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###### Environmental Protection Agency

          - [EPA-HQ-OPP-2010-0792; FRL-8855-8]

# 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 areas of Region 8 Indian country. The program will be administered by EPA Region 8 (EPA R8) located in Denver, Colorado. EPA is soliciting comments on EPA's intent to implement a Federal certification program in areas of R8 Indian country where no other EPA-approved plan applies and on its                         *Proposed Federal Plan for Certification of Applicators of Restricted Use Pesticides within EPA Region 8 Indian Country*                         (Plan). A separate proposal and public comment period for a Federal certification plan to address use of restricted use pesticides in Indian country outside R8 is forthcoming.                    

# DATES:

Comments must be received on or before June 6, 2011.

# ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2010-0792, 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-2010-0792. 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                               ( print page 22097)                            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:

                        Judy Bloom, Environmental Protection Agency, Region 8, 1595 Wynkoop Street (8P-P3T), Denver, Colorado 80202-1129; telephone number: (303) 312-6395; e-mail address:                         *bloom.judy@epa.gov.*

# 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 Region 8 Indian country where no EPA-approved plan applies. Areas of Region 8 Indian country that currently have EPA-approved plans include the Indian country of the Cheyenne River Sioux Tribe, and the Mandan, Hidatsa, and Arikara Nation (or Three Affiliated Tribes). 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. In addition, it may be of interest to others, such as those persons who are or may be required to conduct testing of chemical substances. 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.

### C. Additional Sources

In addition to the sources listed in this unit, you may obtain copies of the Plan, other related documents, or additional information by contacting:

                    1. Judy Bloom at the address listed under                     **FOR FURTHER INFORMATION CONTACT**                    .                

                    2. 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:                     *zinn.nicole@epa.gov.*

## II. What action is the Agency taking?

EPA is announcing its intention to implement a Federal program to certify applicators of RUPs in areas of R8 Indian country and seeks public comment. This Federal certification Plan describes the process by which EPA R8 will implement a program for the certification of applicators of RUPs in R8 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, Region 8 (EPA R8) has drafted a Plan for those areas of EPA R8 Indian country where no other EPA-approved plan applies.

### B. What is the statutory authority for this plan?

                    The plan will be implemented under the authority of section 11(a)(1) of                           ( print page 22098)                        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, 12 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 EPA-approved 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. Indian country associated with EPA R8 refers to land defined as Indian country at 18 U.S.C. 1151 that is located in the States of Utah, Montana, Wyoming, Colorado, North Dakota, and South Dakota. For a list of Federally recognized Tribes in EPA R8, see                     *http://www.epa.gov/​region8/​tribes/​govern.html.*

                    2.                     *Provisions of plan.*                    —i.                     *Why is Region 8 developing a Plan?*                     The Region 8 Plan will allow the certification of applicators and legal use of RUPs in R8 Indian country where there are currently no mechanisms in place for such certification. RUPs cannot be legally used in Indian country unless EPA has explicitly approved a non-Federal plan for such area or issued a Federal certification plan for such 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. Under 40 CFR 171.10(a)(1), Indian Tribes may choose to utilize State certification programs for their areas, subject to the requirements of that provision. There only three areas of Indian country in R8 for which there are approved non-Federal plans.                

                    ii.                     *To whom will the Plan apply?*                     The Plan will only apply to persons who intend to apply RUPs in those areas of R8 that are Indian country excluding the areas of R8 Indian country that currently have EPA-approved plans including the Indian country of the Cheyenne River Sioux Tribe, and the Mandan, Hidatsa, and Arikara Nation (or Three Affiliated Tribes). This includes Indian country within the States of Colorado, Montana, South Dakota, North Dakota, Utah and Wyoming. For a list of Federally recognized Tribes in EPA R8, see                     *http://www.epa.gov/​region8/​tribes/​govern.html.*

In the event that the Federal applicator certification regulations at 40 CFR 171.11 are revised, EPA R8 will revisit the Plan to determine if modification of this Plan is necessary. Currently, a national plan for certification of RUP applicators in Indian country is under development and EPA R8 will review the R8 Plan to determine if the EPA R8 Plan should be modified or continue to be implemented, when the national plan is final.

                    iii.                     *Certification procedures**.*                     To become certified to use RUPs in R8 Indian country, applicators must submit an application form to the EPA R8 Office as well as proof of a valid Federal, State, or Tribal certification. The Form is available at                     *http://www.regulations.gov*                     under docket identification number EPA-HQ-OPP-2010-0723.                

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. This “no-test option” for private applicators is required to be available by FIFRA for Federal certifications. Federal certification under this option is valid for four years from the date of issuance, unless suspended or revoked.

Under 40 CFR 171.11(e), currently a Federal certificate expires 2 years after the date of issuance for commercial applicators and three 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. Once the amendment is finalized, the Agency will utilize the expiration date of the original valid certification.

EPA is proposing that the certification must be from a State or Tribe with a contiguous boundary to the 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.

                    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 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.                

                    5.                     *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 this 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.                

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 revoked, EPA R8 will begin procedures to revoke the Federal certification. EPA may also begin procedures to suspend or modify a Federal certificate if the Federal, State, or Tribal certificate upon which it is based is suspended or modified.

                    EPA will allow, during the 6 month period after publication of the final Plan, applicators to apply RUPs under the Plan in R8 Indian country only for the categories for which they already have a valid State, Tribal or Federal                           ( print page 22099)                        certificate [1]                                          if they submit a complete application to EPA R8 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 EPA R8 are prohibited from applying RUPs in R8 Indian country.

## IV. Specific Comments Are Sought

EPA is seeking comment on the entire plan but would specifically like comment on the following issues:

                    1.                     *Federal certification for applicators with certificates from contiguous States or Tribes.*                     EPA has proposed only issuing Federal certification to applicators with certificates from contiguous States or Tribes. This approach provides greater assurance that the applicator has training relevant to use on the contiguous Indian country (                    *e.g.,*                     understanding of endangered species issues, geography, climate, crops, and pest pressure). However, this could present problems because the applicators wishing to apply in Indian country will have fewer options to obtain a certificate. To address this concern, EPA is proposing to limit the Federal certification for applicators with certificates from contiguous States or Tribes, but also include an exception that would allow the Region to accept a certificate from another State or Tribe as determined by the Region on a case-by-case basis. Should EPA proceed with this approach? What, if any, other options should EPA consider and why?                

                    2.                     *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 application that is made in R8 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 by State such that certifications issues for all Indian country located in a particular State 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 the Web site 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?

## V. Consultation With Region 8 Tribal Governments

In the absence of an EPA-approved certification program in areas of R8 Indian country, EPA, consistent with its statutory responsibilities and the Federal government's trust responsibility to Federally recognized Tribes, has worked with the Region 8 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 R8 Indian country. EPA has consulted with the Region 8 Tribes on conference calls, face-to-face meetings, and mailings to ensure development of a Federal plan that effectively meets the needs of the Region 8 Tribes and restricted use pesticide applicators in R8 Indian country.

                    EPA drafted the R8 Federal plan in consultation with the Region 8 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; EPA/State/Tribal Relations (Anti-Checkerboarding Policy), EPA Administrator William K. Reilly, July 10, 1991; EPA Region 8 Policy for Environmental Protection in Indian country, March 14, 1996; 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 will be included in a separate public docket.                

## List of Subjects

Environmental protection, Education, Pests and pesticides.

      ( print page 22100)    
Dated: April 12, 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.                    
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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.                    
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3.                             The most current version of the draft policy was published in the                         **Federal Register**                         for comment on December 15, 2010 (75 FR 78198; FRL-9239-4).                    
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[FR Doc. 2011-9562 Filed 4-19-11; 8:45 am]

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