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## Proposed Federal Plan for Certifying Applicators of Restricted Use Pesticide s within

Indian Country

April 14, 20112 Table of Contents I. Executive Summary............................................................ 3 II. Introduction..................................................................... 3 III. Background..................................................................... 4 IV. Definitions....................................................................... 4 V. Applicability of the Plan...................................................... 5 VI. Legal A uthority................................................................ 5 VII. Lead Agency..................... ............................................... 5 A. Funding and Personnel B. Reporting VIII. Applicator Requirements and Classification & Certification Options..................... ...................................................... 6 A. Private Applicators B. Commercial Applicators IX. Commercial Applicator Categories.......................................... 8 X. Certification Procedures...................................................... 8 XI. Enforcement of the Plan....................................................... 9 A. Enforcement Authority B. Pesticide Dealer Reporting Requirements C. Inspections D. Revocation, Suspension, and Modification E. Penalties XII. Appendices....................................................................... 1 2

A. Federal Insecticide Fungicide & Rodenticide Act

– Section 11 B. 40 Code of Federal Regulations

– Protection of the Environment, Section 171.11 C. EPA
- approved certification categories/subcategories and corresponding comparable federal categories D. Pesticide Applicator Certification Form s3

I. Executive Summary Under the authority

of Section 11(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) , and in accordance with the regulations found at Title 40 of the C o de of Federal Regulations (C FR) Part 171.11, the United States Environmental Protection Agency

(EPA) is implementing a federal pesticide applicator certification plan (Plan) for those areas of Indian country 1 where no other EPA

- approved or EPA
implemented plan applies . This f ederal c ertification Plan describes the process b y which EPA will implement a program for the certification of applicators of restricted use pesticides (RUPs) in Indian country based upon the certification requirements enumerated at 40 CFR Part 171. EPA will administer routine maintenance activities associated with implementation of this Plan and will conduct inspections and take enforcement action s as appropriate. II. Introduction Th is Plan describes the process for becoming certified to use RUPs within Indian country . Indian country

refers to land defined as Indian country at 18 U.S.C. § 1151
. Consistent with the statutory definition of Indian country , as well as federal case law inte rpreting 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. Under FIFRA, pesticides (or the particular use o r 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

. ” If the classification is made becaus e of hazards to the applicator, the pesticide may only be applied by

or under the direct supervision of a certified applicator

. If the classification is made because of potential unreasonable adverse effects on the environment, the pesticide may onl y be applied b y or under the direct supervision of a certified applicator or subject to such other restrictions as the Administrator may provide by regulation. To be certified,

1 Indian country: As defined at 18 U.S.C. § 1151: (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 throu gh 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, th e Indian titles to which have not 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

.4

an individual must be determined to be competent with respect to the use and handling of pesticides covered b y the certification. A person become s a certified applicator through meeting the requirements of a certification plan that is administered by a pertinent state, tribal, territorial, or federal agency and is approved or implemented by EPA. This document describes the certification plan EPA will use to certify applicators of RUPs for those areas of Indian country where no other EPA
- approved or EPA
- implemented plan applies

. III. Background Among other things, EPA’s regulations under 40 CFR part 171 provide that : 1) An Indian tribe may

develop its own plan for certifyingprivate and commercial applicators to use or supervise the use of RUPs; 2) If a tribe does not develop it s own certification plan , the tribe may choose to utilize a state’s certification program, with the concurrence of that state; or 3) EPA can implement a federal plan for the certification of applicators of RUPs. Currently , there are a few tribes with tribal plans, a federal plan for Navajo Nation, and a draft propos ed federal plan for Region 8 Indian country

. In addition, a few tribes have a Memorandum of Understanding with a state. Under 40 CFR § 171.11, EPA is authorized to implement a plan for the federal certification of applicators of RUPs where there is no EPA
- approved state or tribal applicator certification plan in effect. EPA consulted with the tribes on November 29 and December 13, 20 10 to ensure development of a federal plan that effectivel y 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 plans to seek comment on these issues during the public comment period. Additional concerns were raised that we respect tribal soverei gnty, not require unfunded mandates, and provide adequate enforcement to assure RUPs are used legally and safel y. EPA believes that the proposed Plan addresses all of these concerns. T herefore, i n accordance with 40 CFR § 171.11, EPA will implement this Plan for the federal certification o f applicators of RUPs in In dian country where no other EPA
approved or EPA
- implemented plan applies . Implementation of this certification Plan will 1) provide a mechanism by which individuals can be come legall y certified; 2) establish requirements that ensure and demonstrate competency in the proper use and application of RUPs in Indian country ; and 3) ensure that an individual adheres to certification requirements. IV. Definitions5

See Appendix C f

or relevant definitions. V. Applicability of the Plan EPA will implement this P lan within those areas of Indian country where no other EPA

approved or EPA
- implemented plan applies

. 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 th is federal plan for the relevant area of Indian country

. S ome tribes may also choose to further restrict or prohibit the use of RUPs in their areas through the implementation of tribal code s , laws , regulations , or other applicable tribal requirements

. EP A intends to continue consulting with tribes whose Indian country is subject to this federal plan regarding the use of RUPs in their areas and notes that applicators certified under this federal plan are responsible for complying with any applicable tribal requirements

. EPA will revisit this plan if/when the federal applicator certification regulation revisions are finalized to modif

y this plan i f necessary . VI. Legal Authority EPA will implement this Plan under FIFRA section 11(a)(1) ( see Appendix A), as amended, and 40 CFR § 171.11

. The regulations at 40 CFR § 171.11(e) authorize EPA to issue certificates based upon the pesticide applicator first meeting the requirements for certification issued under any other federal or EPA

- approved state or tribal certification program. Additional enforcement authorities are contained in Sections 8, 9, 13 , 14 , and 23 of FIFRA. Also s ee the FIFRA Enforcement Response Policy at http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/.
VII. Lead Agency EPA will administ er this federal certification Plan for RUP applicators in Indian country

. o EPA Regions will administer routine maintenance activities, including application processing, database management, recordkeeping, and program oversight. The EPA Regions are also authorized to certify applicators and conduct general outreach.6 o EPA Regions will also conduct inspections as appropriate and take enforcement action under the FIFRA Enforcement Response Policy , as appropriate

. o EPA Office of Regional Counsel will provide legal assistance, as appropriate

. A. Funding and Personnel EPA has adequate resources to implement the Plan in Indian country consistent with the requirements of FIFRA and the regulations in 40 CFR Part 171. B. Reporting EPA will ensure that this Plan is maintained and kept current in accordance w ith the requirements at 40 CFR Part 171. EPA will make the Plan publicly available at EPA’s Certification and Training database website: http://cpard.wsu.edu/ . E PA will update the Plan as necessary

. . EPA will submit annual certification accomplishment reporting b y December 31 st of each calendar year vi a the database website.

VIII. Applicator Requirements and Classification & Certification Options Under this Plan, EPA will implement a program for the certification of private and commercial applicators to apply RUPs in those areas of Indian country where no EPA
approved or EPA
- implemented plan exists. A. Private Applicators For indiv iduals seeking certification as a private applicator under the Plan, EPA will exercise its authority

contain ed in 40 CFR §§ 171.11(d)(1) & (e) to issue certification s if the applicator either : (1 ) Submi ts evidence of certification as a private applicator auth orized to apply federall y designated RUPs through a federal plan or an EPA
approved state or tribal plan with a contiguous boundary to the relevant area of Indian country

. If circumstances require, the EPA Region may work with the tribe to allow federal certification under this plan based on a valid certification from another nearb y state or tribe

. O r (2 ) Submit s documentation of p hy sical attendance and c omplet ion of an EPA
approved training and self

- study evaluation

. Length of certification: Un der 40 CFR § 171.11(e), a private applicator certificate expires 3 years aft er the date of issuance or at the expiration date of the original federal, state, or tribal certificate, whichever occurs first. A proposed rule is7 curre ntl y under development that would 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. Renewal/recertification: Applicators may appl y t o be recertified through the options listed in Section VIII (A) (1 ) and (2 ) of this Plan during the 12 months preceding the expiration of their current certificate. B. Commercial Applicators For individuals seeking certification as a commercial applicator under the Plan, EPA will utilize authority

contained in 40 CFR § 171.11(e) to issue certificatio n as described below: (1 ) Submitting evidence of certification as a commercial applicator authorized to apply federally designated RUPs under any other federal plan or EPA

- approved state or tribal plan with a contiguous boundary to the relevant area of Indian country
. Under this option , EPA may

issue federal commercial certificates to persons who are certified as commercial applicators for the same category(ies) listed in their original certificate (except for sodium cyanide capsules and sodium fluoroacetate used in livestock protection collars categories; see part IX. Commercial Applicator Categories of this plan for more information on these categories)

. If circumstances require, the relevant EPA Region may work with the tribe to allow federal certification under this plan based on a valid certification from another nearb y state or tribe. Length of certification: Under 40 CFR § 171.11(e), a commercial applicator certificate expires 2 years af ter the date of issuance , or at the expiration date of the original federal, state, or tribal certificate, whichever occurs first. A proposed rule is currentl y under development that would 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. Renewal/recertificati on: Applicators may appl y t o be recertified through the options listed in Section VIII (B) ( 1 ) of this Plan during the 12 months preceding the expiration of their current certificate.8

IX. Commercial Applicator Categories EPA recognize s commercial appli cators certified by a federal plan or an EPA
- approved state or tribal plan

. EPA will 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 underl yi ng federal, state or tribal certificate with the exception of the following

. For sodium cyanide capsules used with ejector devices for livestock predator control , there is a use restriction that requires that supervisors of applicators monitor the applicators. As stated on the labels, the supervisors are the registrants, which may be federal agencies, state agencies, or Indian tribes. Currently , onl y one Indian tribe

-- the Navajo Nation

-- has obtained a registration for sodium cyanide capsules . Under this federal plan, a federal certificate will only include a sodium cyanide capsule category if the relevant Indian tribe for the area of Indian country at issue obtains its own registration for this product and conduct s its own monitoring and supervision. Registrations for s odium f luoroacetate used in livestock protection collars are currentl y limited to one federal agency , to State agencies in Montana, New M exico, South Dakota, and Wyoming, and to a private entity whose registered product may onl y be used in Texas. Currently , no Indian tribe has a registration for sodium fluoroacetate used in livestock protection collars . Under this federal plan, a federal certificate will only include a sodium fluoroacetate livestock protection collar if the relevant Indian tribe for the area of Indian country

at issue obtains its own registration for this product and conduct s its own monitoring and supervision. EPA intends to continue consulting with Indian tribes as the federal plan is implemented to consider issues relating to availability of sodium cyanide capsules and s odium f luoroacetate l ivestock p rotection c ollars in Indian country and will consider modifying individu al federal certifications in the future as appropriate. X. Certification Procedures Persons seeking commercial certification to apply RUPs in Indi an country must submit to EPA , at the address noted below, a completed ‘Pesticide Applicator Certification Form’ EPA Form xxxx
- xx (Appendix D) along with proof (cop y of certificate, credential, license, or other documentation) of a valid federal, state, or tribal certification. Indiv iduals seeking to be certified as private applicators must submit a completed ‘Pesticide Applicator Certification Form’ EPA Form xxxx

- xx (Appendix D) with either (1) proof (cop y of certificate, credential, license, or other documentation) of a valid federal, state, or tribal certification, or , (2) documentation showing they have phy sically attended and complete d an approved training course and self

- study evaluation. The self

study evaluation and guide can be obtained by contacting EPA at address below. EPA may verify with the appropriate federal, state, or tribal certifying agency with whom the applicant is claiming to hold a valid certification that the certificatio n on which EPA would base its federal certification is, in fact, valid and current.9

The Pesticide Applicator Certification Form can be down loaded from www.epa.gov/tobedetermined or may be obtained by contacting the EPA Region directl y.
XI. Enforcement o f the Plan A. Enforcement Authority EPA will , as appropriate, enforc e this Plan

. States, tribes, and other federal agencies who issued a certification upon which the federal certification described herein is based are not approved or authorized by EPA to assure compliance in Indian country with the federal certification provided by this Plan. EPA has the authority

to take action, as appropriate, to ensure that RUPs are used in accordance with their EPA

- registered labeling. EPA will also ensure that pes ticide applicators and dealers comply with the requirements of FIFRA and the implementing regulations, including provisions of this federal Plan specified in 40 CFR § 171.11, in Indian country . Specifically , for example, commercial applicators are require d to maintain records as provided in 40 CFR § 171.11(c) (7). EPA will allow, during the 6 month period after publication of the final Plan, applicators to appl y RUPs under the Plan in Indian country only for the categories for which they

already have a valid state, tribal or federal certificate 2 if they submit a complete application to the relevant EPA Region showing proof of a valid state, tribal, or federal certification. 3 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 relevant EPA Region are prohibited from appl yi ng RUPs in In dian country located in that Regio n . B. Pesticide Dealer Reporting Requirements Each restricted use pesticide dealer in Indian country where this Plan applies must keep records and submit reports to EPA as set forth in 40 CFR § 171.11(g). To comply with these reporting requirements, all pesticide dealers and pesticide dealerships located within Indian country covered by this Plan must send such reports to: [Insert Contact Information Here]

2 Please see Section IX 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. 3 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.10

C. In spections EPA will enforce this Plan by conducting inspections , as appropriate, of RUP dealers and certified applicators in Indian country to ensure that RUP dealers are maintaining the required records, are making RUPs available for use in accordance with 40 CFR §171.11(g), and that certified applicators are complying with all applicable l abel directions. 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 has the authority

to review RUP dealer records and certified applicator records pursuant to Section 8 of FIFRA, 7 U.S.C. § 136 f and Section 11 of FIFRA, 7 U.S.C. § 136 i

- 1(b) , and 40 CFR §§ 171.11(g)(3) and (c)(7) . Federall y credential ed inspectors and/or EPA inspectors will investigate incidents, accidents, and complaints related to pesticide use in Indian country and report to EPA for appropriate enforcement response as set forth b y the FIFRA Enforcement Response Policy (http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/) and as consistent with other EPA policies

. D. Revocation, Suspension, and Modification EPA may , if appropriate, deny , modify , suspend, or revoke a certificate, or take an enforcement action under FIFRA if the applicant or certificate holder has been convicted under section 14(b) of FIFRA or been subject to a final order imposing a civil penalty

under section 14 (a) of FIFRA or where an y of the following act listed in 40 CFR § 171.11(f) occur:

o use of any registered pesticide in a manner inconsistent with its labeling; o making available for use, or use of any registered pesticide classified for restricted use other than in accordance with section 3(d) of the amended FIF RA and any

regulations promulgated thereunder; o refusal to keep and maintain any records required pursuant to this section; o making of false or fraudulent records, invoices or reports; o failure to compl y with any limitations or restrictions on or in a duly is sued certificate, or o violation of any

provision of the amended FIFRA and the regulations promulgated thereunder. Pursuant to 40 CFR § 171.11(e), EPA will also begin procedures to revoke, suspend, or modify a certificate if the federal, state, or tribal ce rtificate upon which it is based is revoked, suspended, or modified. If EPA decides to deny , revoke, suspend or modify a certificate, EPA will notify (1) the applicant or certificate holder pursuant to the FIFRA Enforcement Response Policy and 40 CFR § 17 1.11(f)(2)(i) , and (2) the agency that issued the original11

certificate upon which the federal certificate was based, if necessary

. If the applicant or certificate holder requests a hearing pursuant to 40 CFR § 171.11(f)( 2)(ii), EPA will follow the hearing process contained in 40 CFR § 171.11(f)(3) & (4). E. Penalties Under Section 14 of FIFRA, 7 U.S.C. § 136 l , as amended b y the Federal Civil Penalties Inflation, Adjustment Act of 1990, 28 U.S.C. § 146 l , and the Debt Collection Improvement Act of 1996, 31 U.S.C. § 370 l , EPA has the authority to assess both civil and criminal penalties for violations of FIFRA . Commercial applicators, wholesalers, dealers, retailers, or other distributors can be assessed a fine of up to a $6,500 for each offense as civil penalties and up to $25,000 or imprisonment, for not more than one ye ar, or both, for each offense as criminal penalties. Private applicators, subsequent to receiving a written warning, can be assessed a civil penalty

up to $1,200, or a criminal penalty of not more than a $1,000 fine and/or imprisonment, for not more than thirty (30) day s, for each offense. EPA’s enforcement action s are conducted c onsistent with applicable EPA enforcement and tribal policies and guidance

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XII. APPENDICES Appendix A . Federal Insecticide Fungicide & Rodenticide Act

– Section 11 SEC. 11. [7 U.S.C. 136i] USE OF RESTRICTED USE PESTICIDES; APPLICATORS. (a) CERTIFICATION PROCEDURE.

— (1) FEDERAL CERTIFICATION.

—In an y State for which a State plan for applicator certification has not been approved by the Administrator, the Administrator, in consultation with the Governor of such State, shall conduct a program for the certification of applicators of pesticides. Such program shall conform to the requirements imposed upon the States under the provisions of subsection (a)(2) of this section and shall not require private applicators to take an y examination to establish competency in the use of pesticides. Prior to the imp lementation of the program, the Administrator shall publish in the Federal Register for review and comment a summary o f the Federal plan for applicator certification and shall make generally avail

- able within the State copies of the plan. The Administrator shall hold public hearings at one or more locations within the State if so requested by the Governor of such State during the thirty d ay s following publication of the Federal Register notice inviting comment on the Federal plan. The hearings shall be held within thirty d ay s following receipt of the request from the Governor. Inany

S tate in which the Administrator conducts a certification program, the Administrator may

require an y per - son engaging in the commercial application, sale, offering for sale, hol ding for sale, or distribution of an y pesticide one or more uses of which have been classified for restricted use to maintain such records and submit such reports concerning the commercial application, sale, or distribution of such pesticide as the Adminis trator may be regulation prescribe. Subject to paragraph (2), the Administrator shall prescribe standards for the certification of applicators of pesticides. Such standards shall provide that to be certified, an individual must be determined to be competent with respect to the use and handling of pesticides, or to the use and handling of the pesticide or class of pesticides covered by s uch individual’s certification. The certification standard for a private applicator shall, under a State plan submitted for approval, be deemed fulfilled by the applicator completing a certification form. The Administrator shall further assure that such form contains adequate information and affirmations to carry

out the intent of this Act, and may include in the form an affir mation that the private applicator has completed a training program approved by the Administrator so long as the program does not require the private applicator to take, pursuant to a requirement prescribed by the Administrator, any

e xamination to establis h competency

in the use of the pesticide. The Administrator may require any

pesticide dealer participating in a certification program to be licensed under a State licensing program approved by the Administrator. (2) STATE CERTIFICATION.

—If an y State, at any t ime, de

- sires to certify applicators of pesticides, the Governor of such State shall submit a State plan for such purpose. The Administrator shall approve the plan submitted by any S tate, or any modification thereof, if such plan in the Administrator’ s judgment

—13 (A) designates a State agency as the agency

responsible for administering the plan throughout the State; (B) contains satisfactory assurances that such agency h as or will have the legal authority

and qualified personnel necessary to carry out the plan; (C) gives satisfactory

assurances that the State will de

- vote adequate funds to the administration of the plan; (D) provides that the State agency w ill make such re - ports to the Administrator in such form and containing such information as the Administrator may from time to time require; and (E) contains satisfactory

a ssurances that State standards for the certification of applicators of pesticides conform with those standards prescribed by the Administrator under paragraph (1). Any S tate certification program under this section shall be maintained in accordance with the State plan approved under this section. (b) STATE PLANS.

—If the Administrator rejects a plan submitted under subsection (a)(2), the Administrator shall afford the State submi tting the plan due notice and opportunity

f or hearing before so doing. If the Administrator approves a plan submitted under subsection (a)(2), then such State shall certify a pplicators of pesticides with respect to such State. Whenever the Administrator de termines that a State is not administering the certification pro - gram in accordance with the plan approved under this section, the Administrator shall so notify the State and provide for a hearing at the request of the State, and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days , the Administrator shall withdraw approval of such plan. (c) INSTRUCTION IN IN TEGRATED PEST MANAGEMENT TECH
NI QUES.

— Standards prescribed by the Administrator for the certification of applicators of pesticides under subsection (a), and the State plans submitted to the Administrator under subsection (a), shall include provisions for making instructional materials concerning integrated pest management techniques available to individuals at their request in accordance with the provisions of section 23(c) of this Act, but such plans may not require that an y individual receive instruction concerning such techniques or be shown to be competent with respect to the use of such techniques. The A dministrator and States implementing such plans shall provide that all interested individuals are notified of the availability

of such instructional materials. (d) ING ENERAL.

—

No regulations prescribed by the Adminis trator for carrying out the provisions of this Act shall require an y private applicator to maintain any records or file any reports or other documents. (e) SEPARATE STANDARDS.

—When establishing or approving standards for licensing or certification, the Administrator shall establish separate standards for commercial and private applicators.1415

Appendix B . 40 Code of Federal Regulations

– Protection of the Environment, Section 171.11161718192021

Appendix C . Definitions Certification: The term certification means the recognition by a certifying agency that a person is competent and thus authorized to use or supervise the use of restricted use pesticides. 40 CFR 171.2(a)(7) Commercial applicator: The term ‘‘commercial applicator’’ means 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 provided by paragraph (2) [ private applicator definition]

. FIFRA 2(e)(3) Indian country: As defined at 18 U.S.C. § 1151: (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 s tate; and (c) all Indian allotments, the Indian titles to which have not 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 statuto ry 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

. Pesticide: The term ‘‘pesticide’’ means (1) any substance or mixture of substances intended for preventing, destro yi ng, repel

- ling, or mitigating any pest, (2) any substance or mixture of sub

- stances intended for use as a plant regulator, defoliant, or desiccant, and (3) an y nitrogen stabilizer, except that the term ‘‘pes ticide’’ shall not include any article that is a ‘‘new animal drug’’ within the meaning of section 201(w) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(w)), that has been determined by the Secretary

of Health and Human Services not to be a new animal drug b y a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of such Act (21 U.S.C. 321(x)) bearing or containing a new animal drug. The term ‘‘pesticide’’ does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi

- critical device, as de

- fined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321). For purposes of the preceding sentence, the term ‘‘critical device’’ includes any device which is introduced directly

into the human body , either into or in contact with the bloodstream or normall y sterile areas of the body and the term ‘‘semi

- critical de

vice’’ inclu des any

device which contacts intact mucous membranes but which does22

not ordinarily

penetrate the blood barrier or other

- wise enter normally sterile areas of the body

. FIFRA 2(u) Private applicator: The term ‘‘private applicator’’ means a certified appl icator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity

on property

owned or rented by

the applicator or the applicator’s emplo ye r or (if applied without compensatio n other than trading of personal services between producers of agricultural commodities) on the property of another person. FIFRA 2(e)(2) Restricted use pesticide (RUP): A pesticide that is classified for restricted use under the provisions of section 3(d)(1)(C) of FIFRA23 

## Appendix D Pesticide Applicator Certification Form (draft)

The form is available at www.regulations.gov D ocket identification number EPA

–HQ

–OPP

–2010

–07232425