11-12-91
I. DEFINITIONS
For purposes of this Code
A. The term 'Administrator' means the Administrator of the
Environmental Protection Agency.
B. The term 'agricultural commodity' means any plant, or part
thereof, or animal, or animal product, produced by a person
(including farmers, ranchers, vineyardists, plant propagators,
Christmas tree growers, aquaculturists, floriculturists,
orchardists, foresters, or other comparable persons) primarily
for sale, consumption, propagation, or other use by man or animals.
C. The term 'animal' means all vertebrate and invertebrate species,
including but not limited to man and other mammals, birds, fish, and
shellfish.
D. Applicators:
1. The term 'certified applicator' means any individual who is
certified by the Pesticide Enforcement Program as authorized to
use or supervise the use of any restricted pesticide covered by
his certification.
2. The term 'private applicator' means a certified
applicator who uses or supervises the use of any pesticide
which is classified for restricted use, for purposes of
producing any agricultural commodity on property owned or
rented by him or his employer or (if applied without
compensation other than trading of personal services between
producers of agricultural commodities) on the property of
another person.
3. The term 'commercial applicator' means a certified applicator
(whether or not he is a private applicator with respect to some
uses) who uses or supervises the use of any pesticide which is
classified for restricted use for any purpose or on any property
other than as provided by paragraph 2 in section I.D.
4. The term 'aerial applicator' means an applicator piloting any
fixed wing aircraft or helicopter utilized for the purpose of
applying any substance classified as a 'pesticide' as provided
in paragraph I.D.
5. The term 'ground applicator' means any person or persons
operating a tractor, motorized equipment or manually operated,
hand held or backpack sprayers, for any purposes of applying
any substance classified as a 'pesticide' as provided in
paragraph I.D.
6. The term 'structural applicator' means any person or persons
applying any substance classified as a 'pesticide' as provided
in paragraph I.D, in, on or around food handling
establishments, human dwellings, institutions such as schools
and hospitals, buildings used for office space, industrial
establishments, including warehouses and grain elevators and
any other structures, public or private.
7. Unless otherwise prescribed by its labeling, a pesticide shall
be considered to be applied 'under the direct supervision of a
certified applicator' if it is applied by a competent person
acting under the instructions and control of a certified
applicator who is physically present at the time and place the
pesticide is applied.
E. The term 'Code' means the Oglala Sioux Tribal Pesticide Code.
F. The term 'Committee' means the Tribal Land and Natural Resources
Committee.
G. The term 'Council' means the Oglala Sioux Tribal Council.
H. The term 'EPA' means the U.S. Environmental Protection
Agency.
I. The term 'district court' means a United States District Court.
J. The term 'environment' includes water, air, land, and all plants
and man and other animals living therein, and the
inter-relationships which exist among these.
K. The term 'FIFRA' means the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended (1972, 1975, and 1978) 7 U.S.C. 136 et
seq, and as it may be amended from time to time hereafter.
Reference in this ordinance to FIFRA shall be deemed to be reference
to FIFRA as it shall have been amended as of the time of
application of the reference.
L. The term 'insect' means any of the numerous small invertebrate
animals generally having the body more or less obviously segmented,
for the most part belonging to the class insecta, comprising
six-legged, usually winged forms, as for example, beetles, bugs,
bees, flies, and other allied classes of arthropods whose members
are wingless and usually have more than six legs, as for example,
spiders, mites, ticks, centipedes, and wood lice.
M. Label and Labeling:
1. The term 'label' means the written, printed, or graphic matter
on, or attached to, the pesticide or device or any of its
containers or wrappers.
2. The term 'labeling' means all labels and all other written,
printed, or graphic matter:
a. accompanying the pesticide or device at any time; or
b. to which reference is made on the label or in literature
accompanying the pesticide or device except to current
official publications of the Environmental Protection
Agency, the United States Departments of Agriculture and
Interior, the Department of Health and Human Services, the
Education Department, State experiment stations, State
agricultural colleges, and other similar Federal, State
or Tribal institutions or agencies authorized by law to
conduct research in the field of pesticides.
N. The term 'pest' means (1) any insect, rodent, nematode, fungus,
weed, or (2) any other form of terrestrial or aquatic plant or
animal life or virus, bacteria, or other microorganisms (except
viruses, bacteria or other microorganisms on or in living man or
other living animals) which the Administrator declares to be a
pest under Section 25 (c) (1) of FIFRA or which the Pesticide
Enforcement Program declares to be a pest.
O. The term 'pesticide' means (1) any substance or mixture of
substances intended for preventing, destroying, repelling, or
mitigating any pest, and (2) any substance or mixture of substances
intended for use as a plant regulator, defoliant, or desiccant;
provided, that the term 'pesticide' shall not include any article
(1) (a) that is a 'new animal drug' within the meaning of Section
201 (w) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321
(w)), or (b) that has been determined by the Secretary of Health
and Human Services not to be a new animal drug by a regulation
establishing conditions of use for the article, or (2) that is an
animal feed within the meaning of Section 201 (x) of such Act
(21 U.S.C. 321(x)) bearing or containing an article covered by
clause (1) of this proviso.
P. The terms 'protect health and the environment' and 'protection of
health and the environment' means protection against any
unreasonable adverse effects on the environment.
Q. The term 'Reservation Lands' means the Pine Ridge Indian
Reservation as established, existing and geographically defined
under the laws of the United States, encompassing all territory
within its exterior boundaries as now or hereafter prescribed or
ascertained, including all trust lands, fee patented lands,
allotted lands, townsites, roads, airspace, waters and lands and
rights of way owned, used or claimed by any person. Return
reservation lands shall also include lands that the Tribe assumes
jurisdiction over under a cooperative agreement with any other
governmental agency. The term Reservation lands shall also
include lands that the tribe assumes pesticide regulatory
jurisdiction over under a cooperative agreement with any other
governmental agency. References herein to "within the
Reservation" shall be deemed to include the air space both over the
surface of the Reservation and in such proximity to it that any
pesticide released in such air space is deposited or reasonably
could be expected to drift over or otherwise be deposited
within the exterior boundaries of the Reservation.
R. The term 'restricted use pesticide' means any pesticide use
classified for restricted use by the Oglala Sioux Pesticide
Enforcement Program or the South Dakota Department of Agriculture,
or the Administrator of the U.S. Environmental Protection Agency.
Any pesticide designated as such by the Committee upon a
determination that it is or may be so toxic, hazardous or otherwise
detrimental to humans, or to their environment, animals or crops,
that particular provisions should be made applicable to its sale,
production, processing, transportation, handling, storage,
application, disposal or other use in order to adequately protect
the public health, safety and welfare.
S. The terms 'person' or 'individual' shall mean an individual,
person, corporation, company, entity of State, Federal, etc., or
their employees.
T. The term 'Secretary' means the Secretary of the South Dakota State
Department of Agriculture.
U. The term 'State' means the State of South Dakota.
V. The term 'unreasonable adverse effects on the environment' means
any unreasonable risk to man or the environment, taking into account
the economic, social, and environmental costs and benefits of the
use of any pesticide.
W. The term 'weed' means any plant which grows where not wanted.
X. The term 'wildlife' means all living things that are neither human,
domesticated, nor, as defined in this code, pests, including but not
limited to mammals, birds, and aquatic
life.
Y. The term 'Tribe' or 'Tribal' means the Oglala Sioux Tribe.
II. CLASSIFICATION OF PESTICIDES
The Pesticide Enforcement Officer shall recognize all pesticide
products introduced on the Reservation for "restricted use" or "general
use" according to standards consistent with Sections 3 & 4 of FIFRA.
As a minimum, the Pesticide Enforcement Officer shall consider all
pesticide products classified for restricted use by the Administrator
of EPA or the Secretary of the South Dakota Department of Agriculture as
for restricted use on the Reservation. In addition, the Pesticide
Enforcement Officer may restrict the use of additional pesticide
products if it is found that characteristics of such pesticides
requires that their uses be restricted to prevent damage to property
other than the property to which they are directly applied or to
persons, animals, crops or vegetation other than the pests which they
intend to destroy.
III. CERTIFICATION REQUIRED
Individuals not appropriately certified are prohibited form applying
restricted use pesticides, with the exception of those individuals
applying the pesticides under the direct supervision of a certified
applicator.
IV. SUPERVISION OF NON-CERTIFIED APPLICATORS
A. Supervision Requirements
Persons not certified may use restricted use pesticides under the
direct supervision of a certified applicator. "Direct supervision"
shall include verifiable instruction to the competent person, as
follows:
1) Detailed guidance for applying the pesticide properly, and
2) provisions for contacting the certified applicator in the event
he is needed. In other situation, and as required by the label, the
actual physical presence of a certified applicator may be required
when application is made by a non-certified applicator.
B. Aerial Applicator Direct Supervision
All aerial applicators must be certified and may not avoid
certification by applying pesticides under the direct supervision
of a certified applicator.
C. Government Employees Supervision
Employees of any government agency who apply general use of
restricted use pesticides upon the Pine Ridge Indian Reservation
as part of their employment must be certified. All government
employees who apply general use or restricted use pesticides upon
the Pine Ridge Indian Reservation must be licensed.
V. CATEGORIZATION OF COMMERCIAL APPLICATORS
Commercial applicators shall be categorized in one or more of the
categories defined below, based on the application site and the type of
work they perform.
A. Categories of Commercial Applicators
1. Agricultural Plant Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides in the
production of agricultural crops, including without limiting
the foregoing, sunflowers, feed grains, soybeans and forage,
vegetables, small fruits, tree fruits and nuts, as well as on
grasslands and non-crop agricultural lands.
This category is further subdivided in a) insecticides
(including Miticides and Nematocides), b) herbicides and
c) Fungicides.
2. Agriculture Animal Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides on animals,
including without limiting the foregoing, beef cattle, dairy
cattle, swine, sheep, horses, goats, poultry and other
livestock, and to places on or in which animals are confined.
Doctors of Veterinary Medicine engaged in the business of
applying pesticides for hire, publicly holding themselves out
as pesticides applicators, or engaged in the large-scale use of
pesticides are included in this category.
3. Forest Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides in forests,
forest nurseries, and forest seed producing areas.
4. Ornamental and Turf Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides to control
pests in the maintenance and production of ornamental trees,
shrubs, flowers, and turf.
5. Seed Treatment
This category includes commercial applicators using or
supervising the use of restricted use pesticides on seeds.
6. Aquatic Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticide, purposefully
applied to standing or running water, excluding applicators
engaged in public health related activities included in
category 8 below.
7. Right-of-Way Pest Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides in the
maintenance of right-of-way including but not limited
to public roads, electric powerlines, pipelines, railway
rights-of-way or other similar areas.
8. Industrial, Institutional, Structural and Health Related Pest
Control
This category includes commercial applicators using or
supervising the use of restricted use pesticides in, on, or
around food handling establishments, human dwellings,
institutions such as schools and hospitals, buildings used for
office space, industrial establishments, including warehouses
and grain elevators, and any other structures and adjacent
areas, public or private and for the protection of stored,
processed, or manufactured products.
9. Public Health Pest Control
This category includes State, Federal, Tribal, or other
governmental employees, or commercial applicators using or
supervising the use of restricted use pesticides in public
health programs for the management and control of pests having
medical and public health importance.
10. Regulatory Pest Control
This category includes State, Federal, Tribal, or other
governmental employees or commercial applicators who use or
supervise the use of restricted use pesticides in the control
of regulated pests under State, Federal, or Tribal quarantine
with the exception of noxious weeds.
11. Demonstration and Research Pest Control
This category includes: (i) individuals who demonstrate to the
public the proper use and techniques of application of
restricted use pesticides or supervise such demonstration, and
(ii) persons conducting field research with pesticides, and in
doing so, use or supervise the use of restricted use
pesticides. Included in the first group are such persons as
extension specialists and county agents, commercial
representatives demonstrating pesticide products, and those
individuals demonstrating methods used in public programs. The
second group includes: State, Federal, commercial and other
persons conducting field research on or utilizing restricted
use pesticides.
12. Rodent and Bird Pest Control
This category includes State, Federal, Tribal or
commercial applicators using or supervising the use of any
restricted use pesticides for the control of rodents and birds.
13. Predator Pest Control
State, Federal, Tribal or commercial applicators using or
supervising the use of restricted use pesticides in the control
of predators must be certified for predator control.
14. Grain Fumigation Pest Control
Commercial applicators using or supervising the use of
restricted use pesticides on stored grain or grain in transit
to control pests must be certified for grain fumigation pest
control.
15. Wood Preservation Pest Control
Commercial Applicators using or supervising the use of
restricted use pesticides to control pests that damage or
destroy wood must be certified for wood preservative pest
control.
VII. COMPETENCY STANDARDS FOR COMMERCIAL APPLICATORS
A. General Standards for All Categories of Certified Commercial
Applicators
All commercial applicators shall demonstrate practical knowledge of
the principles and practices of pest control and safe use of
pesticides. Testing shall be based on examples of problems and
situations appropriate to the particular category or subcategory
of the applicator's certification and the following areas of
competency:
1. Labels & Labeling Comprehension
a. The general format and terminology of pesticide labels, and
labeling;
b. The understanding of instruction, warnings, terms,
symbols, and other information commonly appearing on
pesticide labels;
c. Classification of the product, general or restricted; and
d. Necessity for use consistent with the label.
2. Safety
a. Pesticide toxicity and hazard to man and common exposure
routes;
b. Common types of causes of pesticide accidents;
c. Precautions necessary to guard against injury to
applicators and other individuals in or near treated areas;
d. Need for and use of protective clothing and equipment;
e. Symptoms of pesticide poisoning;
f. First aid and other procedures to be followed in case of a
pesticide accident; and
g. Proper identification, storage, transport, handling, mixing
procedures and disposal methods for pesticide and used
pesticide containers.
3. Environment - The potential environmental consequences of the
use and misuse of pesticides as may be influenced by such
factors as:
a. Weather and other climatic conditions;
b. Types of terrain, soil and other substrate;
c. Presence of fish, wildlife and other non-target organisms;
and
d. Drainage patterns.
4. Pests - Factors such as:
a. Common features of pest organisms and characteristics of
damage needed for pest recognition;
b. Recognition of relevant pests; and
c. Pest development and biology as it may be relevant to
problem identification and control.
5. Pesticides - Factors such as:
a. Types of pesticides;
b. Types of formulation;
c. Compatibility, synergism, persistence and animal and plant
toxicity to the formulations;
d. Hazards and residues associated with use;
e. Factors which influence effectiveness or lead to such
problems as resistance to pesticide; and
f. Dilution procedure.
6. Equipment - Factors including:
a. Types of equipment and advantages and limitations of each
type; and
b. Uses, maintenance and calibration.
7. Application Techniques - Factors including:
a. Methods of procedure used to apply various formulations of
pesticides, such as dust, wettable powders, emulsions,
solutions, and gasses, together with a knowledge of which
technique of application to use in a given situation.
b. Relationship of discharge and placement of pesticides to
proper use, unnecessary use, and misuse; and
c. Prevention of drift and pesticide loss into the environment.
8. Laws and Regulations - Applicable State, Federal and Tribal
laws and regulations.
B. Category Specific Standards
In addition to the general standards, commercial applicators must
demonstrate knowledge of the principles of pesticide use as they
relate to the particular use category in which the applicator is
involved. The following are the category specific standards.
1. Agricultural Plant Pest Control
Applicators must demonstrate practical knowledge of the crops
grown and the specific pests of those crops on which they may
be using restricted use pesticides. The importance of such
competency is amplified by the extensive areas involved, the
quantities of herbicides needed, and the ultimate use of many
commodities as food and feed. Practical knowledge is required
concerning soil and water problems, pre-harvest intervals,
re-entry intervals, phytotoxicity, and potential for
environmental contamination, non-target injury and community
problems resulting from the use of restricted use herbicides in
agricultural areas.
This category is further subdivided into a) Insecticides
(including Miticides and Nematocides,) b) Herbicides and
c) Fungicides.
2. Agriculture Animal Pest Control
Applicators applying pesticides directly to animals must
demonstrate practical knowledge of such animals and their
associated pests. A practical knowledge is also required
concerning specific pesticide toxicity and residue potential,
since most animals will frequently be used for food. Further,
the applicator must know the relative hazards associated with
such factors as formulation, application techniques, age of
animals, stress and extent of treatment.
3. Forest Pest Control
Applicators shall demonstrate practical knowledge of the types
of forests, forest nurseries, and seed production in their
State and the pests involved. They should possess practical
knowledge of the cyclic occurrences of certain pests and
specific population dynamics as a basis for programming
pesticide applications. A practical knowledge is required of
the relative biotic agents and their vulnerability to the
pesticides to be applied. Because forest stands may be large
and frequently include natural aquatic habitats and harbor
wildlife, the consequences of pesticide use may be difficult to
assess. The applicator must therefore demonstrate practical
knowledge of control methods which will minimize the
possibility of secondary problems such as unintended effects on
wildlife. Proper use of specialized equipment must be
demonstrated, especially as it may relate to meteorological
factors and adjacent land use.
4. Ornamental and Turf Pest Control
Applicators shall demonstrate practical knowledge of pesticide
problems associated with the production and maintenance of
ornamental trees, shrubs, plantings, and turf, including
cognizance of potential phytotoxicity due to a wide variety of
plant material, drift, and persistence beyond the intended
period of pest control. Because of the frequent proximity of
human habitations to application activities, applicators in
this category must demonstrate practical knowledge of
application methods which will minimize or prevent hazards to
humans, pets, and other domestic animals.
6. Seed Treatment
Applicators shall demonstrate practical knowledge of types of
seeds that require chemical protection against pests and
factors such as seed coloration, carriers, and surface active
agents which influence pesticide binding and may affect
germination. They must demonstrate practical knowledge of
hazards associated with handling, sorting and mixing, and
misuse of treated seeds such as introduction of treated seed
into food and feed channels, as well as proper disposal of
unused treated seed.
6. Aquatic Pest Control
Applicators shall demonstrate practical knowledge of the
secondary effects which can be caused by improper application
rates, incorrect formulations, and faulty application of
restricted use pesticides used in this category. They shall
demonstrate practical knowledge of various water use
situations and the potential of downstream effects. Further,
they must have practical knowledge concerning potential
pesticide effects on plants, fish, birds, beneficial insects
and other organisms which may be present in aquatic
environments. These applicators shall demonstrate practical
knowledge of the principles of limited area application.
7. Right-of-Way Pest Control
Applicators shall demonstrate practical knowledge of a wide
variety of environments since rights-of-ways can traverse many
different terrains, including waterways. They shall demonstrate
practical knowledge of problems on runoff, drift, and excessive
foliage destruction and ability to recognize target organisms.
They shall also demonstrate practical knowledge of the nature of
herbicides and the need for containment of these pesticides
within the right-of-way area, and the impact of their
application activities in the adjacent areas and communities.
8. Industrial, Institutional, Structural and Health Related Pest
Control
Applicators must demonstrate a practical knowledge of a wide
variety of pests including their life cycles, types of
formulations appropriate for their control and methods of
application that avoid contamination of food, damage and
contamination of habitat and exposure of people and pets. Since
human exposure, including, babies, children, pregnant women, and
elderly people, is frequently a potential problem, applicators
must demonstrate practical knowledge of the specific factors
which may lead to a hazardous condition, including continuous
exposure in the various situations encountered in this
category. Because health related pest control may involve
outdoor applications, applicators must also demonstrate
practical knowledge of environmental conditions particularly
related to this activity.
9. Public Health Pest Control
Applicators shall demonstrate practical knowledge of
vector-disease transmission as it relates to and influences
application programs. A wide variety of pests is involved,
and it is essential that they be known and recognized, and
appropriate life cycles and habitats be understood as a basis
for control strategy. These applicators shall have practical
knowledge of a great variety of environments ranging from
streams to those conditions found in buildings. They should
also have practical knowledge of the importance and employment
of such non-chemical control methods as sanitation, waste
disposal, and drainage.
10. Regulatory Pest Control
Applicators shall demonstrate practical knowledge of regulated
pests, applicable laws relating to quarantine and other
regulation of pests, and the potential impact on the
environment of restricted use pesticides used in suppression
and eradication programs. They shall demonstrate knowledge of
factors influencing introduction, spread, and population
dynamics of relevant pests. Their knowledge shall extend
beyond that required by their immediate duties since their
services are frequently required in other areas of the country
where emergency measures are invoked to control regulated
pests, and where individual judgments must be made in new
situations.
11. Demonstration and Research Pest Control
Persons demonstrating the safe and effective use of pesticides
to other applicators and the public will be expected to meet
comprehensive standards reflecting a broad spectrum of pesticide
uses. Many different pest problem situations will be
encountered in the course of activities associated with
demonstration, and practical knowledge of problems, pests, and
population levels occurring in each demonstration situation is
required. Further, they should demonstrate an understanding of
persticide-organism interactions and the importance of
integrating pesticide use with other control methods. In
general, it would be expected that applicators doing
demonstration pest control work possess a practical knowledge
of all standards detailed at 40 CFR 171.4(b). In addition,
they shall meet specific standards required for categories (1)
through (8) and (12) (13) (14) (15) of the Code as may be
applicable to their particular activity.
Persons conducting field research or method improvement work
with restricted use pesticides should be expected to know the
general standards detailed at 40 CFR 171.4(b). In addition,
they shall be expected to know the specific standards required
for categories (1) through (10) and (12) (13) (14) (15) of the
Code, applicable to their particular activity, or
alternatively, to meet the more inclusive requirements listed
under "Demonstration".
12. Rodent and Bird Pest Control
Applicators must demonstrate knowledge of the biological and
behavior patterns of target and related non-target species,
including toxicity levels which could be expected to give
selective control of pest species without causing significant
damage to populations of non-target species. They must also
demonstrate knowledge of applicable techniques and practices to
minimize secondary poisoning of non-target species and proper
placement and management techniques of baits.
13. Predator Pest Control
Applicators must demonstrate knowledge of the biological and
behavioral patterns of target and non-target species including
toxicity levels which could be expected to give selective
control of pest species without causing significant damage to
non-target species. They must also demonstrate knowledge of
application techniques and practices that minimize the
potential for secondary poisonings of predator species and
proper management and placement of baits.
14. Grain Fumigation Pest Control
Applicators must demonstrate a knowledge of grain pests, their
life cycles and characteristics; application techniques
associated with applying fumigants to grain under various
structural and environmental conditions; hazards associated
with fumigants and potential residue problems in food and feed
resulting from improper use.
15. Wood Preservative Pest Control
Applicators must demonstrate knowledge of the following:
(a) Application of wood preservatives:
(1) Preparation of wood for treatment;
(2) Methods of applying wood preservatives; and
(3) Factors influencing the effectiveness of wood
preservatives;
(b) Protecting human health:
(1) Hazards to applicator (acute and chronic effects)
(2) Safety procedures to be adhered to in order to reduce
exposure;
(3) First aid; and
(4) Wearing and care of protective equipment
(c) Protecting the environment
(1) Waste disposal;
(2) Storage and disposal of containers; and
(3) Handling of spills; and
(d) Monitoring procedures for measurement of ambient inorganic
arsenicals when appropriate.
C. Exemptions
The above standards do no apply to the following persons of these
regulations:
1. Persons conducting laboratory type research involving restricted
use pesticide;
2. Doctors of Medicines and Doctors of Veterinary Medicine applying
pesticides as drugs or medication during the course of their
normal practice.
VIII. STANDARDS OF COMPETENCY FOR PRIVATE APPLICATORS
A. All private applicators shall demonstrate knowledge of the following
subjects:
1. Recognize common pests to be controlled and damage caused by
them.
2. Read and understand the label and labeling information
- including the common name of pesticide to be applied;
pest(s) to be controlled; timing and methods of application;
safety precautions; any pre-harvest or re-entry restrictions;
and any specific disposal procedures.
3. Apply pesticides in accordance with label instructions and
warning, including the ability to prepare the proper
concentration of pesticides to be used under particular
circumstances taking into account such factors as area to be
covered, speed at which application equipment will be driven,
and the quantity dispersed in a given period of operation.
4. Recognize local environmental situations that must be considered
during application to avoid contamination.
5. Recognize poisoning symptoms and procedures to follow in case of
a pesticide accident.
6. Private applicators must demonstrate a practical knowledge of
applicable Tribal, State and Federal laws and regulations. A
copy of the Tribal Code will be given to each applicator
certified by the Tribe.
B. Standards for Supervision of Non-Certified Applicators by Certified
Private and Commercial Applicators.
Persons not certified may use restricted use pesticides under the
direct supervision of a certified applicator. "Direct supervision"
shall include verifiable instruction to the competent person, as
follows: 1) detailed guidance for applying the pesticide properly, and
2) provisions for contacting the certified applicator in the event he
is needed. In other situation, and as required by the label, the
actual physical presence of a certified applicator may be required
when application is made by a non-certified applicator.
IX. CERTIFICATION REQUIREMENTS
A. Commercial Applicators
1. Certification Document Required
No person shall apply restricted use pesticides within the Pine
Ridge Indian Reservation without first obtaining a certification
document from the Oglala Sioux Tribal Pesticide Program.
Tribal Certification is obtained by presenting to the Pesticide
Enforcement Officer a valid and current commercial applicator
certification document issued by the State. The Tribal
certification document issued will reflect Tribal
certification only in the commercial applicator categories,
appearing on the State Certification document presented, which
the Pesticide Enforcement Officer determines to meet the
competency standards given in Section VII of this Code.
Further, the expiration date on the Tribal certification
document shall not exceed the expiration date printed on the
State certification document presented. Recertification may be
obtained by presenting an updated South Dakota certification
document to the OST Pesticide Enforcement Officer.
2. Certification Renewal
A Tribal certification may be renewed by complying with
provisions described in Section IX (A) (1) of this Code.
3. Records Maintained
Commercial applicators shall keep and maintain records of each
application of any restricted use pesticide to include the
following information:
a. The name and address of the person for whom the pesticide
was applied;
b. The location of the land or property where the pesticide was
applied;
c. The pest to be treated;
d. The acreage, area, or number of plants or animals treated or
other appropriate description;
e. The year, month, day, and time the pesticide was applied;
f. The person or firm who applied the pesticide;
g. The trade or brand name and common name of the pesticide
applied, which shall include the lot or batch number and the
company or person the pesticide was purchased from;
h. The company name appearing on the product label and the EPA
registration number;
i. The weather conditions at the time of application, including
direction and estimated velocity of wind and (this
requirement does not apply to application of baits in bait
stations or pesticide applications in or immediately adjacent
to structures);
j. Amount of the pesticide applied and concentration in pounds
or gallons per unit or percentages of active ingredient
per unit of the pesticide used;
k. Specific crop or designated site or commodity to which
pesticide application was made;
l. Name, license number and license expiration date, type of
license;
m. Mode of application used; and
n. Quantity of pesticide purchased, quantity used on
application, quantity remaining after application.
Such records shall be kept for a period of three years from
the date of application of the pesticide and shall be
available for inspection by the Land and Natural Resources
Committee at reasonable times. The Committee shall, upon
written request, be furnished a copy of such records by the
commercial applicator. Records of restricted use pesticide
applications performed by persons under the direct supervision of
a certified commercial applicator shall be the responsibility of
the supervising certified applicator.
4. Exemption
The provisions of this section concerning records shall not
apply to persons conducting research involving restricted use
pesticides.
5. All commercial applicators must submit on an annual basis to the
OST Pesticide Enforcement Program, a summary of all commercial
pesticide applications done on the Pine Ridge Indian
Reservation, which must include date, location, type
of pesticide applied and amount applied.
B. Private Applicators
1. Certification Required
No person shall use or supervise the use of any restricted use
pesticide without a private applicator's certificate issued by
the Oglala Sioux Tribal Pesticide Enforcement Officer.
2. Certification Methods
A private applicator may become certified to purchase and/or
apply restricted use pesticides on the Pine Ridge Indian
Reservation by presenting a current valid South Dakota Private
Applicator's certificate to the Tribal Pesticide Officer. Upon
review and a finding of satisfactory, the Officer will issue a
Tribal Certification document holder of a South Dakota
Certification document. The expiration date of the Tribal
certification will be the same as that given on the South
Dakota document. Recertification may be obtained by
presenting an updated South Dakota certification document to
the Officer.
X. AERIAL APPLICATORS
All applicators who apply pesticides via aircraft must comply with all
applicable Federal regulations, regulations administered by the State
and Tribal Regulations.
A. Each applicator shall keep informed of weather conditions
affecting each application, and shall not use or apply pesticides
when adverse weather conditions or wind direction and velocity
might result in drift damage to persons or to property. The wind
direction during the time of the application of the pesticide must
be given as the direction from which the wind is coming.
B. Operating Hours - the application of pesticides and other chemicals
used in a farming enterprise shall be conducted during daylight
hours, excepting emergency application for infestation control. All
applications not specified herein are prohibited, provided that,
spraying for infestation control shall be conducted upon the written
approval of the Director. Daylight hours shall be considered as the
period from 5:00 a.m. to 6:00 p.m., except, by special permit, the
hours may be extended to 11:00 p.m. for normal application.
XI. STORAGE AND DISPOSAL OF PESTICIDES
AND PESTICIDE CONTAINERS
A. No person shall transport, store, or dispose of any pesticide or
pesticide container in such a matter as to cause injury to humans,
vegetation, crops, livestock, wildlife, beneficial insects, or to
pollute any waterway in a manner harmful to any wildlife therein, or
otherwise contrary to disposal directions on the pesticide label.
B. All pesticides or chemicals transported within the Pine Ridge Indian
Reservation shall be transported in vehicles leak-proof, entirely
closed, and securely closed in transportation.
C. Pesticides and pesticide containers shall not be left unattended
at any time, except where they are being stored in a safe and secure
facility, and they shall be disposed of at the completion of the
job. Storage areas or places shall be posted with such signs or
notice depicting the contents therein.
D. No pesticide may be placed, repackaged or redistributed into any
container which was, or which resembles, beverage bottles, food
containers, or other containers which any person might mistakenly
believe to contain the original consumer product.
E. Pesticides shall not be stored in any place in close proximity to
any human food or clothing, or any animal feed.
F. No empty pesticide containers shall be used for any other purpose
except those returnable to the seller or those non-combustible
containers which have been decontaminated and reconditioned in
accordance with manufacturer's label.
XII. UNLAWFUL ACTS
Any person who has committed any of the following acts is subject to
penalties provided in Section XIV of this Code. It shall be unlawful
for any person to:
A. Make false or fraudulent claims through any media, misrepresenting
the effect of a pesticide or methods to be utilized;
B. Make pesticide recommendations or applications inconsistent with the
labeling registered with the EPA, the Secretary of the South Dakota
Department of Agriculture, or the Oglala Sioux Tribal Pesticide
Enforcement Program, for that pesticide, restrictions on the use of
that pesticide.
C. Operate faulty or unsafe pesticide application equipment;
D. Operate pesticide application equipment in a faulty, careless or
negligent manner;
E. Neglect, or after notice, refusal to comply with the provisions of
this Code or any lawful order of the Tribal Pesticide Enforcement
Program;
F. Refuse or neglect to keep and maintain the records required by this
Code or to make reports when and as required;
G. Make false or fraudulent records, invoices, or reports;
H. Use, or supervise the use of a pesticide which is restricted to use
by "certified applicators" without having qualified as a certified
applicator; or without working under the direct supervision of a
certified applicator as described in Section IV and VIII (B) of this
Code.
I. Use fraud or misrepresentation in making application for or renewal
of certification.
J. Refuse or neglect to comply with any limitations of restrictions on
or in a duly issued certification;
K. Use or cause to be used any pesticide in a manner inconsistent with
its labeling or codes by the Pesticide Enforcement Program if these
codes further restrict the uses provided on the labeling;
L. Aid or abet a certified or uncertified person to evade the
provisions of this Code; conspire with a certified or an uncertified
person to evade the provisions of this Code; or allow one's
certification to be used by another person;
M. Make false or midleading statements during an inspection concerning
any infestation or infection of pests found on land;
N. Impersonate any Federal, State, County, Tribal or other governmental
official;
O. Distribute any pesticide labeled for restricted use to any person
unless such person or his agent has a valid certification to use,
supervise the use of, or distribute restricted use pesticides.
P. Apply pesticides onto any land without the consent of the owner or
person in possession thereof; except, for governmental agencies
which must abate a public health problem; or
Q. Apply pesticides known to be harmful to honeybees on blossoming
crops on which bees are working during the period between two hours
after sunrise and two hours before sunset; except on property owned
or operated by the applicator.
R. Withhold knowledge of the theft, loss, disappearance, spillage or
unintentional but mistaken misuse of pesticides.
XIII. DENIAL, SUSPENSION, REVOCATION, OR
MODIFICATION OF CERTIFICATION
A. The Tribal Pesticide Enforcement program, or its designated
agent, may, for good cause shown, informally contact any applicator
about possible violations of the Code or practices which may result
in violations. These informal contacts are to assist the applicator
in adhering to practices which promote the proper use of pesticides.
B. Upon recommendation to the Tribal Pesticide Program by its
designated agent, or, based upon its own findings, the Pesticide
Officer may issue a Warning of Possible Violation in the form of a
letter from the Pesticide Officer to an applicator. The letter will
explain the basis for the Warning, possible measures which the
applicator may take to mitigate the basis of the Warning, and an
explanation of the steps that the Pesticide Officer may take if the
applicator does not take positive corrective action.
C. The Pesticide Officer may suspend certification, pending inquiry,
for not longer than ten days; and, after opportunity for a hearing,
may deny, revoke or modify; any certification issued under this Code
if the Pesticide Officer finds that the applicant or the holder of a
certification has been convicted or is subject to a final order
imposing a criminal or civil penalty pursuant to FIFRA, or has
committed any of the unlawful acts listed in Section XII of this
Code; provided that any person requiring certification under this
Code shall be subject to the penalties provided for by Section XV
of this Code.
D. Whenever the Pesticide Officer determines, based upon reasonable
information, that an emergency situation exists which may endanger
the Reservation environment, wildlife, or human health, it shall be
empowered to suspend any or all pesticide applications until a
hearing is held to determine whether such applications are
endangering the Reservation environment.
XIV. PENALTIES
A. Any person violating any provisions of this Code may be assessed a
civil penalty not to exceed $600.00 per violation plus costs. In
determining the amount of the penalty to the size of business of the
person charged the effect, on the person's ability to continue in
business, and the gravity of the violation. Any and all penalties
assessed under this Code shall be deposited in a fund entitled
Oglala Sioux Tribal Pesticide Enforcement Program Fund for use by
the Oglala Sioux Tribal Enforcement Program for license printing
and other enforcement costs.
B. Any penalty assessed by the Committee following a penalty proceeding
may be appealed to the Tribal Court.
XV. DELEGATION OF AUTHORITY
Any authority vested in the committee by this Code may with equal force
and effect be delegated to such Tribal officials as the Land and
Natural Resources Committee may designate.
XVI. ENTRY AND INSPECTION
For purposes of carrying out this Code, the Land and Natural Resources
Committee or its designated agent may enter public or private premises
at reasonable times by permission or warrant obtained from the Tribal
Court for sampling, inspection, and observational purposes.
XVII. COOPERATION
The Committee is authorized to cooperate with and enter into agreements
with and accept grants-in-aid from any agency of the State, Indian
Tribal Government, or the United States Government for the purposes of
carrying out the provisions of this Code.
XVIII. SEVERABILITY
If any provision of this code of the application, thereof, to any
person or circumstance is held invalid, the invalidity shall not affect
other provisions or applications of this Code which can be given effect
without regard to the invalid provision or application, and to this end
the provision of this code are severable.
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