EPA Plan for the Federal Certification of Applicators of Restricted Use Pesticides within Indian...

8/13/2019 EPA Plan for the Federal Certification of Applicators of Restricted Use Pesticides within Indian Country

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EPA Plan for the Federal Certification of

Applicators of Restricted Use Pesticides within

Indian Country

November 19, 2013



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Table of Contents

I. Executive Summary......................................................................................................... 3

II. Introduction .................................................................................................................... 3

III. Background ................................................................................................................... 3IV. Definitions .................................................................................................................... 5

V. Applicability of the EPA Plan........................................................................................ 5

VI. Legal Authority............................................................................................................. 5

VII. Lead Agency................................................................................................................ 6

A. Funding and Personnel............................................................................................. 6B. Reporting.................................................................................................................. 6

VIII. Applicator Requirements and Options for Classification and Certification .............. 7

A. Private Applicators................................................................................................... 7

B. Commercial Applicators .......................................................................................... 8IX. Applicator Categories ................................................................................................... 9

X. Certification Procedures............................................................................................... 10

XI. Enforcement of the Plan ............................................................................................. 11

A. Enforcement Authority .......................................................................................... 11B. Pesticide Dealer Reporting Requirements.............................................................. 12C. Inspections.............................................................................................................. 12D. Revocation, Suspension and Modification............................................................. 13E. Penalties.................................................................................................................. 13

XII. Appendices ................................................................................................................ 15



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I. Executive Summary

Under the authority of Section 11(a)(1) of the Federal Insecticide, Fungicide, andRodenticide Act (FIFRA), and in accordance with the regulations found at Title 40 of theCode of Federal Regulations (CFR) Section 171.11, the United States Environmental

Protection Agency (EPA) is implementing a federal pesticide applicator certification plan(EPA plan) for those areas of Indian country1 where no other EPA-approved or EPA-implemented plan applies. This EPA plan describes a program for the certification ofapplicators of restricted use pesticides (RUPs) in Indian country based on the certificationrequirements enumerated at 40 CFR Part 171.

EPA will administer routine maintenance activities associated with implementation ofthis plan, including application processing, database management and recordkeeping, andwill conduct inspections and take enforcement actions as appropriate.

II. Introduction

Under FIFRA, pesticides (or the particular use or uses of a pesticide) that may generallycause, without additional regulatory restrictions, unreasonable adverse effects on theenvironment, including injury to the applicator, shall be classified for “restricted use.” Ifthe classification is made because of hazards to the applicator, the pesticide may only beapplied by or under the direct supervision of a certified applicator. If the classification ismade because of potential unreasonable adverse effects on the environment, the pesticidemay only be applied by or under the direct supervision of a certified applicator or subjectto such other restrictions as the EPA Administrator may provide by regulation. To becertified, an individual must be determined to be competent with respect to the use andhandling of pesticides covered by the certification.

A person becomes a certified applicator through meeting the requirements of acertification plan approved by EPA and that is administered by a pertinent state, tribal,territorial or federal agency, or is implemented by EPA. This certification plan describesthe process for becoming certified to use RUPs within areas of Indian country where noother EPA-approved or EPA-implemented certification plan applies, and how EPA willimplement the plan.

III. Background

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Indian country: As defined at 18 U.S.C. § 1151: (a) all land within the limits of any Indian reservationunder 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, andwhether within or without the limits of a state; and (c) all Indian allotments, the Indian titles to which havenot 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 thisstatutory language, EPA treats lands held by the federal government in trust for Indian tribes that existoutside of formal reservations as informal reservations, and thus as Indian country.



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Among other things, EPA’s regulations under 40 CFR Part 171 provide that:

1) An Indian tribe may develop its own plan for certifying private andcommercial applicators to use or supervise the use of RUPs, subject to theapproval of EPA;

2) If a tribe does not develop its own certification plan, the tribe may choose toutilize a state’s certification program, with the concurrence of that state,subject to the approval of EPA; or

3) EPA can implement a federal plan for the certification of applicators of RUPswhere no other EPA-approved state or tribal applicator certification plan is ineffect.

Four tribes currently have their own certification plans pursuant to 40 CFR § 171.10(a)(2) – the Three Affiliated Tribes of the Fort Berthold Indian Reservation, the Cheyenne River

Sioux Tribe, the Rosebud Sioux Tribe, and the Shoshone-Bannock Tribes of the Fort HallReservation. There is also an EPA federal plan for the Navajo Nation. In addition, EPA isaware of two tribes, the Santee Sioux Tribe of Nebraska and the Prairie Band Potawatomi Nation, that have a Memorandum of Understanding with a state pursuant to 40 CFR §171.10(a)(1). Federal employees with a valid certification issued under an EPA-approvedfederal agency certification plan may also legally apply RUPs in Indian country to theextent approved in that plan as necessary to carry out their agency’s mission. EPA istherefore implementing this plan for the federal certification of applicators of RUPs inareas where there is no EPA-approved state or tribal applicator certification plan in effect.

Since certification plans may change or new plans may be implemented, applicatorsshould determine which plan applies, and the certification requirements, for the area ofIndian country where they intend to apply RUPs. This may involve contacting both theEPA Regional Office and the tribe. Additionally, federal, state and tribal governmentsmay impose different requirements on the purchase and application of RUPs. Applicatorsare encouraged to research these particular requirements to determine how they mayaffect their ability to purchase and apply RUPs, and consider any restrictions orrequirements as they decide if this EPA certification will serve their needs.

EPA consulted with tribes on November 29 and December 13, 2010 to ensuredevelopment of a federal certification plan that effectively meets their needs and those ofRUP applicators in Indian country. In addition, Region 8 held three formal consultationswith the tribes located in Region 8. During the consultations, several issues werediscussed, such as the desire for notifying tribes prior to RUP use, the need to ensure thecompetency of private applicators, and the possibility of an opt-out provision in the EPA plan. EPA sought comment on these specific issues during the public comment period forthe proposed plan.

Additional concerns raised during the consultation were that EPA respect tribalsovereignty, not require unfunded mandates, and provide adequate enforcement to ensure



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RUPs are used legally and safely. On April 20, 2011, EPA announced a comment periodon a proposed EPA plan for Region 8 Indian country; the comment period closed on June6, 2011. On May 18, 2011, EPA announced a comment period on the proposed EPA planfor other areas of Indian country; that comment period closed on July 5, 2011.

Because of the similarities with the two plans, and the similar timing for implementation,EPA decided to merge the two plans into one. EPA believes that the final EPA planaddresses all of the concerns raised during the consultations and public comment periodsfor both plans. EPA intends to continue consulting with tribes, as appropriate, whoseIndian country is subject to this federal plan regarding the use of RUPs in their areas.

Therefore, in accordance with 40 CFR § 171.11, EPA will implement this plan for thefederal certification of applicators of RUPs in Indian country where no other EPA-approved or EPA-implemented plan applies. Implementation of this EPA certification plan will 1) provide a mechanism by which individuals can become legally 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 applicator adheres tocertification requirements.

IV. Definitions

See Appendix A for relevant definitions.

V. Applicability of the EPA Plan

EPA will implement this plan 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(a) for their areasof Indian country, including seeking EPA approval of tribal plans 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(a), once approved by EPA,would replace this EPA plan for the relevant area of Indian country. Additionally, sometribes may choose to further restrict or prohibit the use of RUPs in their areas through theimplementation of tribal codes, laws, regulations or other applicable requirements. ThisEPA plan does not supersede such tribal requirements. Applicators of RUPs in Indiancountry should take steps to determine if there are additional tribal requirements theymust follow.

EPA is currently considering revising the federal applicator certification regulations. EPAwill revisit this plan if/when the regulation revisions are finalized to modify this plan if necessary to comply with any new requirements.

VI. Legal Authority



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EPA will implement this plan under FIFRA section 11(a)(1), 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 plan.

Additional enforcement authorities are contained in Sections 8, 9, 13, 14, and 23 ofFIFRA. Also see the FIFRA Enforcement Response Policy athttp://www2.epa.gov/sites/production/files/documents/fifra-erp1209.pdf .

VII. Lead Agency

EPA will administer this EPA plan for RUP applicators in Indian country.

o EPA Regions will administer routine maintenance activities, including

application processing, database management, recordkeeping and programoversight. The EPA Regions are also authorized to certify applicatorsconsistent with this plan and conduct general outreach.

o EPA Regions will also conduct inspections as appropriate and takeenforcement action under the FIFRA Enforcement Response Policy, asappropriate.

o EPA Office of General Counsel, Office of Enforcement and Compliance

Assurance, and Office of Regional Counsel will provide legal assistance, asappropriate.

o EPA Office of Pesticide Programs will maintain an EPA website with a list of private and commercial applicators that have received a federal certificationunder this EPA plan, develop the annual report, and conduct general outreach.

A. Funding and Personnel

EPA has adequate resources to implement the EPA plan in Indian country consistentwith 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 with therequirements at 40 CFR Part 171. EPA will make the plan publicly available at EPA’sCertification and Training database website: http://cpard.wsu.edu/ and athttp://www2.epa.gov/pesticide-applicator-certification-indian-country. EPA willupdate the plan as necessary. EPA will submit annual certification accomplishmentreporting by December 31st of each calendar year through EPA’s Certification andTraining database website: http://cpard.wsu.edu .



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VIII. Applicator Requirements and Options for Classification and Certification

Under this EPA plan, EPA will implement a program for the certification of private andcommercial applicators to apply RUPs in those areas of Indian country where no EPA-

approved or EPA-implemented plan exists.

A. Private Applicators

For individuals seeking certification as a private applicator under the EPA plan, EPAwill exercise its authority contained in 40 CFR §§ 171.11(d) & (e) to issuecertifications if the applicator either:

(1) Submits documentation, such as a photocopy of the certificate, ofcertification as a private applicator authorized to apply federallydesignated RUPs through a federal plan or an EPA-approved state or

tribal plan with a contiguous boundary to the relevant area of Indiancountry. 2 Under this option , EPA may issue federal certificates to personswho are certified as private applicators for the same category(ies), ifapplicable, listed in the underlying federal, tribal, or state certificate(except for sodium cyanide capsules and sodium fluoroacetate used inlivestock protection collars categories; see part IX. Applicator Categoriesof this plan for more information on these categories).

If state or tribal certification is generally not available to applicatorsintending to obtain federal certification, then the EPA Region may accepta state or tribal certification from another state or tribe that EPAdetermines has similar use conditions, patterns and pest pressures and hasstandards of competency that are sufficient to justify waiving furtherdemonstration of competency.

If the applicator intends to apply in multiple areas of Indian country thatare not contiguous to the same state or tribe, the applicator will need tosubmit an underlying certificate for each state or tribe contiguous to thedifferent areas of Indian country.

Or

(2) Submits documentation of completion of the on-line training course provided by EPA. While EPA developed the on-line training course, theAgency anticipated that the following interim training option would beneeded:In the interim while EPA is developing the course, private applicators can pursue this option by submitting documentation of completion of

2 The area of Indian country where the applicator intends to apply must be within, or the border must betouching, the state or tribe that issued the underlying federal, tribal or state certificate.



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coursework or training that covers the general standards of competencyoutlined in 40 CFR 171.5 and 40 CFR 171.6. These standards include practical knowledge of pest problems and pest control practices associatedwith agricultural operations; proper storage, use, handling and disposal ofthe pesticides and containers; related legal responsibility; and practical

knowledge of Federal supervisory requirements, including labeling,regarding the application of restricted use pesticides by noncertifiedapplicators. Courses that cover the material outlined in 40 CFR 171.4(b)are also appropriate because they overlap with the material described in40 CFR 171.5 and 40 CFR 171.6. For those taking the state training in theinterim, EPA expects that this training will take an applicator at least 8 to16 hours to adequately attain the knowledge necessary to apply restricteduse pesticides. All courses used for this certification must be state-approved from states that have Administrator-approved certification plans, or otherwise approved by the Administrator. Training must becompleted within the two years prior to certification. A false statement in

this certification, including regarding the completion of training, may begrounds for denial of certification and may be punishable by fine orimprisonment (U.S. Code, Title 18, Section 1001).

However, EPA has developed the online training, and while it is available,will not be using the interim option described both in this plan and on theapplication form.

Length of certification: A private applicator certificate issued under SectionVIII(A)(1) of this plan expires at the expiration date of the underlying certificate,unless the certificate is suspended or revoked. A private applicator certificateissued under Section VIII(A)(2) of this plan is valid for four years.

Renewal/recertification: Applicators may apply to be recertified through theoptions 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 EPA plan,EPA will utilize authority contained in 40 CFR § 171.11(e) to issue certification asdescribed below if the applicator:

Submits documentation, such as a photocopy of the certificate, ofcertification as a commercial applicator authorized to apply federallydesignated RUPs under any other EPA-approved federal agency plan, orEPA-approved state or tribal plan with a contiguous boundary to therelevant area of Indian country. Under this option , EPA may issue federalcommercial certificates to persons who are certified as commercialapplicators for the same category(ies) listed in their underlying certificate



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(except for sodium cyanide capsules and sodium fluoroacetate used inlivestock protection collars categories; see part IX. Applicator Categoriesof this plan for more information on these categories).

If state or tribal certification is generally not available to applicators

intending to obtain federal certification, then the Region may accept astate or tribal certification from another state or tribe that EPA determineshas similar use conditions, patterns, and pest pressures and has standardsof competency that are sufficient to justify waiving further demonstrationof competency.

If the applicator intends to apply in multiple areas of Indian country thatare not contiguous to the same state or tribe, the applicator will need tosubmit an underlying certificate for each state or tribe contiguous to thedifferent areas of Indian country.

Length of certification: Under 40 CFR § 171.11(e), a commercial applicatorcertificate expires at the expiration date of the underlying certificate, unless thecertificate is suspended or revoked.

Renewal/recertification: Applicators may apply to be recertified through theoptions listed in Section VIII (B) of this plan during the 12 months preceding theexpiration of their current certificate.

IX. Applicator Categories

EPA will recognize the applicator categories authorized in the underlying state, tribal, orother certificate. Underlying certificates from different states, tribes or federal agenciesmay have different applicator categories and will be reflected in the certificate issuedunder the EPA plan. Applicators will be authorized to apply RUPs in Indian countryunder those categories, except for the following:

For sodium cyanide capsules used with ejector devices for livestock predator control, ause restriction requires that supervisors of applicators monitor the applicators of those products. As stated on the labels, the supervisors are the registrants, which may be federalagencies, state agencies or Indian tribes. No Indian tribe currently has a registration forsodium cyanide capsules used with ejector devices.

Registrations for sodium fluoroacetate used in livestock protection collars are currentlylimited to one federal agency; to state agencies in Montana, New Mexico, South Dakotaand Wyoming; and to a private entity whose registered product may only be used inTexas. No Indian tribe currently has a registration for sodium fluoroacetate used inlivestock protection collars.

Under this EPA plan, a federal certificate will only include a sodium cyanide capsulecategory or sodium fluoroacetate livestock protection collar category under two



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scenarios. First, if the relevant Indian tribe for the area of Indian country at issue hasobtained its own registration for the product and conducts its own monitoring andsupervision, applicators with a valid underlying certificate for the category may apply toreceive the category for the area of Indian country at issue. Second, EPA may issuefederal certifications for one or both of these products to federal employees whose

agencies are a registrant for sodium cyanide capsules used with ejector devices or sodiumfluoroacetate used in livestock protection collars if those employees have a validunderlying certificate for these categories. The U.S Department of Agriculture’s Animaland Plant Health Inspection Service is currently the only federal agency that is aregistrant. EPA expects that APHIS, or another federal agency, will have an agreementwith the tribe to apply these pesticides prior to any applications of these pesticides in a particular area of Indian country.

X. Certification Procedures

Persons seeking certification as a commercial applicator to apply RUPs in Indian country

must submit to EPA, at one of the addresses noted below, a completed “PesticideApplicator Certification Form,” EPA Form 7100-01 (Appendix B), along with proof(copy of certificate, credential, license or other documentation) of a valid federal, state, ortribal certification that authorizes the use of RUPs. Individuals seeking to be certified as private applicators must submit a completed “Pesticide Applicator Certification Form,”EPA Form 7100-01 (Appendix B), with either (1) proof (copy of certificate, credential,license or other documentation) of a valid federal, state, or tribal certification authorizingthe use of RUPs; or (2) documentation showing they have completed the requiredtraining as described in Section VIII.A.2. A false statement in this certification, includingregarding the completion of training, may be grounds for denial of certification and may be punishable by fine or imprisonment (U.S. Code, Title 18, Section 1001).

The Pesticide Applicator Certification Form can be downloaded fromhttp://www2.epa.gov/pesticide-applicator-certification-indian-country or may be obtained by contacting the pesticide program in the appropriate EPA Regional office directly.

Region Address

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Federal Plan Coordinator Toxics and Pesticide UnitPesticides Program (OES05-4)U.S. EPA - New England, Region 15 Post Office Sq, Suite 100

Boston, MA 02109-3912

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U.S. Environmental Protection Agency, Region 2Pesticides Team

Attn: Pesticide Certification Training Coordinator

2890 Woodbridge Avenue

MS-500

Edison, New Jersey 08837

3 No Federally Recognized Tribes

4 Federal Tribal Plan Coordinator



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USEPA Region 4 - Pesticides Section61 Forsyth Street SWSNAFC - 12th Floor Atlanta, GA 30303

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Federal Pesticide Applicator Certification Program

U.S. EPA

Land and Chemicals Division, CMB77 W. Jackson Blvd. LC-8J

Chicago, IL 60604

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Federal Pesticide Applicator Certification Program

U.S. Environmental Protection Agency

1445 Ross Avenue, Suite 1200

Pesticides Section (6PD-P)

Dallas, Texas 75202-2722

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Pesticide Applicator Certification Coordinator

U.S. Environmental Protection Agency - Region 7

WWPD/TOPE/PEST

901 N. 5th StKansas City, KS 66101

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US EPA, Region 8

Attn: Region 8 Certification

1595 Wynkoop St, 8P-P3T

Denver, CO 80202

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Federal Plan Coordinator

Pesticides Office (CED-5)

U.S. EPA Region IX

75 Hawthorne St.

San Francisco, CA 94105-3901

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Federal Pesticide Applicator Certification ProgramPesticides & Toxics Unit

US EPA, Region 10

1200 Sixth Ave, Ste. 900, OCE-084

Seattle, WA 98101

XI. Enforcement of the Plan

A. Enforcement Authority

EPA will, as appropriate, enforce this plan. States, tribes and other federal agencies

that issued a certification upon which the federal certification described herein is based are not approved or authorized by EPA to assure compliance in Indian countrywith the federal certification provided by this plan.

EPA has the authority to take action, as appropriate, to ensure that RUPs are used inIndian country in accordance with their EPA-registered labeling and to ensure RUPsare only used by applicators certified under this EPA plan in areas where it applies.EPA will also ensure that pesticide applicators and dealers comply with the



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requirements of FIFRA and the implementing regulations, including provisions ofthis EPA plan specified in 40 CFR § 171.11, in Indian country. For example, 40 CFR§ 171.11(c)(7) requires that commercial applicators maintain records.

During the six-month period after publication of this final plan, EPA will allow

applicators to apply RUPs under the plan in Indian country only for the categories forwhich they already have a valid state, tribal or federal certificate3 if they submit acomplete application to the relevant EPA Region showing proof of a valid state, tribalor federal certification.4

Beginning six months after publication of the final plan, applicators who are coveredunder this plan and have not received a written federal certification from the relevantEPA Region are prohibited from applying RUPs in Indian country located in thatRegion.

B. Pesticide Dealer Reporting Requirements

Each RUP dealer in Indian country where this EPA plan applies must keep recordsand submit reports to EPA as set forth in 40 CFR § 171.11(g). Under 40 CFR §171.11(g)(1), the dealer must report the business name by which the RUP retail dealeroperates, and the name and business address of each dealership. To comply with thesereporting requirements, all pesticide dealers and pesticide dealerships located withinIndian country covered by this plan must send such reports to the appropriate EPARegional office. See Section X for the addresses.5 The reports must be submittedwithin 60 days of the effective date of this plan or within 60 days after the person first becomes an RUP retail dealer.

As described in 40 CFR § 171.11(g)(2), the dealer must maintain records of RUPtransactions.

C. Inspections

EPA will enforce this EPA plan by conducting inspections, as appropriate, of RUPdealers and certified applicators in Indian country to ensure that RUP dealers aremaintaining the required records, are making RUPs available for use in accordancewith 40 CFR §171.11(g), and that applicators are certified in accordance with this plan. When a tribal inspector conducts an inspection under federal credentials under acooperative agreement with EPA, violations are referred to EPA for enforcementaction, as appropriate.

3 Please see Section IX for commercial applicator categories recognized under the Plan, as there areexceptions for sodium cyanide capsules used with ejector devices and sodium fluoroacetate used inlivestock protection collars. These exceptions will also apply during the six-month period after publicationof the final plan.4 Although predicated in part on the applicator's existing valid certification, any use permitted under this plan is allowed by, and will be enforced only under, federal authority.5 The addresses listed at 40 CFR 171.11(g)(1) are out of date.



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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. §136i-1(b), and 40 CFR §§ 171.11(g)(3) and (c)(7). Federally credentialed EPA ortribal 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 by the FIFRA Enforcement Response Policy(http://www2.epa.gov/sites/production/files/documents/fifra-erp1209.pdf ) and asconsistent with other EPA policies.

D. Revocation, Suspension and Modification

EPA may, if appropriate, deny, modify, suspend or revoke a certificate, or take anenforcement action under FIFRA if the applicant or certificate holder has beenconvicted under section 14(b) of FIFRA or been subject to a final order imposing acivil penalty under section 14(a) of FIFRA, or where any of the following acts listedin 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 amendedFIFRA 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 comply with any limitations or restrictions on or in a duly issued

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, suspendor modify a certificate if the federal, state or tribal certificate upon which it is based isrevoked, 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 ResponsePolicy and 40 CFR § 171.11(f)(2)(i), and (2) the agency that issued the underlyingcertificate upon which the federal certificate was based, if necessary. If the applicantor certificate holder requests a hearing pursuant to 40 CFR § 171.11(f)(2)(ii), EPAwill follow the hearing process contained in 40 CFR § 171.11(f)(3) & (4).

E. Penalties

Under Section 14 of FIFRA, 7 U.S.C. § 136l , as amended by the Federal CivilPenalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461 and the Debt CollectionImprovement Act of 1996, 31 U.S.C. § 3701, EPA has the authority to assess bothcivil and criminal penalties for violations of FIFRA. Commercial applicators,wholesalers, dealers, retailers or other distributors can be assessed a fine of up to a



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$7,500 for each offense as civil penalties and up to $25,000 or imprisonment, for notmore than one year, or both, for each offense as criminal penalties. Privateapplicators, subsequent to receiving a written warning, can be assessed a civil penaltyup to $1,100, or a criminal penalty of not more than a $1,000 fine and/orimprisonment, for not more than thirty (30) days, for each offense. EPA’s

enforcement actions are conducted consistent with applicable EPA enforcement andtribal policies and guidance.



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XII. Appendices

Appendix A. Definitions

Certification:

The term certification means the recognition by a certifying agency that a person iscompetent and thus authorized to use, or supervise the use of, RUPs. 40 CFR171.2(a)(7)

Commercial applicator:The term ‘‘commercial applicator’’ means an applicator (whether or not theapplicator is a private applicator with respect to some uses) who uses, or supervisesthe use of, any pesticide which is classified for restricted use for any purpose or onany 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 reservationunder the jurisdiction of the United States Government, notwithstanding the issuanceof any patent, and, including rights-of-way running through the reservation; (b) alldependent Indian communities within the borders of the United States whether withinthe original or subsequently acquired territory thereof, and whether within or withoutthe limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Consistent withthe statutory definition of Indian country, as well as federal case law interpreting thisstatutory language, EPA treats lands held by the federal government in trust forIndian tribes that exist outside of formal reservations as informal reservations, andthus as Indian country.

Pesticide:

The term ‘‘pesticide’’ means (1) any substance or mixture of substances intended for preventing, destroying, repel-ling, or mitigating any pest, (2) any substance ormixture of sub-stances intended for use as a plant regulator, defoliant, or desiccant,and (3) any nitrogen stabilizer, except that the term ‘‘pesticide’’ shall not include anyarticle that is a ‘‘new animal drug’’ within the meaning of section 201(w) of theFederal 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 by aregulation establishing conditions of use for the article, or that is an animal feedwithin the meaning of section 201(x) of such Act (21 U.S.C. 321(x)) bearing orcontaining a new animal drug. The term ‘‘pesticide’’ does not include liquid chemicalsterilant 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 theFederal Food, Drug, and Cosmetic Act (21 U.S.C. 321). For purposes of the preceding sentence, the term ‘‘critical device’’ includes any device which isintroduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term ‘‘semi-critical de-



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vice’’ includes any device which contacts intact mucous membranes but which doesnot ordinarily penetrate the blood barrier or other-wise enter normally sterile areas ofthe body. FIFRA 2(u)

Private applicator:

The term ‘‘private applicator’’ means a certified applicator who uses, or supervisesthe use of, any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicatoror the applicator’s employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property ofanother person. FIFRA 2(e)(2)

Restricted use pesticide (RUP):A pesticide that is classified for restricted use under the provisions of section3(d)(1)(C) of FIFRA.



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Appendix B

Pesticide Applicator Certification Form



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INSTRUCTIONS FOR COMPLETING EPA FORM 7100-01

PAPERWORK REDUCTION ACT NOTICE

This form is to be used to request certification to purchase and apply Restricted Use Pesticides inIndian Country from the U.S. Environmental Protection Agency.

1. Fill out all of the information. An email address is requested but is not required.

Phone number listed should be one at which you can be reached during business

hours. The address should be your business address, if applicable, for commercial

applicators since this information will be posted to EPA's website.

2. Enter your birth date using the numerical month-month-date-date-year-year

format.

3. Enter your EPA Federal Applicator Identification number if this is a renewal or

request for a replacement card.

4. Certificate Type: Check appropriate box. If this is your first application for apesticide applicator certification in Indian Country, check “Initial Certificate”. If

contact information submitted on a previous form is erroneous or outdated, please

use the “Replacement (Lost Card)” option.

5. Applicator Type: Check “Private Applicator” ONLY if you will be or are applying

pesticides for production of an agricultural commodity on property owned or rented

by you or your employer. All other applicators check “Commercial Applicator”. There

is no “noncommercial” or “public” federal applicator type.

6. Certification Method: In most cases you will check “Requesting federal certificate

based on valid federal, state or tribal certificate or license”.

6a. Enter the two character state for which you hold a valid certificate/license, if applicable, theapplicator number for your existing certificate, and expiration date. Enter the code for thecategory or categories for which you are currently certified/licensed. Attach a photocopy of both

sides of your current and valid federal, state or tribal certification or license. The underlyingcertificate needs to come from a state or tribe that shares a contiguous boundary with the area ofIndian country in which you intend to apply RUPs.

6b. If you do not hold a valid federal, state or tribal applicator certificate and you are applying to be a private applicator, you may be certified after submitting documentation of completion of theon-line training course provided by EPA. However, in the interim while EPA is developing thecourse, private applicators can pursue this option by submitting documentation of completion ofcoursework or training that covers the general standards of competency outlined in 40 CFR 171.5and 40 CFR 171.6. These standards include practical knowledge of pest problems and pestcontrol practices associated with agricultural operations; proper storage, use, handling anddisposal of the pesticides and containers; related legal responsibility; and practical knowledge ofFederal supervisory requirements, including labeling, regarding the application of restricted use pesticides by noncertified applicators. Courses that cover the material outlined in 40 CFR171.4(b) are also appropriate because they overlap with the material described in 40 CFR 171.5and 40 CFR 171.6. For those taking the state training in the interim, EPA expects that this



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training will take an applicator at least 8 to 16 hours to adequately attain the knowledge necessaryto apply restricted use pesticides. All courses used for this certification must be state-approvedfrom states that have Administrator-approved certification plans, or otherwise approved by theAdministrator. Training must be completed within the two years prior to certification. A falsestatement in this certification, including regarding the completion of training, may be grounds fordenial of certification and may be punishable by fine or imprisonment (U.S. Code, Title 18,

Section 1001).

If you have questions about what courses are applicable, please contact the appropriate

Regional office (see addresses on page 3). To determine the appropriate Regional office, seehttp://www.epa.gov/epahome/whereyoulive.htm. Include documentation of completion of the

required training course(s).

To apply for recertification, complete one of the options described above during the 12 months preceding the expiration of your current certificate.

7. Sign and date the application and mail the application with a photocopy of both sides of yourexisting federal, state, or tribal pesticide applicator certificate/license (if you are requesting

certification based on a federal, state, or tribal certification) to the appropriate Regional office(see addresses on pages 2 and 3). To determine the appropriate Regional office, seehttp://www.epa.gov/epahome/whereyoulive.htm

Paperwork Reduction Act Notice: The public reporting burden for respondents

completing this form is estimated to average about 10 minutes per response. Send

comments (referencing OMB Control Number 2070-0029 and EPA Form 7100-01)

about the burden estimate or any other aspect of this collection of information,

including suggestions for reducing the burden to: Director, Collection Strategies

Division (2822T), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave.,

N.W., Washington, D.C. 20460. Do not send your completed application form to this

address.

Privacy Act Statement: Title 7 United States Code, section 136i(a)(1) authorizes the collectionof this information. The primary use of this information is to identify persons certified by EPAunder the Agency’s federal certification plan which administers and oversees certification ofapplicators of restricted use pesticides. Disclosures of this information may be made pursuant to published routine uses, including to appropriate agencies for law enforcement purposes and to anEPA website for information purposes. Providing the requested information is voluntary, butfailing to do so may result in EPA’s inability to approve your request to become, or maintain yourstatus as, a certified applicator of restricted use pesticides. For a full description of this systemnotice, including routine uses, see EPA-59 [77 FR 2060; January 12, 2012].

EPA Plan for the Federal Certification of Applicators of Restricted Use Pesticides within Indian...

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