[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Pages 28772-28776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12226]



[EPA-HQ-OPP-2011-0037; FRL-8869-8]

Federal Plan for Certification of Applicators of Restricted Use 
Pesticides Within Indian Country; Notice of Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.


SUMMARY: EPA is announcing its intention to implement a Federal program 
to certify applicators of restricted use pesticides in Indian country. 
The program will be administered by EPA. EPA is soliciting comments on 
EPA's intent to implement a Federal certification program in Indian 
country where no other EPA-approved or EPA-implemented plan applies and 
on its Proposed Federal Plan for Certification of Applicators of 
Restricted Use Pesticides within Indian Country (Plan). A separate 
proposal and public comment period for a Federal certification plan to 
address use of restricted use pesticides in Region 8 Indian country was 
recently published in the Federal Register on April 20, 2011.

DATES: Comments must be received on or before July 5, 2011.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2011-0037, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility's normal hours of operation (8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The Docket Facility telephone number is (703) 305-5805.
    Instructions: Direct your comments to docket EPA-HQ-OPP-2011-0037. 
EPA's policy is that all comments received will be included in the 
docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through regulations.gov or e-mail. The 
regulations.gov Web site is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of 
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The Docket Facility telephone 
number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Nicole Zinn, Field and External 
Affairs Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 308-7076; e-mail address: 
[email protected].


I. General Information

A. Does this action apply to me?

    This notice applies to individuals and businesses who are seeking 
certification to apply restricted use pesticides (RUPs) as defined by 
EPA in Indian country where no EPA-approved plan or EPA-implemented 
plan applies. This action may, however, be of interest to those 
involved in agriculture and anyone involved with the distribution and 
application of pesticides for agricultural purposes. Others involved 
with pesticides in a non-agricultural setting may also be affected. 
Since other entities may also be interested, the Agency has not 
attempted to describe all the specific entities that may be affected by 
this action. If you have any questions

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regarding the applicability of this action to a particular entity, 
consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.
    In addition to the sources listed in this unit, you may obtain 
copies of the Plan, other related documents, or additional information 
by contacting Nicole Zinn at the address listed under FOR FURTHER 

II. What action is the agency taking?

    EPA is announcing its intention to implement a Federal program to 
certify applicators of restricted use pesticides (RUPs) in Indian 
country and seeks public comment. This Federal certification Plan 
describes the process by which EPA will implement a program for the 
certification of applicators of RUPs in Indian country based upon the 
certification requirements enumerated at 40 CFR part 171. The Plan, in 
its entirety, is included in the docket.

III. Introduction

A. What is the background for this plan?

    Under the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA), as amended, 7 U.S.C. 136 et seq., the Administrator of EPA has 
the authority to classify all registered pesticide uses as either 
``restricted use'' or ``general use.'' Under FIFRA, pesticides (or the 
particular use or uses of a pesticide) that may generally cause, 
without additional regulatory restrictions, unreasonable adverse 
effects on the environment, including injury to the applicator, shall 
be classified for ``restricted use.'' Section 3(d)(1)(C), 7 U.S.C. 
136a(d)(1)(C). If the classification is made because of hazards to the 
applicator, the pesticide may only be applied by or under the direct 
supervision of a certified applicator. 7 U.S.C. 136a(d)(1)(C)(i), 
136j(a)(2)(F). If the classification is made because of potential 
unreasonable adverse effects on the environment, the pesticide may only 
be applied by or under the direct supervision of a certified applicator 
or subject to such other restrictions as the Administrator may provide 
by regulation. 7 U.S.C. 136a(d)(1)(C)(ii), 136j(a)(2)(F). To be 
certified, an individual must be determined to be competent with 
respect to the use and handling of pesticides covered by the 
certification. 7 U.S.C 136i(a).
    It was the intent of Congress that persons desiring to use 
restricted use pesticides should be able to obtain certification under 
programs approved by EPA, as reflected in sections 11 and 23 of FIFRA. 
7 U.S.C. 136i, 136u. The regulations addressing Tribal and State 
development and submission of certification plans to EPA are contained 
at 40 CFR part 171. It is EPA's position that Tribal and State plans 
are generally best suited to the needs of that particular Tribe or 
State and its citizens. Tribes and States, however, are not required to 
develop their own plans. Where EPA has not approved a State or Tribal 
certification plan, the Agency is authorized to implement an EPA plan 
for the Federal certification of applicators of restricted use 
pesticides pursuant to sections 11 and 23 of FIFRA. 7 U.S.C. 136i, 
136u; 40 CFR 171.11.
    EPA has drafted a Plan for those areas of Indian country where no 
other EPA-approved or EPA-implemented plan applies. A separate proposal 
and public comment period for a Federal certification plan to address 
use of restricted use pesticides in Region 8 Indian country was 
recently published in the Federal Register on April 20, 2011 (76 FR 
22096; FRL-8855-8).

B. What is the statutory authority for this plan?

    The plan will be implemented under the authority of section 
11(a)(1) of FIFRA, as amended by the Food Quality Protection Act of 
August 3, 1996, and regulations in 40 CFR 171.11. Additional 
enforcement authorities are found in sections 8, 9, 13, 14, and 23 of 

C. Summary of the Plan

    1. Applicability. EPA intends to implement this Federal 
certification plan in ``Indian country,'' as defined in 18 U.S.C. 1151, 
where no other EPA-approved or EPA-implemented plan applies. ``Indian 
country'' is defined in 18 U.S.C. 1151 as:

    (a) All land within the limits of any Indian reservation under 
the jurisdiction of the United States Government, notwithstanding 
the issuance of any patent, and, including rights-of-way running 
through the reservation;
    (b) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a 
State; and
    (c) All Indian allotments, the Indian titles to which have been 
extinguished, including rights-of-way running through the same.

Consistent with the statutory definition of Indian country, as well as 
Federal case law interpreting this statutory language, EPA treats lands 
held by the Federal government in trust for Indian Tribes that exist 
outside of formal reservations as informal reservations and, thus, as 
Indian country. For a list of Federally recognized Tribes as of October 
2010, see the Federal Register (October 1, 2010; 75 FR 60810), 
available at: http://www.bia.gov/idc/groups/vxraca/documents/text/idc011463.pdf.
    There are two types of applicators of restricted use pesticides: 
Private and commercial. A ``private applicator'' is defined as:

    A certified applicator who uses or supervises the use of any 
pesticide which is classified for restricted use for purposes of 
producing an agricultural commodity on property owned or rented by 
the applicator or the applicator's employer or (if applied

[[Page 28774]]

without compensation other than trading of personal services between 
producers of agricultural commodities) on the property of another 
person. 7 U.S.C. 136(e)(2).

    A ``commercial applicator'' is defined as:

    An applicator (whether or not the applicator is a private 
applicator with respect to some uses) who uses or supervises the use 
of any pesticide which is classified for restricted use for any 
purpose or on any property other than as set forth in the definition 
of a private applicator. 7 U.S.C. 136(e)(3).

This Plan applies to both commercial and private applicators.
    2. Provisions of Plan.--i. Why is EPA developing a Plan? The Plan 
will allow the certification of applicators and legal use of RUPs in 
those parts of Indian country where there are currently no mechanisms 
in place for such certification and use. RUPs cannot be legally used in 
Indian country unless EPA has explicitly approved a mechanism of 
certification for such an area. To date, EPA has not approved any state 
plan for the certification of applicators of restricted use pesticides 
in any area of Indian country. There are very few areas of Indian 
country for which there are approved non-Federal plans and only one 
area that is currently covered under a Federal plan.
    ii. To whom will the Plan apply? The Plan will only apply to 
persons who intend to apply RUPs in Indian country excluding the areas 
of Indian country that are currently covered by another EPA-approved or 
EPA-implemented plan. Tribes may continue to pursue options available 
under 40 CFR 171.10 for their areas of Indian country, including 
seeking EPA approval of Tribal plans for such areas under 40 CFR 
171.10(a)(2) or utilizing a state's certification program under 40 CFR 
171.10(a)(1). An option implemented under 40 CFR 171.10 would replace 
this Federal plan for the relevant area of Indian country. For a list 
of Federally recognized Tribes as of October 2010, see the Federal 
Register available at: http://www.bia.gov/idc/groups/xraca/documents/text/idc011463.pdf. In the event that the Federal applicator 
certification regulations at 40 CFR 171.11 are revised, EPA will 
revisit the Plan to determine if modification of this Plan is 
    iii. Certification procedures. To become certified to use RUPs in 
Indian country, applicators must submit an application form to the EPA 
Regional Office that covers the Indian country where they wish to apply 
RUPs as well as proof of the valid Federal, state, or Tribal 
certification upon which their Federal certification will be based. The 
Form is available at http://www.regulations.gov under docket 
identification number EPA-HQ-OPP-2010-0723.
    EPA is proposing that the certification on which the Federal 
certificate will be based must be from a state or Tribe with a 
contiguous boundary to the area of Indian country. EPA believes that 
this provision provides greater assurance that the applicator has the 
competency to apply RUPs on the contiguous area of Indian country. An 
exception will be included that the EPA Region has discretion to allow 
Federal certification under the plan based on a valid certification 
from another nearby state or Tribe.
    Under 40 CFR 171.11(e), a Federal certificate expires 2 years after 
the date of issuance for commercial applicators and 3 years for private 
applicators, or until the expiration date of the original Federal, 
state, or Tribal certificate, whichever occurs first. A proposed rule 
is currently under development that will allow a Federal certification 
based on a valid Federal, state or Tribal certification, to expire when 
the original certificate expires, unless the certificate is suspended 
or revoked. If this amendment is finalized, the Agency will utilize the 
expiration date of the original valid certification.
    Where EPA, as opposed to a Tribe or a state, implements a 
certification program, both FIFRA and the regulations require that EPA 
offer private applicators an option to be certified without taking an 
examination. See 7 U.S.C. 136i(a)(1), 40 CFR 171.11(d)(1). Therefore, 
in lieu of submitting proof of a valid Federal, state, or Tribal 
certification, private applicators also have the option of showing 
documentation that they have physically attended and completed an 
approved training course and self-study evaluation. Federal 
certification under this option is valid for four years from the date 
of issuance, unless suspended or revoked.
    iv. Commercial applicator categories. EPA proposes to recognize the 
categories authorized in the original certificate, and commercial 
applicators will be authorized to apply RUPs in Indian country for uses 
covered in their underlying Federal, state or Tribal certificate. EPA 
is considering language that would generally exclude categories for 
sodium cyanide capsules used with ejector devices for livestock 
predator control and for sodium fluoroacetate used in livestock 
protection collars. Under this Plan, a Federal certificate would only 
include the sodium cyanide capsules and sodium fluoroacetate livestock 
protection collars categories if the relevant Indian Tribe for the area 
of Indian country at issue obtains its own registration for this 
product and conducts its own monitoring and supervision.
    v. Implementation. EPA will administer routine maintenance 
activities associated with implementation of this Plan and will conduct 
inspections and take enforcement actions as appropriate. States, 
Tribes, and other Federal agencies that issued a certification upon 
which the Federal certification is based are not approved or authorized 
by EPA to assure compliance in Indian country with the Federal 
certification provided by this Plan. As with all cases where a non-
Federal official uses Federal credentials to conduct inspections, when 
a Tribal inspector conducts an inspection under Federal credentials 
under a cooperative agreement with EPA, violations would be referred to 
EPA for enforcement action, as appropriate.
    EPA may, if appropriate, deny, modify, suspend, or revoke the 
Federal certificate under this Plan. The applicant or Federal 
certificate holder has the right to request a hearing if EPA decides to 
modify, suspend, or revoke the Federal certificate. If EPA decides to 
deny, revoke, suspend or modify a Federal certificate, EPA will notify 
the agency that issued the original certificate upon which the Federal 
certificate was based.
    If the Federal, state, or Tribal certificate upon which the Federal 
certificate is based is suspended, modified, or revoked, EPA will begin 
procedures to suspend, modify or revoke the Federal certification.
    EPA will allow, during the 6 month period after publication of the 
final Plan, applicators to apply RUPs under the Plan in Indian country 
only for the categories for which they already have a valid state, 
Tribal or Federal certificate \1\ if they submit a complete application 
to the appropriate EPA Region showing proof of a valid state, Tribal, 
or Federal certification.\2\

    \1\ Please see Section IX of the Plan and Unit III.C.2.d of this 
notice for commercial applicator categories recognized under the 
Plan, as there are proposed exceptions for sodium cyanide capsules 
used with ejector devices and sodium fluoroacetate used in livestock 
protection collars.
    \2\ Although predicated in part on the applicator's existing 
valid certification, any use permitted under this Plan is allowed 
and will be enforced only under Federal authority.

    Beginning 6 months after publication of the final Plan, applicators 
who are covered under this Plan and have not received a written Federal 
certification from the appropriate EPA Region are

[[Page 28775]]

prohibited from applying RUPs in the Indian country of that Region.

IV. Specific Comments Are Sought

    EPA is seeking comment on the entire Plan but would specifically 
like comments on the following issues:
    1. Notification to Tribes. The Tribal Pesticide Program Council 
(TPPC) has requested that a notification provision be included in the 
Plan. This provision would require that applicators of RUPs notify the 
relevant Tribe before each RUP application that is made in Indian 
country. The Agency has questions as to whether this approach can be 
practically implemented without causing undue burden to applicators, 
the Tribes and the Agency.
    We are interested in obtaining comment regarding the relative value 
of this approach as an actual requirement. On the one hand, requiring 
notification to Tribes prior to application could provide Tribes some 
benefit in knowing where and when RUP applications occur. EPA is 
concerned, however, that requiring notifications may impose resource 
burdens on Tribes to receive and review such notifications. The TPPC 
suggested a possibility that EPA could receive these notifications and 
post them publically for Tribes to access. However, EPA is not likely 
to have the capacity or resources to receive these notifications. EPA 
also notes that Tribes wishing to receive prior notification may wish 
to consider including relevant notification requirements under Tribal 
law. The Plan notes that applicators certified under the Plan are 
responsible for complying with any applicable Tribal requirements.
    One alternative approach being considered is that EPA could post a 
list of Federal certifications issued under this Plan. As a matter of 
convenience, EPA could arrange the list geographically by state or by 
EPA Region such that certifications issued for all Indian country 
located in a particular state or EPA Region would be grouped together. 
This approach would provide EPA and Tribes easy access to the list of 
applicators who may legally apply RUPs within Indian country. EPA would 
like to know if this option would be useful to Tribes.
    Another approach being considered is to have the Tribes provide a 
contact person to a website so that applicators would know who to 
contact to learn of any applicable Tribal requirements for a particular 
Tribe. Would this option be useful for Tribes? Would it be burdensome?
    2. Private applicator certification. Under FIFRA section 11(a)(1), 
for Federal certification plans, EPA must offer a no-test option for 
private applicators. For more background, see Unit III.C. 2. (c) of 
this document. EPA proposes that private applicators who wish to obtain 
Federal certification under the no-test provision submit documentation 
of physical attendance and completion of an EPA-approved training and 
self-study evaluation. Are there any other suggestions to assure 
private applicator competence in the absence of passing a certification 
    3. Option to not participate in the Plan. Some Tribes have 
indicated that they would prefer that the plan include an option for 
Tribes to not participate in the Plan (e.g., an ``opt-out provision''). 
EPA has not proposed an opt-out provision in the Plan for several 
reasons. First, EPA believes that Tribes not wanting to participate in 
this Plan may still develop their own Tribal certification plan or 
pursue other available mechanisms under 40 CFR 171.10. Further, Tribes 
concerned about the application of RUPs in their Indian country may 
have the option of adopting additional restrictions on such 
applications through Tribal codes, laws, regulation or other applicable 
Tribal requirements. Additionally, EPA has not generally provided opt-
out provisions for other actions under FIFRA. Other reasons EPA did not 
include an opt-out provision include:
     An opt-out approach does not allow EPA to adequately 
address the equity, safety and enforcement issues that occur in the 
absence of this Plan.
     There are resource and implementation burdens on Tribes, 
applicators and EPA that such a provision would impose.
     An opt-out provision presents communication difficulties 
to the regulated community, and thus makes compliance more difficult.

Please share your thoughts on this issue.

V. Consultation With Tribal Governments

    In the absence of an EPA-approved certification program in areas of 
Indian county, EPA, consistent with its statutory authorities and the 
Federal government's trust responsibility to Federally-recognized 
Tribes, has worked with the Tribes, on a government-to-government 
basis, to appropriately develop a certification program that will help 
ensure the protection of human health and the environment in Indian 
country. EPA consulted with the Tribes on November 29 and December 13, 
2010 to ensure development of a Federal plan that effectively meets 
their needs and those of restricted use pesticide applicators in Indian 
    During the consultations, several issues were discussed, such as 
the desire for notification to Tribes prior to RUP use, assuring the 
competency of private applicators, and the possibility of an opt-out 
provision in the Plan. EPA is specifically seeking comment on these 
issues as described in the previous section. Additional concerns were 
raised that we respect Tribal sovereignty, not require unfunded 
mandates, and provide adequate enforcement to assure RUPs are used 
legally and safely. EPA believes that the proposed Plan addresses all 
of these concerns.
    In addition to the consultations dedicated specifically to this 
Plan, EPA has also worked closely with the Tribal Pesticide Program 
Council while developing this Plan.
    EPA drafted the Federal plan in consultation with the Tribes 
consistent with, among other things, the following policies, orders and 
guidance: EPA Policy for the Administration of Environmental Programs 
on Indian Reservations, November 8, 1984; Guidance on the Enforcement 
Principles Outlined in the 1984 Indian Policy, January 17, 2001; 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, November 6, 2000 which was reaffirmed by Presidential 
memorandum, Tribal Consultation, November 5, 2009; and the Proposed EPA 
Policy on Consultation and Coordination with Indian Tribes, June 9, 

    \3\ The draft policy was published in the Federal Register for 
comment on December 15, 2010.

VI. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C.3501 et 
seq.), the information collection activities described in this document 
and the revised Information Collection Request (ICR), OMB Control No. 
2070-0029, are currently going through the renewal/amendment process 
and will be reviewed by the Office of Management and Budget. As part of 
this process, EPA is proposing to implement a revised form designed 
specifically for pesticide applicators who wish to be certified in 
Indian country. EPA estimates the paperwork burden associated with 
completing this form to be 10 minutes per response. Under the PRA, 
``burden'' means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, disclose or provide 
information to or for a Federal Agency. For this collection it includes 
the time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes

[[Page 28776]]

of collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. The information collection activities and the form are 
included in a separate public docket. See http://www.regulations.gov, 
docket identification number EPA-HQ-OPP-2010-0723.

List of Subjects

    Environmental protection, Education, Pests and pesticides.

    Dated: May 11, 2011.
Stephen A. Owens,
Assistant Administrator, Office of Chemical Safety and Pollution 
[FR Doc. 2011-12226 Filed 5-17-11; 8:45 am]