cannabis is not a specifically
listed crop on any label currently registered with the Department, products
with broad label statements that do not prohibit use on cannabis are currently
the only ones that may be used legally on cannabis in Colorado.
(2) These Rules and criteria are being
established to allow the use of certain pesticides in the cultivation of
cannabis based on the available science and information the Department can
confirm at this time. Without these Rules and the criteria they set out, the
use of a pesticide that has not had a tolerance established for use on edibles
(food), or the use of a pesticide that is not intended to be consumed through
inhalation by smoking, could be allowed on cannabis by a broadly worded label,
even though such use would be "unsafe" under Sections
35-10-117(1)(i) and
(2) (a, C.R.S.
(3) Both the PAA and the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) require that all pesticides be applied in
strict accordance with the label directions for the particular product. As part
of the directions for use, pesticide labels specify the particular crops and/or
sites to which they can be applied. Depending on the particular pesticide, the
crops/sites listed on the label can be expressed very specifically (e.g.,
"wheat"), or more generally (e.g., "grain crops"). While a pesticide with a
label that specifies "wheat" can only be applied to wheat, a pesticide that
lists "grain crops" on the label can be applied to wheat, barley, oats, rye,
etc. In determining which pesticides, if any, may be used legally on cannabis,
CDA initially consulted with the U.S. Environmental Protection Agency (EPA) as
to whether there might be any general crop groups, such as herbs, spices or
vegetable gardens, into which cannabis might fit (note: there are no registered
pesticides that specifically list cannabis as a crop on the label). The current
position of EPA is that cannabis is not an herb, a spice or a vegetable.
However, EPA agrees that, depending on actual label language, it is not a
violation of a pesticide label under the PAA or FIFRA to use the product on
cannabis if it has certain, very generally worded descriptions of crops/sites
on the label, and the product's active ingredient is exempted from the
requirement of a tolerance.
(4)
Tolerances are established by EPA in accordance with the Federal Food and Drug
Cosmetic Act, U.S.C. Title 21, Section
408. A tolerance is the maximum amount
of the active ingredient of a pesticide product that is allowed to remain in or
on a food crop as residue after application of the product. Pesticide products
that have significant toxicity, which could pose a hazard to public health if
threshold amounts are exceeded when consumed and could result in acute or
chronic poisoning, are required to have tolerances established by EPA.
Tolerances for a given active ingredient typically vary depending on the
specific food crop to which it is applied. EPA sets tolerances by determining
that there is a reasonable certainty that no harm will result from aggregate
exposure to the pesticide chemical residues at the tolerance levels
established, including all anticipated dietary exposures. Exemptions from
tolerances are established under 40 CFR, Part
180, Subpart D: 180.900: "... An
exemption from a tolerance shall be granted when it appears that the total
quantity of the pesticide chemical in or on all raw agricultural commodities
for which it is useful under conditions of use currently prevailing or proposed
will involve no hazard to the public health."
(5) Section 3 of FIFRA provides EPA the
authority and 40 C.F.R.,
Parts 150-167, outline the requirements to
register a pesticide with EPA. Pesticide labeling is derived through EPA's risk
assessments required to be conducted as a condition of registration that
determine the manner and rates of application in which a pesticide may be used
on a site or a crop without resulting in adverse impacts to public health or
the environment. To date no risk assessments have been conducted specifically
for pesticide use on marijuana.
(6)
Risk assessments have been conducted to determine what pesticide active
ingredients are tolerance exempt. EPA has determined that for those active
ingredients determined to be tolerance exempt, "...the total quantity of the
pesticide chemical in or on all raw agricultural commodities...will involve no
hazard to the public health."
(7)
EPA requires that a pyrolysis study be conducted during the risk assessment
process for products intended to be smoked such as tobacco, unless EPA has
exempted the pesticide from pyrolysis studies due to the nature of the
pesticide.
(8) The Colorado Food
and Drug Act (CFDA) provides the Colorado Department of Public Health and
Environment (CDPHE) with authority over cannabis contaminated with pesticide
residues ("adulterated" under the CFDA) that is very similar to the authority
used by the Food and Drug Administration to deal with pesticide contamination
of all other agricultural crops. The CFDA gives CDPHE specific authority over
"unsafe" "pesticide chemicals" in "raw agricultural commodities," the
definition of which is broad enough to include cannabis which is grown,
harvested and then processed and sold for consumption through various means,
including ingestion as a component of food (in edibles).
Under the CFDA, "food" is defined to mean "articles used for
food or drink for man or other animals...and articles used for components of
any such article." C.R.S. §
25-5-402(11).
"Food" includes any "raw agricultural commodity," which is "any food in its raw
or natural state...." C.R.S. §
25-5-402(21).
Cannabis, which is grown and used as a component in many forms of edible food
products, thus qualifies as a raw agricultural commodity under the CFDA.
Although not all cannabis is used in edibles ("food" under the CFDA) cannabis
can be used for any purpose after harvest, including food use, thus warranting
treatment of all cannabis crops as a food for pesticide regulation purposes.
Under Section
25-5-410(1)(b)(II)
of the CFDA, "a raw agricultural commodity"
is "deemed to be adulterated" if "it bears or contains a pesticide chemical
which is unsafe within the meaning of Section
25-4-413(1)"
unless the concentration of the residue is less than the tolerance set for the
commodity or is tolerance exempt as provided for in Section
25-5-413(1).
Section 25-5-413(1) in
turn states that, "[a]ny pesticide chemical in or on a raw agricultural
commodity...shall be deemed unsafe for the purpose of application of Section
25-5-401(1)(b)"
unless there is a tolerance established for that crop and the residue level is
within that tolerance. Thus unless a pesticide found on a cannabis crop has a
tolerance for use on cannabis or is tolerance exempt, its presence in any
amount on cannabis constitutes adulteration that renders the cannabis unsafe
for human consumption under the CFDA as a matter of law. These Rules reflect
and follow the General Assembly's determination in the CFDA that consumption of
food containing pesticides without a tolerance or exemption is unsafe. The
Rules thus prohibit the application of such pesticides to cannabis as similarly
unsafe as under the PAA in order to prevent adulteration from pesticides as
addressed in the CFDA from occurring.
This approach for regulating pesticide use in order to
prevent contamination of cannabis is the same as EPA and CDA apply to any other
multipurpose-purpose agricultural commodity that can be used in food after
harvest. It reflects the fact that neither EPA nor CDA have any way of knowing
or controlling what a grower of such crop chooses to do with the crop once
harvested. For example, under EPA's registration system, any pesticide labeled
for use on cotton, which once harvested can be used for both fiber and food (in
the form of cotton oil), must have a tolerance established and be labeled for
food use even though the particular cotton crop to which it is applied in the
field may not ultimately be used as food.
(9) Depending on how it is processed and sold
after harvest, cannabis may be consumed through inhalation (smoking), ingestion
(eating) and through dermal exposures (creams and lotions applied topically).
Due to the lack of specific risk assessments or tolerances for use of any
pesticides specifically on cannabis CDA, in accordance with the CFDA, has
determined that it is unsafe to apply any pesticide to cannabis that requires a
tolerance for applications to raw commodities or that is not approved for use
on tobacco.
The heightened safety concern created by the multiple ways in
which cannabis is consumed was highlighted recently by the marijuana industry's
widespread use of a product called Eagle 20 which contains the active
ingredient myclobutanil. In a May 2015 lawsuit against the City of Denver and
CDA challenging the City's hold orders preventing the sale of marijuana on
which myclobutanil was found, a marijuana grower argued that myclobutanil was
safe to ingest and smoke. Because no risk assessments had been conducted
specifically for the use of myclobutanil on marijuana and no tolerances for
such use were established, the City and CDA argued that it was unsafe to use
myclobutanil on marijuana. Although the judge ruled in the City's and CDA's
favor and sustained the hold orders, based on the scientific information
available at that time and presented to the court, the judge stated in his
ruling that, "The evidence at the hearing strongly suggests that myclobutanil
is likely safe for use on marijuana and that the levels of myclobutanil found
on the Plaintiff's marijuana would not constitute a health threat to those who
ingest it, either through eating or smoking".
Only a month later, in June 2015, Frank Conrad, the Lab
Director of Colorado Green Lab, confirmed the City's and CDA's concerns when he
analyzed the known chemical and physical properties of myclobutanil and
reported in his paper, "Eagle 20 and Myclobutanil in the Context of Cannabis
Cultivation and Consumption," that when heated above 205 degrees Celsius
(cigarette lighters burn at 450 degrees Celsius) myclobutanil forms hydrogen
cyanide (HCN). Conrad's paper points out that HCN is known to cause serious
neurological, respiratory, cardiovascular, and thyroid problems and that
cannabis retaining even marginal amounts of myclobutanil (ex. 0.03 ppm) could
potentially expose consumers to non-lethal, but clinically relevant levels of
HCN. This illustrates the potential danger of using a pesticide on cannabis
that does not meet the criteria established in these Rules, including tolerance
exemption of all active ingredients and EPA approval of use on tobacco (which
is consumed through inhalation).
(10) CDA has identified certain pesticide
products whose use on cannabis would not constitute a violation of the label
due to the very general use statements on the label. In addition, because the
active ingredient(s) of these pesticide products are exempt from a tolerance
requirement they in most cases provide for use on crops that may be consumed.
However, broad labeling and a tolerance exemption for food use does not
necessarily mean the active ingredient was tested or approved for use on
products to be smoked, such as tobacco. Since cannabis may also be consumed by
smoking, any pesticide product allowed for use on cannabis must also have
active ingredients that are approved for use on tobacco to ensure EPA has
considered use on commodities intended to be smoked in their risk
assessment.
(11) CDA is proposing
that the only pesticides allowed for use on cannabis be those registered with
CDA in accordance with Title 35, Article 9, C.R.S. This will prevent the
application of "home-made" pesticide concoctions containing active ingredients
that may be unknown and could pose a serious health risk to the applicator and
end user if consumed. This will also ensure that any pesticide product applied
to cannabis has had a risk assessment conducted to determine allowed
uses.
(12) These Rules set forth
the specific criteria, which if met, will prevent the use of pesticides for the
cultivation of cannabis in an unsafe manner that would violate Sections
35-10-117(1)(i) and (2)(a)
C.R.S.. Section 3 registered pesticide
products may be used on cannabis if:
(a) The
active ingredients have been determined to be tolerance exempt from the
requirements of a tolerance, as established under 40 C.F.R. Part
180, Subparts
D and E. EPA has established in the risk assessment process that these products
are of lowest toxicity and therefore do not require tolerances to be
established for use on raw commodities.
(b) The label has broad language that allows
the use of the pesticide on the site of application. The term "site" includes
all sites of application, including interior, exterior sites, structures in
which application may be made, as well as the actual plant or crop.
(c) The pesticide product label expressly
allows use on crops intended for human consumption. This is intended to prevent
the use of pesticides on cannabis that although broadly labeled, are not tested
or intended for use on food crops.
(d) The pesticide's active ingredients must
be allowed by EPA for use on tobacco. Pesticide products may contain active
ingredients that have had risk assessments conducted for consumption in food,
but those active ingredients may not have been tested or intended to be burned
and inhaled. Requiring that all active ingredients in pesticides used on
cannabis have EPA-allowed uses on tobacco, will ensure that EPA has considered
this in their risk assessment process.
(e) Some pesticide products may meet all of
the required criteria except being expressly labeled for food use due to
marketing toward other markets. Nevertheless, if CDA can verify with the
manufacturer that the product's master label allows food uses and that all of
the active and inert ingredients are allowed for use on food crops and tobacco,
CDA through this Rule will have the authority to allow the product's use on
cannabis.
(13) Under the
authority of Section 24(c) of FIFRA, states may register an additional use of a
federally registered pesticide product, or a new end use product, to meet
special local needs. EPA reviews these registrations, and may disapprove the
state registration if, among other things, the use is not covered by necessary
tolerances, or the use has been previously denied, disapproved, suspended or
canceled by the Administrator, or voluntarily canceled subsequent to a notice
concerning health or environmental concerns.
These Rules will allow the use of pesticide products on
cannabis that have gone through the 24(c) registration process. The 24(c)
process will require additional data submission specifically to address use on
cannabis, including residue studies and considerations for extracts as well as
submission of specific use instructions for use on cannabis. EPA will review
this information and deny the registration if it does not support the
use.
(14) EPA has determined
that certain "minimum risk pesticides," commonly referred to as "25(b)
pesticides," pose little to no risk to human health or the environment. EPA has
exempted them from the requirement that they be registered under FIFRA. These
products must still be registered with CDA and meet minimum FIFRA standards for
labeling requirements and claims.
There may be some 25(b) products that the manufacturer did
not intend to allow end users to consume. The Rule will only allow the use of
25(b) minimum risk pesticide products on cannabis if the pesticide labeling
allows use on crops or plants intended for human consumption.
(15) The Rules will allow the Commissioner to
prohibit the use of any pesticide that he determines could pose a threat to
public health and safety or the environment, even if it otherwise meets the
Rules' criteria. Pesticide use on cannabis is a newly regulated area of
agriculture and new information is coming to light daily. This will give CDA
the means to stop the use of any previously approved pesticide when new
information or science establishes that such use would be unsafe.
(16) Applying the criteria in the Rules to
the more than 12,000 pesticides currently registered with the State of
Colorado, CDA has determined that there are less than two hundred pesticides
that can be legally used in the cultivation of cannabis. In order to inform
cannabis growers which pesticides are available to them, CDA has created a list
of pesticides that can be legally used. This list will be published on CDA's
website and updated as needed.
(17)
As a result of SB15-119 the Private Applicator recordkeeping requirement was
changed from three years to two years, to match the federal recordkeeping
requirement. This change to Rule 6.05 will make the Rule consistent with the
PAA.
18.18.
Adopted
September 20, 2017 - Effective November 30, 2017
Statutory Authority
The amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a) and
(b), C.R.S.
Purpose
The purpose of these Rules is to add a new Post Harvest
Potato Pest Control category; amend the criteria for determining which
pesticides may be used in the cultivation of Cannabis to allow for the use of
unregistered pesticides during research and demonstration activities only; to
update commercial applicator storage signage requirements; and to make
conforming changes to clarify existing Rules. Specifically, these Rules:
1. Correct typographical errors and
references.
2. Amend Rules 5.25,
5.26, 5.27, 5.28 and 10.03 to add the new Post Harvest Potato Pest Control
category.
3. Amend 8.01(g) to make
the "turf" reference consistent throughout this Part 8.
4. Amend Rule 11.05 to provide a more
flexible manner in which commercial applicators must post signs notifying
employees, first responders, and other parties of the presence of pesticides in
pesticide storage areas.
5. Amend
Rule 17.03 to allow the use of unregistered pesticides in the cultivation of
Cannabis for research and demonstration purposes only.
Factual and Policy Issues
1. Clarify which part of Rule 5.01 outlines
the required training and experience to meet the qualifications of a New Hire
Experienced Technician.
2. On
December 30, 2015, a new licensure category, the Post-Harvest Potato Pest
Control category (i.e., Category 308), was created. Prior to the creation of
this licensure category, post-harvest potato pest control pesticide
applications were performed under the Stored Commodities Treatment category
(i.e., Category 305). Rules 5.25, 5.26, 5.27, 5.28 and 10.03 outline the
technician training requirements and experience required to obtain a Qualified
Supervisor's license in the Stored Commodities Treatment category. To address
the technician training and licensure experience requirements for the
Post-Harvest Potato Pest Control category, the Department proposes to update
Rules 5.25, 5.26, 5.27, 5.28 and 10.03 to add the Post-Harvest Potato Pest
Control category so that the training and experience requirements are the same
for this category as for its parent category.
3. The Turf Pest Control category and the
Ornamental Pest Control category fall under the broad definition of
"ornamental" applications. The Rangeland Pest Control category defines sites of
applications for this licensure category and requirements that applicators who
make applications in a forested area that is within fifty feet of a residence
or commercial structure also comply with the posting and notification
requirements in the Turf Pest Control category. Rule 8.01 currently references
the Turf Pest Control requirement and uses the general "ornamental" term. To
clarify the rule requirement, the Department proposes to reference the Turf
Pest Control category throughout.
4. Rule 11.05 sets forth that warning signs
are required for pesticide storage areas or entrances thereto. The current Rule
has specific verbiage which pesticide storage signs must meet. When this Rule
was originally created, applicators could purchase signs with this exact
verbiage. However, pesticide storage signs currently available for sale no
longer contain the required language in the PAA. Because the Rule states that
pesticide storage signs "shall" be marked with the specific verbiage used in
the Rule, companies must now create their own pesticide storage signs to be in
compliance with the Rule. The Department wants to amend Rule 11.05 to permit
the use of other types of standardized pesticide storage signage, while
maintaining the emergency contact information requirement and storage marking
provisions already contained in the Rule, as well as requiring that any
applicator who obtains a waiver of this sign requirement from a local fire
department maintain a copy of that waiver in the applicator's files for
Department review.
5. On March 30,
2016, the Department passed Rules that outlined the criteria for which
pesticides may be applied in the cultivation of Cannabis. Specifically, Rule
17.03 limited the use of pesticides in the cultivation of Cannabis to
registered pesticides only. In May 2017, HB 1367 was passed to allow marijuana
cultivators and other persons to conduct research and demonstration activities
related to pesticide use on marijuana. Research and demonstration activities
are for the purpose of developing data on currently unregistered pesticides or
pesticides that are not registered for a specific use. The Department proposes
to amend Rule 17.03 to allow the use of unregistered pesticides in the
cultivation of Cannabis for research and demonstration purposes in accordance
with the intent of HB 1367 and 40 CFR Part
172.
18.19.
Adopted February 22, 2018 -
Effective April 15, 2018
The amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
his authority under the Pesticide Applicators' Act (the "Act"), §§
35-10-118(2)(a) and
(b), C.R.S.
Purpose
The purpose of these Rules is to incorporate federal
statutory provisions by reference pursuant to §
24-4-103 (12.5)(a), C.R.S.
Specifically, these Rules:
1. Amend
the title to Part 1 of the Rule to include "Incorporations by
Reference."
2. Amend Part 1 by
adding a new Rule 1.03 to address the incorporation by reference
provisions.
3. Amend Rules 2.28,
6.05, 11.08, 17.03, 17.04, 17.04, and 17.04(d) by updating the references to
the Code of Federal Regulations ("C.F.R.") to include the date of the effective
edition and by removing repetitive incorporation statements.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1. On September
20, 2017, the Commissioner of Agriculture adopted Rules to allow Research and
Demonstration uses of unregistered pesticides for the cultivation of Cannabis.
In this Rule the Department referenced the C.F.R.
2. On November 6, 2017, the Department was
notified by the Office of Legislative Legal Services that the Department's
C.F.R. references incorporated into Rule did not comply with the requirements
of §
24-4-103 (12.5)(a),
C.R.S.
3. The proposed Rule changes
amend the title of Part 1 to add "Incorporations by Reference" and add a new
Rule 1.03 to meet required provisions to incorporate by reference set forth in
§
24-4-103 (12.5)(a),
C.R.S.
4. Rules 2.28, 6.05, 11.08,
17.03, 17.04, 17.04, and 17.04(d) are amended to update the C.F.R. edition date
to meet required provisions of incorporation by reference as set forth in
§
24-4-103 (12.5)(a),
C.R.S.
5. Rule 11.08 was amended to
remove the existing incorporation language that is now redundant to Rule
1.03.
18.20.
Adopted November 15, 2019 - Effective December 30, 2019
Statutory Authority
These amendments to these rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("CDA") pursuant to
her authority under the Pesticide Applicators' Act ("Act"), specifically
§§
35-10-118(2)(b).
Purpose
The purpose of these proposed amendments is to:
Amend Part 1 and Part 10 of the Rules Pertaining to the
Administration and Enforcement of the Pesticide Applicators' Act (the "Rule")
to address new landlord and tenant bed bug reporting requirements created by
House Bill 19-1328.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1. Pursuant to
section 35-10-118(2)(b),
C.R.S., the commissioner is authorized to adopt all reasonable rules for the
administration and enforcement of this article, including, but not limited to:
the establishment of qualifications for any applicant and standards of practice
for any of the licenses authorized under this article.
2. During the 2019 legislative session, the
Colorado General Assembly adopted HB 19-1328, effective January 1, 2020. HB
19-1328 amended Title 38, Article 12, Tenants and Landlords, concerning bed
bugs in residential premises and established a requirement for commercial
pesticide applicators to notify landlords and tenants of bed bug activity and
provide remediation instructions.
3. Notification provisions created in HB
19-1328 expressly state that notification and reporting will be in accordance
with rules established by the commissioner pursuant to Title 35, Article
10.
4. Part 1, Definitions; of the
Rules associated with the Act is amended to add definitions established in HB
19-1328 to include "Contiguous Dwelling Unit," "Dwelling Unit," "Landlord," and
"Tenant" to ensure clarity in the new rules established in Part 10.
5. Part 10, Structural Applicators; of the
Rules associated with the Act is amended to add new Parts 10.08(a) and (b) to
establish what bed bug activity must be reported to the landlord and what
remediation recommendations must be provided to the tenant.
6. A new Part 10.08(c) is created to require
that the structural applicator who makes the report to a landlord retain a
record of the report for three years.
18.21.
Adopted December 8, 2021 -
Effective January 30, 2022
Statutory Authority
The amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("Department")
pursuant to the Commissioner's authority under the Pesticide Applicators' Act
(the "Act"), §§
35-10-118(2)(a), (b), (c), (d), (3)(a), (4), (5)
and (9) C.R.S.
Purpose
The purpose of these Rules is to incorporate new federal
certification and training requirements pursuant to 40 C.F.R. Part 171 and to
clarify existing Rule requirements. Specifically, the revisions to the
Rules:
1. Update Part 1.02(j) to
reflect that Article
36 of Title
12, C.R.S., was renumbered in 2019 and
now exists at Article 240;
2. Amend
Part 1.03 to incorporate by reference additional provisions from the Code of
Federal Regulations;
3. Repeal
Parts 2.05.5 and 2.38 consistent with Senate Bill 21-077 (Remove Lawful
Presence Verification Credentialing);
4. Amend Parts 2.09 and 2.11 to clarify how
applicants provide insurance information to the Department;
5. Create Parts 2.12(c) and (d) and 2.30(c)
and (d) to clarify the meaning of adequate supervision by qualified
supervisors;
6. Amend Part 2.34 and
2.50 to clarify qualified supervisor/certified operator and private applicator
application requirements, respectively, including information on the age and
date of birth of the applicant;
7.
Amend Part 2.40 to clarify that qualified supervisors may only provide
supervision in the licensure category or categories that he or she
holds;
8. Amend Part 3.01 to adopt
certification standards that meet or exceed federal standards for commercial
and private applicators;
9. Amend
Parts 4.01, 4.02, 4.04, 4.07 and 4.09 to clarify and update the process for
submission of continuing education courses to the Department in a manner that
meets federal recertification requirements in
40 C.F.R. §
171.107(b)(2)(iii);
10. Amend Parts 4.05 and 4.10 to clarify the
requirements for approval or denial of continuing education courses;
11. Amend Part 5.02(h) to clarify that all
training records must be recorded on forms provided by the Department and that
those forms must be completed in full in order for a commercial, registered
limited commercial, or registered public applicator to comply with the
Department's Rules;
12. Create Part
5.02(k) to comport certification and training requirements for technicians with
new federal requirements at 40 C.F.R. §
171.201(d);
13. Create Part 5.02(l) requiring licensed or
registered applicators to obtain training records for certain new technicians
when those new technicians are hired and to maintain those records consistent
with the Rules;
14. Create Part
5.02(m) establishing record retention and record sharing requirements, as well
as identifying the records to which those requirements apply;
15. Amend Part 6.03(j) to include the license
number as information that must be included on application records;
16. Create Part 7.01(a) to define the term
"company business name" as that term appears in Parts 7.01(b) and
(c);
17. Create Parts 8.03(f) and
9.04(e) to cross-reference notification and signage requirements appearing in
Parts 12 and 13 of the Rules;
18.
Amend Part 9.01(a) to clarify sites of application allowed under Category 206,
Turf Pest Control;
19. Update Part
13.01 to cross-reference statutory requirements for notification at §
35-10-112(c),
C.R.S.;
20. Update Part 13.02 to
clarify that signage height requirements do not apply to notices required to be
placed in a golf course clubhouses;
21. Update Part 13.04 to clarify notice
requirements for gold course clubhouses;
22. Create Part 15.02(c) to adopt private
applicator supervision standards that meet or exceed federal
standards;
23. Amend Part 17.03 to
clarify when existing stocks of certain pesticide products may be used after
the product becomes unregistered;
24. Amend Part 17.04 to clarify that no
person may use pesticide products on Cannabis if those pesticide products do
not meet the conditions specified in Rule; and
25. Correct non-substantive typographical,
formatting, and grammatical errors throughout the Rules.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1. Article
36 of Title
12, C.R.S., was renumbered in 2019 and
now exists at Article 240. Part 1.02(j) was updated to reflect the correct
statutory provision
2. When an
agency incorporates material by reference in its Rules, it must comply with
§
24-4-103 (12.5)(a), C.R.S. Various
edits to these Rules reflect those requirements.
3. On May 27, 2021, Governor Jared Polis
signed Senate Bill 21-077 into law. SB21-077 repealed requirements at §
24-34-107, C.R.S., that required
individuals applying for licenses with the Department to provide evidence of
lawful presence in the United States. As a result, the Department is repealing
Parts 2.05.5 and 2.38 concerning the requirement to establish lawful presence
as a condition of licensure.
4.
Parts 2.09 and 2.11 concern requirements that applicants for licensure provide
proof of insurance on a form provided by the Commissioner. However, over the
past decade, insurance providers have expressed concern over the language in
the Department's form. This causes delay in processing applications. The
Department is aware that the information it requests is often covered by
industry forms, such as the ACORD form. Therefore, the Department is revising
Parts 2.09 and 2.11 to provide flexibility to applicants and to allow the
Department to accept standard forms, including the ACORD form, issued by
insurance carriers.
5. Part 2.12 of
the Rules, concerning adequate supervision of technicians by a qualified
supervisor, was last reviewed in 2008. Since then, the pesticide applicator
industry has evolved, such that a qualified supervisor is often employed by
more than one commercial applicator business. This has caused confusion in the
industry concerning the number of technicians that can be supervised by one
qualified supervisor, especially when that qualified supervisor is linked to
multiple commercial applicator businesses. The new Parts 2.12(c) and (d)
clarify and confirm that a qualified supervisor may supervise one or more
technicians employed by multiple commercial applicator businesses, so long as
the aggregate number of technicians supervised never exceeds 15 at any one
time.
6. On January 4, 2017, the
U.S. Environmental Protection Agency published revised certification standards
for pesticide applicators (82 Fed. Reg.
952), which standards became effective
on March 6, 2017. To comply with these new federal standards, the Department
must promulgate and revise its rules pertaining to certification and training
of pesticide applicators consistent with the revised State Certification Plan
submitted to EPA on March 6, 2020. Therefore, the Department is revising Parts
2.34 and 2.50 of the Rules to reflect requirements in
40 C.F.R. §§
171.103(a)(1) and
171.105(g),
specifically adopting a minimum age requirement for commercial and private
applicator certification of at least 18 years old.
7. Over the past few years, there has been
some confusion surrounding the types of activity that a qualified supervisor
may supervise. Therefore, the Department is revising Part 2.40 to make clear
that a qualified supervisor is only responsible for (and can only provide)
supervision in the specific categories of licensure that he or she
holds.
8. As described above, EPA
revised its federal standards for the certification and training of licensed
pesticide applicators in 2017. States must adopt certification standards that
meet or exceed these federal standards. Therefore, the Department is amending
Part 3.01 to require compliance with federal certification standards set forth
in 40 C.F.R. §§
171.103 and
105 for commercial and private
applicators.
9. Colorado must also
meet federal continuing education requirements at
40 C.F.R. §§
171.107(b)(2)(i) - (iii)
when approving, verifying the content of, and confirming an applicator's
attendance at continuing education courses (each a "CEC"). EPA updated these
requirements in 2017, and the Department is updating Parts 4.02, 4.04, 4.05,
4.07, 4.09, and 4.10 accordingly. The Department is also providing
clarification on the timing and process for a course sponsor to seek approval
for CECs. Specifically:
a. Revisions to Parts
4.02(b) and 4.07(b) clarify that requests for approval must be submitted on a
form provided by the Commissioner;
b. Revisions to Parts 4.02(c) and 4.07(c)
increase the number of days required to submit CECs to the Department for
approval, allowing the Department sufficient time to review and respond to the
increasing number and complexity of CEC approval requests that it
receives;
c. Revisions to Part
4.02(d) and 4.07(d) provide clarity on what information must be provided to the
Department to ensure that the content and quality of each proposed session
complies with the Rules;
d. A new
Part 4.02(e) and Part 4.07(e) confirm the session length(s) required to comply
with the Rules;
e. A new Part
4.02(f) and Part 4.07(f) require that, subject to space availability, all
courses must be open to all Colorado licensees. These revisions codify
long-standing Department policy intended to ensure equitable CEC opportunities
for all Colorado licensees. These revisions promote access to and availability
of CEC courses to persons who must attend such courses in order to maintain
and/or renew their respective licensure or registration status.;
f. Revisions to Part 4.04 and Part 4.09
describe the method by which a course sponsor must provide attendance
confirmation to each attendee and the manner in which course sponsors verify
course attendance for each attendee with the Commissioner; and
g. Revisions to Part 4.05 and 4.10 clarify
when the Department may deny a CEC request.
10. As described above, EPA updated its
standards in 2017 for training of applicators and for documenting that
training, requiring that commercial applicators maintain, provide upon request,
and verify training documentation for noncertified applicators and their
qualifications. As such, consistent with
40 C.F.R. §§
171.201(d) and
171.303(b)(7)(vi),
the Department is adding the following Parts to the Rules:
a. Part 5.02(h) to require that training be
documented on a form provided by the Commissioner;
b. Part 5.02(k), which requires that all
noncertified applicator training meets all provisions set forth in
40 C.F.R. §
171.201(d), which specifies
subject matter that must be covered;
c. Part 5.02(l), which requires that an
employer must obtain training records for a new hire experienced technician to
ensure that the new hire experienced technician has met all of the training
requirements established in the Rules; and
d. Part 5.02(m), which defines the records
that make up a technician's training record, sets training record retention
periods, and establishes a requirement that records be made available to the
technician or the Commissioner upon request.
11. EPA also establishes recordkeeping
requirements for commercial, registered limited commercial, and registered
public applicators. In 2017, EPA updated the relevant standards at
40 C.F.R. §
171.303(b)(7)(vi)(I).
Therefore, the Department is updating Part 6.03(j) accordingly, now requiring
that commercial applicators record the name and certification number of those
making or supervising pesticide applications.
12. Recently, the Department learned that
commercial applicators and private applicators interpreted the term "company
business name" in multiple ways when complying with Part 7.01 (Equipment
Identification), sometimes including names or visual representations on
equipment that differed from the name provided to the Department originally.
Because the term "company business name" is not defined in Part 7.01, ambiguity
exists with respect to whether the vehicle identification must be the company's
legal name, a trade name, a company logo, etc. Therefore, the Department is
adding Part 7.01(a) to define the term "company business name" to include any
name or trade name or trademark registered with the Colorado Secretary of
State, any doing business as name as submitted in the licensee's application,
and any company logo that clearly communicates the licensee's business
name.
13. The Department's Rules
include requirements for notifying persons of pesticide applications in Part 12
and for posting specific signage with information on the pesticide application
in Part 13. Because notification requirements are also referenced in Articles 8
and 9, and to ensure that the other notification and signage requirements in
Rule are not overlooked, the Department is adding Parts 8.03(f) and 9.04(e) to
cross-reference notification and signage requirements in Parts 12 and
13.
14. In 2010, the Department
revised Part 8.01(i) concerning Category 109 to specify permitted sites of
application within the Industrial and Right-of-Way Weed Control category. These
sites included sidewalks, trails, paths, parking lots, and certain paved areas.
This created confusion in the regulated community concerning whether Category
109 also covered areas that were abutted by or surrounded by turf because turf
is covered under Category 206. Therefore, the Department is revising Part
9.01(a), Turf Pest Control, to provide additional clarity on what sites of
application are allowed under Category 206 as compared with Category 109.
Specifically, the Department is expanding Category 206 to allow application on
certain managed turf, ornamental beds, xeriscaped areas, and sidewalks,
driveways, etc. not located in a zoned right-of-way (which would fall under
Category 109).
15. Part 13,
Notification of Pesticide Applications, outlines specific flagging requirements
for turf and ornamental applications. To provide additional clarification, the
Department is proposing an amendment to Part 13.01 to add a reference to
notification flags specified in statute.
16. Part 13, Notification of Pesticide
Applications, outlines specific flagging requirements for turf and ornamental
applications. Part 13.02 generally describes the required height of signs, but
separate requirements exist for golf course clubhouses. To address this
confusion, the Department is amending Part 13.02 to clarify that the height
requirements do not apply when posting in golf course clubhouses and amending
Part 13.04 to clarify signs posted at golf course clubhouses must be placed in
a manner that is conspicuous and easily legible to those entering treated
areas.
17. In 2017, EPA revised its
requirements at 40 C.F.R.
§§
171.201(2)(iii)(A)(B) and
(C) related to the supervision of restricted
use pesticide applications made by private applicators who are 16 years of age.
Accordingly, the Department has created Part 15.02(c) to identify under what
circumstances a 16-year-old unlicensed technician may apply a restricted-use
pesticide. The Department uses the term "unlicensed technician" to refer to
"non-certified technicians" or "non-certified applicators," these latter two
terms reflecting the terminology used by EPA in the Code of Federal
Regulations. The Department uses these three terms interchangeably in these
Rules.
18. On March 30, 2016, the
Department adopted Rules to outline the criteria for which pesticides were
allowed for use in Cannabis cultivation. Part 17.03 requires that only
registered pesticides be allowed for use in the cultivation of cannabis.
However, Part 17.03 does not account for existing stocks policies at the state
and federal level that allow for the limited use of existing stocks after a
product becomes unregistered (absent a finding that the product poses a
significant threat to public health and safety or the environment, in which
case existing stocks cannot be used). Therefore, the Department is amending
Part 17.03 to allow for the use during the subsequent registration year of an
unregistered pesticide product that appeared on the Department's list of
pesticides allowed for use on Cannabis at the time of purchase, but was not
re-registered with the Department for the subsequent registration year. This
change will allow end users to use any remaining unregistered pesticide
product, but only during the registration year following the manufacturer's
failure to renew the registration. This limited ability to use remaining stocks
of an unregistered product does not extend to products that the Department has
determined pose a significant threat to public health and safety or the
environment.
19. The Department is
also amending Part 17.04 to clarify that certain uses of pesticide products on
cannabis are considered unlawful acts. Specifically, the Department is
clarifying that it is unlawful for a person to use a registered pesticide in
the production of cannabis when that product does not meet the criteria set
forth in Rule - namely, the pesticide must met all requirements of Part
17.04(a)(1) - (4), Part 17.04(b)(1) - (3), Part 17.04(d), or Part
17.04(e).
18.22. Adopted
November 8, 2023 - Effective December 30, 2023
Statutory Authority
The amendments to these Rules are proposed for adoption by
the Commissioner of the Colorado Department of Agriculture ("Department")
pursuant to the Commissioner's authority under the Pesticide Applicators' Act
(the "Act"), §§
35-10-112(1)(e) and
(f), C.R.S., and §§
35-10-118(2)(a)
- (d), (3)(a) - (c), (4), (5) and (9), C.R.S.
Purpose
The purpose of these Rules is to incorporate new federal
certification and training requirements pursuant to 40 C.F.R. Part 171, to
update the Rules consistent with requirements in Senate Bill 23-192
("SB23-192"), and to clarify existing Rule requirements. Specifically, the
revisions to the Rules:
1. Amend Part
1.02(a) to use the same definition of "alley" as is found in §
42-1-102(3),
C.R.S., and to align the meaning of "vehicle" with §
42-1-102 (112), C.R.S.
2. Amend Part 1.02(o) to cross-reference the
definition of "use" found in Title 35, Article 10, of the Colorado Revised
Statutes.
3. Amend Part 1.03 to
update materials incorporated by reference.
4. Amend Part 2.54 to match private
applicator supervision and training requirements established in federal
law.
5. Create a new Part 2.61(a)
to establish and require licensure for private applicators in a new Aerial Pest
Control licensure category as required by federal law.
6. Create a new Part 2.61(b) to establish and
require licensure for private applicators in a new Soil / Non-Soil Fumigation
Pest Control licensure category as required by federal law.
7. Amend Parts 4.11, 4.32, and 4.38 to add
new continuing education subject matter requirements established in federal
law.
8. Amend Part 5.02(c) and (k)
to match and correctly refer to technician training and supervision
requirements established in federal law.
9. Amend Part 8.01(d) to match language used
in federal law.
10. Amend Part
8.01(j) and create a new Part 8.01(j)(1) to match the federal Public Health
Pest Control category and to create a new "Government-Sponsored Public Health
Pest Control" category.
11. Create
a new Part 8.01(l) to establish and require licensure for commercial
agricultural applicators in a new Aerial Pest Control licensure category as
required by federal law.
12. Create
a new 8.01(m) to establish and require licensure for commercial agricultural
applicators in a new Soil / Non-Soil Fumigation Pest Control licensure category
as required by federal law.
13.
Amend Part 9.04(b) to clarify when and what notice of application must be
provided for commercial properties or other sites managed or owned by an
off-site organization or entity where an owner or agent of the site is not
present at the time of application.
14. Amend Part 10.01(c) to align the
Structural Fumigation licensure category with new federal requirements.
15. Amend Part 10.01(h) to remove
language that is no longer applicable to the Post-Harvest Potato Pest Control
licensure category.
16. Create a
new 10.01(i) to establish and require licensure for commercial structural
applicators in a new Soil / Non-Soil Fumigation Pest Control licensure category
as required by federal law.
17.
Amend Part 12.01 to clarify that the pesticide-sensitive registry application
and medical justification must be for the person who will be listed on the
registry.
18. Amend Part 12.02 to
add addresses for principal place of employment, school, or both in accordance
with new SB23-192 requirements and creates the definition of school this Part
pertains to.
19. Amend Part 12.06
to clarify applicability and content of notice requirements for turf or
ornamental pesticide applications for persons whose names appear on the
pesticide-sensitive registry.
20.
Amend Part 12.07 to clarify notice requirements for turf or ornamental
pesticide applications and to include an electronic notification provision in
accordance with SB23-192.
21.
Create a new Part 12.08 to address other notice requirements in SB23-192
concerning turf or ornamental pesticide applications performed on a property
that abuts or is entirely located within two-hundred and fifty feet of a
pesticide-sensitive person's listed principal residential address, provided the
residential address appears in a database to be developed by the Department.
22. Amend Part 12.10 to clarify
notice requirements for structural pesticide applications and to include an
electronic notification provision for such applications.
23. Amend Part 15.02 to clarify supervision
requirements established in federal law.
24. Correct non-substantive typographical,
formatting, grammatical, and citation errors throughout the Rules.
Factual and Policy Issues
The factual and policy issues encountered when developing
these Rules include:
1. The Department
learned from stakeholders that the definition of "alley" in Part 1.02(a) is
confusing in relation to abutting properties. The Department is updating the
definition of "alley" to repeat the definition used in §
42-1-102(3),
C.R.S., to clarify that an "alley" is not intended for through vehicular
traffic by "vehicles" as that term is defined at §
42-1-102 (112), C.R.S., and so
would not include a bike path or trail.
2. In the 2023 legislative session, SB23-192
updated the definition of "use" (as in to "use" a pesticide) to meet the new
federal definition of "use" established in 40 C.F.R. Part
171 in 2017. Part
1.02(o) now cross-references the new definition of "use" at §
35-10-103(18),
C.R.S.
3. As a result of new
federal certification and training requirements in
40 C.F.R. §§
171.201(b) - (d), Part 2.54
is being amended to address new supervision requirements for private
applicators that require "on-site" supervision for any use of a restricted use
pesticide by an unlicensed individual, including specific training,
qualifications, and use-specific conditions that must be met prior to the use
of any restricted use pesticide by that unlicensed individual.
4. As a result of new federal certification
requirements established in 40 C.F.R. Part
171 (2017), applicators must now
hold, in addition to their primary licensure category, a new federal Aerial
Pest Control category for any application(s) made aerially. A new Part 2.61(a)
for private applicators and a new Part 8.01(l) for agricultural applicators has
been created to establish the licensure category and the licensure requirement
for aerial applications. The revisions provide for obtaining the new category
by examination offered by the Department or other state lead agencies within
the last 12 months, through reciprocal licensure, or through renewal of the
category by obtaining continuing education credit.
5. As a result of new federal certification
requirements established in 40 C.F.R. Part
171 (2017), applicators must now
hold, in addition to their primary licensure category, a new federal
Soil/Non-Soil Fumigation category for any application of a fumigant not made to
a structure. A new Part 2.61(b) for private applicators, a new Part 8.01(m) for
agricultural applicators, and a new 10.01(i) for structural applicators has
been created to establish the licensure category and the licensure requirement
for soil / non-soil fumigant applications. The revisions provide for obtaining
the new category by examination offered by the Department within the last 12
months, through reciprocal licensure, or through renewal of the category by
obtaining continuing education credit. Because soil and non-soil fumigation
requirements change from state-to-state, the Department will not allow a person
to obtain this licensure category by examination offered in another state.
6. The revised federal
certification requirements also established additional core educational subject
matter elements necessary for an applicator to obtain continuing education
credit. Parts 4.11, 4.32, 4.38 have been amended to add these new elements.
7. The revised federal
certification requirements now require that commercial applicator technicians
must be fully trained prior to the use of an restricted use pesticide and that
all supervision, training, qualification, and use-specific conditions at
40 C.F.R. §§
171.201 must be met. Parts 5.02(c) and (k)
have been amended to accurately reference these requirements.
8. Federal certification licensure categories
were updated in 40 C.F.R. Part
171 (2017), and the language of Part 8.01(d) has
been revised to match the federal Seed Treatment licensure category.
9. Federal certification licensure categories
were updated in 40 C.F.R. Part
171 (2017). EPA updated the federal public
health pest control category, requiring that the category address the use of
restricted use pesticides in government-sponsored public health programs.
Because this category no longer addresses general use pesticide applications
for public health applications made for non-governmental persons or entities
(which covers the majority of public health pest control applications in
Colorado), the Department created a separate category for non-government
commercial applicators who use pesticides for the management and control of
pests having public health importance. The proposed amendment to Part 8.01(j)
clarifies Colorado's existing public health category for the use of general use
pesticides for non-governmental public health pest control applications and
adds a new 8.01(j)(1), "Government Sponsored Public Health Pest Control", to
meet the federal certification category.
10. The Department learned that Part 9.04(b)
required clarification because the term "commercial" was not broad enough to
cover the universe of applications contemplated in Part 9.04(b). The existing
language had been specific to applications made to commercial properties, but
it did not clearly address other sites that may not be considered "commercial"
or zoned "commercial." Part 9.04(b) has been amended to address those sites,
including greenbelts or open space areas managed by off-site organizations or
entities where an owner of the site or an agent of an owner of the site is not
present at the site.
11. As a
result of new federal certification requirements established in 40 C.F.R. Part
171 (2017) concerning soil/non-soil fumigation pesticide applications, Colorado
needed to differentiate its existing fumigation category from the new federal
category. Therefore, the Department has amended Part 10.01(c) to specifically
reference "Structural Fumigation"; define applicable structural sites of
application; and ensure that applicators know that category 303, Structural
Fumigation, must be held for the application of a fumigant when made to any
structure, regardless of the pest being controlled or other licensure
category(ies) held by the applicator.
12. Because Part 10.01(h) included language
concerning the Post-Harvest Potato Pest Control licensure category that is now
obsolete, the Department has removed that language.
13. Part 12.01 establishes the requirement
for a pesticide-sensitive person to submit an application to be placed on the
pesticide-sensitive registry. Part 12.01 is being amended to clarify that the
application and medical justification submitted must be for the person intended
to be listed on the registry.
14.
As a result of SB23-192, pesticide-sensitive persons may list their principal
place of employment, principal school address, or both as an address or
addresses requiring notification of turf or ornamental applications made at
those sites. Part 12.02 has been amended to account for this statutory change
and adds the definition of schools this Part pertains to.
15. Part 12.06 specifies what notification
information must be provided to a pesticide-sensitive person whose name is on
the pesticide-sensitive registry and clarifies that such notice must be
provided when a commercial applicator makes a turf or ornamental application to
a property that abuts the pesticide-sensitive person's principal residential
address and, if provided to the Department, to that person's principal place of
employment, school, or both.
16.
SB23-192 provided for the electronic notification of pesticide applications to
pesticide-sensitive persons. To clarify underlying notice requirements, the
Department has amended Parts 12.07(a) (concerning turf or ornamental
applications) and 12.10(a) (concerning structural applications). To further
clarify the circumstances and manner in which electronic notice is given to
pesticide-sensitive persons whose names appear on the pesticide-sensitive
registry, the Department has added Parts 12.07(b) and 12.10(b), which describe
that only one attempt at electronic notification is required; a record of the
attempt must be maintained in the applicator's records in order to avoid
triggering non-electronic notification requirements; and any changes to the
date, time, or location of application require an additional electronic
notification to be made no less than 24 hours prior to the application.
17. SB23-192 required that, on or
before July 1, 2024, the Department develop a searchable database of all
properties that abut or are entirely located within two hundred and fifty feet
of any residential address listed on the pesticide-sensitive registry. SB23-192
also required that, once that database was created, the Department adopt rules
requiring that applicators provide notice of applications made to a property
that is listed in the database as abutting, or being entirely located within
two hundred and fifty feet of, the pesticide sensitive-person's listed
residential address, which address must be the person's principal residential
address in accordance with §
35-10-112(1)(c)(I)(A),
C.R.S. A new Part 12.08 has been created to address these new requirements,
effective July 1, 2024.I
18. As a
result of new federal certification and training requirements in 40 C.F.R. Part
171 (2017), Part 15.02 is being amended to clarify new supervision requirements
for private applicators and commercial applicators that now require "on-site"
supervision for any use of a restricted use pesticide.
