[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Notices]
[Pages 7185-7189]
[FR Doc No: 2014-02564]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2011-0037; FRL-9904-18]

Final EPA Plan for the Federal Certification of Applicators of
Restricted Use Pesticides Within Indian Country; Notice of
Implementation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: In the Federal Register of May 18, 2011, EPA issued a notice
of intent to implement a Federal program to certify applicators of
restricted use pesticides (RUPs) in Indian country where no other
certification plan applies. The program will be administered by EPA. In
that notice, EPA solicited comments from the public on EPA's Proposed
Federal Plan for Certifying Applicators of Restricted Use Pesticides
within Indian Country (EPA plan). EPA received comments from four
commenters. EPA also issued a notice of intent to implement a similar
plan in EPA Region 8, the Proposed Federal Plan for Certification of
Applicators of Restricted Use Pesticides Within EPA Region 8 Indian
Country (EPA Region 8 plan) in the Federal Register of April 20, 2011.
EPA received comments from seven commenters on the EPA Region 8 plan. A
complete summary of the comments and the Agency responses is available
in the docket. EPA has decided to merge these plans into one EPA plan
and hereby implements the final EPA plan. Applicators must hold the
appropriate Federal certification under the final EPA plan to apply
RUPs in Indian country where no other EPA-approved or EPA-implemented
certification plan applies.

FOR FURTHER INFORMATION CONTACT: Nicole Zinn, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
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 RUPs as defined by the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) in Indian country \1\ where no
EPA-approved or EPA-implemented plan applies. This action may, however,
be of interest to those involved in agriculture and anyone involved
with the distribution and application of pesticides for agricultural
purposes. Others involved with pesticides and/or pest control
applications in a non-agricultural setting may also be affected. Since
other entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be affected by this action.
If you have any questions regarding the applicability of this action to
a particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.
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    \1\ Indian country is defined at 18 U.S.C. 1151. 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.
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B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0037, is available at http://www.regulations.gov or at the

Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in
the Environmental Protection Agency Docket Center (EPA/DC), EPA West
Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
OPP Docket is<PHONE_NUMBER>. Please review the visitor instructions
and additional information about the docket available at http://www.epa.gov/dockets. The final EPA plan and application form, EPA Form
7100-01, to apply for Federal certification under this final EPA plan
can be found in the docket and at http://www2.epa.gov/pesticide-applicator-certification-indian-country.

II. What action is the agency taking?

    EPA is implementing a Federal program to certify applicators of
RUPs in Indian country where no other EPA-approved or EPA-implemented
plan applies. This final EPA plan describes the process by which EPA
will implement a program for the certification of applicators of RUPs
in Indian country based upon the certification requirements enumerated
at 40 CFR part 171. The entire final EPA plan is included in the
docket.

III. Background

    Under FIFRA, 7 U.S.C. 136 et seq., the EPA Administrator 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.'' 7 U.S.C. 136a(d)(1)(C). If the
classification is made because of hazards to the applicator or other
persons, 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 EPA
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 the pesticides
covered by the certification. 7 U.S.C 136i(a).
    It was the intent of Congress that persons desiring to use RUPs
should be able to obtain certification under programs approved by EPA,
as reflected in FIFRA sections 11 and 23. 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; however,
Tribes and States 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 RUPs pursuant to FIFRA sections 11 and 23. 7 U.S.C.
136i, 136u; 40 CFR 171.11.
    Most of Indian country is not covered by an EPA-approved or EPA-
implemented plan, and therefore, applicators do not have a mechanism to
become certified. The current lack of approved mechanisms for use of
RUPs in Indian country is a concern to EPA for reasons of equity,
safety, and enforcement. EPA believes the same pest control tools that
are available in State areas should also be available to growers in
Indian country. Lack of access to these pesticides could put growers in
Indian country at an economic disadvantage to growers in States, who do
have access to these pesticides. Without access to certification
programs, applicators may not have the competence needed to safely use
RUPs, nor would they be legally allowed to use them.
    Federal, State, and tribal governments may impose additional,
different requirements on the purchase and application of RUPs.
Applicators are encouraged to research these particular requirements to
determine how they may affect their ability to purchase and apply RUPs,
and consider any restrictions or requirements as they decide if this
EPA certification will serve their needs.

IV. Summary of the Final EPA Plan

    1. Applicability. EPA intends to implement this final EPA plan in
Indian country, as defined in 18 U.S.C. 1151, where no other EPA-
approved or EPA-implemented plan applies.
    2. Provisions of this EPA plan--a. Why is EPA developing an EPA
plan? The EPA plan will allow the certification of applicators and
legal use of RUPs in those parts of Indian country where there are
currently no mechanisms in place for such certification and use. RUPs
cannot be legally used in Indian country unless EPA has explicitly
approved a mechanism of certification for such an area. EPA-approved
State plans do not cover use of RUPs in Indian country. There are very
few areas of Indian country for which there are approved non-Federal
plans and only one area that is currently covered under a Federal plan.
    b. To whom will the EPA plan apply? The EPA plan will only apply to
persons who intend to apply RUPs in Indian country not covered by
another EPA-approved or EPA-implemented plan. Tribes may continue to
pursue options available under 40 CFR 171.10 for their areas of Indian
country, including seeking EPA approval of tribal plans for such areas
under 40 CFR 171.10(a)(2) or the utilization of a State's certification
program under 40 CFR 171.10(a)(1). An option implemented under 40 CFR
171.10 would replace this final EPA plan for the relevant area of
Indian country.
    Applicators must hold the appropriate Federal certification under
this final EPA plan to apply RUPs in Indian country where no other EPA-
approved or EPA-implemented certification plan applies. During the 6-
months after publication of this notice announcing this final EPA plan,
EPA will allow applicators to apply RUPs under the final EPA 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 August 6,
2014, applicators who are covered under this EPA plan and have not
received a written Federal certification from the relevant EPA Region
are prohibited from applying RUPs in Indian country located in that EPA
Region. Failure to hold the appropriate Federal certification after
August 6, 2014 may result in Federal enforcement action in accordance
with FIFRA section 12(a)(2)(F).
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    \2\ Please see section IX of the EPA plan for applicator
categories recognized under the EPA plan, as there are exceptions
for sodium cyanide capsules used with ejector devices and sodium
fluoroacetate used in livestock protection collars. These exceptions
will also apply during the 6-months after publication of this notice
announcing the final EPA plan.
    \3\ Although predicated in part on the applicator's existing
valid certification, any use permitted under this EPA plan is
allowed by and will be enforced only under Federal authority.
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    c. Certification procedures. The appropriate EPA regional office
will administer this EPA plan for each covered area of Indian country.
To become certified to use RUPs in Indian country, applicators must
submit an

application form, EPA Form 7100-01, to the EPA regional office that
covers the Indian country where they wish to apply RUPs, as well as
proof of the valid Federal, State, or tribal certification upon which
their Federal certification will be based. The final EPA plan and form
to apply for Federal certification under the final EPA plan can be
found in the docket (see Unit I.B. of this notice) and on EPA's Web
site at http://www2.epa.gov/pesticide-applicator-certification-indian-country.
    The certification on which the Federal certificate will be based
must be from a State or Tribe with a contiguous boundary to the
relevant area of Indian country.\4\ The EPA regional offices also have
limited discretion to allow Federal certification under the final EPA
plan based on a valid certification from another nearby State or Tribe
that is not directly contiguous to the area of Indian country at issue.
The Federal certification based on a valid Federal, State, or tribal
certification, will expire when the underlying Federal, tribal, or
State certificate expires, unless the certificate is suspended or
revoked.
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    \4\ The area of Indian country where the applicator intends to
apply must be within, or the border must be touching, the State or
Tribe that issued the underlying Federal, tribal, or State
certificate.
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    In lieu of submitting proof of a valid Federal, State, or tribal
certification, private applicators also have the option of completing
the online training developed by EPA. An interim option to use
available State training to obtain private applicator certification in
lieu of a valid Federal, State, or tribal certificate was developed and
included in the plan and on the application form for private applicator
certification. However, since EPA has developed online training, this
option will not be used while the online training is available. Federal
certification under this option is valid for 4 years from the date of
issuance, unless suspended or revoked.
    d. Applicator categories. EPA will recognize the categories
authorized in the Federal, State, or tribal certification upon which
the Federal certification is based, and applicators will be authorized
to apply RUPs in Indian country for uses covered by those categories.
See Unit VI. of this notice for specific information on categories for
sodium cyanide capsules used with ejector devices for livestock
predator control and for sodium fluoroacetate used in livestock
protection collars.
    e. Implementation. EPA will administer routine maintenance
activities associated with implementation of this final EPA plan (e.g.,
application processing, database management, recordkeeping) and will
conduct inspections and take enforcement actions as appropriate.

V. Response to Comments

    EPA received comments from the Tribal Pesticide Program Council
(TPPC); Cherokee Nation; Kashia Band of Pomo Indians; the U.S.
Department of Agriculture (USDA), Animal and Plant Health Inspection
Service (APHIS); the Colorado Department of Agriculture; the Montana
Department of Agriculture; and some pesticide applicators. EPA sought
comment on several topics for the proposed EPA plan and the proposed
EPA Region 8 plan: Issuing Federal certification to applicators with
certificates from contiguous States or Tribes, a request to include a
notification provision in the EPA plan, the private applicator
certification option, and a suggestion from the Tribes to include an
opt-out provision in the EPA plan.
    All comments on these issues, as well as additional comments
received, and EPA's responses are available in the docket. EPA has also
made changes to the final EPA plan based on some of the comments
received. These changes are described in Unit VI. of this notice.

VI. Highlights of Changes Made in the Final EPA Plan

    EPA adjusted the final EPA plan based on questions and comments
received on the proposed EPA plan. Below are some noteworthy
clarifications. Please refer to the Response to Comments document and
the final EPA plan for details.

A. Change to Title

    The title of the final EPA plan has been changed from ``Federal
Plan for Certification of Applicators of Restricted Use Pesticides
within Indian Country'' to ``EPA Plan for the Federal Certification of
Applicators of Restricted Use Pesticides within Indian Country'' to
align it with 40 CFR 171.11 and to differentiate it from non-EPA
Federal agency plans. EPA also merged the EPA Region 8 plan with this
final EPA plan since the plans were very similar in nature and goals.
Indeed, the EPA Region 8 plan, which was developed first, was the basis
for the national EPA plan. Further, the two plans ended up with similar
expected timeframes for implementation.

B. Notification of Tribes Prior to RUP Use

    The Agency received comments suggesting the inclusion of a
provision in the final EPA plan that would require applicators to
notify a Tribe prior to application of RUPs in their Indian country.
Further, it was suggested that EPA should create an ``opt-in'' process
for Indian Tribes that want to be notified in advance of an RUP
application on their land. Tribes that wanted notification prior to RUP
use would be expected to identify a contact person to whom advance
notification of a pesticide application should be provided. The
commenters also believed EPA should develop a form for applicators to
use to notify the Tribes about proposed pesticide applications.
    It was also requested that EPA make a database publicly available
that lists applicators with their contact information and current
certifications by State and EPA Region. The database would provide
Indian Tribes with a better sense as to the applicators with Federal
certificates who might potentially apply RUPs in their Indian country.
    While some commenters pointed to the notification process for soil
fumigants as a precedent for EPA requiring notification of Tribes prior
to the application of RUPs, the justification and authorities that
supported the notification requirements for soil fumigants are not
available to support applicator notification requirements under a
Federal certification plan. In the case of the soil fumigants,
notification is required as part of the reregistration risk mitigation
decision to assure the soil fumigants meet the FIFRA registration
standard. EPA generally has not made that determination for other RUPs.
Under FIFRA section 11, which provides the authority for issuing
Federal certification plans, rulemaking is the mechanism required for
commercial applicator reporting, which would include a notification
requirement. Additionally, FIFRA section 11 does not provide EPA
authority to require any reporting from, or recordkeeping by, private
applicators. Development of a rulemaking to require commercial
applicators to notify Tribes prior to RUP application could take
several years. EPA does not believe that we should delay the benefits
of proceeding with the final EPA plan while rulemaking is considered to
require commercial applicators to notify Tribes prior to use.
Therefore, EPA will proceed with finalizing this EPA plan at this time.
As the Agency gains experience implementing the final EPA plan, the
Agency will re-evaluate if rulemaking to implement a tribal
notification requirement is advisable or needed.
    In the meantime, to assist Tribes in identifying and communicating
directly

with applicators certified under this final EPA plan, EPA will
implement the suggestion to make a database publicly available that
lists applicators (with their location and current certifications) by
State upon which the Federal certification is based. EPA expects to
implement this recommendation by posting a list of federally certified
applicators at http://www2.epa.gov/pesticide-applicator-certification-indian-country.
    EPA also recognizes that tribal notification requirements may exist
under tribal law. Federal certifications issued by EPA under this EPA
plan will explicitly inform applicators that they should take steps to
determine if there are additional requirements under tribal law for RUP
application, including tribal notification requirements.

C. Private Applicator Option

    EPA sought comment on the proposed private applicator ``no-test''
certification option required by FIFRA section 11. There was a concern
raised that it may be difficult for an applicator to obtain the
training necessary to apply for a private applicator certification if
not relying on the State certification. In addition, several commenters
were concerned that the training that pesticide applicators receive
through States does not specifically require applicators to demonstrate
that they are competent to apply pesticides in Indian country. Also,
commenters stated that EPA-approved training should include a
discussion of tribal government, cultural practices, natural resources,
examples of tribal regulations, information about the Web site
identifying Tribes that want to be notified prior to a RUP application,
and other pertinent tribal information.
    The Agency revised the private applicator certification option. For
individuals seeking certification as a private applicator under the
final EPA plan, EPA will exercise its authority contained in 40 CFR
171.11(d)(1) and (e) to issue certifications if the applicator
completes one of two requirements:
    1. The applicator may submit documentation of a current and valid
certification as a private applicator authorized to apply federally
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. The EPA Region also has limited discretion to allow
certification under the plan based on a valid certification from
another nearby State or Tribe that is not directly contiguous to the
area of Indian country at issue.
    2. The applicator may submit documentation of completion of the
online training course provided by EPA. An interim option to use
available State training to obtain private applicator certification in
lieu of a valid certification was developed and included on the
application form for private applicator certification. Since EPA has
developed online training, this option will not be used while the
online training is available.
    EPA did not include in the online training all of the information
relevant to Indian country requested by commenters because of the many
differences among federally recognized Tribes. Rather, EPA indicates
that Tribes may have more stringent requirements and refers applicators
to the relevant Tribe(s) for details.
    a. Length of certification. A private applicator certificate issued
under the first option will expire at the expiration date of the
underlying certificate, unless suspended or revoked. A private
applicator certificate issued under the second option is valid for 4
years.
    b. Renewal/recertification. Applicators may apply to be recertified
through the options listed in the final EPA plan during the 12 months
preceding the expiration of their current certificate.

D. Categories for Sodium Cyanide Capsules Used With Ejector Devices and
Sodium Fluoroacetate Livestock Protection Collars

    While a written comment was not submitted on either of the proposed
plans, several States noted during meetings that they would be
interested in becoming registrants on behalf of a Tribe, if the Tribes
are interested in allowing the sodium cyanide capsules used with
ejector devices or sodium fluoroacetate used in livestock protection
collars to be used within their Indian country. States questioned how
applications of these products will occur if Tribes do not have a
pesticide program and cannot monitor the usage in their Indian country,
making them ineligible to become a registrant.
    States cannot serve as a registrant of these products on behalf of
an Indian Tribe. Under the terms of the registrations for sodium
cyanide capsules used with ejector devices and sodium fluoroacetate
used in livestock protection collars, the registrant of these products
must be able to supervise the use, and enforce against the misuse, of
the product. Since the registrant needs to be able to supervise the use
and enforce against the misuse of the product, it would not be
appropriate for the State to act as a registrant, since States are not
generally approved to administer programs in Indian country under
FIFRA.
    Because a registrant of one of these products must have the ability
to provide a supervisory role in the application of these products and
be able to inspect and enforce against any misapplication of the
product (see the Federal Register of February 10, 1977 (42 FR 8406)),
some Tribes will not have the capacity to serve as a registrant of
these products. If a Tribe is not in a position to serve as the
registrant but would like to allow use of these products, that Tribe
could work with APHIS, which is the only Federal agency that is
currently a registrant of these products. APHIS employees, once
certified under the EPA plan, can apply sodium cyanide capsules used
with ejector devices and sodium fluoroacetate used in livestock
protection collars within the relevant Indian Tribe's Indian country.
EPA expects that an agreement between the Tribe and APHIS that includes
application of sodium cyanide capsules used with ejector devices and
sodium fluoroacetate used in livestock protection collars will be in
effect prior to any application. If another Federal agency were to
become a registrant for one or both of these products, it is likely
there could be a similar arrangement between that Federal agency and a
Tribe seeking applications of these products.

E. Private Applicator Categories

    Several States asked if EPA would allow categories in the Federal
plan for private applicators. EPA clarified that the private applicator
Federal certificate will reflect any categories found in the underlying
certificate used to demonstrate applicator competence. For both private
and commercial certifications, EPA recognizes that underlying
certificates issued pursuant to different State, tribal, and Federal
plans may have different categories, and therefore the categories
recognized by the EPA will not be uniform.

VII. Consultation With Tribal Governments

    Given the absence of an EPA-approved certification program in areas
of Indian country, EPA, consistent with its statutory authorities and
the Federal government's trust responsibility to federally recognized
Tribes, has worked with Tribes on a government-to-government basis to
develop a certification program that will help ensure the protection of
human health and the environment in Indian country. EPA consulted with
Tribes on November 29 and December 13, 2010, to help ensure development
of a Federal

plan that effectively meets their needs and those of RUP applicators in
Indian country. EPA Region 8 also held three formal consultations with
the Tribes in EPA Region 8. In addition to the consultations dedicated
specifically to this EPA plan, EPA has also worked closely with the
TPPC while developing this EPA plan.
    EPA developed the Federal plan in consultation with Tribes
consistent with, among other things, the following policies, orders,
and guidance: ``EPA Policy for the Administration of Environmental
Programs on Indian Reservations,'' November 8, 1984; ``Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy,'' January
17, 2001; Executive Order 13175, ``Consultation and Coordination With
Indian Tribal Governments,'' November 6, 2000, which was reaffirmed by
Presidential memorandum, ``Tribal Consultation,'' November 5, 2009; and
the ``EPA Policy on Consultation and Coordination With Indian Tribes,''
May 4, 2011.

VIII. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C.3501 et
seq.), the information collection activities described in this notice
and the revised Information Collection Request (ICR), OMB Control No.
2070-0029, were approved by the Office of Management and Budget. As
part of this process, EPA proposed 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 PRA,
``burden'' means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose or provide
information to or for a Federal agency. For this collection it includes
the time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information. The
information collection activities and the form are included in a
separate docket. See http://www.regulations.gov, docket ID number EPA-
HQ-OPP-2010-0723.

List of Subjects

    Environmental protection, Business and industry, Education,
Indians-lands, Indians-tribal government, Pesticides and pests.

    Dated: January 31, 2014.
James Jones,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2014-02564 Filed 2-5-14; 8:45 am]
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