1. (a) Products with this designation shall be used in accordance with:

   1. (1) All other applicable federal or state laws and the rules written pursuant thereto;
   2. (2) The label registered with the State of Arkansas;
   3. (3) The applicable restrictions identified for Class A, Class B, Class C, and Class D; and
   4. (4) The following additional restrictions.

2. (b) Dealers requirements.

   1. (1)

      1. (A) Before selling, offering for sale, or distributing pesticides with this designation in packages of more than one quart (1 qt.), a dealer must be a licensed restricted use pesticides dealer.
      2. (B) A dealer may sell, offer for sale, or distribute only those pesticides that are registered in the state.

   2. (2)

      1. (A) Each branch of a license holding dealer which also sells or distributes these products must have a dealer’s license.
      2. (B) Firms or distributors who take orders for these products must secure a dealer’s license, even though the order is placed with a dealer or manufacturer who holds a license, and even though no profit is made.

   3. (3)

      1. (A) Dealers must keep a record of each sale or distribution of products with this designation to custom or private applicators or dealers in containers of more than one quart (1 qt.) on forms available from, or approved by, the State Plant Board.
      2. (B) Entries in the record shall be made at the time of sale or distribution and shall include the:

3. (i) Date of the purchase;

   1. (ii) Name, address, and license or permit number of the purchaser; and

      1. (iii) Name and address of the delivery location.

      2. (C) The complete brand name and quantity of the product shall also be recorded. These records shall be:

         1. (i) Kept by the dealer for two (2) years from the date of sale; and
         2. (ii) Made available for inspection by the board or its representative upon request.

   2. (4)

      1. (A) The sale or distribution of products with this classification in containers of more than one quart (1 qt.) to any firm or person other than a dealer or a custom or private applicator holding a current and valid license or permit is prohibited.
      2. (B) Dealer must have a copy of the custom applicator’s license on file.

   3. (5) Nonresidents of Arkansas shall designate and maintain a resident agent in this state for service of process.

      1. (c) Requirements for custom application.
   4. (1) The application of products with the Class E or Class F designation shall be known as custom application.

   5. (2)

      1. (A) To be eligible to apply products with the Class E or Class F designation, a commercial application firm must obtain a firm’s custom applicator permit from the board prior to making any applications.
      2. (B) Said permit must designate an operator-in-charge whose responsibility is to supervise all custom applications made by the firm.

   6. (3) Issuance of the permit shall be conditioned on the following:

      1. (A)

         1. (i) Commercial aerial application firms must have a firm’s commercial applicator license issued by the board to apply pesticides in Arkansas.
         2. (ii)
4. (a) (a) All pilots that apply pesticides for the firm must have an individual commercial applicator pilot license (with category) issued by the board.

5. (b) (b) The firm must have a copy of all individual commercial applicator pilot licenses held by pilots employed by the firm.

   1. (iii)
6. (a) (a) Commercial aerial application firms that wish to apply products with the Class E or Class F designation must obtain a firm’s custom applicator permit from the board.

7. (b) (b) The firm’s permit must designate at least one (1) of its licensed individual commercial applicators that has passed the custom applicator test as an operator-in-charge.

   1. (c)
   2. (1) (c)(1) All pilots making custom applications must have an individual commercial applicator pilot license with authorization to apply Class E or Class F products.

   3. (2) (2) Said authorization is obtained by passing a custom applicator written test administered by the board;

      1. (B)

         1. (i) Commercial ground application firms must have a firm’s commercial applicator license issued by the board.
         2. (ii) At least one (1) person working for the firm must have an individual commercial applicator license (with category) issued by the board.
         3. (iii)
8. (a) (a) Commercial ground application firms that wish to apply products with the Class E or Class F designation must obtain a firm’s custom application permit.

9. (b) (b) The firm’s permit must designate at least one (1) of its licensed individual commercial applicators that has passed the custom applicator test as an operator-in-charge;

   1. (C) The application vehicle must be covered by a current certificate of inspection as required in 2 CAR § 70-107;

      1. (D)

         1. (i) Licensed commercial application firms that do tree injection work only, do not need a firm’s custom applicator permit to apply products with the Class E or Class F designation.
         2. (ii) For such firms, a tree injector’s permit is required.
         3. (iii) However, the firm’s tree injector permit must designate at least one (1) of the firm’s licensed individual commercial applicators that has passed the tree injector test administered by the board as an operator-in-charge;

      2. (E)

         1. (i) A deposit of two hundred and fifty dollars ($250) shall be made with the board by the custom application firm, except that those persons doing tree injector work exclusively will deposit ten dollars ($10.00) per tree injector, up to a maximum of two hundred and fifty dollars ($250).
         2. (ii)
10. (a) (a) Said deposit shall be returned at the expiration of the permit upon request unless the custom applicator is found in violation of the board’s rules or suffers cancellation of his or her custom applicator’s permit.

11. (b) (b) In which case the deposit will be retained by the board to supplement cost recovery of inspection and administration incidental to such finding;

    1. (F)

       1. (i)
12. (a) (a) A deposit of funds as described in subdivision (c)(3)(E) of this section and proof of financial responsibility, as described below is required.

13. (b) (b) Nonresidents of Arkansas shall designate and maintain a resident agent in this state for service of process.

    1. (c) (c) Custom application permits, custom application authorizations, and tree injector permits shall expire December 31 of each year.

       1. (ii) Financial responsibility in the minimum of one hundred thousand dollars ($100,000) shall be maintained by the custom application firm or tree injection firm during the term of his or her permit, with proof of such financial responsibility submitted to the board.

          1. (iii) Proof of financial responsibility shall consist of one (1) of the following:

14. (a)

    1. (1) (a)(1) The deposit of a certificate of insurance or insurance policy not to exceed five thousand dollars ($5,000) deductible from an insurer or surplus line broker authorized to do business in Arkansas insuring the custom application firm and any of its agents against liability for injury resulting from the application of products with this designation.
    2. (2) (2) If a claim is made on this type of policy, then the policy must not expire for at least six (6) months after the expiration of the permit;

15. (b) (b) A letter of credit from a bank located in Arkansas guaranteeing financial responsibility;

    1. (c) (c) A surety bond; or

       1. (d) (d) An escrow account with a bank located in Arkansas;

       2. (G)

          1. (i) Application for a permit must be made on forms furnished by the board accompanied by the following fees:

16. (a)

    1. (1) (a)(1) Aerial custom application firms must pay an annual application processing fee of one hundred fifty dollars ($150) plus fifty dollars ($50.00) for each operator-in-charge.
    2. (2) (2) Pilots making custom applications must pay an annual application processing fee of thirty-five dollars ($35.00) for authorization to apply products in Class E and Class F;

17. (b) (b) Ground custom application firms must pay an annual application processing fee of one hundred fifty dollars ($150) plus fifty dollars ($50.00) for each operator-in-charge; and

    1. (c) (c) Applicants for a tree injector’s permit must pay an annual application processing fee of fifty dollars ($50.00) plus fifty dollars ($50.00) for each operator-in-charge.

       1. (ii)
18. (a) (a) Should, at any time, a custom application firm be left without an operator-in-charge or a pilot with an individual commercial applicator pilot license with authorization to apply products with the Class E or Class F designation, either because of invalidation of the permit or for any other reason, such shall automatically invalidate the custom applicator’s firm permit.

19. (b) (b) It shall be a violation of this part for an individual or firm to act as a custom applicator that is not licensed to do so by the board;

    1. (H)

       1. (i) The board or its authorized representative or representatives may refuse issuance, after a hearing, of a custom applicator’s permit to any applicant when such applicant has been found in violation of this part four (4) times in a three-year period.

          1. (ii) Such applicant may appeal to the board.
          2. (iii) All requests for an appeal must be made in accordance with the board’s policy on appealing a decision;

       2. (I)

          1. (i) All equipment used for custom application of the products with this designation must have a decal provided by the board affixed to the device in a location where it can be easily seen by a board representative and protected from removal or disfigurement by work activity.
          2. (ii) This decal may only be affixed to equipment that meets the requirements set out in this part and other applicable rules promulgated by the board.
          3. (iii) Use of equipment for custom application that does not have a current decal will be a violation of this part.
          4. (iv) Decals are not transferable between equipment.
          5. (v) Each decal shall be issued at a cost of fifty dollars ($50.00).
          6. (vi)
20. (a) (a) Subsequent to issuance of a decal, the equipment on which the decal is to be attached will be subject to inspection by the board.

21. (b) (b) Equipment found not meeting the requirements set out by this part or other applicable rules promulgated by the board will be issued a stop use order that will be released by the board once the board is satisfied that the equipment meets the set up requirements of the applicable rules.

    1. (c) (c) The applicator will also be considered in violation of the board’s rules on pesticide application and be subject to the required enforcement action.

       1. (vii) All decals and permits expire on December 31 of each year.

          1. (viii) Equipment used to apply pesticides with this designation shall not be used for the application of other pesticides that do not carry this designation or the Class F designation unless the following has been done:
22. (a) (a) The vehicle must be thoroughly decontaminated;

23. (b)

    1. (1) (b)(1) The tank must be thoroughly rinsed and the rinsate disposed of in accordance with the label.

    2. (2) (2) If the label does not address rinsate disposal, the rinsate should be collected and disposed of in accordance with applicable state and federal disposal laws; and

       1. (c)
    3. (1) (c)(1) The entire spray or application system must be replaced or decontaminated using the best available technology such that a sample taken from the successive pesticide tank load would contain no detectable concentration of the previous product.
    4. (2) (2) Where research has established a concentration below which no adverse effects occur and that concentration level is not a violation of state or federal law or rules written pursuant to such laws, then that established concentration will be acceptable.
    5. (3) (3) Compliance with this provision in no way exempts the product user from compliance with any other responsibility imposed by state or federal law or regulation written pursuant thereto.

    6. (4)

       1. (A) (4)(A) Pesticide application equipment must have a leak-free valve that is painted hunter orange from which a sample can be taken.
       2. (B) (B) Aircraft must have a sample valve located at the low point in the spray system.
       3. (C) (C) Ground application equipment must have a sample valve located in the pressure by-pass line;

       4. (J)

          1. (i)
24. (a) (a) All firms desiring to do custom application work must have a custom application permit to do so. Said permit must designate an operator-in-charge.

25. (b) (b) Eligibility as operator-in-charge will be conditioned on the following:

    1. (1) (1) Achieving a score of seventy percent (70%) or better on an examination administered by the board;
    2. (2) (2) Pilots must hold a valid Federal Aviation Administration pilot’s commercial certificate;
    3. (3) (3) Applicant may not have more than four (4) enforcement actions indicated on the board’s records in the three (3) years prior to the date of testing; and

    4. (4) (4) The fee for each test shall be thirty-five dollars ($35.00).

       1. (ii) Pilots and operators-in-charge shall be responsible for notifying the board of the name and location of employment prior to starting work; and

       2. (K)

          1. (i) The custom application firm must maintain records of each application of products with this and the Class F designation.
          2. (ii) Said records must be retained at the principal Arkansas office of the custom application firm as indicated on the firm license for a period of three (3) years and be available for inspection by a board representative.
          3. (iii) The records shall include at a minimum the following information:
26. (a) (a) Name and address of the person or persons in control of the crops, plant, etc;

27. (b)

    1. (1) (b)(1) Location of the crop, plants, etc. treated.

    2. (2) (2) Location description must include:

       1. (A) (A) County;
       2. (B) (B) Nearest town;
       3. (C) (C) Physical address if available; and

       4. (D) (D) GPS or map coordinates of the primary entrance to the field;

          1. (c) (c) Date, start time, and ending time of the application;
          2. (d)
    3. (1) (d)(1) Wind speed and direction at the start and ending times of the application and the type of instrument used to measure wind speed and direction.
    4. (2) (2) The location of instrument at time of reading (preferably “field of application”) must also be recorded;
28. (e) (e) Complete brand name and United States Environmental Protection Agency registration number of the material used;
29. (f) (f) Number of acres and type of crop to which the material was applied;
30. (g) (g) Type of equipment used and the firm’s custom application equipment number assigned to it by the board;

31. (h) (h) Distance from and direction to any susceptible crops within a one-mile radius of the treated crop; and

    1. (i) (i) Name of the application vehicle operator.

       1. (d) Requirements for noncustom application of products in this class.
    2. (1) Whether designated as “restricted” by the United States Environmental Protection Agency or not, products in containers of more than one quart (1 qt.) with this class designation and the Class F designation may not be purchased by or sold to persons who do not have a current commercial, noncommercial, or private applicator’s license.
    3. (2) All applications of products with this designation by private applicators must be in accordance with the applicable application conditions required of the custom applicator.

    4. (3)

       1. (A) The private applicator must maintain records of each application of products with this and the Class F designation.

       2. (B) Said records must be:

          1. (i) Retained for a period of three (3) years; and
          2. (ii) Available for inspection by a board representative.

       3. (C) The records shall include at a minimum the following information:

          1. (i) Name and address of the person or persons in control of the crops, plant, etc;
          2. (ii)
32. (a) (a) Location of the crop, plants, etc. treated.

33. (b) (b) Location description must include:

    1. (1) (1) County;
    2. (2) (2) Nearest town;
    3. (3) (3) Physical address, if available; and

    4. (4) (4) GPS reading or map coordinates of the primary entrance to the field;

       1. (iii) Date, start time, and ending time of the application;

          1. (iv)
34. (a) (a) Wind speed and direction at the start time and ending time of the application and type of instrument used to measure wind speed and direction.

35. (b) (b) The location of instrument at time of reading (preferably “field of application”) must also be recorded;

    1. (v) Complete brand name and United States Environmental Protection Agency registration number of the material used;

       1. (vi) Number of acres and type of crop to which the material was applied;

          1. (vii)
36. (a) (a) Type of equipment used.

37. (b) (b) If the product was applied by a custom applicator, record the firm’s custom application equipment number assigned to the equipment used by the board;

    1. (viii) Distance from and direction to any susceptible crops within a one-mile radius of the treated crop; and

       1. (ix) Name of the application vehicle operator.

38. (e) Exemptions.

    1. (1)

       1. (A) The licensing requirements of this part do not apply to:

          1. (i) The United States Department of Agriculture, the Arkansas experiment stations, and other state or federal agencies;
          2. (ii) Ornamental and turf weed control;
          3. (iii) Company demonstrations with ground equipment; or
          4. (iv) Sales of fertilizer, soil conditioners, or similar products containing registered products with this designation and packaged for home use.
       2. (B) Provided that nothing in this section shall be construed as exempting custom applicators from the provisions of this part when making applications for the agencies listed herein or exempting any such agency acting as a dealer from the dealer requirements.
    2. (2) Products with the Class E or Class F designation that are not designated as restricted use products by the United States Environmental Protection Agency may be purchased from an Arkansas pesticide dealer for use outside the State of Arkansas without the dealer having to have a dealer’s license or the purchaser having an applicator’s license.
    3. (3) Commercial applicators and private applicators that can provide proof of current certification and licensing from another state may purchase restricted use pesticides from a restricted use pesticide dealer licensed in Arkansas if the product is to be used outside of Arkansas.

Codification Notes: “GPS” means global positioning systems.