[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:
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
[[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:
[email protected].
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: [email protected].
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]
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