2011-12226. 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 [phone].

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 [phone].

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: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

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 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 reproduced.

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 INFORMATION CONTACT.

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 FIFRA.

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 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 necessary.

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]

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 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 exam?

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 country.

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, 2010.^[3]

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 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 Prevention.

Footnotes

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.

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