Federal Plan for Certification of Restricted Use Pesticide Applicators in Navajo Indian Country, 5838-5843 [E6-1511]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 23 (Friday, February 3, 2006)]
[Notices]
[Pages 5838-5843]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-1511]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2004-0262; FRL-7682-4]


Federal Plan for Certification of Restricted Use Pesticide 
Applicators in Navajo Indian Country

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 Navajo Indian 
Country. The program will be administered by EPA Region 9 located in 
San Francisco, CA. EPA is soliciting comments on EPA's intent to 
implement a federal certification program in Navajo Indian Country and 
on its proposed Federal Plan for Certification of Restricted Use 
Pesticide Applicators in Navajo Indian Country (federal plan).

DATES: Written comments, identified by docket identification (ID) 
number EPA-HQ-OPP-2004-0262, must be received on or beforeMarch 6, 
2006.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2004-0262, by one of the following methods:
     https://www.regulations.gov/. Follow the on-line 
instructions for submitting comments.
     E-mail: opp.ncic@epa.gov.
     Mail: Public Information and Records Integrity Branch 
(PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001.
     Hand Delivery: Public Information and Records Integrity 
Branch (PIRIB) (7502C), Office of Pesticide Programs (OPP), 
Environmental Protection Agency, Rm. 119, Crystal Mall 2, 1801 
S. Bell St., Arlington, VA, Attention: Docket ID number EPA-HQ-OPP-
2004-0262. The docket facility is open from 8:30 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
docket facility is (703) 305-5805. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2004-0262. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available on-line 
athttps://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 www.regulations.gov 
or e-mail. The www.regulations.gov website 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 
www.regulations.gov, your e-mail address will be captured automatically 
and included as part of the comment that is placed in the public 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. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at https://www.epa.gov/epahome/
docket.htm/.
    Docket: All documents in the docket are listed in the 
www.regulation.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Public Information and 
Records Integrity Branch (PIRIB) (7502C), Office of Pesticide Programs 
(OPP), Environmental Protection Agency, Rm. 119, Crystal Mall 
2, 1801 S. Bell St., Arlington, VA. The docket facility is 
open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the docket facility is (703) 305-
5805.

FOR FURTHER INFORMATION CONTACT: Laurie Amaro, Environmental Protection 
Agency, Region 9, 75 Hawthorne St. (CED-5), San Francisco, CA 94105-
3901; telephone number: (415) 947-4212; e-mail address: 
amaro.laurie@epa.gov.

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 Navajo Indian Country. This action may, however, be of interest 
to those involved in agriculture, and anyone involved with the 
distribution and application of pesticides. 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. How Can I Get Copies of the Federal Plan, Other Related Documents, 
and Additional Information?

    You may view copies of the federal plan, other related documents, 
or request additional information by contacting:
    1. By mail: Laurie Amaro at the address listed under FOR FURTHER 
INFORMATION CONTACT.
    Michelle Devaux, Field and External Affairs Division (7506C), 
Office of Pesticide Programs, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 
(703) 305-7666; e-mail: devaux.michelle@epa.gov.
    2. In person. Copies of the entire EPA Plan for the Certification 
of Pesticide Applicators in Navajo Indian Country, together with all 
attached appendices, may be examined at the following locations during 
normal business hours:
    i. United States Environmental Protection Agency, Region 9 Library, 
75 Hawthorne St., San Francisco, CA 94105. Contact: Region 9 Library, 
telephone number: (415) 947-4406, e-mail: library-region9@epa.gov.

[[Page 5839]]

    ii. Navajo Nation Pesticide Regulatory Program, Navajo Nation 
Environmental Protection Agency, P.O. Box 529, Fort Defiance, AZ 86504. 
Contact: Glenna Lee, telephone number: (928) 871-7815, e-
mail:glennalee@yahoo.com.

C. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
EDOCKET, 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 rulemaking 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, obscene language, or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline.

II. 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.'' A restricted use pesticide is 
defined as one which ``may generally cause, . . . unreasonable adverse 
effects on the environment, including injury to the applicator,'' 
unless it is subject to additional regulatory restrictions beyond 
labeling requirements. Section 3(d)(1)(C), 7 U.S.C. 136a(d)(1)(C). To 
help prevent such adverse effects, restricted use pesticides may only 
be applied by a certified applicator or someone acting under the direct 
supervision of a certified applicator. 7 U.S.C. 136a(d)(1)(C), 
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)(1).
    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 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.
    The Navajo Nation is in the process of determining the best 
approach to implementing a Tribal certification plan. The Navajo Nation 
Tribal Government has consulted with EPA regarding implementation of a 
federal certification plan that provides for federal certification 
based on other EPA-approved certification plans pursuant to 40 CFR 
171.11 until such time as an EPA-approved certification plan is in 
place for Navajo Indian Country. Consistent with FIFRA, EPA 
regulations, and ``EPA Policy for the Administration of Environmental 
Programs on Indian Reservations,'' November 8, 1984, EPA intends to 
implement such a federal plan as summarized in this notice.
    The primary mechanism for certifying applicators will be the use of 
the reciprocity provision of 40 CFR part 171.11(e). This provision 
allows EPA to issue a federal certificate to an individual possessing 
any other valid State or Tribal certificate without further 
demonstration of competency. Thus, where appropriate, EPA will issue 
federal certificates where the standards of competency for the other 
State or Tribal certificate are sufficiently comparable to the 
requirements in 40 CFR part 171 to justify waiving further 
demonstration of competency.
    As explained below, EPA will use in the federal plan the 10 
commercial applicator categories set forth in 40 CFR 171.3(b). In 
addition, EPA adopts in the federal plan five additional categories of 
commercial applicators designated by the State of Utah; and seven 
subcategories of commercial applicators used by the States of Arizona 
and Utah. EPA has determined that all the standards of competency for 
private applicators, and for all of the commercial applicator 
categories and subcategories in Arizona's and Utah's plans meet the 
federal requirements.

B. What is the Statutory Authority for this Plan?

    The plan will be implemented under the authority of sections 
11(a)(1) and 23 FIFRA, as amended by the Food Quality Protection Act of 
August 3, 1996, and regulations in 40 CFR 171.1-171.11. Additional 
enforcement authorities are found in sections 8, 9, and 12 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, 
that is associated with the Navajo Nation. ``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 not 
been extinguished, including rights-of-way running through the same.

Under this definition, EPA treats as reservations trust lands validly 
set aside for the use of a Tribe even if the trust lands have not been 
formally designated as a reservation.
    Indian Country associated with the Navajo Nation includes, but is 
not limited to:
     Land within the exterior boundaries of the formal Navajo 
Indian Reservation, including the three satellite Reservations of 
Alamo, Canoncito, and Ramah, but excluding areas of Indian

[[Page 5840]]

Country associated with the Hopi Tribe; and
     Lands in the Eastern Navajo Agency that are held in trust 
by the United States government for the use of the Navajo Nation or for 
the benefit of individual members of the Navajo Nation or that are 
dependent Indian communities.
    Today's announcement reflects where EPA intends to directly 
implement its federal certification plan, and is not a determination as 
to where the Navajo Nation would have the authority to implement a 
certification plan under FIFRA. The scope of the Navajo Nation's 
authority to implement such a certification plan would be addressed if, 
and when, the Tribe applies for approval of a Tribal certification 
program.
    2. General information. EPA, via Region 9, San Francisco, CA 
(hereinafter Region 9), will be the lead agency for the administration 
of the plan in Navajo Indian Country. EPA has legal authority to 
conduct this plan. See Unit II.B.
    Region 9 has adequate resources to implement a certification plan 
in Navajo Indian Country which is consistent with the requirements of 
FIFRA and regulations at 40 CFR part 171. These resources include 
funding, database systems, and staff. Region 9 personnel, including the 
Certification and Training Program Manager, the Tribal Project Officer, 
the Tribal Enforcement Liaison, and administrative staff, will be 
responsible for the maintenance of the federal certification program in 
Navajo Indian Country. Program maintenance activities include 
application processing, database management, recordkeeping, enforcement 
and oversight of the Navajo Nation's inspection program.
    Region 9 will prepare an annual report on or before March 31 of 
each year. Copies of this report will be made available to the Navajo 
Nation EPA, and the U.S. EPA's Office of Pesticide Programs. Copies of 
this report will be available on the EPA Internet website and in hard 
copy for public inspection from 9 a.m. to 4 p.m., Monday through 
Friday, excluding federal holidays at the Environmental Protection 
Agency, Region 9 Library, 75 Hawthorne St., San Francisco, CA 94105-
3901.
    Region 9 estimates that approximately 45 commercial applicators and 
5 private applicators will need to be certified in Navajo Indian 
Country. Qualified commercial and private applicators will be issued 
federal certificates.
    3. Legal framework for the plan. The certification and training 
requirements are not self-implementing. Rather, a prospective 
applicator of a restricted use pesticide can only become certified if a 
certification and training program has been approved by EPA for the 
area in which he or she seeks to apply the pesticide. Among other 
things, EPA regulations, provide for implementation of the 
certification and training programs in Indian Country in the following 
ways.
    i. The Tribe may develop its own plan for certifying applicators 
and submit the plan, through the U.S. Department of the Interior, to 
EPA for approval.
    ii. The Tribe may choose to utilize a State certification program 
in which case it should enter into a cooperative agreement with the 
State which shall be incorporated into the State plan and forwarded to 
EPA for approval.
    iii. EPA may implement a federal certification and training program 
where there is no approved plan in effect. See 40 CFR 171.10 and 
171.11. As discussed above, EPA intends to implement a federal 
certification and training program in Navajo Indian Country.
    There are two types of applicators of restricted use pesticides: 
private and commercial. A ``private applicator'' is defined as:

    A certified applicator who uses or supervises the use of any 
pesticide which is classified for restricted use for purposes of 
producing an agricultural commodity on property owned or rented by 
the applicator or the applicator's employer or (if applied without 
compensation other than trading of personal services between 
producers of agricultural commodities) on the property of another 
person. 7 U.S.C. 136(e)(2).

    A ``commercial applicator'' is defined as:

    An applicator (whether or not the applicator is a private 
applicator with respect to some uses) who uses or supervises the use 
of any pesticide which is classified for restricted use for any 
purpose or on any property'' other than as set forth in the 
definition of a private applicator. 7 U.S.C. 136(e)(3).

    Where EPA, as opposed to a Tribe or a State, implements a 
certification and training program, both FIFRA and the regulations 
require that EPA offer private applicators an option to be certified 
without taking an examination. See 7 U.S.C. 136i(a)(1), 40 CFR 
171.11(d)(1).
    Because Utah and Arizona do not offer private applicators an option 
to be certified without taking an examination, EPA, as discussed below, 
will offer a ``non-exam'' option to private applicators.
    4. Commercial applicators. For individuals seeking certification as 
commercial applicators under the federal certification program in 
Navajo Indian Country, EPA will utilize the authority contained at 40 
CFR 171.11(e). This section of the regulation permits EPA to issue a 
federal certificate based upon the pesticide applicator holding a valid 
certificate issued under any other EPA-approved program without further 
demonstrating competency. However, under this provision, the Agency may 
deny issuance of such certificate if the standards of competency for 
each category or subcategory of commercial applicator identified in the 
other State or Tribal certificate are not sufficiently comparable to 
the federal requirements to justify waiving further demonstration of 
competency.
    i. Categories and subcategories of commercial applicators used in 
Navajo Indian Country federal plan. EPA regulations set forth a system 
of categorizing commercial applicators by occupation. Specifically, the 
regulations establish 10 categories that are intended to encompass the 
spectrum of commercial applicators. 40 CFR 171.3(b). In addition to 
setting general standards of competency that are applicable to all 
commercial applicators, the regulations set forth category-specific 
standards that require differing levels of capability depending on, 
among other things, the nature of the activity and the potential hazard 
posed by the pesticide. 40 CFR 171.4. Certificates may only be issued 
to commercial applicators who have demonstrated competency by passing a 
written examination, and where appropriate, a performance test.
    Region 9 will use the commercial applicator categories as outlined 
at 40 CFR 171.3(b), all of which have been adopted by the States of 
Arizona and Utah, as well as five other categories designated by the 
State of Utah which include: Aerial Application Pest Control, 
Vertebrate Animal Pest Control, Fumigation/Stored Commodities Pest 
Control, Wood Preservation Pest Control, and Wood-Destroying Organisms 
Pest Control.
    In addition, Region 9 has reviewed the subcategories of commercial 
applicators currently in use by these two States. These subcategories 
are: From Arizona, General Pest Control; Termites and Wood-destroying 
Pests; Wood Products Preservation; Fumigation; Weed Control; M-44 Pest 
Control; and Rodent Pest Control and from Utah, Surface Water and Sewer 
Root. Based on consultation with the Navajo Nation Pesticide Program, 
these subcategories of commercial applicators meet the needs in Navajo 
Indian Country, and adopts them per 40 CFR 171.11(c)(2). No other 
additional major categories or subcategories will be used

[[Page 5841]]

in Navajo Indian Country at the present time.
    However, EPA may deem other categories or subcategories of 
commercial applicators necessary in the future, consonant with the 
needs of the Navajo Nation and applicators in Navajo Indian Country, as 
provided in 40 CFR 171.11(c).
    ii. Submitting evidence of certification as a commercial applicator 
authorized to apply federally designated restricted use pesticides in 
Arizona or Utah. The Agency has determined that for Arizona and Utah, 
the standards of competency for each category or subcategory of 
commercial applicators in those certification programs are sufficiently 
comparable to the federal requirements to justify waiving further 
demonstration of competency. EPA has made this determination based on 
the State plans in effect as of the publishing of this notice. If 
Arizona or Utah revises its State plan, EPA may revisit this 
determination. Therefore, under this federal certification plan, Region 
9 may issue a certificate for restricted use pesticide application in 
Navajo Indian Country to an individual possessing a certificate issued 
by one of these two States for the same applicator categories and/or 
subcategories described in their State certificate. The applicator will 
be required to submit an EPA pesticide applicator certification form, 
written evidence (copy of certificate, credential, license, or other 
documentation) of valid certification, and a passport-size photograph 
to the Region 9 Office.
    EPA has developed and included in the public docket for this action 
a draft certification form titled ``Request for Pesticide Applicator 
Certification in Navajo Indian Country'' (draft EPA Form 8500-17-N). 
This draft form is being developed specifically for pesticide 
applicators who wish to be certified in Navajo Indian Country. Using 
this form, EPA intends to collect certain information from pesticide 
applicators, including: Contact information (name, address, telephone 
number), State certification identification number, date of expiration 
and designation of category or subcategory under which applicator is 
requesting federal certification. Copies of the final certification 
form will be available from the Region 9 Office, both in hard copy and 
on the Internet, and from the Navajo Nation Environmental Protection 
Agency. Region 9 will verify with the appropriate State certifying 
agency with whom the applicant is claiming to hold a valid/current 
certificate, to assure that the certificate on which EPA would base its 
federal certification is in fact valid and current.
    iii. Submitting evidence of certification as a commercial 
applicator authorized to apply federally designated restricted use 
pesticides under any other federal or EPA-approved State or Tribal 
applicator certification program. Region 9 may also issue commercial 
certification credentials in the appropriate commercial applicator 
category(ies) or subcategory(ies) valid in Navajo Indian Country to 
applicators who have been certified in the same or similar 
category(ies) or subcategory(ies) as described herein and in the 
detailed plan under any other federal or EPA-approved State or Tribal 
certification plan. The applicator will be required to submit the EPA 
certification form and written evidence of valid certification to 
Region 9. Region 9 will verify with the appropriate federal, State, or 
Tribal certifying agency with whom the applicant is claiming to hold a 
valid/current certificate, to assure that the certificate on which EPA 
would base its federal certification is in fact valid and current. The 
Regional Administrator may deny issuance of such certificate, if the 
standards of competency for each commercial applicator category or 
subcategory identified in the other State or Tribal certificate are not 
sufficiently comparable to the federal requirements.
    iv. Length of certification. Unless suspended or revoked, a 
certificate issued under the preceding two paragraphs is valid for 2 
years from the date of issuance of the federal certificate, or until 
the expiration date of the original certificate on which the federal 
certificate is based, whichever occurs first. The Regional 
Administrator will review the EPA-issued certificate for revocation or 
suspension when the State or Tribal certificate upon which it is based 
is revoked, suspended, or modified. The Administrator may also deny, 
suspend, modify, or revoke a certificate pursuant to 40 CFR 171.11(f).
    v. Renewal/recertification. Applicators may be recertified by 
successful completion of one of the options available for original 
certification during the 12-month period preceding expiration of his/
her certificate.
    6. Private applicators. For individuals seeking certification as 
private applicators under the federal certification program in Navajo 
Indian Country, EPA will utilize the authority contained in 40 CFR 
171.11(e), as set forth in Option 1 and Option 2, below. If the 
individual does not wish to take an examination, he or she may choose 
to follow the procedures set forth in Option 3, below.
    The standards of competency for private applicators will be those 
at 40 CFR 171.5 and 171.6. Individuals may be certified as private 
applicators in Navajo Indian Country by one of the following options:
    i. Option 1.--Submitting evidence of certification as a private 
applicator authorized to apply federally designated restricted use 
pesticides by Arizona or Utah. Under this option, a private applicator 
will be required to submit written evidence (copy of certificate, 
credential, license, or other documentation) of certification from 
Arizona or Utah and a completed copy of EPA Form 8500-17-N to Region 9 
before being eligible to receive private applicator certification in 
Navajo Indian Country. Copies of EPA Form 8500-17-N will be available 
from the Region 9 Office, both in hard copy and on the Internet, and 
from the Navajo Nation Environmental Protection Agency. EPA has 
determined that private applicators certified by either of these two 
States have met requirements equal to those established under this 
program (under 40 CFR 171.5 and 171.6). EPA has made this determination 
based on the State plans in effect as of the publishing of this notice. 
If Arizona or Utah revises its State plan, EPA may revisit this 
determination.
    ii. Option 2.--Submitting evidence of certification as a private 
applicator under any other federal or EPA-approved State or Tribal 
plan. Region 9 may also issue a certificate to a private applicator 
valid in Navajo Indian Country to private applicators who have been 
certified as described herein and in the detailed plan under any other 
federal or EPA-approved State or Tribal certification plan. The 
applicator will be required to complete and submit EPA Form 8500-17-N 
and written evidence (copy of certificate, credential, license, or 
other documentation) of valid certification to Region 9. The Regional 
Administrator may deny issuance of such certificate, if the standards 
of competency for private applicators identified in the other federal, 
State or Tribal certificate are not sufficiently comparable to the EPA 
standards of competency.
    iii. Option 3.--Non-examination option. Under this option, a 
private applicator may complete a self-study learning program. The 
prospective private applicator will be able to obtain a self-study 
learning packet and EPA Form 8500-17-N through Region 9, both in hard 
copy and on the Internet, and from the Navajo Nation Environmental 
Protection Agency. This option will require the applicator, upon 
completion of the program, to return the

[[Page 5842]]

completed program to the EPA Region 9 Certification & Training Program 
Manager, who will review any unresolved questions with the applicator, 
verify that the manual has been completed by the applicator, and 
determine that the applicator is competent to be certified. The 
applicator must also complete, sign, and submit EPA Form 8500-17-N, 
through which the applicator attests that he or she personally 
completed the self-study learning program. Under this option, 
successful completion of the self-study learning program is required 
before receiving private applicator certification in Navajo Indian 
Country.
    iv. Length of certification. Unless suspended or revoked, a 
certificate issued to a private applicator under paragraphs i. or ii. 
of this paragraph is valid for 3 years from the date of issuance of the 
federal certificate, or until the expiration date of the original 
certificate on which the federal certification is based, whichever 
occurs first. A certificate issued under paragraph iii. of this 
paragraph is valid for 4 years, unless suspended or revoked. The 
Regional Administrator will review the EPA-issued certificate for 
revocation or suspension, when the State or Tribal certificate upon 
which it is based is revoked, suspended, or modified. The Administrator 
may also deny, suspend, modify, or revoke a certificate pursuant to 40 
CFR 171.11(f).
    v. Renewal/recertification. Private applicators may be recertified 
by successful completion of one of the options available for original 
certification during the 12-month period preceding expiration of his/
her certificate.
    7. Other provisions of the Plan. In addition to the certification 
provisions summarized above, this plan also requires that all reporting 
and recordkeeping requirements contained at 40 CFR 171.11 that apply to 
certified commercial applicators, see 40 CFR 171.11(c)(7), and 
restricted use pesticide retail dealers in Navajo Indian Country, see 
40 CFR 171.11(g), are met. In complying with the 40 CFR 171.11(g) 
requirements for the submission of reports, the dealer or dealership 
must send such reports to EPA, Region 9, 75 Hawthorne St., Mail Code 
CMD-5, San Francisco, CA 94105, Attention: FIFRA Certification and 
Training Program Manager.
    8. Compliance and enforcement. EPA has the authority to take 
action, as appropriate, to ensure that restricted use pesticides are 
used in a way that complies with the requirements of FIFRA and the 
implementing regulations, including provisions of this federal program 
specified in 40 CFR 171.11, in Navajo Indian Country. However, in 
accordance with section 23(a)(1) of FIFRA, the Regional Administrator 
may enter into cooperative agreements with Indian Tribes to delegate to 
such Tribes the authority to cooperate in the enforcement of the Act. 
EPA and the Navajo Nation have entered into a cooperative agreement 
whereby EPA has duly designated individuals of the Navajo Nation's 
Pesticide Regulatory Program as representatives of EPA. As such, they 
may, on behalf of EPA, conduct inspections for the purpose of 
determining compliance with the requirements of the Act and the 
regulations, including those specified in 40 CFR 171.11.
    Accordingly, to help ensure that certified applicators comply with 
standards for the use of restricted use pesticides and to provide 
adequate supervision of noncertified applicators, federally 
credentialed Tribal inspectors may investigate incidents, accidents, 
and complaints related to pesticide use in Navajo Indian Country. 
Federally credentialed Tribal inspectors may also make routine 
inspections of pesticide manufacturers, distributors, dealers, and 
users in Navajo Indian Country.
    In cases where misuse occurs, EPA may, if appropriate, deny, 
modify, suspend, or revoke a certificate, see 40 CFR 171.11(f), or take 
an enforcement action under FIFRA. Under section 14 of FIFRA, 7 U.S.C. 
136, as amended by the Federal Civil Penalties Inflation Adjustment Act 
of 1990, 28 U.S.C. 2461, and the Federal Civil Penalties Inflation 
Adjustment Act of 1990, 28 U.S.C. 2461, and the Debt Collection 
Improvement Act of 1996, 31 U.S.C. 3701 (effective January 31, 1997), 
EPA has the authority to assess both civil and criminal penalties. 
Commercial applicators, wholesalers, dealers, retailers, or other 
distributors can be assessed up to a $6,500 fine for each offense as 
civil penalties and up to a $25,000 fine or imprisonment, for not more 
than 1 year, or both, for each offense as criminal penalties. Private 
applicators, subsequent to receiving a written warning, can be assessed 
a civil penalty up to $1,200, or a criminal penalty of not more than a 
$1,000 fine and/or imprisonment for not more than 30 days, for each 
offense.

III. Consultation with the Navajo Nation

    In the absence of an EPA-approved certification program in Navajo 
Indian Country, EPA, consistent with its statutory responsibilities and 
the federal government's trust responsibility to federally recognized 
Tribes, has worked with the Navajo Nation, on a government-to-
government basis, to appropriately implement the certification program 
to help ensure the protection of human health, natural resources, and 
the environment in Navajo Indian Country. The Navajo Nation has 
consulted with EPA regarding implementation of a federal certification 
plan until such time as an EPA-approved certification plan is in place 
for Navajo Indian Country. EPA has consulted with the Navajo Nation on 
periodic conference calls and face-to-face meetings to ensure 
development of a federal plan that effectively meets the needs of the 
Navajo Nation and restricted use pesticide applicators in Navajo Indian 
Country.
    EPA drafted the federal plan in consultation with the Navajo Nation 
consistent with, among other things, the following policies, orders and 
memoranda: EPA Policy for the Administration of Environmental Programs 
on Indian Reservations, November 8, 1984, which was reaffirmed by 
Administrator Johnson on September 26, 2005; Presidential Memorandum, 
Government-to-Government Relations with Native American Tribal 
Governments, April 29, 1994; Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, November 6, 2000; Guidance 
on the Enforcement Principles Outlined in the 1984 Indian Policy, 
January 17, 2001; and Administrator memorandum reaffirming EPA Indian 
Policy on July 11, 2001.

IV. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501et 
seq.), the information collection activities described in this document 
are currently approved under OMB Control Number 2070-0029. However, EPA 
is proposing to implement a new form, EPA Form 8500-17-N, designed 
specifically for pesticide applicators who wish to be certified in 
Navajo Indian Country. EPA estimates the paperwork burden associated 
with completing this new 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, or 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;

[[Page 5843]]

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. With regard to the new form, which is included in the 
public docket for this action, EPA specifically solicits comments and 
information to enable it to:
    1. Evaluate whether the proposed form is necessary for the proper 
performance of the functions of the Agency, including whether the 
information EPA intends to collect will have practical utility.
    2. Evaluate the accuracy of the Agency's estimates of the burdens 
of the proposed collections of information.
    3. Enhance the quality, utility, and clarity of the information to 
be collected.
    4. Minimize the burden of the collections of information on those 
who are to respond, including through the use of appropriate automated 
or electronic collection technologies or other forms of information 
technology, e.g., permitting electronic submission of responses.

List of Subjects

    Environmental protection, Pesticides and pests.


    Dated: January 23, 2006.
Susan B. Hazen,
Acting Assistant Administrator, Office of Prevention, Pesticides and 
Toxic Substances.
[FR Doc. E6-1511 Filed 2-2-06; 8:45 am]
BILLING CODE 6560-50-S