[Federal Register Volume 76, Number 76 (Wednesday, April 20, 2011)]
[Notices]
[Pages 22096-22100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9562]


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ENVIRONMENTAL PROTECTION AGENCY

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


Federal Plan for Certification of Applicators of Restricted Use 
Pesticides Within EPA Region 8 Indian Country; Notice of Availability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
    <bullet> 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

[[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: 
<a href="/cdn-cgi/l/email-protection#f597999a9a98db9f80918cb5908594db929a83"><span class="__cf_email__" data-cfemail="86e4eae9e9eba8ecf3e2ffc6e3f6e7a8e1e9f0">[email protected]</span></a>.

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: <a href="/cdn-cgi/l/email-protection#0f756661612161666c60636a4f6a7f6e21686079"><span class="__cf_email__" data-cfemail="3b415255551555525854575e7b5e4b5a155c544d">[email protected]</span></a>.

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

[[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

[[Page 22099]]

certificate \1\ if they submit a complete application to EPA R8 showing 
proof of a valid State, Tribal, or Federal certification.\2\
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    \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.
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    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\
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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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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.


[[Page 22100]]


    Dated: April 12, 2011.
Stephen A. Owens,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2011-9562 Filed 4-19-11; 8:45 am]
BILLING CODE 6560-50-P


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