Options for Tribes to Establish EPA-Recognized Certification Programs in Indian Country
Recognizing EPA's commitment to work more closely with tribal governments to strengthen environmental protection Indian country, the 2017 Certification of Pesticide Applicators regulation (2017 CPA Rule) provided more practical options for establishing restricted use pesticide (RUP) certification programs in Indian country. The 2017 CPA Rule offers three options for tribes to establish valid EPA recognized/approvable certification programs in Indian country along with a fourth "opt-out" option.
The three options for establishing a certification mechanism are as follows:
- Tribal Reliance on Certifications Issued by Specified Jurisdictions (Tribal-EPA Agreement): A tribe may establish a certification plan with the relevant EPA regional office(s) through a written agreement per 40 CFR § 171.307(a) where the tribe specifies certain federal agencies, states, and/or tribes whose certified applicators will be authorized to use RUPs in the tribe's areas of Indian country. The nature and extent of a tribe's role in implementing a 40 CFR § 171.307(a) plan will be negotiated with the appropriate EPA regional office and specified in the written agreement.
- Certifications Issued by a Tribe (Tribe-administered Certification Plan): A tribe may choose to submit its own new or revised certification plan to the appropriate EPA regional office for approval per 40 CFR § 171.307(b). A tribe-administered certification plan needs to demonstrate that the plan meets all requirements of 40 CFR § 171.303 applicable to state certification plans, except that the tribe's plan will not be required to meet the requirements of 40 CFR § 171.303(b)(6)(iii) with respect to provisions for criminal penalties, or any other requirements for assessing criminal penalties.
- EPA-administered Certification Plan (EPA Plan): In any area of Indian country not covered by a certification plan established under either option 1 or 2, the Agency will implement the EPA Plan as provided in 40 CFR § 171.307(c), except where a tribe has elected to opt out of the EPA Plan. Under the EPA Plan, the Agency would be responsible for certifying private and commercial applicators to use or supervise the use of RUPs. Tribes may impose additional restrictions or requirements on use of RUPs through tribal codes, laws, regulations or other tribal procedures, but would not generally be involved in the certification process. The 2023 EPA Plan is currently being implemented, and some components of the 2014 EPA Plan remain in effect until they are replaced with modified portions of the EPA Plan.
How to opt out of the EPA Plan
If a tribe does not have a tribal-EPA agreement or EPA-approved tribal certification plan in place and does not wish to be covered by the EPA Plan, the tribe has the ability to opt out of the EPA Plan. Opting out of the EPA Plan means that use of RUPs would generally be prohibited in the tribe’s Indian country for which the option was requested and where no tribal-EPA agreement or EPA-approved tribal certification plan for that area of Indian country exists. If a tribe chooses to opt out, the Agency will not implement the EPA Plan in the area of Indian country where the chairperson or equivalent elected leader of the relevant tribe provides the Agency a written statement of the tribe's position.
A tribe that chooses to opt out must:
- Address a written statement to Ed Messina, Office Director.
- The written statement must indicate the tribe’s position that the EPA Plan should not be implemented per 40 CFR § 171.307(c)(2).
- The written statement must be signed by the chairperson or equivalent elected leader of the relevant tribe.
A tribe may submit a written statement to EPA by one of the following methods:
- Submitting a written statement with signature of the tribe’s position to:
Ed Messina, Director
Office of Pesticide Programs OCSPP
U.S. Environmental Protection Agency
1201 Constitution Avenue, N.W., WJC East
Washington, D.C. 20004 (7501M)
- Submitting a written statement with signature of the tribe’s position via email to the relevant EPA regional office contact and cc: Jennifer Park at ([email protected]).
How to opt into the EPA Plan for Indian country
This option is available for tribes that have opted out of the EPA Plan and for tribes that currently have their own certification mechanism in place but prefer coverage by the EPA Plan.
A tribe that chooses to opt into the EPA Plan must:
- Address a written statement to Ed Messina, Office Director
- The written must indicate the tribe's position that the tribe requests to be covered by the EPA Plan
- The written statement must be signed by the chairperson or equivalent elected leader of the relevant tribe.
A tribe may submit a written statement with signature of the tribe's position to:
Ed Messina, Director
Office of Pesticide Programs, OCSPP
U.S. Environmental Protection Agency
1201 Constitution Avenue, N.W. WJC East
Washington, D.C. 20004 (7501M)
- Submitting a written statement with signature of the tribe’s position via email to the relevant EPA regional office contact and cc: Jennifer Park at ([email protected]).
Federally recognized tribes that are currently covered by the EPA Plan, tribes that currently have their own certification mechanism in place, and tribes that have opted out of the EPA Plan may choose any of these options at any time to address the tribe’s certification needs. For a tribe considering options (re: opt in or opt out) or interested in allowing RUPs for a specific use, please contact the relevant EPA regional office contact to discuss the best option for the tribe. EPA advises tribes to engage the relevant EPA regional office(s) in discussions before creating and submitting a certification plan for EPA approval, opting into the EPA Plan, or opting out of the EPA Plan.