_______________________________
“WING TIPS”
June 24, 2011
Oklahoma Agricultural Aviation Association
2500 E. 15th Street, Edmond, OK 73013
Phone: 405-341-3548 Email: oaaa@sbcglobal.net
SAVE THE DATE!
OAAA FLY-IN
SEPTEMBER 8th, 2011
EL RENO, OK
SPECIAL THANKS TO OUR VALUED 2011 OAAA FLY-IN PARTNERS/SPONSORS!
BASF
BAYER CROP SCIENCE
COVINGTON AIRCRAFT ENGINES
DUPONT CROP PROTECTION
HELENA CHEMICAL COMPANY
INTERCONTINENTAL JET SERVICE
PARMA
TRANSLAND
UNITED SUPPLIERS
WINFIELD SOLUTIONS
(To become an event sponsor, contact Sandy at 405-341-3548 or email oaaa@sbcglobal.net)O
SPECIAL THANKS ALSO GOES TO OUR HOSTS RICK AND TANNER ESCOTT.
(We’ll start right after daybreak)
CONDUCTED BY DENNIS GARDISSER & RICHARD WHITNEY
El Reno Municipal Airpark,
6600 Hangar 1A, 2 miles south of I-40 on Country Club Road
Breaking News From NAAA: FAA Releases Guidance on Marking MET Towers
The Federal Aviation Administration (FAA) has released the long-awaited guidance for marking MET towers less than 200 feet above ground level (AGL) in remote and rural areas. NAAA is very pleased to report that the comments provided by members and the Association have yielded guidance favorable to agricultural aviation. The FAA agrees that “marking these structures would enhance the conspicuity of these METs, particularly for low-level agricultural operations.”
As a result of the 457 comments in favor of guidance for marking METs, the FAA recommends the following: (1) METs should be painted in accordance to criteria contained in Chapter 3, paragraphs 30–33 of AC No. 70/7460–1, specifically, with alternate bands of aviation orange and white paint. In addition, all markings should be replaced when faded or otherwise deteriorated; (2) METs should have high visibility sleeves installed on the outer guy wires of METs as described in AC No. 70/7460–1; and (3) METs should have high visibility spherical marker (or cable) balls of aviation orange color attached to the guy wires. The FAA, however, recognizes various weather conditions and manufacturing placement standards may affect the placement and use of high visibility sleeves and/or spherical markers. Thus, flexibility is needed when determining sleeve length and marker placement on METs.
Most of NAAA’s recommendations were accepted by the FAA except for those requesting lighting on the tower and the creation of a national database. The FAA stated it was not practical for the Agency to recommend lights for METs, as pre-existing power sources were not present in many remote locations and the use of solar lighting had not been studied. Additionally, while the FAA did not feel it was feasible for the Agency to maintain a national database, they did not object to state or local jurisdiction maintaining or providing a source. Only three of the total 460 comments were in opposition to the proposed guidance and an overwhelming number referenced the tragic fatality of one of our own earlier this year—Stephen Allen, aerial applicator from California.
This is a tremendous success for the aerial application industry in enhancing aviation safety and it was done with intense resistance from Goliath-like opposition in the American Wind Energy Association (AWEA) and Iberdrola—the Spanish electric utilities corporation and largest renewable energy operator in the world. AWEA proposed painting only the top 1/3 of METs, but NAAA contended that paint needed to be applied to the entire vertical length to be effective. The FAA agreed that painting the entire structure provides the best visibility for pilots. AWEA and Iberdrola also stated that there was a limit to what the guy-wires could hold in terms of weight and were concerned that sleeves marking them would stress the towers, yet the FAA concluded that sleeves and spherical marker balls would enhance the conspicuity of METs particularly for low flying agricultural and other aviation operations.
The FAA has indicated the Advisory Circular referenced, AC No. 70/7460-1, will be revised within the next six months. Additionally, while the FAA did not recommend establishing a national tower database, NAAA continues to pursue a Congressional mandate within the FAA Reauthorization bill that would conduct a study of what would be required to feasibly have a database cataloging all guy-wired and free-standing tower locations. To read the recently released FAA notice in its entirety, please click here.
NAAA wishes to recognize all organizations and individuals that commented and urged the government to act on this MET marking guidance.
NEWS FROM JOE NEAL HAMPTON
FEDERAL
Senate Ag Approves Pesticide Permit Overhaul; Lucas to Reid: Vote! The Senate Agriculture Committee this week followed its House counterpart and approved a bill to undo duplicate EPA permitting for pesticide use. House Agriculture Committee Chair Frank Lucas (R, OK) immediately issued a statement calling on Senate Majority Leader Harry Reid (D, NV) to send the Senate bill to the floor for an immediate vote because the EPA rules the bill is designed to overturn become effective October 31. The full House approved an identical bill March 31. However, the Senate bill has one more hurdle to overcome in that it must be reviewed by the Senate Committee on the Environment & Public Works, chaired by Sen. Barbara Boxer (D, CA), an opponent of efforts to curb EPA authority. Boxer said she has “concerns,” and Senate Ag Committee Chair Debbie Stabenow (D, MI) said the bill likely won’t move to the floor until Boxer’s concerns are addressed. A federal court ruled in 2009 that pesticides are pollutants when used near waterways, an action triggering NPDES permitting. The bill exempts pesticides from the NPDES permit requirements if they’re already registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Ag groups across the country praised the Senate Committee’s action and joined Lucas in calling for full Senate approval; the National Wildlife Federation said the bill endangers public health and wildlife.
House to Begin Farm Bill ‘Audit Hearings’; Senate Does USDA Oversight. The pace of 2012 Farm Bill negotiations increased incrementally this week as the House Agriculture Committee announced it will begin audit hearings on various programs contained in the bill, and the Senate ag panel held hearings on how efficient USDA is at administering those programs. However, the first of the House ag panel’s hearings – set to look at conservation programs – was cancelled at the last minute this week without notice of when it will be rescheduled. In audit hearings – usually short, very focused question/answer sessions between the committee and the heads of various USDA agencies and programs – the committee seeks to determine if programs are working, farmers are participating, administration is efficient and no spending waste or fraud is involved. However, this round’s hearings have a bit more significance, as Ag Committee Chair Frank Lucas (R, OK) previously said such hearings would not begin until early 2012, but now expects his panel will be asked to identify duplication and waste in ag programs by the bipartisan agreement Congress hopes to reach on raising the federal debt ceiling and cutting overall federal spending. The Senate’s hearings are broader, but focus on the same issues, looking at “Farm Bill accountability” reviewing performance “while eliminating duplication and waste.” Stabenow also announced she’ll hold a hearing on the state of the livestock industry June 28.
Vilsack, G20 Ag Ministers Reach Partial Accord on Global Food Issues. In first-ever moves designed to address increasing global food price and supply volatility, the U.S. and other G20 agriculture ministers failed this week to address government subsidies for biofuels, but did agree on a wheat research project, set up a pilot program on humanitarian food supplies, set up a new wheat research project and brought India and China into a global market supply and demand database program. The G20 includes government officials from the world’s 20 largest economies. Vilsack worked against a proposal before the ministers to oppose bio-based government fuel subsidies, but said it’s important for biofuels from algae, biomass and nonfood feedstocks, to be supported. The group did agree to further “analyze the relationship between biofuels and food availability.” Vilsack got agreement on a provision calling for science-based regulatory systems on biotechnology which he hopes will enhance international acceptance of biotech foods. Also hotly debated among the G20 group was financial regulation of futures and cash markets, with hopes of action to curb speculation. However, Australia and the United Kingdom put up the greatest resistance on tightening regulation. The group also discussed how to increase global food production on a “sustainable basis,” the creation of a world reporting system on food production and consumption to be housed at the United Nation’s Food & Agricultural Organization (FAO), something the U.S. has done for decades, but which China initially opposed because it considers such data a matter of “national security” and India balked at because it says it doesn’t have the technical ability to collect the data. Both nations ultimately agreed to join the system. Vilsack followed his G20 meeting with an appearance at the Paris Air Show, where he talked about biobased aviation fuels.
Debt Ceiling Talks Move to Obama, Boehner. With the U.S. Treasury identifying August 2 as the deadline for congressional action on whether to increase the federal debt ceiling, the future of negotiations among House and Senate Republicans, Democrats and the White House is now in the hands of President Obama and House Speaker John Boehner (R, OH). Bipartisan negotiations called by the White House and chaired by Vice President Joe Biden hit a stalemate this week, with GOP members abandoning the talks and calling on Boehner and Obama to take the lead. The impasse is two-part: First, the Republicans insist President Obama abandon his call for new taxes as part of the agreement, and secondly, that an increase in the $14.3-trillion debt ceiling be accompanied by equally deep cuts in federal spending. Obama wants a plan that drops the debt ceiling about $14 trillion over 12 years, tacitly acknowledging such a move would include cuts to entitlement programs, including Medicare and Medicaid; Boehner, while standing tough on no new taxes, wants to avoid a “no” vote on the debt ceiling, and in one-on-one talks with the President this week it’s reported Boehner talked about a series of short-term debt ceiling extensions to facilitate a broader deal. The Biden group has identified a broad range of spending cuts across the federal government. House Majority Leader Eric Cantor (R, VA) said once the tax issue is resolved, “we have a blueprint.” Rhetoric being tossed around by various House Democrats is considered just that, political grandstanding on tax increases and an elimination of tax deductions on the wealthy and cuts in “taxpayer-financed” oil and gas industry perks.
HHS: FDA Food Recalls Monitoring ‘Not Adequate;’ Harkin Calls for Funding. Sen. Tom Harkin (D, IA), chair of the Senate Committee on Health, Education, Labor & Pensions (HELP) Committee, said this week a report by the Office of Inspector General (OIG) of the Department of Health & Human Services (HHS) showing FDA’s oversight of imported food safety recalls is inadequate demonstrates a clear need to provide the agency more federal funding. OIG said FDA’s guidance for developing and implementing food recalls was inadequate to ensure the safety of the food supply primarily because it’s unenforceable. The HHS agency also said FDA often doesn’t follow its own rules on monitoring food recalls. Harkin said the report shows “FDA must take far stronger and faster action to protect consumers by getting contaminated food imports off the market…Congress greatly strengthened FDA’s hand to enforce food recalls, but regrettably FDA’s ability to carry out that law and the recommendations in this OIG report will be badly impaired if FDA is starved of critical funding as the House agricultural appropriations bill would do.”
Senate Introduces Bill to Ban Feed Use of Antibiotics. Four Senators this week introduced legislation to ban the use of certain human antibiotics in feed and water for livestock and poultry. The bill is nearly identical to House legislation introduced last month. The Preservation of Antibiotics for Medical Treatment Act (PAMTA) was introduced in the Senate by Sens. Dianne Feinstein (D, CA), Susan Collins (R, ME), Jack Reed (D, RI) and Barbara Boxer (D, CA). These Senators introduced the same bill in the last Congress. The bill was immediately praised by the Pew Campaign on Human Health and Industrial Farming. The bill was introduced shortly after debate in the House over language included in the FY2012 ag/FDA appropriations bill that would have required FDA to make all decisions regarding safety and efficacy of a product or process based on “hard science.” The amendment was successfully offered in full committee by Rep. Denny Rehberg (R, MT), who said he was concerned FDA might move against on-farm antibiotic use based on politics, not sound science, risk analysis or evidence of need. The language was stripped from the spending bill when it was argued successfully it constituted legislating on a spending bill.
Next Senate Moves on Ethanol Unclear; Hatch Calls for Inclusion in Broad Tax Package. The Senate vote last week to end all federal ethanol subsidies was mainly symbolic; the underlying bill didn’t go anywhere and such revenue measures must by regulation originate in the House, meaning the Senate will need to amend a House bill for the amendment to be legitimate. But this week, Sen. Orrin Hatch (R, UT), ranking member of the Senate Finance Committee, said such action on various biofuel tax credits – and a host of other federal tax credits unrelated to biofuels – should be part of a comprehensive tax reform package and not done piecemeal on unrelated legislation. Sen. Harry Reid (D, NV) has promised Sen. Dianne Feinstein (D, CA), author of the successful ethanol amendment, another vote on her measure, but Feinstein is now obligated to discussions with Sen. Tom Coburn (R, OK), who authored an identical but unsuccessful amendment, and Sens. Amy Klobuchar (D, MN) and John Thune (R, SD), authors of a competing ethanol support rewrite bill, to see if the two measures can be married. The Klobuchar-Thune bill would reduce ethanol tax credits paid to fuel makers over the next three years and then tie any future credit to the world price of oil. The bill also takes a portion of the savings from reducing the credits and devotes it to deficit reduction. Further, under Klobuchar-Thune, the federal government would invest in feedstock research to replace corn as the principal ethanol feedstock, as well as invest in biofuels delivery infrastructure.
House Legislation to Extend Biodiesel Tax Credits Introduced, Senate Bill Expected. A bill to extend for three years a $1-per-gallon federal tax credit for biodiesel and renewable diesel, shifting it from a blenders’ credit paid to oil companies as an incentive to blend biodiesel under the Renewable Fuel Standard (RFS) to a credit claimed by producers, was introduced this week by Rep. Aaron Schock (R, IL) and Rep. Collin Peterson (D, MN), ranking member of the House Agriculture Committee. A similar if not identical bill is expected to be introduced in the Senate by Sens. Maria Cantwell (D, WA) and Chuck Grassley (R, IA), under whose chairmanship several years ago the Senate Finance Committee created the tax credits. Like the ethanol credits, the existing blenders’ tax credit expires at the end of 2011, having first expired at the end of 2009 and then languished through most of 2010 while Congress tried to find offsets to take care of the costs. Biodiesel can be refined from both vegetable and animal feedstocks, biodiesel and renewable diesel are not controversial generally because they are part of a relatively young advanced biofuels industry, Peterson said. “Increasing production of renewable energy is vital to creating jobs and growing our rural economies. Unfortunately, by allowing the biodiesel tax credit to lapse, we’ve already witnessed a loss of jobs and production,” Peterson said.
USDA Analyst tells Chicken Group: Ethanol Profitable without Credit. A USDA economist told the National Chicken Council (NCC) board of directors last week that ethanol refiners are averaging a profit of 23 cents per gallon as of June 13, “an incentive that is sufficient without the tax credit to cause ethanol manufacturers to produce essentially the quantities now coming to market,” according to an NCC statement. Dr. Jerry Bange, chair of USDA’s World Agricultural Outlook Board, told the NCC board of directors that under the current federal tax credit system for blenders, ethanol producers are receiving average profit of 68 cents per gallon, based on a cost of product of $2.77 per gallon and a rack price of blended gasoline of about $3 a gallon. He also told the NCC board it’s too early to tell whether this year’s corn crop will be higher or lower than current projections because late corn planting does not necessarily translate into lower yields or reduced production in the fall. A copy of Bange’s presentation to the NCC board can be found at www.usda.gov/oce/speeches/index.htm.
Menendez Introduces Senate Immigration Reform Bill. A bill introduced in the Senate this week to jump start debate on federal immigration reform was declared a “non-starter” by immigration interests in the House. The bill, authored by Sen. Robert Menendez (D, NJ), is similar to unsuccessful legislation debated in the Senate four years ago, and would create a “path to citizenship” for illegal immigrants in the U.S., while increasing enforcement against employers of illegal immigrants and enhancing U.S.-Mexico border security. Menendez, in a nod to his lack of GOP support in the Senate, called the bill a starting point for discussions, but reiterated any bill considered by the Senate must include a formula for granting citizenship status to illegal immigrants already in the country. There is bipartisan opposition to this proposal, as opponents see it as granting amnesty for illegal actions.
House Committee Approves Bill on Water Quality. A bill giving states more leeway in water quality enforcement standards was approved this week by the House Transportation & Infrastructure Committee. While Democrats said the bill will weaken existing Clean Water Act (CWA) protections, the bill would prohibit EPA from enforcing a new or revised clean water reg for a specific pollutant if a state has already submitted to EPA and received approval for a water quality standard for that pollutant, unless the state agrees the new federal standard is warranted under the CWA. The bill, not brought by ag interests but by mining community interests, is aimed at eliminating confusing and contradictory rulings by EPA that supporters say have shut down mining operations in parts of Appalachia. While EPA issued guidance for mining operations under the CWA in 2010, it retroactively vetoed a water permit issued by the Army Corps of Engineers for a mountaintop removal project in West Virginia.
Supreme Court Says EPA has Authority to Regulate Climate Change. The U.S. Supreme Court this week upheld EPA’s authority under the Clean Air Act (CAA) to regulate greenhouse gas emissions (GHG) and address other air pollution contributors to so-called “climate change.” The high court said its 2007 decision “made plain that emissions of carbon dioxide qualify as air pollution subject to regulation” under the CAA. The court heard American Power Company v. Connecticut, a case brought by the power company to challenge the state’s claims against alleged plant pollution under federal CAA regulations. The court said its previous decision “speaks directly to emissions of carbon dioxide from the defendant’s plant.” The court also referenced in detail EPA’s ongoing rulemaking to set standards on GHG emissions from fossil-fueled plants by May, 2012.
Senators Introduce Bipartisan Bill to Give EPA Extra Time on Boiler Regs. A bipartisan group of House members introduced legislation this week to extend the deadline on industrial boiler regs EPA says need fixing, a move welcomed by the agency. Eight members of the House Energy & Commerce Committee introduced a bill giving EPA an additional 15 months to repropose and finalize the rule after receiving nearly 5,000 public comments on the proposal. EPA is trying to reconcile the boiler rule with existing solid waste authority. EPA is trying to meet a court-ordered deadline in setting GHG standards for more than 200,000 boilers and incinerators across the country. The agency has stumbled in trying to rewrite its original rule and is currently accepting comments through July 15 on its latest effort. However, activist groups are threatening additional legal action.
Business Calls it “Stacking the Deck” as NLRB Proposes “Streamlined” Union Elections. A notice of proposed rulemaking was published by the National Labor Relations Board (NLRB) this week seeking to amend existing rules and regulations “governing procedures in representation cases.” Included in the proposal, however, is a dramatically shortened timeline for union certification elections. NLRB says its proposal is designed to reduce “unnecessary litigation, streamline pre- and post-election procedures” and make easier the use of electronic communications and document filing. However, at issue is the time elapsed between a union presenting enough signatures to call an organizing election and when that election is held, a period averaging about 60 days. The unions say employers use this time to convince workers not to ratify a union. This period would be shortened significantly by simplifying procedures, deferring lawsuits and setting shorter deadlines for filings and hearings. The National Association of Manufacturers (NAM) said the NLRB proposed rule is “the latest attempt by the NLRB to do what Congress won’t – stack the deck in their favor.” The chair of the House Workforce Committee Rep. John Kline (R, MN) said the shortened election timeframe will “expedite union elections and undermine an employer’s lawful right to communicate with his or her employees, and will cripple a worker’s ability to make an informed decision.” Union representatives universally hailed the action, with the president of the Service Employees International Union calling it a “positive step for workers who want to exercise their fundamental right to decide for themselves whether to form a union.” In the last Congress, unions attempted unsuccessfully to pass union election changes called “card check.” Under that system, all a union needed to do was collect signatures on “preference” cards from 50% of a facility’s workers plus one additional worker, to certify organization.
EWG Pounds on Farm Program Payments, Releases List. In an update of its comprehensive listing of who gets farm program payments, how much they get and where those folks live, the Environmental Working Group (EWG) released its new list, all based on USDA numbers on payment recipients. The new numbers follow the money, all $222.8 billion paid in 1995-2010, and include the top 10 cities of residence for those getting federal checks. The database also includes crop insurance program payments. To view the full searchable report, go to www.ewg.org.
THIS AND THAT
HARVEST UPDATE
Harvest Summary of HRW June 24, 2011
By Mark Hodges, Director, Plains Grains, Inc.
· Percent of Harvest Complete by Location:
o Texas 85%
o Oklahoma 98%
o Kansas 49%
o Colorado 3%
o Nebraska 0%
o Wyoming 0%
o South Dakota 0%
o Montana 0%
o PNW 0%
Harvesting of the 2011 HRW was slowed this week by cool wet weather and green wheat. Some losses were reported during the past week from severe storms dumping hail in parts of southwest/south central/southeastern Kansas and eastern Colorado. Wheat is now being harvested in north central and northeast Kansas while northwest Kansas continues to be significantly slower to mature due to cooler and wetter weather over the past several weeks.
Texas is now estimated to be 85% complete with harvest with mainly irrigated acres in the Panhandle north of Amarillo remaining to be cut. Oklahoma is 98% complete with harvest; most of the remaining 2% is in the Panhandle and mainly irrigated acres. Colorado should get into the full swing of harvest south of I-70 over the next week with favorable cutting weather. Yields have generally been as expected in Texas and in the southwestern part of Oklahoma, but have been slightly better than expected as harvest moved into the northern half of Oklahoma and southern Kansas.
Average test weights for the 2011 HRW crop continue to be very good remaining well above 61 pounds per bushel with outstanding protein levels (still exceeding 13%). Moisture remains extremely low (as compared to normal crop years) while dockage also remains low and (as was pointed out last week) is probably a result of the very dry conditions during the growing season which did not allow germination of cool season grassy weeds in this crop. Shrunken and broken kernels, while still above last year’s final number, declined significantly this week to 1.5%. Thousand kernel weights, although lower than last year’s final, are good (considering the adverse conditions the crop developed under in the area the 126 samples represent).
June 17, 2011 Samples
Tst Exp MST Pro % DKG TKW FN Grade Test Weight FM DMG S&B DEF
126 530 10.4 13.1 0.4 27.6 407 1HRW 61.5 80.8 0.2 0.1 1.5 1.8
Final 2010 Samples
Tst Exp MST Pro % DKG TKW FN Grade Test Weight FM DMG S&B DEF
468 Final 11.0 11.8 0.6 29.9 401 1HRW 61.0 80.2 0.2 0.3 1.2 1.8
Please find the individual state reports at the links listed below:
NEBRASKA
http://www.nebraskawheat.com/pdfs/Nebraska%20Crop%20Report.pdf
KANSAS
http://ww.kansaswheat.org/wheatpageid307_2011KansasWheatHarvestReports.shtml
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SENATE BILL 228 UPDATE
Governor Mary Fallin has signed SB 228. It will become effective November 1.
1. Prior to filing an action against an applicator for damages to growing crops or plants, any person alleging damages to growing crops or plants shall:
a. within ninety (90) calendar days of the date that the alleged damages N. COMPLAINT RESOLUTION - Upon receipt of a written complaint, the Board shall notify the person filing the complaint in writing of its receipt and status within two (2) working days. The person whom the complaint is filed against shall also be notified within two (2) working days. Notification that a complaint has been filed may also be given to the landowner or operator when appropriate. The resolution of a complaint is the completion of the appropriate administrative, jurisdictional, or legal remedies to the extent possible by the Department. The complainant shall be notified in writing within seven (7) working days after resolution of the complaint.
occurred or prior to the time that twenty-five percent (25%) of the allegedly damaged crops or plants are harvested, whichever occurs first, file a written complaint statement with the Department regarding the alleged damages, and
b. between the date of filing of the written complaint pursuant to subparagraph a of this paragraph and the date harvesting or destruction of the allegedly damaged crops or plants occurs, allow the applicator and the representatives of the applicator reasonable access to the property to inspect and take samples of the allegedly damaged crops or plants during reasonable hours. The representatives of the applicator may include, but not be limited to, crop consultants, bondsmen, and insurers. Nothing in this subparagraph shall limit in any way the harvesting or destruction of the allegedly damaged crops or plants in the ordinary course of business and practice.
2. Any person failing to comply with paragraph 1 of this subsection shall be barred from filing an action for damages against the applicator.
N. COMPLAINT RESOLUTION - Upon receipt of a written complaint, the Board shall notify the person filing the complaint in writing of its receipt and status within two (2) working days. The person whom the complaint is filed against shall also be notified within two (2) working days. Notification that a complaint has been filed may also be given to the landowner or operator when appropriate. The resolution of a complaint is the completion of the appropriate administrative, jurisdictional, or legal remedies to the extent possible by the Department. The complainant shall be notified in writing within seven (7) working days after resolution of the complaint.
REMINDER
Herbicides Regulated in the Restricted Areas
of Greer, Harmon, Kiowa, Jackson, and Tillman Counties
From May 1 to October 15
A rule concerning the use of certain herbicides in Greer, Harmon, Kiowa, Jackson and Tillman counties went into effect May 25, 2006. This rule does not prohibit the use of these herbicides. The rule lists specific herbicides by their active ingredient. You will need to look closely at the herbicides you use to determine if they apply. Your pesticide dealer or County Extension Educator can help if you are not sure. If you need to apply the regulated herbicides between May 1 and October 15th you will need to notify the Department of Agriculture, Food and Forestry of your intent to make the application on the approved Notification form and after the application is made then a copy of the application records will need to be sent to the Department.
You may view the list of pesticides at: http://pested.okstate.edu/pdf/poster.pdf
Instructions and forms are located at:
http://www.ok.gov/~okag/forms/cps/herbform.pdf
CALENDAR
July 4, 2011 – Independence Day
September 5, 2011 – Labor Day
September 8, 2011 – OAAAFly-In, El Reno
November 15, 2011 – Unwanted Pesticide Disposal, Ada
November 17, 2011 – Unwanted Pesticide Disposal, Apache
January 16 – 18, 2012 – OAAA Annual Conference, Oklahoma City
NEWS FROM JIM CRISWELL
[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Notices]
[Pages 28772-28776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12226]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPP-2011-0037; FRL-8869-8]
Federal Plan for Certification of Applicators of Restricted Use
Pesticides Within Indian Country; Notice of Availability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA is announcing its intention to implement a Federal program
to certify applicators of restricted use pesticides in Indian country.
The program will be administered by EPA. EPA is soliciting comments on
EPA's intent to implement a Federal certification program in Indian
country where no other EPA-approved or EPA-implemented plan applies and
on its Proposed Federal Plan for Certification of Applicators of
Restricted Use Pesticides within Indian Country (Plan). A separate
proposal and public comment period for a Federal certification plan to
address use of restricted use pesticides in Region 8 Indian country was
recently published in the Federal Register on April 20, 2011.
DATES: Comments must be received on or before July 5, 2011.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0037, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is (703) 305-5805.
Instructions: Direct your comments to docket EPA-HQ-OPP-2011-0037.
EPA's policy is that all comments received will be included in the
docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through regulations.gov or e-mail. The
regulations.gov Web site is an ``anonymous access'' system, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday
through Friday, excluding legal holidays. The Docket Facility telephone
number is (703) 305-5805.
FOR FURTHER INFORMATION CONTACT: Nicole Zinn, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 308-7076; e-mail address:
zinn.nicole@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 Indian country where no EPA-approved plan or EPA-implemented
plan applies. This action may, however, be of interest to those
involved in agriculture and anyone involved with the distribution and
application of pesticides for agricultural purposes. Others involved
with pesticides in a non-agricultural setting may also be affected.
Since other entities may also be interested, the Agency has not
attempted to describe all the specific entities that may be affected by
this action. If you have any questions
[[Page 28773]]
regarding the applicability of this action to a particular entity,
consult the person listed under FOR FURTHER INFORMATION CONTACT.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
In addition to the sources listed in this unit, you may obtain
copies of the Plan, other related documents, or additional information
by contacting Nicole Zinn at the address listed under FOR FURTHER
INFORMATION CONTACT.
II. What action is the agency taking?
EPA is announcing its intention to implement a Federal program to
certify applicators of restricted use pesticides (RUPs) in Indian
country and seeks public comment. This Federal certification Plan
describes the process by which EPA will implement a program for the
certification of applicators of RUPs in Indian country based upon the
certification requirements enumerated at 40 CFR part 171. The Plan, in
its entirety, is included in the docket.
III. Introduction
A. What is the background for this plan?
Under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), as amended, 7 U.S.C. 136 et seq., the Administrator of EPA has
the authority to classify all registered pesticide uses as either
``restricted use'' or ``general use.'' Under FIFRA, pesticides (or the
particular use or uses of a pesticide) that may generally cause,
without additional regulatory restrictions, unreasonable adverse
effects on the environment, including injury to the applicator, shall
be classified for ``restricted use.'' Section 3(d)(1)(C), 7 U.S.C.
136a(d)(1)(C). If the classification is made because of hazards to the
applicator, the pesticide may only be applied by or under the direct
supervision of a certified applicator. 7 U.S.C. 136a(d)(1)(C)(i),
136j(a)(2)(F). If the classification is made because of potential
unreasonable adverse effects on the environment, the pesticide may only
be applied by or under the direct supervision of a certified applicator
or subject to such other restrictions as the Administrator may provide
by regulation. 7 U.S.C. 136a(d)(1)(C)(ii), 136j(a)(2)(F). To be
certified, an individual must be determined to be competent with
respect to the use and handling of pesticides covered by the
certification. 7 U.S.C 136i(a).
It was the intent of Congress that persons desiring to use
restricted use pesticides should be able to obtain certification under
programs approved by EPA, as reflected in sections 11 and 23 of FIFRA.
7 U.S.C. 136i, 136u. The regulations addressing Tribal and State
development and submission of certification plans to EPA are contained
at 40 CFR part 171. It is EPA's position that Tribal and State plans
are generally best suited to the needs of that particular Tribe or
State and its citizens. Tribes and States, however, are not required to
develop their own plans. Where EPA has not approved a State or Tribal
certification plan, the Agency is authorized to implement an EPA plan
for the Federal certification of applicators of restricted use
pesticides pursuant to sections 11 and 23 of FIFRA. 7 U.S.C. 136i,
136u; 40 CFR 171.11.
EPA has drafted a Plan for those areas of Indian country where no
other EPA-approved or EPA-implemented plan applies. A separate proposal
and public comment period for a Federal certification plan to address
use of restricted use pesticides in Region 8 Indian country was
recently published in the Federal Register on April 20, 2011 (76 FR
22096; FRL-8855-8).
B. What is the statutory authority for this plan?
The plan will be implemented under the authority of section
11(a)(1) of FIFRA, as amended by the Food Quality Protection Act of
August 3, 1996, and regulations in 40 CFR 171.11. Additional
enforcement authorities are found in sections 8, 9, 13, 14, and 23 of
FIFRA.
C. Summary of the Plan
1. Applicability. EPA intends to implement this Federal
certification plan in ``Indian country,'' as defined in 18 U.S.C. 1151,
where no other EPA-approved or EPA-implemented plan applies. ``Indian
country'' is defined in 18 U.S.C. 1151 as:
(a) All land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and, including rights-of-way running
through the reservation;
(b) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a
State; and
(c) All Indian allotments, the Indian titles to which have been
extinguished, including rights-of-way running through the same.
Consistent with the statutory definition of Indian country, as well as
Federal case law interpreting this statutory language, EPA treats lands
held by the Federal government in trust for Indian Tribes that exist
outside of formal reservations as informal reservations and, thus, as
Indian country. For a list of Federally recognized Tribes as of October
2010, see the Federal Register (October 1, 2010; 75 FR 60810),
available at: http://www.bia.gov/idc/groups/vxraca/documents/text/idc011463.pdf.
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
[[Page 28774]]
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).
This Plan applies to both commercial and private applicators.
2. Provisions of Plan.--i. Why is EPA developing a Plan? The Plan
will allow the certification of applicators and legal use of RUPs in
those parts of Indian country where there are currently no mechanisms
in place for such certification and use. RUPs cannot be legally used in
Indian country unless EPA has explicitly approved a mechanism of
certification for such an area. To date, EPA has not approved any state
plan for the certification of applicators of restricted use pesticides
in any area of Indian country. There are very few areas of Indian
country for which there are approved non-Federal plans and only one
area that is currently covered under a Federal plan.
ii. To whom will the Plan apply? The Plan will only apply to
persons who intend to apply RUPs in Indian country excluding the areas
of Indian country that are currently covered by another EPA-approved or
EPA-implemented plan. Tribes may continue to pursue options available
under 40 CFR 171.10 for their areas of Indian country, including
seeking EPA approval of Tribal plans for such areas under 40 CFR
171.10(a)(2) or utilizing a state's certification program under 40 CFR
171.10(a)(1). An option implemented under 40 CFR 171.10 would replace
this Federal plan for the relevant area of Indian country. For a list
of Federally recognized Tribes as of October 2010, see the Federal
Register available at: http://www.bia.gov/idc/groups/xraca/documents/text/idc011463.pdf. In the event that the Federal applicator
certification regulations at 40 CFR 171.11 are revised, EPA will
revisit the Plan to determine if modification of this Plan is
necessary.
iii. Certification procedures. To become certified to use RUPs in
Indian country, applicators must submit an application form to the EPA
Regional Office that covers the Indian country where they wish to apply
RUPs as well as proof of the valid Federal, state, or Tribal
certification upon which their Federal certification will be based. The
Form is available at http://www.regulations.gov under docket
identification number EPA-HQ-OPP-2010-0723.
EPA is proposing that the certification on which the Federal
certificate will be based must be from a state or Tribe with a
contiguous boundary to the area of Indian country. EPA believes that
this provision provides greater assurance that the applicator has the
competency to apply RUPs on the contiguous area of Indian country. An
exception will be included that the EPA Region has discretion to allow
Federal certification under the plan based on a valid certification
from another nearby state or Tribe.
Under 40 CFR 171.11(e), a Federal certificate expires 2 years after
the date of issuance for commercial applicators and 3 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. If this amendment is finalized, the Agency will utilize the
expiration date of the original valid certification.
Where EPA, as opposed to a Tribe or a state, implements a
certification 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). Therefore,
in lieu of submitting proof of a valid Federal, state, or Tribal
certification, private applicators also have the option of showing
documentation that they have physically attended and completed an
approved training course and self-study evaluation. Federal
certification under this option is valid for four years from the date
of issuance, unless suspended or revoked.
iv. Commercial applicator categories. EPA proposes to recognize the
categories authorized in the original certificate, and commercial
applicators will be authorized to apply RUPs in Indian country for uses
covered in their underlying Federal, state or Tribal certificate. EPA
is considering language that would generally exclude categories for
sodium cyanide capsules used with ejector devices for livestock
predator control and for sodium fluoroacetate used in livestock
protection collars. Under this Plan, a Federal certificate would only
include the sodium cyanide capsules and sodium fluoroacetate livestock
protection collars categories if the relevant Indian Tribe for the area
of Indian country at issue obtains its own registration for this
product and conducts its own monitoring and supervision.
v. Implementation. EPA will administer routine maintenance
activities associated with implementation of this Plan and will conduct
inspections and take enforcement actions as appropriate. States,
Tribes, and other Federal agencies that issued a certification upon
which the Federal certification is based are not approved or authorized
by EPA to assure compliance in Indian country with the Federal
certification provided by this Plan. As with all cases where a non-
Federal official uses Federal credentials to conduct inspections, when
a Tribal inspector conducts an inspection under Federal credentials
under a cooperative agreement with EPA, violations would be referred to
EPA for enforcement action, as appropriate.
EPA may, if appropriate, deny, modify, suspend, or revoke the
Federal certificate under this Plan. The applicant or Federal
certificate holder has the right to request a hearing if EPA decides to
modify, suspend, or revoke the Federal certificate. If EPA decides to
deny, revoke, suspend or modify a Federal certificate, EPA will notify
the agency that issued the original certificate upon which the Federal
certificate was based.
If the Federal, state, or Tribal certificate upon which the Federal
certificate is based is suspended, modified, or revoked, EPA will begin
procedures to suspend, modify or revoke the Federal certification.
EPA will allow, during the 6 month period after publication of the
final Plan, applicators to apply RUPs under the Plan in Indian country
only for the categories for which they already have a valid state,
Tribal or Federal certificate \1\ if they submit a complete application
to the appropriate EPA Region showing proof of a valid state, Tribal,
or Federal certification.\2\
---------------------------------------------------------------------------
\1\ Please see Section IX of the Plan and Unit III.C.2.d of this
notice for commercial applicator categories recognized under the
Plan, as there are proposed exceptions for sodium cyanide capsules
used with ejector devices and sodium fluoroacetate used in livestock
protection collars.
\2\ Although predicated in part on the applicator's existing
valid certification, any use permitted under this Plan is allowed
and will be enforced only under Federal authority.
---------------------------------------------------------------------------
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 the appropriate EPA Region are
[[Page 28775]]
prohibited from applying RUPs in the Indian country of that Region.
IV. Specific Comments Are Sought
EPA is seeking comment on the entire Plan but would specifically
like comments on the following issues:
1. Notification to Tribes. The Tribal Pesticide Program Council
(TPPC) has requested that a notification provision be included in the
Plan. This provision would require that applicators of RUPs notify the
relevant Tribe before each RUP application that is made in Indian
country. The Agency has questions as to whether this approach can be
practically implemented without causing undue burden to applicators,
the Tribes and the Agency.
We are interested in obtaining comment regarding the relative value
of this approach as an actual requirement. On the one hand, requiring
notification to Tribes prior to application could provide Tribes some
benefit in knowing where and when RUP applications occur. EPA is
concerned, however, that requiring notifications may impose resource
burdens on Tribes to receive and review such notifications. The TPPC
suggested a possibility that EPA could receive these notifications and
post them publically for Tribes to access. However, EPA is not likely
to have the capacity or resources to receive these notifications. EPA
also notes that Tribes wishing to receive prior notification may wish
to consider including relevant notification requirements under Tribal
law. The Plan notes that applicators certified under the Plan are
responsible for complying with any applicable Tribal requirements.
One alternative approach being considered is that EPA could post a
list of Federal certifications issued under this Plan. As a matter of
convenience, EPA could arrange the list geographically by state or by
EPA Region such that certifications issued for all Indian country
located in a particular state or EPA Region would be grouped together.
This approach would provide EPA and Tribes easy access to the list of
applicators who may legally apply RUPs within Indian country. EPA would
like to know if this option would be useful to Tribes.
Another approach being considered is to have the Tribes provide a
contact person to a website so that applicators would know who to
contact to learn of any applicable Tribal requirements for a particular
Tribe. Would this option be useful for Tribes? Would it be burdensome?
2. Private applicator certification. Under FIFRA section 11(a)(1),
for Federal certification plans, EPA must offer a no-test option for
private applicators. For more background, see Unit III.C. 2. (c) of
this document. EPA proposes that private applicators who wish to obtain
Federal certification under the no-test provision submit documentation
of physical attendance and completion of an EPA-approved training and
self-study evaluation. Are there any other suggestions to assure
private applicator competence in the absence of passing a certification
exam?
3. Option to not participate in the Plan. Some Tribes have
indicated that they would prefer that the plan include an option for
Tribes to not participate in the Plan (e.g., an ``opt-out provision'').
EPA has not proposed an opt-out provision in the Plan for several
reasons. First, EPA believes that Tribes not wanting to participate in
this Plan may still develop their own Tribal certification plan or
pursue other available mechanisms under 40 CFR 171.10. Further, Tribes
concerned about the application of RUPs in their Indian country may
have the option of adopting additional restrictions on such
applications through Tribal codes, laws, regulation or other applicable
Tribal requirements. Additionally, EPA has not generally provided opt-
out provisions for other actions under FIFRA. Other reasons EPA did not
include an opt-out provision include:
An opt-out approach does not allow EPA to adequately
address the equity, safety and enforcement issues that occur in the
absence of this Plan.
There are resource and implementation burdens on Tribes,
applicators and EPA that such a provision would impose.
An opt-out provision presents communication difficulties
to the regulated community, and thus makes compliance more difficult.
Please share your thoughts on this issue.
V. Consultation With Tribal Governments
In the absence of an EPA-approved certification program in areas of
Indian county, EPA, consistent with its statutory authorities and the
Federal government's trust responsibility to Federally-recognized
Tribes, has worked with the Tribes, on a government-to-government
basis, to appropriately develop a certification program that will help
ensure the protection of human health and the environment in Indian
country. EPA consulted with the Tribes on November 29 and December 13,
2010 to ensure development of a Federal plan that effectively meets
their needs and those of restricted use pesticide applicators in Indian
country.
During the consultations, several issues were discussed, such as
the desire for notification to Tribes prior to RUP use, assuring the
competency of private applicators, and the possibility of an opt-out
provision in the Plan. EPA is specifically seeking comment on these
issues as described in the previous section. Additional concerns were
raised that we respect Tribal sovereignty, not require unfunded
mandates, and provide adequate enforcement to assure RUPs are used
legally and safely. EPA believes that the proposed Plan addresses all
of these concerns.
In addition to the consultations dedicated specifically to this
Plan, EPA has also worked closely with the Tribal Pesticide Program
Council while developing this Plan.
EPA drafted the Federal plan in consultation with the Tribes
consistent with, among other things, the following policies, orders and
guidance: EPA Policy for the Administration of Environmental Programs
on Indian Reservations, November 8, 1984; Guidance on the Enforcement
Principles Outlined in the 1984 Indian Policy, January 17, 2001;
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, November 6, 2000 which was reaffirmed by Presidential
memorandum, Tribal Consultation, November 5, 2009; and the Proposed EPA
Policy on Consultation and Coordination with Indian Tribes, June 9,
2010.\3\
---------------------------------------------------------------------------
\3\ The draft policy was published in the Federal Register for
comment on December 15, 2010.
---------------------------------------------------------------------------
VI. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C.3501 et
seq.), the information collection activities described in this document
and the revised Information Collection Request (ICR), OMB Control No.
2070-0029, are currently going through the renewal/amendment process
and will be reviewed by the Office of Management and Budget. As part of
this process, EPA is proposing to implement a revised form designed
specifically for pesticide applicators who wish to be certified in
Indian country. EPA estimates the paperwork burden associated with
completing this form to be 10 minutes per response. Under the PRA,
``burden'' means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose or provide
information to or for a Federal Agency. For this collection it includes
the time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes
[[Page 28776]]
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information. The information collection activities and the form are
included in a separate public docket. See http://www.regulations.gov,
docket identification number EPA-HQ-OPP-2010-0723.
PLEASE CALL OR EMAIL IF YOU HAVE QUESTIONS, COMMENTS, OR SUGGESTIONS
Sandy Wells, OAAA Executive Director
2500 E. 15th St.
Edmond, OK 73013
Bus: 405-341-3548; Fax: 918-512-4647; Email: oaaa@sbcglobal.net
This document is intended for OAAA members only. OAAA requests that should any party desire to publish, distribute or quote any part of this document that they first seek the permission of the Association. The views, thoughts, and opinions expressed herein do not necessarily represent those of the Oklahoma Agricultural Aviation Association (OAAA), its Board of Directors, staff or membership. Items in this newsletter are not the result of paid advertising and are only meant to highlight newsworthy developments. No endorsement by OAAA is intended or implied.
“WING TIPS”
June 24, 2011
Oklahoma Agricultural Aviation Association
2500 E. 15th Street, Edmond, OK 73013
Phone: 405-341-3548 Email: oaaa@sbcglobal.net
SAVE THE DATE!
OAAA FLY-IN
SEPTEMBER 8th, 2011
EL RENO, OK
SPECIAL THANKS TO OUR VALUED 2011 OAAA FLY-IN PARTNERS/SPONSORS!
BASF
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DUPONT CROP PROTECTION
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(To become an event sponsor, contact Sandy at 405-341-3548 or email oaaa@sbcglobal.net)O
SPECIAL THANKS ALSO GOES TO OUR HOSTS RICK AND TANNER ESCOTT.
(We’ll start right after daybreak)
CONDUCTED BY DENNIS GARDISSER & RICHARD WHITNEY
El Reno Municipal Airpark,
6600 Hangar 1A, 2 miles south of I-40 on Country Club Road
Breaking News From NAAA: FAA Releases Guidance on Marking MET Towers
The Federal Aviation Administration (FAA) has released the long-awaited guidance for marking MET towers less than 200 feet above ground level (AGL) in remote and rural areas. NAAA is very pleased to report that the comments provided by members and the Association have yielded guidance favorable to agricultural aviation. The FAA agrees that “marking these structures would enhance the conspicuity of these METs, particularly for low-level agricultural operations.”
As a result of the 457 comments in favor of guidance for marking METs, the FAA recommends the following: (1) METs should be painted in accordance to criteria contained in Chapter 3, paragraphs 30–33 of AC No. 70/7460–1, specifically, with alternate bands of aviation orange and white paint. In addition, all markings should be replaced when faded or otherwise deteriorated; (2) METs should have high visibility sleeves installed on the outer guy wires of METs as described in AC No. 70/7460–1; and (3) METs should have high visibility spherical marker (or cable) balls of aviation orange color attached to the guy wires. The FAA, however, recognizes various weather conditions and manufacturing placement standards may affect the placement and use of high visibility sleeves and/or spherical markers. Thus, flexibility is needed when determining sleeve length and marker placement on METs.
Most of NAAA’s recommendations were accepted by the FAA except for those requesting lighting on the tower and the creation of a national database. The FAA stated it was not practical for the Agency to recommend lights for METs, as pre-existing power sources were not present in many remote locations and the use of solar lighting had not been studied. Additionally, while the FAA did not feel it was feasible for the Agency to maintain a national database, they did not object to state or local jurisdiction maintaining or providing a source. Only three of the total 460 comments were in opposition to the proposed guidance and an overwhelming number referenced the tragic fatality of one of our own earlier this year—Stephen Allen, aerial applicator from California.
This is a tremendous success for the aerial application industry in enhancing aviation safety and it was done with intense resistance from Goliath-like opposition in the American Wind Energy Association (AWEA) and Iberdrola—the Spanish electric utilities corporation and largest renewable energy operator in the world. AWEA proposed painting only the top 1/3 of METs, but NAAA contended that paint needed to be applied to the entire vertical length to be effective. The FAA agreed that painting the entire structure provides the best visibility for pilots. AWEA and Iberdrola also stated that there was a limit to what the guy-wires could hold in terms of weight and were concerned that sleeves marking them would stress the towers, yet the FAA concluded that sleeves and spherical marker balls would enhance the conspicuity of METs particularly for low flying agricultural and other aviation operations.
The FAA has indicated the Advisory Circular referenced, AC No. 70/7460-1, will be revised within the next six months. Additionally, while the FAA did not recommend establishing a national tower database, NAAA continues to pursue a Congressional mandate within the FAA Reauthorization bill that would conduct a study of what would be required to feasibly have a database cataloging all guy-wired and free-standing tower locations. To read the recently released FAA notice in its entirety, please click here.
NAAA wishes to recognize all organizations and individuals that commented and urged the government to act on this MET marking guidance.
NEWS FROM JOE NEAL HAMPTON
FEDERAL
Senate Ag Approves Pesticide Permit Overhaul; Lucas to Reid: Vote! The Senate Agriculture Committee this week followed its House counterpart and approved a bill to undo duplicate EPA permitting for pesticide use. House Agriculture Committee Chair Frank Lucas (R, OK) immediately issued a statement calling on Senate Majority Leader Harry Reid (D, NV) to send the Senate bill to the floor for an immediate vote because the EPA rules the bill is designed to overturn become effective October 31. The full House approved an identical bill March 31. However, the Senate bill has one more hurdle to overcome in that it must be reviewed by the Senate Committee on the Environment & Public Works, chaired by Sen. Barbara Boxer (D, CA), an opponent of efforts to curb EPA authority. Boxer said she has “concerns,” and Senate Ag Committee Chair Debbie Stabenow (D, MI) said the bill likely won’t move to the floor until Boxer’s concerns are addressed. A federal court ruled in 2009 that pesticides are pollutants when used near waterways, an action triggering NPDES permitting. The bill exempts pesticides from the NPDES permit requirements if they’re already registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Ag groups across the country praised the Senate Committee’s action and joined Lucas in calling for full Senate approval; the National Wildlife Federation said the bill endangers public health and wildlife.
House to Begin Farm Bill ‘Audit Hearings’; Senate Does USDA Oversight. The pace of 2012 Farm Bill negotiations increased incrementally this week as the House Agriculture Committee announced it will begin audit hearings on various programs contained in the bill, and the Senate ag panel held hearings on how efficient USDA is at administering those programs. However, the first of the House ag panel’s hearings – set to look at conservation programs – was cancelled at the last minute this week without notice of when it will be rescheduled. In audit hearings – usually short, very focused question/answer sessions between the committee and the heads of various USDA agencies and programs – the committee seeks to determine if programs are working, farmers are participating, administration is efficient and no spending waste or fraud is involved. However, this round’s hearings have a bit more significance, as Ag Committee Chair Frank Lucas (R, OK) previously said such hearings would not begin until early 2012, but now expects his panel will be asked to identify duplication and waste in ag programs by the bipartisan agreement Congress hopes to reach on raising the federal debt ceiling and cutting overall federal spending. The Senate’s hearings are broader, but focus on the same issues, looking at “Farm Bill accountability” reviewing performance “while eliminating duplication and waste.” Stabenow also announced she’ll hold a hearing on the state of the livestock industry June 28.
Vilsack, G20 Ag Ministers Reach Partial Accord on Global Food Issues. In first-ever moves designed to address increasing global food price and supply volatility, the U.S. and other G20 agriculture ministers failed this week to address government subsidies for biofuels, but did agree on a wheat research project, set up a pilot program on humanitarian food supplies, set up a new wheat research project and brought India and China into a global market supply and demand database program. The G20 includes government officials from the world’s 20 largest economies. Vilsack worked against a proposal before the ministers to oppose bio-based government fuel subsidies, but said it’s important for biofuels from algae, biomass and nonfood feedstocks, to be supported. The group did agree to further “analyze the relationship between biofuels and food availability.” Vilsack got agreement on a provision calling for science-based regulatory systems on biotechnology which he hopes will enhance international acceptance of biotech foods. Also hotly debated among the G20 group was financial regulation of futures and cash markets, with hopes of action to curb speculation. However, Australia and the United Kingdom put up the greatest resistance on tightening regulation. The group also discussed how to increase global food production on a “sustainable basis,” the creation of a world reporting system on food production and consumption to be housed at the United Nation’s Food & Agricultural Organization (FAO), something the U.S. has done for decades, but which China initially opposed because it considers such data a matter of “national security” and India balked at because it says it doesn’t have the technical ability to collect the data. Both nations ultimately agreed to join the system. Vilsack followed his G20 meeting with an appearance at the Paris Air Show, where he talked about biobased aviation fuels.
Debt Ceiling Talks Move to Obama, Boehner. With the U.S. Treasury identifying August 2 as the deadline for congressional action on whether to increase the federal debt ceiling, the future of negotiations among House and Senate Republicans, Democrats and the White House is now in the hands of President Obama and House Speaker John Boehner (R, OH). Bipartisan negotiations called by the White House and chaired by Vice President Joe Biden hit a stalemate this week, with GOP members abandoning the talks and calling on Boehner and Obama to take the lead. The impasse is two-part: First, the Republicans insist President Obama abandon his call for new taxes as part of the agreement, and secondly, that an increase in the $14.3-trillion debt ceiling be accompanied by equally deep cuts in federal spending. Obama wants a plan that drops the debt ceiling about $14 trillion over 12 years, tacitly acknowledging such a move would include cuts to entitlement programs, including Medicare and Medicaid; Boehner, while standing tough on no new taxes, wants to avoid a “no” vote on the debt ceiling, and in one-on-one talks with the President this week it’s reported Boehner talked about a series of short-term debt ceiling extensions to facilitate a broader deal. The Biden group has identified a broad range of spending cuts across the federal government. House Majority Leader Eric Cantor (R, VA) said once the tax issue is resolved, “we have a blueprint.” Rhetoric being tossed around by various House Democrats is considered just that, political grandstanding on tax increases and an elimination of tax deductions on the wealthy and cuts in “taxpayer-financed” oil and gas industry perks.
HHS: FDA Food Recalls Monitoring ‘Not Adequate;’ Harkin Calls for Funding. Sen. Tom Harkin (D, IA), chair of the Senate Committee on Health, Education, Labor & Pensions (HELP) Committee, said this week a report by the Office of Inspector General (OIG) of the Department of Health & Human Services (HHS) showing FDA’s oversight of imported food safety recalls is inadequate demonstrates a clear need to provide the agency more federal funding. OIG said FDA’s guidance for developing and implementing food recalls was inadequate to ensure the safety of the food supply primarily because it’s unenforceable. The HHS agency also said FDA often doesn’t follow its own rules on monitoring food recalls. Harkin said the report shows “FDA must take far stronger and faster action to protect consumers by getting contaminated food imports off the market…Congress greatly strengthened FDA’s hand to enforce food recalls, but regrettably FDA’s ability to carry out that law and the recommendations in this OIG report will be badly impaired if FDA is starved of critical funding as the House agricultural appropriations bill would do.”
Senate Introduces Bill to Ban Feed Use of Antibiotics. Four Senators this week introduced legislation to ban the use of certain human antibiotics in feed and water for livestock and poultry. The bill is nearly identical to House legislation introduced last month. The Preservation of Antibiotics for Medical Treatment Act (PAMTA) was introduced in the Senate by Sens. Dianne Feinstein (D, CA), Susan Collins (R, ME), Jack Reed (D, RI) and Barbara Boxer (D, CA). These Senators introduced the same bill in the last Congress. The bill was immediately praised by the Pew Campaign on Human Health and Industrial Farming. The bill was introduced shortly after debate in the House over language included in the FY2012 ag/FDA appropriations bill that would have required FDA to make all decisions regarding safety and efficacy of a product or process based on “hard science.” The amendment was successfully offered in full committee by Rep. Denny Rehberg (R, MT), who said he was concerned FDA might move against on-farm antibiotic use based on politics, not sound science, risk analysis or evidence of need. The language was stripped from the spending bill when it was argued successfully it constituted legislating on a spending bill.
Next Senate Moves on Ethanol Unclear; Hatch Calls for Inclusion in Broad Tax Package. The Senate vote last week to end all federal ethanol subsidies was mainly symbolic; the underlying bill didn’t go anywhere and such revenue measures must by regulation originate in the House, meaning the Senate will need to amend a House bill for the amendment to be legitimate. But this week, Sen. Orrin Hatch (R, UT), ranking member of the Senate Finance Committee, said such action on various biofuel tax credits – and a host of other federal tax credits unrelated to biofuels – should be part of a comprehensive tax reform package and not done piecemeal on unrelated legislation. Sen. Harry Reid (D, NV) has promised Sen. Dianne Feinstein (D, CA), author of the successful ethanol amendment, another vote on her measure, but Feinstein is now obligated to discussions with Sen. Tom Coburn (R, OK), who authored an identical but unsuccessful amendment, and Sens. Amy Klobuchar (D, MN) and John Thune (R, SD), authors of a competing ethanol support rewrite bill, to see if the two measures can be married. The Klobuchar-Thune bill would reduce ethanol tax credits paid to fuel makers over the next three years and then tie any future credit to the world price of oil. The bill also takes a portion of the savings from reducing the credits and devotes it to deficit reduction. Further, under Klobuchar-Thune, the federal government would invest in feedstock research to replace corn as the principal ethanol feedstock, as well as invest in biofuels delivery infrastructure.
House Legislation to Extend Biodiesel Tax Credits Introduced, Senate Bill Expected. A bill to extend for three years a $1-per-gallon federal tax credit for biodiesel and renewable diesel, shifting it from a blenders’ credit paid to oil companies as an incentive to blend biodiesel under the Renewable Fuel Standard (RFS) to a credit claimed by producers, was introduced this week by Rep. Aaron Schock (R, IL) and Rep. Collin Peterson (D, MN), ranking member of the House Agriculture Committee. A similar if not identical bill is expected to be introduced in the Senate by Sens. Maria Cantwell (D, WA) and Chuck Grassley (R, IA), under whose chairmanship several years ago the Senate Finance Committee created the tax credits. Like the ethanol credits, the existing blenders’ tax credit expires at the end of 2011, having first expired at the end of 2009 and then languished through most of 2010 while Congress tried to find offsets to take care of the costs. Biodiesel can be refined from both vegetable and animal feedstocks, biodiesel and renewable diesel are not controversial generally because they are part of a relatively young advanced biofuels industry, Peterson said. “Increasing production of renewable energy is vital to creating jobs and growing our rural economies. Unfortunately, by allowing the biodiesel tax credit to lapse, we’ve already witnessed a loss of jobs and production,” Peterson said.
USDA Analyst tells Chicken Group: Ethanol Profitable without Credit. A USDA economist told the National Chicken Council (NCC) board of directors last week that ethanol refiners are averaging a profit of 23 cents per gallon as of June 13, “an incentive that is sufficient without the tax credit to cause ethanol manufacturers to produce essentially the quantities now coming to market,” according to an NCC statement. Dr. Jerry Bange, chair of USDA’s World Agricultural Outlook Board, told the NCC board of directors that under the current federal tax credit system for blenders, ethanol producers are receiving average profit of 68 cents per gallon, based on a cost of product of $2.77 per gallon and a rack price of blended gasoline of about $3 a gallon. He also told the NCC board it’s too early to tell whether this year’s corn crop will be higher or lower than current projections because late corn planting does not necessarily translate into lower yields or reduced production in the fall. A copy of Bange’s presentation to the NCC board can be found at www.usda.gov/oce/speeches/index.htm.
Menendez Introduces Senate Immigration Reform Bill. A bill introduced in the Senate this week to jump start debate on federal immigration reform was declared a “non-starter” by immigration interests in the House. The bill, authored by Sen. Robert Menendez (D, NJ), is similar to unsuccessful legislation debated in the Senate four years ago, and would create a “path to citizenship” for illegal immigrants in the U.S., while increasing enforcement against employers of illegal immigrants and enhancing U.S.-Mexico border security. Menendez, in a nod to his lack of GOP support in the Senate, called the bill a starting point for discussions, but reiterated any bill considered by the Senate must include a formula for granting citizenship status to illegal immigrants already in the country. There is bipartisan opposition to this proposal, as opponents see it as granting amnesty for illegal actions.
House Committee Approves Bill on Water Quality. A bill giving states more leeway in water quality enforcement standards was approved this week by the House Transportation & Infrastructure Committee. While Democrats said the bill will weaken existing Clean Water Act (CWA) protections, the bill would prohibit EPA from enforcing a new or revised clean water reg for a specific pollutant if a state has already submitted to EPA and received approval for a water quality standard for that pollutant, unless the state agrees the new federal standard is warranted under the CWA. The bill, not brought by ag interests but by mining community interests, is aimed at eliminating confusing and contradictory rulings by EPA that supporters say have shut down mining operations in parts of Appalachia. While EPA issued guidance for mining operations under the CWA in 2010, it retroactively vetoed a water permit issued by the Army Corps of Engineers for a mountaintop removal project in West Virginia.
Supreme Court Says EPA has Authority to Regulate Climate Change. The U.S. Supreme Court this week upheld EPA’s authority under the Clean Air Act (CAA) to regulate greenhouse gas emissions (GHG) and address other air pollution contributors to so-called “climate change.” The high court said its 2007 decision “made plain that emissions of carbon dioxide qualify as air pollution subject to regulation” under the CAA. The court heard American Power Company v. Connecticut, a case brought by the power company to challenge the state’s claims against alleged plant pollution under federal CAA regulations. The court said its previous decision “speaks directly to emissions of carbon dioxide from the defendant’s plant.” The court also referenced in detail EPA’s ongoing rulemaking to set standards on GHG emissions from fossil-fueled plants by May, 2012.
Senators Introduce Bipartisan Bill to Give EPA Extra Time on Boiler Regs. A bipartisan group of House members introduced legislation this week to extend the deadline on industrial boiler regs EPA says need fixing, a move welcomed by the agency. Eight members of the House Energy & Commerce Committee introduced a bill giving EPA an additional 15 months to repropose and finalize the rule after receiving nearly 5,000 public comments on the proposal. EPA is trying to reconcile the boiler rule with existing solid waste authority. EPA is trying to meet a court-ordered deadline in setting GHG standards for more than 200,000 boilers and incinerators across the country. The agency has stumbled in trying to rewrite its original rule and is currently accepting comments through July 15 on its latest effort. However, activist groups are threatening additional legal action.
Business Calls it “Stacking the Deck” as NLRB Proposes “Streamlined” Union Elections. A notice of proposed rulemaking was published by the National Labor Relations Board (NLRB) this week seeking to amend existing rules and regulations “governing procedures in representation cases.” Included in the proposal, however, is a dramatically shortened timeline for union certification elections. NLRB says its proposal is designed to reduce “unnecessary litigation, streamline pre- and post-election procedures” and make easier the use of electronic communications and document filing. However, at issue is the time elapsed between a union presenting enough signatures to call an organizing election and when that election is held, a period averaging about 60 days. The unions say employers use this time to convince workers not to ratify a union. This period would be shortened significantly by simplifying procedures, deferring lawsuits and setting shorter deadlines for filings and hearings. The National Association of Manufacturers (NAM) said the NLRB proposed rule is “the latest attempt by the NLRB to do what Congress won’t – stack the deck in their favor.” The chair of the House Workforce Committee Rep. John Kline (R, MN) said the shortened election timeframe will “expedite union elections and undermine an employer’s lawful right to communicate with his or her employees, and will cripple a worker’s ability to make an informed decision.” Union representatives universally hailed the action, with the president of the Service Employees International Union calling it a “positive step for workers who want to exercise their fundamental right to decide for themselves whether to form a union.” In the last Congress, unions attempted unsuccessfully to pass union election changes called “card check.” Under that system, all a union needed to do was collect signatures on “preference” cards from 50% of a facility’s workers plus one additional worker, to certify organization.
EWG Pounds on Farm Program Payments, Releases List. In an update of its comprehensive listing of who gets farm program payments, how much they get and where those folks live, the Environmental Working Group (EWG) released its new list, all based on USDA numbers on payment recipients. The new numbers follow the money, all $222.8 billion paid in 1995-2010, and include the top 10 cities of residence for those getting federal checks. The database also includes crop insurance program payments. To view the full searchable report, go to www.ewg.org.
THIS AND THAT
HARVEST UPDATE
Harvest Summary of HRW June 24, 2011
By Mark Hodges, Director, Plains Grains, Inc.
· Percent of Harvest Complete by Location:
o Texas 85%
o Oklahoma 98%
o Kansas 49%
o Colorado 3%
o Nebraska 0%
o Wyoming 0%
o South Dakota 0%
o Montana 0%
o PNW 0%
Harvesting of the 2011 HRW was slowed this week by cool wet weather and green wheat. Some losses were reported during the past week from severe storms dumping hail in parts of southwest/south central/southeastern Kansas and eastern Colorado. Wheat is now being harvested in north central and northeast Kansas while northwest Kansas continues to be significantly slower to mature due to cooler and wetter weather over the past several weeks.
Texas is now estimated to be 85% complete with harvest with mainly irrigated acres in the Panhandle north of Amarillo remaining to be cut. Oklahoma is 98% complete with harvest; most of the remaining 2% is in the Panhandle and mainly irrigated acres. Colorado should get into the full swing of harvest south of I-70 over the next week with favorable cutting weather. Yields have generally been as expected in Texas and in the southwestern part of Oklahoma, but have been slightly better than expected as harvest moved into the northern half of Oklahoma and southern Kansas.
Average test weights for the 2011 HRW crop continue to be very good remaining well above 61 pounds per bushel with outstanding protein levels (still exceeding 13%). Moisture remains extremely low (as compared to normal crop years) while dockage also remains low and (as was pointed out last week) is probably a result of the very dry conditions during the growing season which did not allow germination of cool season grassy weeds in this crop. Shrunken and broken kernels, while still above last year’s final number, declined significantly this week to 1.5%. Thousand kernel weights, although lower than last year’s final, are good (considering the adverse conditions the crop developed under in the area the 126 samples represent).
June 17, 2011 Samples
Tst Exp MST Pro % DKG TKW FN Grade Test Weight FM DMG S&B DEF
126 530 10.4 13.1 0.4 27.6 407 1HRW 61.5 80.8 0.2 0.1 1.5 1.8
Final 2010 Samples
Tst Exp MST Pro % DKG TKW FN Grade Test Weight FM DMG S&B DEF
468 Final 11.0 11.8 0.6 29.9 401 1HRW 61.0 80.2 0.2 0.3 1.2 1.8
Please find the individual state reports at the links listed below:
NEBRASKA
http://www.nebraskawheat.com/pdfs/Nebraska%20Crop%20Report.pdf
KANSAS
http://ww.kansaswheat.org/wheatpageid307_2011KansasWheatHarvestReports.shtml
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SENATE BILL 228 UPDATE
Governor Mary Fallin has signed SB 228. It will become effective November 1.
1. Prior to filing an action against an applicator for damages to growing crops or plants, any person alleging damages to growing crops or plants shall:
a. within ninety (90) calendar days of the date that the alleged damages N. COMPLAINT RESOLUTION - Upon receipt of a written complaint, the Board shall notify the person filing the complaint in writing of its receipt and status within two (2) working days. The person whom the complaint is filed against shall also be notified within two (2) working days. Notification that a complaint has been filed may also be given to the landowner or operator when appropriate. The resolution of a complaint is the completion of the appropriate administrative, jurisdictional, or legal remedies to the extent possible by the Department. The complainant shall be notified in writing within seven (7) working days after resolution of the complaint.
occurred or prior to the time that twenty-five percent (25%) of the allegedly damaged crops or plants are harvested, whichever occurs first, file a written complaint statement with the Department regarding the alleged damages, and
b. between the date of filing of the written complaint pursuant to subparagraph a of this paragraph and the date harvesting or destruction of the allegedly damaged crops or plants occurs, allow the applicator and the representatives of the applicator reasonable access to the property to inspect and take samples of the allegedly damaged crops or plants during reasonable hours. The representatives of the applicator may include, but not be limited to, crop consultants, bondsmen, and insurers. Nothing in this subparagraph shall limit in any way the harvesting or destruction of the allegedly damaged crops or plants in the ordinary course of business and practice.
2. Any person failing to comply with paragraph 1 of this subsection shall be barred from filing an action for damages against the applicator.
N. COMPLAINT RESOLUTION - Upon receipt of a written complaint, the Board shall notify the person filing the complaint in writing of its receipt and status within two (2) working days. The person whom the complaint is filed against shall also be notified within two (2) working days. Notification that a complaint has been filed may also be given to the landowner or operator when appropriate. The resolution of a complaint is the completion of the appropriate administrative, jurisdictional, or legal remedies to the extent possible by the Department. The complainant shall be notified in writing within seven (7) working days after resolution of the complaint.
REMINDER
Herbicides Regulated in the Restricted Areas
of Greer, Harmon, Kiowa, Jackson, and Tillman Counties
From May 1 to October 15
A rule concerning the use of certain herbicides in Greer, Harmon, Kiowa, Jackson and Tillman counties went into effect May 25, 2006. This rule does not prohibit the use of these herbicides. The rule lists specific herbicides by their active ingredient. You will need to look closely at the herbicides you use to determine if they apply. Your pesticide dealer or County Extension Educator can help if you are not sure. If you need to apply the regulated herbicides between May 1 and October 15th you will need to notify the Department of Agriculture, Food and Forestry of your intent to make the application on the approved Notification form and after the application is made then a copy of the application records will need to be sent to the Department.
You may view the list of pesticides at: http://pested.okstate.edu/pdf/poster.pdf
Instructions and forms are located at:
http://www.ok.gov/~okag/forms/cps/herbform.pdf
CALENDAR
July 4, 2011 – Independence Day
September 5, 2011 – Labor Day
September 8, 2011 – OAAAFly-In, El Reno
November 15, 2011 – Unwanted Pesticide Disposal, Ada
November 17, 2011 – Unwanted Pesticide Disposal, Apache
January 16 – 18, 2012 – OAAA Annual Conference, Oklahoma City
NEWS FROM JIM CRISWELL
[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Notices]
[Pages 28772-28776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12226]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPP-2011-0037; FRL-8869-8]
Federal Plan for Certification of Applicators of Restricted Use
Pesticides Within Indian Country; Notice of Availability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA is announcing its intention to implement a Federal program
to certify applicators of restricted use pesticides in Indian country.
The program will be administered by EPA. EPA is soliciting comments on
EPA's intent to implement a Federal certification program in Indian
country where no other EPA-approved or EPA-implemented plan applies and
on its Proposed Federal Plan for Certification of Applicators of
Restricted Use Pesticides within Indian Country (Plan). A separate
proposal and public comment period for a Federal certification plan to
address use of restricted use pesticides in Region 8 Indian country was
recently published in the Federal Register on April 20, 2011.
DATES: Comments must be received on or before July 5, 2011.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0037, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is (703) 305-5805.
Instructions: Direct your comments to docket EPA-HQ-OPP-2011-0037.
EPA's policy is that all comments received will be included in the
docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through regulations.gov or e-mail. The
regulations.gov Web site is an ``anonymous access'' system, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday
through Friday, excluding legal holidays. The Docket Facility telephone
number is (703) 305-5805.
FOR FURTHER INFORMATION CONTACT: Nicole Zinn, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 308-7076; e-mail address:
zinn.nicole@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 Indian country where no EPA-approved plan or EPA-implemented
plan applies. This action may, however, be of interest to those
involved in agriculture and anyone involved with the distribution and
application of pesticides for agricultural purposes. Others involved
with pesticides in a non-agricultural setting may also be affected.
Since other entities may also be interested, the Agency has not
attempted to describe all the specific entities that may be affected by
this action. If you have any questions
[[Page 28773]]
regarding the applicability of this action to a particular entity,
consult the person listed under FOR FURTHER INFORMATION CONTACT.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
In addition to the sources listed in this unit, you may obtain
copies of the Plan, other related documents, or additional information
by contacting Nicole Zinn at the address listed under FOR FURTHER
INFORMATION CONTACT.
II. What action is the agency taking?
EPA is announcing its intention to implement a Federal program to
certify applicators of restricted use pesticides (RUPs) in Indian
country and seeks public comment. This Federal certification Plan
describes the process by which EPA will implement a program for the
certification of applicators of RUPs in Indian country based upon the
certification requirements enumerated at 40 CFR part 171. The Plan, in
its entirety, is included in the docket.
III. Introduction
A. What is the background for this plan?
Under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), as amended, 7 U.S.C. 136 et seq., the Administrator of EPA has
the authority to classify all registered pesticide uses as either
``restricted use'' or ``general use.'' Under FIFRA, pesticides (or the
particular use or uses of a pesticide) that may generally cause,
without additional regulatory restrictions, unreasonable adverse
effects on the environment, including injury to the applicator, shall
be classified for ``restricted use.'' Section 3(d)(1)(C), 7 U.S.C.
136a(d)(1)(C). If the classification is made because of hazards to the
applicator, the pesticide may only be applied by or under the direct
supervision of a certified applicator. 7 U.S.C. 136a(d)(1)(C)(i),
136j(a)(2)(F). If the classification is made because of potential
unreasonable adverse effects on the environment, the pesticide may only
be applied by or under the direct supervision of a certified applicator
or subject to such other restrictions as the Administrator may provide
by regulation. 7 U.S.C. 136a(d)(1)(C)(ii), 136j(a)(2)(F). To be
certified, an individual must be determined to be competent with
respect to the use and handling of pesticides covered by the
certification. 7 U.S.C 136i(a).
It was the intent of Congress that persons desiring to use
restricted use pesticides should be able to obtain certification under
programs approved by EPA, as reflected in sections 11 and 23 of FIFRA.
7 U.S.C. 136i, 136u. The regulations addressing Tribal and State
development and submission of certification plans to EPA are contained
at 40 CFR part 171. It is EPA's position that Tribal and State plans
are generally best suited to the needs of that particular Tribe or
State and its citizens. Tribes and States, however, are not required to
develop their own plans. Where EPA has not approved a State or Tribal
certification plan, the Agency is authorized to implement an EPA plan
for the Federal certification of applicators of restricted use
pesticides pursuant to sections 11 and 23 of FIFRA. 7 U.S.C. 136i,
136u; 40 CFR 171.11.
EPA has drafted a Plan for those areas of Indian country where no
other EPA-approved or EPA-implemented plan applies. A separate proposal
and public comment period for a Federal certification plan to address
use of restricted use pesticides in Region 8 Indian country was
recently published in the Federal Register on April 20, 2011 (76 FR
22096; FRL-8855-8).
B. What is the statutory authority for this plan?
The plan will be implemented under the authority of section
11(a)(1) of FIFRA, as amended by the Food Quality Protection Act of
August 3, 1996, and regulations in 40 CFR 171.11. Additional
enforcement authorities are found in sections 8, 9, 13, 14, and 23 of
FIFRA.
C. Summary of the Plan
1. Applicability. EPA intends to implement this Federal
certification plan in ``Indian country,'' as defined in 18 U.S.C. 1151,
where no other EPA-approved or EPA-implemented plan applies. ``Indian
country'' is defined in 18 U.S.C. 1151 as:
(a) All land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and, including rights-of-way running
through the reservation;
(b) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a
State; and
(c) All Indian allotments, the Indian titles to which have been
extinguished, including rights-of-way running through the same.
Consistent with the statutory definition of Indian country, as well as
Federal case law interpreting this statutory language, EPA treats lands
held by the Federal government in trust for Indian Tribes that exist
outside of formal reservations as informal reservations and, thus, as
Indian country. For a list of Federally recognized Tribes as of October
2010, see the Federal Register (October 1, 2010; 75 FR 60810),
available at: http://www.bia.gov/idc/groups/vxraca/documents/text/idc011463.pdf.
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
[[Page 28774]]
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).
This Plan applies to both commercial and private applicators.
2. Provisions of Plan.--i. Why is EPA developing a Plan? The Plan
will allow the certification of applicators and legal use of RUPs in
those parts of Indian country where there are currently no mechanisms
in place for such certification and use. RUPs cannot be legally used in
Indian country unless EPA has explicitly approved a mechanism of
certification for such an area. To date, EPA has not approved any state
plan for the certification of applicators of restricted use pesticides
in any area of Indian country. There are very few areas of Indian
country for which there are approved non-Federal plans and only one
area that is currently covered under a Federal plan.
ii. To whom will the Plan apply? The Plan will only apply to
persons who intend to apply RUPs in Indian country excluding the areas
of Indian country that are currently covered by another EPA-approved or
EPA-implemented plan. Tribes may continue to pursue options available
under 40 CFR 171.10 for their areas of Indian country, including
seeking EPA approval of Tribal plans for such areas under 40 CFR
171.10(a)(2) or utilizing a state's certification program under 40 CFR
171.10(a)(1). An option implemented under 40 CFR 171.10 would replace
this Federal plan for the relevant area of Indian country. For a list
of Federally recognized Tribes as of October 2010, see the Federal
Register available at: http://www.bia.gov/idc/groups/xraca/documents/text/idc011463.pdf. In the event that the Federal applicator
certification regulations at 40 CFR 171.11 are revised, EPA will
revisit the Plan to determine if modification of this Plan is
necessary.
iii. Certification procedures. To become certified to use RUPs in
Indian country, applicators must submit an application form to the EPA
Regional Office that covers the Indian country where they wish to apply
RUPs as well as proof of the valid Federal, state, or Tribal
certification upon which their Federal certification will be based. The
Form is available at http://www.regulations.gov under docket
identification number EPA-HQ-OPP-2010-0723.
EPA is proposing that the certification on which the Federal
certificate will be based must be from a state or Tribe with a
contiguous boundary to the area of Indian country. EPA believes that
this provision provides greater assurance that the applicator has the
competency to apply RUPs on the contiguous area of Indian country. An
exception will be included that the EPA Region has discretion to allow
Federal certification under the plan based on a valid certification
from another nearby state or Tribe.
Under 40 CFR 171.11(e), a Federal certificate expires 2 years after
the date of issuance for commercial applicators and 3 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. If this amendment is finalized, the Agency will utilize the
expiration date of the original valid certification.
Where EPA, as opposed to a Tribe or a state, implements a
certification 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). Therefore,
in lieu of submitting proof of a valid Federal, state, or Tribal
certification, private applicators also have the option of showing
documentation that they have physically attended and completed an
approved training course and self-study evaluation. Federal
certification under this option is valid for four years from the date
of issuance, unless suspended or revoked.
iv. Commercial applicator categories. EPA proposes to recognize the
categories authorized in the original certificate, and commercial
applicators will be authorized to apply RUPs in Indian country for uses
covered in their underlying Federal, state or Tribal certificate. EPA
is considering language that would generally exclude categories for
sodium cyanide capsules used with ejector devices for livestock
predator control and for sodium fluoroacetate used in livestock
protection collars. Under this Plan, a Federal certificate would only
include the sodium cyanide capsules and sodium fluoroacetate livestock
protection collars categories if the relevant Indian Tribe for the area
of Indian country at issue obtains its own registration for this
product and conducts its own monitoring and supervision.
v. Implementation. EPA will administer routine maintenance
activities associated with implementation of this Plan and will conduct
inspections and take enforcement actions as appropriate. States,
Tribes, and other Federal agencies that issued a certification upon
which the Federal certification is based are not approved or authorized
by EPA to assure compliance in Indian country with the Federal
certification provided by this Plan. As with all cases where a non-
Federal official uses Federal credentials to conduct inspections, when
a Tribal inspector conducts an inspection under Federal credentials
under a cooperative agreement with EPA, violations would be referred to
EPA for enforcement action, as appropriate.
EPA may, if appropriate, deny, modify, suspend, or revoke the
Federal certificate under this Plan. The applicant or Federal
certificate holder has the right to request a hearing if EPA decides to
modify, suspend, or revoke the Federal certificate. If EPA decides to
deny, revoke, suspend or modify a Federal certificate, EPA will notify
the agency that issued the original certificate upon which the Federal
certificate was based.
If the Federal, state, or Tribal certificate upon which the Federal
certificate is based is suspended, modified, or revoked, EPA will begin
procedures to suspend, modify or revoke the Federal certification.
EPA will allow, during the 6 month period after publication of the
final Plan, applicators to apply RUPs under the Plan in Indian country
only for the categories for which they already have a valid state,
Tribal or Federal certificate \1\ if they submit a complete application
to the appropriate EPA Region showing proof of a valid state, Tribal,
or Federal certification.\2\
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\1\ Please see Section IX of the Plan and Unit III.C.2.d of this
notice for commercial applicator categories recognized under the
Plan, as there are proposed exceptions for sodium cyanide capsules
used with ejector devices and sodium fluoroacetate used in livestock
protection collars.
\2\ Although predicated in part on the applicator's existing
valid certification, any use permitted under this Plan is allowed
and will be enforced only under Federal authority.
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Beginning 6 months after publication of the final Plan, applicators
who are covered under this Plan and have not received a written Federal
certification from the appropriate EPA Region are
[[Page 28775]]
prohibited from applying RUPs in the Indian country of that Region.
IV. Specific Comments Are Sought
EPA is seeking comment on the entire Plan but would specifically
like comments on the following issues:
1. Notification to Tribes. The Tribal Pesticide Program Council
(TPPC) has requested that a notification provision be included in the
Plan. This provision would require that applicators of RUPs notify the
relevant Tribe before each RUP application that is made in Indian
country. The Agency has questions as to whether this approach can be
practically implemented without causing undue burden to applicators,
the Tribes and the Agency.
We are interested in obtaining comment regarding the relative value
of this approach as an actual requirement. On the one hand, requiring
notification to Tribes prior to application could provide Tribes some
benefit in knowing where and when RUP applications occur. EPA is
concerned, however, that requiring notifications may impose resource
burdens on Tribes to receive and review such notifications. The TPPC
suggested a possibility that EPA could receive these notifications and
post them publically for Tribes to access. However, EPA is not likely
to have the capacity or resources to receive these notifications. EPA
also notes that Tribes wishing to receive prior notification may wish
to consider including relevant notification requirements under Tribal
law. The Plan notes that applicators certified under the Plan are
responsible for complying with any applicable Tribal requirements.
One alternative approach being considered is that EPA could post a
list of Federal certifications issued under this Plan. As a matter of
convenience, EPA could arrange the list geographically by state or by
EPA Region such that certifications issued for all Indian country
located in a particular state or EPA Region would be grouped together.
This approach would provide EPA and Tribes easy access to the list of
applicators who may legally apply RUPs within Indian country. EPA would
like to know if this option would be useful to Tribes.
Another approach being considered is to have the Tribes provide a
contact person to a website so that applicators would know who to
contact to learn of any applicable Tribal requirements for a particular
Tribe. Would this option be useful for Tribes? Would it be burdensome?
2. Private applicator certification. Under FIFRA section 11(a)(1),
for Federal certification plans, EPA must offer a no-test option for
private applicators. For more background, see Unit III.C. 2. (c) of
this document. EPA proposes that private applicators who wish to obtain
Federal certification under the no-test provision submit documentation
of physical attendance and completion of an EPA-approved training and
self-study evaluation. Are there any other suggestions to assure
private applicator competence in the absence of passing a certification
exam?
3. Option to not participate in the Plan. Some Tribes have
indicated that they would prefer that the plan include an option for
Tribes to not participate in the Plan (e.g., an ``opt-out provision'').
EPA has not proposed an opt-out provision in the Plan for several
reasons. First, EPA believes that Tribes not wanting to participate in
this Plan may still develop their own Tribal certification plan or
pursue other available mechanisms under 40 CFR 171.10. Further, Tribes
concerned about the application of RUPs in their Indian country may
have the option of adopting additional restrictions on such
applications through Tribal codes, laws, regulation or other applicable
Tribal requirements. Additionally, EPA has not generally provided opt-
out provisions for other actions under FIFRA. Other reasons EPA did not
include an opt-out provision include:
An opt-out approach does not allow EPA to adequately
address the equity, safety and enforcement issues that occur in the
absence of this Plan.
There are resource and implementation burdens on Tribes,
applicators and EPA that such a provision would impose.
An opt-out provision presents communication difficulties
to the regulated community, and thus makes compliance more difficult.
Please share your thoughts on this issue.
V. Consultation With Tribal Governments
In the absence of an EPA-approved certification program in areas of
Indian county, EPA, consistent with its statutory authorities and the
Federal government's trust responsibility to Federally-recognized
Tribes, has worked with the Tribes, on a government-to-government
basis, to appropriately develop a certification program that will help
ensure the protection of human health and the environment in Indian
country. EPA consulted with the Tribes on November 29 and December 13,
2010 to ensure development of a Federal plan that effectively meets
their needs and those of restricted use pesticide applicators in Indian
country.
During the consultations, several issues were discussed, such as
the desire for notification to Tribes prior to RUP use, assuring the
competency of private applicators, and the possibility of an opt-out
provision in the Plan. EPA is specifically seeking comment on these
issues as described in the previous section. Additional concerns were
raised that we respect Tribal sovereignty, not require unfunded
mandates, and provide adequate enforcement to assure RUPs are used
legally and safely. EPA believes that the proposed Plan addresses all
of these concerns.
In addition to the consultations dedicated specifically to this
Plan, EPA has also worked closely with the Tribal Pesticide Program
Council while developing this Plan.
EPA drafted the Federal plan in consultation with the Tribes
consistent with, among other things, the following policies, orders and
guidance: EPA Policy for the Administration of Environmental Programs
on Indian Reservations, November 8, 1984; Guidance on the Enforcement
Principles Outlined in the 1984 Indian Policy, January 17, 2001;
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, November 6, 2000 which was reaffirmed by Presidential
memorandum, Tribal Consultation, November 5, 2009; and the Proposed EPA
Policy on Consultation and Coordination with Indian Tribes, June 9,
2010.\3\
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\3\ The draft policy was published in the Federal Register for
comment on December 15, 2010.
---------------------------------------------------------------------------
VI. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C.3501 et
seq.), the information collection activities described in this document
and the revised Information Collection Request (ICR), OMB Control No.
2070-0029, are currently going through the renewal/amendment process
and will be reviewed by the Office of Management and Budget. As part of
this process, EPA is proposing to implement a revised form designed
specifically for pesticide applicators who wish to be certified in
Indian country. EPA estimates the paperwork burden associated with
completing this form to be 10 minutes per response. Under the PRA,
``burden'' means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose or provide
information to or for a Federal Agency. For this collection it includes
the time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes
[[Page 28776]]
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information. The information collection activities and the form are
included in a separate public docket. See http://www.regulations.gov,
docket identification number EPA-HQ-OPP-2010-0723.
PLEASE CALL OR EMAIL IF YOU HAVE QUESTIONS, COMMENTS, OR SUGGESTIONS
Sandy Wells, OAAA Executive Director
2500 E. 15th St.
Edmond, OK 73013
Bus: 405-341-3548; Fax: 918-512-4647; Email: oaaa@sbcglobal.net
This document is intended for OAAA members only. OAAA requests that should any party desire to publish, distribute or quote any part of this document that they first seek the permission of the Association. The views, thoughts, and opinions expressed herein do not necessarily represent those of the Oklahoma Agricultural Aviation Association (OAAA), its Board of Directors, staff or membership. Items in this newsletter are not the result of paid advertising and are only meant to highlight newsworthy developments. No endorsement by OAAA is intended or implied.
