Proposed Federal Plan for Certification of Applicators of Restricted Use
Pesticides within EPA Region 8 Indian Country 

Prepared by EPA Region 8

March 7, 2011

Table of Contents

Executive
Summary……………………………………………………	3

Introduction……………………………………………………
………	3

Background……………………………………………………
………	3	

Definitions……………………………………………………
………..	4  

Applicability of the
Plan………………………………………………	4

Legal
Authority………………………………………………………
.	5

Lead
Agency…………………………………………………………
..	5

Funding and Personnel 

Reporting

Applicator Requirements and Classification & Certification
Options………………………………………………………
…………	7

Private Applicators

Commercial Applicators

Commercial Applicator
Categories……………………………………	8 

Certification
Procedures……………………………………………...	9

Enforcement of the
Plan……………………………………………….	9

Enforcement Authority

Pesticide Dealer Reporting Requirements

Inspections

Revocation, Suspension, and Modification

Penalties

Appendices……………………………………………………
………..	12

Federal Insecticide Fungicide & Rodenticide Act – Section 11 

40 Code of Federal Regulations – Protection of the Environment,
Section 171.11

C. 	Definitions

D.	Pesticide Applicator Certification Forms (draft) 



Executive Summary

Under the authority of Section 11(a)(1) of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), and in accordance with the
regulations found at Title 40 of the Code of Federal Regulations (CFR)
Part 171.11, the United States Environmental Protection Agency (EPA),
Region 8 (EPA R8) is implementing a Proposed Federal Plan for
Certification of Applicators of Restricted Use Pesticides within EPA
Region 8 Indian Country (Plan) for those areas of EPA R8 Indian country
where no other EPA-approved plan applies.  The Plan describes the
process by which EPA R8 will implement a program for the certification
of applicators of restricted use pesticides (RUPs) in R8 Indian country
based upon the certification requirements enumerated at 40 CFR Part 171.


The EPA R8 will administer routine maintenance activities associated
with implementation of this Plan and conduct inspections and take
enforcement actions as appropriate.  

Introduction

This Plan describes the process for becoming certified to use RUPs
within EPA R8 Indian country.  EPA R8 Indian country refers to land
defined as Indian country at 18 U.S.C. § 1151 that is located in the
states of Utah, Montana, Wyoming, Colorado, North Dakota, and South
Dakota.1

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.”  If the
classification is made because of hazards to the applicator, the
pesticide may only be applied by or under the direct supervision of a
certified applicator.  If the classification is made because of
potential unreasonable adverse effects on the environment, the pesticide
may only be applied by or under the direct supervision of a certified
applicator or subject to such other restrictions as the Administrator
may provide by regulation. To be certified, an individual must be
determined to be competent with respect to the use and handling of
pesticides covered by the certification.  

A person becomes a certified applicator through meeting the requirements
of a certification plan that is administered by a pertinent state,
tribal, territorial, or federal agency and is approved by EPA.  This
document describes the certification plan EPA R8 will use to certify
applicators of RUPs for those areas of EPA R8 Indian country where no
other EPA-approved plan applies.

Background

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

An Indian tribe may develop its own plan for certifying private and
commercial applicators to use or supervise the use of RUPs;

If a tribe does not develop its own certification plan, the tribe may
choose to utilize a state’s certification program, with the
concurrence of that state; or

EPA can implement a federal plan for the certification of applicators of
RUPs.

Under 40 CFR § 171.11, EPA is authorized to implement a plan for the
federal certification of applicators of RUPs where there is no
EPA-approved state or tribal applicator certification plan in effect. 
Currently, the Cheyenne River Sioux Tribe and the Mandan, Hidatsu, and
Arikara Tribes (or Three Affiliated Tribes) have EPA-approved pesticide
certification plans for RUP applicators.   Furthermore, EPA has
implemented a federal plan in Navajo Indian Country.

EPA Region 8, after consulting with the Region 8 tribal leaders,
environmental directors, and pesticide program managers, determined that
implementing a federal certification plan is the preferred approach to
allow the use of RUPs and ensure adequate protection of human health and
the environment in Indian country in EPA R8.  Therefore, in accordance
with 40 CFR § 171.11, EPA R8 will implement this Plan for the federal
certification of applicators of RUPs in EPA R8 Indian country where no
other EPA-approved plan exists.  Implementation of this certification
Plan will 1) provide a mechanism by which individuals can become
certified; 2) establish requirements that ensure and demonstrate
competency in the proper use and application of RUPs; and 3) ensure that
an individual adheres to certification requirements.  

Definitions

See Appendix C for relevant definitions.

Applicability of the Plan

EPA R8 will implement this Plan within those areas of EPA R8 Indian
country where no other EPA-approved plan applies.    

Tribes in Region 8 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 or utilizing a state’s
certification program by entering into an agreement with the state.  An
EPA-approved plan under 40 CFR § 171.10 would replace this federal plan
for the relevant area of Indian country.  Some tribes may also choose to
further restrict or prohibit the use of RUPs in their areas through the
implementation of tribal codes, laws, regulations, or applicable tribal
requirements.  EPA R8 intends to continue consulting with tribes whose
areas of Indian country are subject to this federal plan regarding the
use of RUPs in their areas and notes that applicators certified under
this Plan are responsible for complying with any applicable tribal
requirements.  

Legal Authority

EPA will implement this Plan under FIFRA section 11(a)(1) (see Appendix
A), as amended, and 40 CFR § 171.11.  

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

Additional enforcement authorities are contained in Sections 8, 9, 13
and 14 of FIFRA.  Also see the FIFRA Enforcement Response Policy at
http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/.

Lead Agency

EPA R8, Denver, Colorado, will administer this federal certification
Plan for RUP applicators in EPA R8 Indian country covered by this Plan. 


EPA R8 Pesticide Program will administer routine maintenance activities,
including application processing, database management, recordkeeping,
and program oversight.  The EPA R8 Pesticide Program is also authorized
to certify applicators and conduct general outreach.  

EPA R8 Technical Enforcement Program will conduct inspections as
appropriate and coordinate with EPA R8 Legal Enforcement Program to take
enforcement action under FIFRA sections 8, 9, 13, and 14, as well as the
FIFRA Enforcement Response Policy, as appropriate.  

EPA R8 Office of Regional Counsel will provide legal counsel to the EPA
R8 Pesticide Program, Technical Enforcement Program, and Legal
Enforcement Program, as appropriate. 

Funding and Personnel

EPA R8 has adequate resources to implement the Plan in EPA R8 Indian
country consistent with the requirements of FIFRA and the regulations at
40 CFR Part 171.

Table 1.  Allocation of EPA R8 FTE and corresponding duties.

FTE*

(full time equivalent)	Duties

0.25**	application processing and associated duties (database
management, recordkeeping, reporting, routine maintenance)

             0.25	program oversight, outreach

 0.25**	enforcement administration and associated duties (database
management, recordkeeping, routine maintenance)

             0.35	EPA inspections, enforcement actions

             0.45	Tribal inspectors with federal inspector credentials

* These activities will fall within duties of existing staff and this
does not represent an increase in staffing levels.

**SEE (senior environmental employee, contractor)

	 

Reporting

The EPA R8 Pesticide Program will ensure that this Plan is maintained
and kept current in accordance with the requirements at 40 CFR Part 171.
 EPA R8 will make the Plan publicly available at EPA’s Certification
and Training database website:   HYPERLINK "http://cpard.wsu.edu/" 
http://cpard.wsu.edu/ .   EPA R8 will submit annual certification
accomplishment reporting by December 31st of each calendar year via the
database website.  EPA R8 will maintain an active listing of federally
certified applicators.  Additionally, EPA R8 will maintain a list of the
tribes covered under the Plan at   HYPERLINK
"http://www.epa.gov/region08/tobedetermined" 
www.epa.gov/region08/tobedetermined .

Copies of the Plan database and current listing of federally certified
applicators will also be available in hard copy upon request by
contacting:

Tribal C&T Program Manager

US EPA, R8

Pesticide Program, 8P-P3T

1595 Wynkoop Street

Denver, CO  80202

1-800-227-8917

Applicator Requirements and Classification & Certification Options 

Under this Plan, EPA R8 will implement a program for the certification
of private and commercial applicators to apply RUPs in those areas of
EPA R8 Indian country where no other EPA-approved plan applies. Each
applicator must determine if the RUP may be applied within a particular
area of Indian country, or if application of the pesticide is limited by
tribal code or other restrictions. 

A.   Private Applicators

For individuals seeking certification as a private applicator under the
Plan, EPA R8 will exercise its authority contained in 40 CFR §§
171.11(d)(1) & (e) to issue certifications if the applicator either: 

(1)     Submits evidence of certification as a private applicator
authorized to apply federally designated RUPs through an EPA-approved
state or tribal plan with a contiguous boundary to the area of Indian
country in question.  If circumstances require, the EPA Region may work
with the tribe to allow federal certification under this Plan based on a
valid certification from another nearby state or tribe; or  

(2)  Submits documentation of physical attendance and completion of an
approved training and self-study evaluation. 

Length of certification:   

Under 40 CFR 171.11(e), currently a private applicator\certificate
expires  3 years after the date of issuance or until the expiration date
of the original federal, state, or tribal certificate, whichever occurs
first. A proposed rule is currently under development that will allow a
federal certification based on a valid federal, state or tribal
certification, to expire when the original certificate expires, unless
the certificate is suspended or revoked.   Once the amendment is
finalized, the Agency will utilize the expiration date of the original
valid certification.

Renewal/recertification:   Applicators may apply to be recertified
through the options listed in Section VIII (A) (1) and (2) of this Plan
during the 12 months preceding the expiration of their current
certificate.

B.   Commercial Applicators 

For individuals seeking certification as a commercial applicator under
the Plan, EPA R8 will utilize its authority contained in 40 CFR §
171.11(e) to issue certification as described below: 

(1)     Submitting evidence of certification as a commercial
applicator authorized to apply federally designated RUPs under any other
EPA-approved state, federal or tribal plan with a contiguous boundary to
the area of Indian country in question.   Under this option, EPA R8 may
issue federal certificates to persons who are certified as commercial
applicators for the same category(ies) listed in their original
certificate (except for sodium cyanide capsules used with ejector
devices and sodium fluoroacetate used in livestock protection collars;
see part IX of this Plan for more information on these categories).  If
circumstances require, the EPA Region may work with the tribe to allow
federal certification under this Plan based on a valid certification
from another nearby state or tribe. 

Length of certification:   

Under 40 CFR 171.11(e), currently a commercial applicator certificate
expires 2 years after the date of issuance and three years for private
applicators, or until the expiration date of the original federal,
state, or tribal certificate, whichever occurs first. A proposed rule is
currently under development that will allow a federal certification
based on a valid federal, state or tribal certification, to expire when
the original certificate expires, unless the certificate is suspended or
revoked.   Once the amendment is finalized, the Agency will utilize the
expiration date of the original valid certification.

Renewal/recertification:   Applicators may apply to be recertified
through the options listed in Section VIII (B)( 1 ) of this Plan during
the 12 months preceding the expiration of their current certificate.  

Commercial Applicator Categories 

EPA will recognize commercial applicators according to the competency
standards enumerated at 40 CFR § 171.4(c).  EPA will recognize the
categories authorized in the original certificate, and commercial
applicators will be authorized to apply RUPs in Indian country for uses
covered in their underlying federal, state or tribal certificate with
the exception of the following:  

For sodium cyanide capsules used with ejector devices for livestock
predator control, there is a use restriction that requires that
supervisors of applicators monitor the applicators.  As stated on the
labels, the supervisors are the registrants, which may be federal
agencies, state agencies, or Indian tribes.  Currently, only one Indian
tribe -- the Navajo Nation -- has obtained a registration for sodium
cyanide capsules. Under this Region 8 federal plan, a federal
certificate will only include a sodium cyanide capsule category if the
relevant Indian tribe for the area of Indian country at issue obtains
its own registration for this product and will conduct its own
monitoring and supervision.   

Registrations for sodium fluoroacetate used in livestock protection
collars are currently limited to one federal agency, to State agencies
in Montana, New Mexico, South Dakota, and Wyoming, and to a private
entity whose registered product may only be used in Texas. Currently, no
Indian tribe has a registration for sodium fluoroacetate used in
livestock protection collars. Under this Region 8 federal plan, a
federal certificate will only include a sodium fluoroacetate livestock
protection collar category if the relevant Indian tribe for the area of
Indian country at issue obtains its own registration for this product
and will conduct its own monitoring and supervision.   

Certification Procedures

Persons seeking commercial certification to apply RUPs in EPA R8 Indian
country must submit to EPA R8, at the address noted below, a completed
‘Pesticide Applicator Certification Form’ EPA Form xxxx-xx (Appendix
D) along with proof (copy of certificate, credential, license, or other
documentation) of a valid/current federal, state, or tribal
certification with a contiguous boundary to the relevant area of Indian
country.  Individuals seeking to be certified as private applicators
must submit a completed ‘Pesticide Applicator Certification Form’
EPA Form xxxx-xx (Appendix D) with either (1) copy of certificate,
credential, license, or other documentation of a valid/current federal,
state, or tribal certification, or, (2) documentation showing they have
physically attended and completed an approved training course and
self-study evaluation.  The self-study evaluation and guide can be
obtained by contacting EPA R8 at the address below.  EPA R8 may verify
with the appropriate federal, state, or tribal certifying agency with
which the applicant is claiming to hold a valid/current certification
that the certification on which EPA R8 would base its federal
certification is, in fact, valid and current.

The Pesticide Applicator Certification Form is currently available at  
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  , docket
number docket identification number EPA–HQ–OPP–2010–0723.  Once
the Plan is final, the form will be available at   HYPERLINK
"http://www.epa.gov/region08/tobedetermined" 
www.epa.gov/region08/tobedetermined  or may be obtained by contacting
EPA R8 directly at:

				

Tribal C&T Program Manager

US EPA, R8

Pesticide Program, 8P-P3T

1595 Wynkoop Street

Denver, CO  80202

1-800-227-8917 

Enforcement of the Plan

Enforcement Authority 

EPA R8 will enforce this Plan in those areas of EPA R8 Indian country
where no other EPA-approved plan applies.  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 country with the federal
certification provided by this Plan.  

EPA has the authority to take action, as appropriate, to ensure that
RUPs are used in accordance with their EPA-registered labeling.  EPA R8
will also ensure that pesticide applicators and dealers comply with the
requirements of FIFRA and the implementing regulations, including
provisions of this federal Plan specified in 40 CFR § 171.11, in EPA R8
Indian country.  

Specifically, commercial applicators are required to maintain records as
provided in 40 CFR § 171.11(c) (7).  

EPA will allow, during the 6 month period after publication of the final
Plan, applicators to apply RUPs under the Plan in EPA Region 8 Indian
country only for the categories for which they already have a valid
state, tribal or federal certificate if they submit a complete
application to EPA Region 8 showing proof of a valid state, tribal, or
federal certification.  

Beginning 6 months after publication of the final Plan, applicators who
are covered under this Plan and have not received a written federal
certification from EPA Region 8 are prohibited from applying RUPs in EPA
Region 8 Indian country.  

Pesticide Dealer Reporting Requirements

Each restricted use pesticide retail dealer in Indian country where this
federal Plan applies must keep records and submit reports to EPA as set
forth in 40 CFR § 171.11(g). To comply with these reporting
requirements all pesticide dealers and pesticide dealerships located
within EPA R8 Indian country must send such reports to:

Tribal C&T Program Manager

US EPA, R8

Pesticide Program, 8P-P3T

1595 Wynkoop Street

Denver, CO  80202

1-800-227-8917 

C.  Inspections

EPA R8 will enforce this Plan by conducting inspections, as appropriate,
of RUP dealers and certified applicators in EPA R8 Indian country to
ensure that RUP dealers are maintaining the required records, are making
RUPs available for use in accordance with 40 CFR §171.11(g), and that
certified applicators are complying with all applicable label
directions. In addition, tribal pesticide inspectors possessing federal
inspector credentials and/or EPA R8 inspectors will also perform
inspections and investigations on behalf of EPA.  

EPA R8 has the authority to review RUP dealer records and certified
applicator records pursuant to Sections 8 and 11 of FIFRA, 7 U.S.C. §
136f and 136i-1(b), and 40 CFR §§ 171.11(g)(3) and (c)(7).  Federally
credentialed tribal inspectors and/or EPA R8 inspectors will investigate
incidents, accidents, and complaints related to pesticide use in EPA R8
Indian country and report to EPA R8 for appropriate enforcement response
as set forth by the FIFRA Enforcement Response Policy
(http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/) and as
consistent with other EPA policies.

D.  Revocation, Suspension, and Modification 

 

EPA R8 may, if appropriate, deny, modify, suspend, or revoke a
certificate, or take an enforcement action under FIFRA if the applicant
or certificate holder has been convicted under section 14(b) of FIFRA or
been subject to a final order imposing a civil penalty under section
14(a) of FIFRA or where any of the following acts listed in 40 CFR §
171.11(f) occur:   

use of any registered pesticide in a manner inconsistent with its
labeling;

making available for use, or use of any registered pesticide classified
for restricted use other than in accordance with section 3(d) of the
amended FIFRA and any regulations promulgated thereunder;

refusal to keep and maintain any records required pursuant to this
section;

making of false or fraudulent records, invoices or reports;

failure to comply with any limitations or restrictions on or in a duly
issued certificate, or

violation of any provision of the amended FIFRA and the regulations
promulgated thereunder.

Pursuant to 40 CFR § 171.11(e), EPA Region 8 will begin procedures to
revoke the federal certification if the federal, state, or tribal
certificate upon which the federal certificate is based is revoked.  EPA
may also suspend or modify a federal certificate if the federal, state,
or tribal certificate upon which it is based is suspended or modified.

If EPA R8 decides to deny, revoke, suspend or modify a certificate, EPA
R8 will notify (1) the applicant or certificate holder pursuant to 40
CFR § 171.11(f)(2)(i) and the EPA R8 FIFRA Enforcement Response Policy,
and (2) the agency that issued the original certificate upon which the
federal certificate was based, if necessary.  If the applicant or
certificate holder requests a hearing pursuant to 40 CFR
§ 171.11(f)(2)(ii), EPA will follow the hearing process contained in
40 CFR § 171.11(f)(3) & (4).  

E.  Penalties

Under Section 14 of FIFRA, 7 U.S.C. § 136l, as amended by the Federal
Civil Penalties Inflation, Adjustment Act of 1990, 28 U.S.C. § 146l,
and the Debt Collection Improvement Act of 1996, 31 U.S.C. § 370l, EPA
has the authority to assess both civil and criminal penalties for
violations of FIFRA.  Commercial applicators, wholesalers, dealers,
retailers, or other distributors can be assessed a fine of up to a
$7,500 for each offense as civil penalties and up to $25,000 or
imprisonment, for not more than one 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 $1,100, or a
criminal penalty of not more than a $1,000 fine and/or imprisonment, for
not more than thirty (30) days, for each offense. EPA R8’s enforcement
actions are conducted consistent with applicable EPA R8 enforcement and
tribal policies and guidance.  

XII. APPENDICES

Appendix A.   Federal Insecticide Fungicide & Rodenticide Act –
Section 11

SEC. 11. [7 U.S.C. 136i] USE OF RESTRICTED USE PESTICIDES; APPLICATORS.

 

(a) CERTIFICATION PROCEDURE.— 

(1) FEDERAL CERTIFICATION.—In any State for which a State plan for
applicator certification has not been approved by the Administrator, the
Administrator, in consultation with the Governor of such State, shall
conduct a program for the certification of applicators of pesticides.
Such program shall conform to the requirements imposed upon the States
under the provisions of subsection (a)(2) of this section and shall not
require private applicators to take any examination to establish
competency in the use of pesticides. Prior to the implementation of the
program, the Administrator shall publish in the Federal Register for
review and comment a summary of the Federal plan for applicator
certification and shall make generally avail-able within the State
copies of the plan. The Administrator shall hold public hearings at one
or more locations within the State if so requested by the Governor of
such State during the thirty days following publication of the Federal
Register notice inviting comment on the Federal plan. The hearings shall
be held within thirty days following receipt of the request from the
Governor. In any State in which the Administrator conducts a
certification program, the Administrator may require any per-son
engaging in the commercial application, sale, offering for sale, holding
for sale, or distribution of any pesticide one or more uses of which
have been classified for restricted use to maintain such records and
submit such reports concerning the commercial application, sale, or
distribution of such pesticide as the Administrator may be regulation
prescribe. Subject to paragraph (2), the Administrator shall prescribe
standards for the certification of applicators of pesticides. Such
standards shall provide that to be certified, an individual must be
determined to be competent with respect to the use and handling of
pesticides, or to the use and handling of the pesticide or class of
pesticides covered by such individual’s certification. The
certification standard for a private applicator shall, under a State
plan submitted for approval, be deemed fulfilled by the applicator
completing a certification form. The Administrator shall further assure
that such form contains adequate information and affirmations to carry
out the intent of this Act, and may include in the form an affirmation
that the private applicator has completed a training program approved by
the Administrator so long as the program does not require the private
applicator to take, pursuant to a requirement prescribed by the
Administrator, any examination to establish competency in the 

use of the pesticide. The Administrator may require any pesticide dealer
participating in a certification program to be licensed under a State
licensing program approved by the Administrator. 

(2) STATE CERTIFICATION.—If any State, at any time, de-sires to
certify applicators of pesticides, the Governor of such State shall
submit a State plan for such purpose. The Administrator shall approve
the plan submitted by any State, or any modification thereof, if such
plan in the Administrator’s judgment— 

(A) designates a State agency as the agency responsible for
administering the plan throughout the State; 

(B) contains satisfactory assurances that such agency has or will have
the legal authority and qualified personnel necessary to carry out the
plan; 

(C) gives satisfactory assurances that the State will de-vote adequate
funds to the administration of the plan; 

(D) provides that the State agency will make such re-ports to the
Administrator in such form and containing such information as the
Administrator may from time to time require; and 

(E) contains satisfactory assurances that State standards for the
certification of applicators of pesticides conform with those standards
prescribed by the Administrator under paragraph (1). 

Any State certification program under this section shall be maintained
in accordance with the State plan approved under this section. 

(b) STATE PLANS.—If the Administrator rejects a plan submitted under
subsection (a)(2), the Administrator shall afford the State submitting
the plan due notice and opportunity for hearing before so doing. If the
Administrator approves a plan submitted under subsection (a)(2), then
such State shall certify applicators of pesticides with respect to such
State. Whenever the Administrator determines that a State is not
administering the certification pro-gram in accordance with the plan
approved under this section, the Administrator shall so notify the State
and provide for a hearing at the request of the State, and, if
appropriate corrective action is not taken within a reasonable time, not
to exceed ninety days, the Administrator shall withdraw approval of such
plan. 

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

(d) IN GENERAL.—No regulations prescribed by the Administrator for
carrying out the provisions of this Act shall require any private
applicator to maintain any records or file any reports or other
documents.

(e) SEPARATE STANDARDS.—When establishing or approving standards for
licensing or certification, the Administrator shall establish separate
standards for commercial and private applicators. 



Appendix C. Definitions

Certification:  

The term certification means the recognition by a certifying agency that
a person is competent and thus authorized to use or supervise the use of
restricted use pesticides. 40 CFR 171.2(a)(7)

Commercial applicator:  

The term ‘‘commercial applicator’’ means an applicator (whether
or not the applicator is a private applicator with respect to some uses)
who uses or supervises the use of any pesticide which is classified for
restricted use for any purpose or on any property other than as provided
by paragraph (2) [private applicator definition]. FIFRA 2(e)(3)

Indian country:  

As defined at 18 U.S.C. § 1151: (a) all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation;  (b) all dependent Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within
or without the limits of a state; and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including
rights-of-way running through the same.  Consistent with the statutory
definition of Indian country, as well as federal case law interpreting
this 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.  

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 or mixture 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 any article that is a ‘‘new animal drug’’
within the meaning of section 201(w) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(w)), that has been determined by the
Secretary of Health and Human Services not to be a new animal drug by a
regulation establishing conditions of use for the article, or that is an
animal feed within the meaning of section 201(x) of such Act (21 U.S.C.
321(x)) bearing or containing a new animal drug. The term
‘‘pesticide’’ does not include liquid chemical sterilant
products (including any sterilant or subordinate disinfectant claims on
such products) for use on a critical or semi-critical device, as
de-fined in section 201 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 321). For purposes of the preceding sentence, the term
‘‘critical device’’ includes any device which is introduced
directly into the human body, either into or in contact with the
bloodstream or normally sterile areas of the body and the term
‘‘semi-critical de-vice’’ includes any device which contacts
intact mucous membranes but which does not ordinarily penetrate the
blood barrier or other-wise enter normally sterile areas of the body.
FIFRA 2(u)

Private applicator:  

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

Restricted use pesticide (RUP):  

A pesticide that is classified for restricted use under the provisions
of section 3(d)(1)(C) of FIFRA

Appendix D

Pesticide Applicator Certification Form (draft)

The form is available at   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  

Docket identification number EPA–HQ–OPP–2010–0723

 

 Indian country:  As defined at 18 U.S.C. § 1151: (a) all land within
the limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any patent,
and, including rights-of-way running through the reservation;  (b) all
dependent Indian communities within the borders of the United States
whether within the original or subsequently acquired territory thereof,
and whether within or without the limits of a state; and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.  Consistent with the
statutory definition of Indian country, as well as federal case law
interpreting this 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.  

 Please see Section IX for commercial applicator categories recognized
under the Plan, as there are proposed exceptions for sodium cyanide
capsules used with ejector devices and sodium fluoroacetate used in
livestock protection collars.

 Although predicated in part on the applicator's existing valid
certification, any use permitted under this Plan is allowed and will be
enforced only under federal authority.

  PAGE  3 

Appendix B.  40 Code of Federal Regulations – Protection of the
Environment, Section 171.11

