Tribal Certification
Plan Outline
Resource to Support Development of Tribal Plans to
Certify Applicators of Restricted Use Pesticides in
Indian Country
U.S. Environmental Protection Agency's Office of Pesticide Programs
Field of External Affairs Division
January 2020
Executive Order 13891 Guidance
-------
Contents
Tribal Certification Plan Outline 2
Section 1. CERTIFICATION PLAN ADMINISTRATION 2
Section 2. LEGAL AUTHORITIES 4
Section 3. COMMERCIAL APPLICATOR CERTIFICATION CATEGORIES 7
Section 4. PRIVATE APPLICATOR CERTIFICATION CATEGORIES 9
Section 5. LIMITED USE CERTIFICATION CATEGORIES [IF APPLICABLE] 10
Section 6. STANDARDS FOR CERTIFICATION OF COMMERCIAL APPLICATORS 11
Section 7. STANDARDS FOR CERTIFICATION OF PRIVATE APPLICATORS 13
Section 8. RECERTIFICATION STANDARDS 15
Section 9. STANDARDS FOR THE DIRECT SUPERVISION OF NONCERTIFIED APPLICATORS 16
Section 10. CREDENTIALS 17
Section 11. RELIANCE ON CERTIFICATIONS ISSUED BY OTHER CERTIFYING AUTHORITIES 17
Section 12. REPORTS TO EPA 18
Section 13. IMPLEMENTATION TIMEFRAME 19
APPENDIX A: Certification of Pesticide Applicators in Indian Country: Fact Sheet on Certification Options
Available to Federally Recognized Tribes 20
Introduction 20
Certification Options Available to Federally Recognized Tribes 21
Contact Information for the Regional Offices 26
APPENDIX B: Examination standards at 40 CFR § 171.103(a)(2) 28
APPENDIX C: Recertification standards at 40 CFR § 171.107 29
APPENDIX D: Standards for the Direct Supervision of Noncertified Applicators at 40 CFR § 171.201 30
APPENDIX E: Procedures for Reliance on Certifications Issued by Other Certifying Authorities at 40 CFR §
171.303(a)(9) 33
Executive Order 13891 Guidance
1
-------
Tribal Certification Plan Outline
This document serves as a model outline for the order and contents of a tribal certification plan for
those tribes that choose to develop their own certification plan under 40 CFR § 171.307(b). This
approach is one of four options available to the tribes for establishing applicator certification programs
under 40 CFR § 171.307. All four options are described in Appendix A, titled "Certification of Pesticide
Applicators in Indian Country: Fact Sheet on Certification Options Available to Federally Recognized
Tribes." This outline is intended to assist tribal certifying authorities with the development of new or
revised tribal certification plans for the certification of pesticide applicators. If a tribe with an existing
tribal certification plan does not submit a proposed tribal-EPA agreement or a proposed tribal
certification plan by March 4, 20201, then the existing certification plan will cease to be effective on
March 4, 2020, and the tribe's areas of Indian country will become subject to the 2014 EPA Plan. The
tribe's areas of Indian country will then become subject to the revised EPA Plan pending EPA's
implementation timeline, unless the tribe has chosen to opt out.
Section 1. CERTIFICATION PLAN . [§i7i.303(b)(6)(i), (in),
and (iv)] [Not required in Tribal laws or regulations] The tribe's plan must provide
the following information about the administration of their certification plan and
program(s) within the tribe's jurisdiction:
(a) TRIBAL DESIGNATION (TRIBAL LEADER LETTER) AND POINT OF CONTACT.
[§171.307(b), §171.303(b)(6)(i)] The tribe's plan must include a written
statement from the tribal chairperson or equivalent elected leader ("Tribal
Leader") designating the lead agency as responsible for administering the
tribal plan. This should be included with the plan as Attachment 1. The plan
must identify the lead agency that will have primary responsibility for
submission and implementation of the tribe's certification plan and for
coordination with all other agencies or organizations that are involved in
administering portions of the tribe's certification plan in the area(s) covered
by the plan. Provide the name, job title, email address, mailing address and
phone number for the primary contact for the tribe for the certification plan.
[NOTE: Tribes may submit a copy of the previous Tribal Leader's letter that
was submitted with their current EPA-approved plan if the original
designation has not changed.1
Tribe Name
Lead Agency
Primary Contact Name and Title
(i.e., the person responsible for
plan administration,
maintenance, and reporting to
EPA)
Primary Contact Email
Primary Contact Phone Number
1 See 40 CFR §§ 171.307(a) and 171.307(b).
2
Executive Order 13891 Guidance
-------
Primary Contact Mailing
Address
(b) OTHER AGENCIES AND CONTACTS. [§171.307(b), §171.303(b)(6)(i)] The
tribe's plan must identify all other cooperating agencies responsible for
applicator certification and the functions performed by each, including
compliance monitoring and enforcement responsibilities. A "cooperating
agency" is defined as an agency that actively performs duties related to
pesticide applicator certification and/or training. Cooperating agencies may
include tribal agencies other than the lead agency, as well as non-tribal
authorities such as EPA Regional offices who may be involved in criminal
enforcement activities. For each cooperating agency, the tribe must: 1)
provide the names of the cooperating agency involved in certification-related
activities; 2) the role of the cooperating agency (e.g., Public Health pest
control certification, applicator training, compliance and enforcement for
public health pest control, etc.); 3) the primary contact for the cooperating
agency including the name, job title, email address, mailing address and phone
number for the primary contact; and 4) a thorough explanation of how the
lead agency will coordinate with the other cooperating agencies to ensure
consistency and that the plan is carried out so certification programs meet the
required standards.
Cooperating Agency
Name:
Cooperating Agency Role:
Primary Contact Name:
Primary Contact Title:
Primary Contact Email
Address:
Primary Contact Phone
Number:
Primary Contact Mailing
Address:
Explanation of Agency
Coordination Process:
(c) QUALIFIED PERSONNEL. [§171.307(b), §171.303(b)(6)(iii)] The tribe's plan
must provide a list of qualified personnel (positions or job titles, NOT names
of staff), including number of staff, job titles, and job functions of the lead
agency's staff involved in the applicator certification program, and the staff of
all cooperating agencies or organizations involved in the applicator
certification program.
Lead agency personnel: [Add rows if needed]
POSITION TITLE
FUNCTION
NUMBER OF FTE
Executive Order 13891 Guidance
-------
Cooperating agency personnel: [Add rows if needed]
POSITION TITLE
FUNCTION
NUMBER OF FTE
(d) DETAILED MAP OR LEGAL DESCRIPTION OF AREA(S) COVERED BY THE
TRIBE'S PLAN [§171.307(b)(l)(i)] The tribe's plan must include either a
detailed map or a legal description of the area(s) of Indian country where the
tribe's certification plan will apply.
(e) SUFFICIENT RESOURCES. [§171.307(b), §171.303(b)(6)(iv)] The tribe's plan
must include a statement affirming the commitment of the lead agency and
cooperating agencies/organizations to ensure they will have sufficient
resources to carry out the program as outlined in their plan.
Tribe's Affirmation Statement: [INSERT HERE]
Section 2. LEGAL AUTHORITIES. [§171. 307(b), §i7i.303(b)(6)(ii), and
§171.303(b)(7)(i)-(vii)] A tribe that chooses to develop its own certification plan
must demonstrate that the plan meets all the requirement of § 171.303 that are
applicable to state plans, except that the tribe's plan will not be required to meet
the requirements of § 171.303(b)(6)(iii) with respect to provisions for criminal
penalties, or any other requirement for assessing criminal penalties. As described in
both § 171.307(b) and the relevant paragraphs in § 171.303, the tribe's plan must
include the following:
(a) WRITTEN OPINION. [§171.303(b)(6)(ii)] The tribe's plan must include a
written opinion from the tribe's general counsel or from the legal counsel of
the lead agency that states that the lead agency and other cooperating
agencies have the legal authority necessary to carry out the tribe's
certification plan. This should be included with the plan as Attachment 2-A.
4
Executive Order 13891 Guidance
-------
(b) LAWS AND REGULATIONS. [§171.303(b)(7)] The tribe's plan must include a
complete copy of all tribal laws and regulations relevant to the certification
plan. These should be included with the plan as Attachment 2-B.
(c) PROVISIONS FOR GROUNDS FOR DENYING, SUSPENDING, OR REVOKING A
CERTIFICATION. [§171.303(b)(7)(i)] The tribe's plan must include the citation
to the specific tribal laws and regulations that demonstrate specific legal
authority for provisions for and listing of the acts which would constitute
grounds for denying, suspending, or revoking a certification. At a minimum,
include misuse of a pesticide, falsifications of records required to be
maintained by the certified applicator, a criminal conviction under section
14(b) of FIFRA, a final order imposing civil penalty under section 14(a) of
FIFRA, and conclusion of a tribal enforcement action for violations of tribal
laws or regulations relevant to the tribe's certification plan. The citation and
copy of the specific provision should be included with the plan as Attachment
2-C.
(d) PROVISIONS FOR REVIEWING, SUSPENDING, AND REVOKING A
CERTIFICATION. [§171.303(b)(7)(ii)] The tribe's plan must include the citation
to the specific tribal laws and regulations that demonstrate specific legal
authority for provisions for reviewing and where appropriate, suspending, or
revoking an applicator's certification based on the grounds listed in the plan
(for denying, suspending, and revoking certification of applicators) or a
criminal conviction under section 14(b) of FIFRA, a final order imposing civil
penalty under section 14(a) of FIFRA, or conclusion of a tribal enforcement
action for violations of tribal laws or regulations relevant to the tribe's
certification plan. The citation and copy of the specific provision should be
included with the plan as Attachment 2-D.
(e) PROVISIONS FOR ASSESSING PENALTIES. [§171.307(b)(l)(ii),
§171.303(b)(7)(iii)] The tribe's plan must include the citation to the specific
tribal laws and regulations that demonstrate specific legal authority for
provisions for assessing civil penalties for violations of the laws and
regulations relevant to the certification plan. The citation and copy of the
specific provision should be included with the plan as Attachment 2-E.
The tribe's plan is not required to meet the requirements of §171.303(b)(7)(iii)
with respect to provisions for criminal penalties but must include a
memorandum of agreement as described in paragraph (f) below.
(f) MEMORANDUM OF AGREEMENT BETWEEN THE TRIBE AND EPA
CONCERNING CRIMINAL ENFORCEMENT AUTHORITY [§171.307(b)(2) and
§171.307(b)(3)]
To the extent that the tribe is precluded from exercising criminal enforcement
authority, the Federal government will exercise primary criminal enforcement
authority in regard to a certification plan under §171.307(b). The tribe and the
relevant EPA Region(s) shall develop a procedure whereby the tribe will
provide potential investigative leads to EPA and/or other appropriate Federal
Executive Order 13891 Guidance
-------
agencies in an appropriate and timely manner. This procedure shall
encompass, at a minimum, all circumstances in which the tribe is precluded
from exercising relevant criminal enforcement authority and shall be described
in a memorandum of agreement signed by the tribe and the relevant EPA
Regional Administrator(s).
A plan for the certification of applicators under §171.307(b) shall not be
effective until the memorandum of agreement required under §171.307(b)(2)
has been signed by the tribe and the relevant EPA Region(s) and the plan has
been approved by EPA.
A draft of the memorandum of agreement including all the circumstances in
which the tribe is precluded from exercising relevant criminal enforcement
authority should be included with the plan as Attachment 2-F.
(g) PROVISIONS FOR RIGHT OF ENTRY FOR INSPECTIONS. [§171.303(b)(7)(iv)]
The tribe's plan must include the citation to the specific tribal laws and
regulations that demonstrate specific legal authority for provisions for right of
entry by consent or warrant by tribal and federal officials at reasonable times
for sampling, inspection, and observation purposes. The citation and copy of
the specific provision should be included with the plan as Attachment 2-G.
(h) PROVISIONS FOR MAKING IT UNLAWFUL TO APPLY RUPs UNLESS CERTIFIED.
[§171.303(b)(7)(v)] The tribe's plan must include the citation to the specific
tribal laws and regulations that demonstrate specific legal authority for
provisions for making it unlawful for persons to use RUPs other than certified
or noncertified applicators working under the supervision of a certified
applicator. The citation and copy of the specific provision should be included
with the plan as Attachment 2-H.
(i) PROVISIONS FOR COMMERCIAL APPLICATOR RECORDKEEPING.
[§171.303(b)(7)(vi)] The tribe's plan must include the citation to the specific
tribal laws and regulations that demonstrate specific legal authority for
provisions for requiring commercial applicators to record and keep routine
operational records for at least two years and that such records will be
available to appropriate Tribal officials. At a minimum, records must contain
for each restricted use pesticide application:
• Name and address of person for whom it was applied.
• Application - location, size of area treated; crop, commodity,
stored product or site; time and date of application.
• RUP - brand or product name, EPA registration number, total
amount applied per location per application;
• Certified applicator - name and certification number, if a
supervised application the name of the noncertified applicator.
• Requirement of commercial applicators to create or verify
existence of records of noncertified applicator qualifications.
Executive Order 13891 Guidance
-------
The citation and copy of the specific provision should be included with the
plan as Attachment 2-1.
(j) PROVISIONS FOR RUP DEALER RECORDKEEPING. [§171.303(b)(7)(vii)] The
tribe's plan must include the citation to the specific tribal laws and regulations
that demonstrate specific legal authority for provisions requiring RUP retail
dealers to record and maintain at each individual dealership for at least two
years, records of each transaction where an RUP is distributed or sold to any
person, excluding transactions solely between persons who are pesticide
producers, registrants, wholesalers, or retail sellers, acting only in those
capacities. Records must include:
• For each RUP distributed or sold, the name and address of
residence or principal place of business of each certified
applicator, or if applicable of the noncertified applicator for
application by a certified applicator.
• From the certification document presented to the seller on the
valid certification issued by the state, tribe, or federal agency
authorizing the certified applicator to purchase the RUP - the
certification number, expiration date and certification categories
of the certified applicator that are relevant to the pesticide sold.
• The product name and EPA registration number of the RUP
distributed or sold in the transaction, including any applicable
emergency exemption of State special local need registration
number.
• The quantity of the RUP distributed or sold in the transaction.
The citation and copy of the specific provision should be included with the
plan as Attachment 2-J.
Section 3. COMMERCIAL APPLICATOR CERTIFICATION CATEGORIES.
[§171.307(b), §171.101, §171.103, §171.303(a)(2), §171.303(a)(3), §171.303(b)(2)
and §171.303(b)(2)(ii)(A)] [Must be in tribal laws or regulations for both options 1
and 2.] Tribes must provide a list of their commercial applicator certification
category and subcategory names and descriptions. Tribes must provide the required
documentation as outlined below adopting either option one or option two.
OPTION 1: TRIBE ADOPTS EPA'S FEDERAL CATEGORIES AND STANDARDS. If the
tribe is adopting the Federal commercial applicator categories and standards
outright with no changes, the tribe must include a statement that the tribe has
adopted the EPA standards for commercial applicator certification at §
§171.101 and 171.103 as is and provide the appropriate citations for the tribal
laws and/or regulations demonstrating such action. The citation and copy of
the specific provisions that accomplish the adoption of the Federal categories
and standards should be included with the plan as Attachment 3.
Tribe's Affirmation Statement: [INSERT HERE]
7
Executive Order 13891 Guidance
-------
Federal Commercial Applicator Categories Adopted by the Tribe: [Add rows if
needed]
[NOTE: If the tribe is adopting all Federal categories, it may include a statement
that is the case rather than list all Federal categories. If the tribe has adopted only
a subset of the Federal categories, then the tribe must list the Federal categories
adopted below:
FEDERAL CATEGORIES
ADOPTED
ADOPTED FEDERAL
STANDARDS
(Y/N)
TRIBAL LAW/REG CITATION
OR
OPTION 2: TRIBE ADOPTS ITS OWN COMMERCIAL APPLICATOR CATEGORIES AND
STANDARDS. If the tribe is adopting its own categories and standards, then the
tribe must provide a statement that the tribe has adopted its own standards (that
meet or exceed federal standards at § §171.101 and 171.103) and provide all of
the following:
• A list and detailed description of all categories and subcategories and the
citations for the tribal laws and/or regulations. Tribes must provide the list
of tribal categories/subcategories in the table below, along with the
category/subcategory description and an indication of the closest
comparable EPA Federal category.
• A list and detailed description of the category standards for certification
adopted by the tribe and the citations for the tribal laws and/or
regu lations.
The citation and copy of the specific provisions that document adoption of the
tribal categories and standards should be included with the plan as Attachment
3.
Tribe's Affirmation Statement: [INSERT HERE]
Tribal Commercial Applicator Categories/Subcategories: [Add rows if needed]
TRIBAL
CATEGORY/SUBCATEGORY
NAME
TRIBAL
CATEGORY/SUBCATEGORY
DESCRIPTION
CLOSEST COMPARABLE EPA
FEDERAL CATEGORY
8
Executive Order 13891 Guidance
-------
Section 4. PRIVATE APPLICATOR CERTIFICATION CATEGORIES.
[§171.307(b), §171.105, §171.303(a)(2), §171.303(a)(3), §171.303(b)(3) and
§171.303(b)(3)(i), and §171.303(b)(3)(ii)] [Must be in tribal laws or regulations for
both options 1 and 2.] Tribes must provide a list of their private applicator
certification category and subcategory names and descriptions. Tribes must provide
the required documentation as outlined below adopting either option one or option
two.
OPTION 1: TRIBE ADOPTS EPA'S FEDERAL CATEGORIES AND STANDARDS. If the
tribe is adopting the Federal private applicator categories and standards
outright with no changes, the tribe must include a statement that the tribe has
adopted the EPA standards for private applicator certification at § §171.105 as
is and provide the appropriate citations for the tribal laws and/or regulations
demonstrating such action. The citation and copy of the specific provisions
that accomplish the adoption of the Federal categories and standards should
be included with the plan as Attachment 4.
Tribe's Affirmation Statement: [INSERT HERE]
Federal Private Applicator Categories Adopted by the Tribe: [Add rows if needed]
[NOTE: If the tribe is adopting all Federal categories, it may include a statement
that is the case rather than list all Federal categories. If the tribe has adopted only
a subset of the Federal categories, then the tribe must list the Federal categories
adopted below:
FEDERAL CATEGORIES
ADOPTED
ADOPTED FEDERAL
STANDARDS
(Y/N)
TRIBAL LAW/REG CITATION
OR
OPTION 2: TRIBE ADOPTS ITS OWN PRIVATE APPLICATOR CATEGORIES AND
STANDARDS. If the tribe is adopting its own categories and standards for private
applicators, then the tribe must provide a statement that the tribe has adopted
9
Executive Order 13891 Guidance
-------
its own standards (that meet or exceed federal standards at § 171.105) and
provide all the following:
• A list and detailed description of all private applicator categories and
subcategories and the citations for the tribal laws and/or regulations.
Tribes must provide the list of tribal categories/subcategories in the table
below, along with the category/subcategory description and an indication
of the closest comparable EPA Federal category.
• A list and detailed description of the category standards for certification
adopted by the tribe and the citations for the tribal laws and/or
regulations.
The citation and copy of the specific provisions that document adoption of the
tribal categories and standards should be included with the plan as Attachment
4.
Tribe's Affirmation Statement: [INSERT HERE]
Tribal Private Applicator Categories/Subcategories: [Add rows if needed]
TRIBAL
CATEGORY/SUBCATEGORY
NAME
TRIBAL
CATEGORY/SUBCATEGORY
DESCRIPTION
CLOSEST COMPARABLE EPA
FEDERAL CATEGORY
Section 5. LIMITED USE CERTIFICATION CATEGORIES [IF APPLICABLE].
[§171.307(b), §171.303(a)(4), §171.303(b)(2) and §171.303(b)(2)(ii)(A)] [Must be in
tribal laws or regulations.] Tribes must provide a list of all limited use categories the
tribe has adopted for commercial applicators and the standards of competency for
any such categories. For each limited use category, the tribe must provide all of the
following:
(a) The limited use category name and category description. Tribes must
provide the list of tribal limited use categories in the table below, along with
the category description.
(b) An explanation of why it is not practical to include the commercial
applicator limited use category within any of the federal commercial
applicator categories in §171.101 and their associated category-specific
standards of competency in §171.103(d) or within any comparable tribal
categories and standards.
(c) The citation and copy of the specific provisions that document adoption of
the tribal limited use categories and any associated category certification
10
Executive Order 13891 Guidance
-------
standards for the limited use categories should be included with the plan as
Attachment 5.
TRIBAL LIMITED USE
CATEGORY NAME
TRIBAL LIMITED USE
CATEGORY DESCRIPTION
EXPLANTION/RATION ALE
FOR LIMITED USE CATEGORY
Section 6. STANDARDS FOR CERTIFICATION OF COMMERCIAL
APPLICATORS. [§171.307(b), §171.101, §171.103, §171.303(a)(1), §171.303(a)(3),
§171.303(b)(2) and §171.303(b)(2)(ii)(A)-(C)] [See each part of this section below on
what must be in tribal laws or regulations.] Tribes must provide documentation of
their commercial applicator certification standards meeting or exceeding the Federal
commercial applicator certification standards prescribed by EPA under §§171.101 and
171.103. Tribes must provide the required documentation as outlined below
adopting either option one or option two.
OPTION 1: TRIBE ADOPTS EPA'S FEDERAL STANDARDS FOR CERTIFICATION OF
COMMERCIAL APPLICATORS. [Must be in tribal laws or regulations.] If the tribe is
adopting all the Federal commercial applicator certification standards outright with
no changes, the tribe must include a statement that the tribe has adopted the EPA
standards for commercial applicator certification at § §171.101 and 171.103 as is and
provide the appropriate citations for the tribal laws and/or regulations
demonstrating such action. The citation and copy of the specific provisions that
accomplish the adoption of the Federal categories and standards should be included
with the plan as Attachment 6.
Tribe's Affirmation Statement: [INSERT HERE]
OR
OPTION 2: TRIBE ADOPTS ITS OWN STANDARDS FOR CERTIFICATION OF COMMERCIAL
APPLICATORS. [See each section a, b, c, d and e - whether the requirement must be in
tribal laws or regulations.] If the tribe is adopting its own standards for commercial
applicator certification, then the tribe must provide a statement that the tribe has
adopted its own standards that meet or exceed federal standards at § §171.101 and
171.103 and provide all of the following:
(a) MINIMUM AGE REQUIREMENT. [§171.103(a)(1)] [Must be in tribal laws or
regulations.] Documentation that the tribe has adopted a minimum age
11
Executive Order 13891 Guidance
-------
requirement for commercial applicator certification of at least 18 years old. The
documentation must include the citation and copy of the specific provisions for
adoption of the tribal minimum age requirements and should be included with
the plan as Attachment 6-A.
(b) CORE STANDARDS OF COMPETENCY. [§171.103(c)] [Must be in tribal laws or
regulations.] Documentation that the tribe has adopted core standards of
competency that meet or exceed federal standards at § §171.101 and 171.103.
The documentation must include the citation and copy of the specific provisions
that document that the tribe has adopted core standards of competency that
meet or exceed federal standards and should be included with the plan as
Attachment 6-B.
(c) EXAMINATION STANDARDS. [§171.103(a)(2)] [Not required to be in tribal laws
or regulations.] A detailed description of the tribe's certification examination
standards for commercial applicators and an explanation and documentation of
how they meet/exceed federal exam administration standards at §171.103(a)(2)
(and listed in Appendix B), including a description of any alternative identification
that a tribe will authorize for qualification for certification in addition to a valid,
government-issued photo identification. The documentation should explain the
specific provisions that document that the tribe has adopted examination
standards that meet or exceed federal standards and should be included with
the plan as Attachment 6-C.
(d) STANDARDS FOR LIMITED USE CATEGORY CERTIFICATION, IF APPLICABLE.
[§171.103(a)(4), §171.103(a)(4)(iii) and §171.103(a)(4)(v)] [Must be in tribal laws
or regulations if the tribe has one or more.] Tribes must provide all the following
documentation if they have established any limited use category certifications:
• Documentation that the tribe has adopted core standards of competency that
meet or exceed federal standards at § §171.101 and 171.103 and a
requirement that candidates for certification in a limited use category pass the
written examination covering the core standards at § 171.103(c) and
demonstrate practical knowledge of the principles and practices of pest
control and proper and effective use of restricted use pesticide(s) covered by
the limited use category. Tribes must provide a detailed description of the
core standards of competency if they are different than those used for all
other commercial applicator categories.
• A detailed description of the process by which applicators must demonstrate
practical knowledge of the principles and practices of pest control and proper
and effective use of the restricted use pesticides authorized under the limited
use category based on the competency standards identified in Section 5 of the
plan. [NOTE: This does not have to be accomplished by a written examination.]
The documentation must include the citation and copy of the specific
provisions that document that the tribe has adopted standards for limited
use category certification that meet or exceed federal standards and should
be included with the plan as Attachment 6-D.
12
Executive Order 13891 Guidance
-------
(e) EXCEPTIONS, IF APPLICABLE. [§171.103(e)] [Must be in tribal laws or
regulations if the tribe has either of these exceptions. Tribes can exceed federal
regulations -the tribe is not required to have either of these exceptions.] Tribes
must provide a detailed description and documentation of any exceptions to the
tribal certification requirements for commercial applicators (e.g., persons
conducting laboratory research involving restricted use pesticides and/or Doctors
of Medicine and Doctors of Veterinary Medicine applying restricted use pesticides
to patients during the course of the ordinary practice of those professions). The
documentation must include the citation and copy of the specific provisions that
document that the tribe has adopted the exceptions to certification for
commercial applicators and should be included with the plan as Attachment 6-E.
Tribe's Affirmation Statement: [INSERT HERE]
Section 7. STANDARDS FOR CERTIFICATION OF PRIVATE APPLICATOFLS.
[§171.307(b), §171.105, §171.303(a)(1), §171.303(a)(3), §171.303(b)(3) and
§171.303(b)(3)(ii)-iv)] [See options below on what must be in tribal laws or
regulations.] Tribes must provide documentation of their private applicator
certification standards meeting or exceeding the Federal private applicator
certification standards prescribed by EPA under §171.105. Tribes must provide the
required documentation as outlined below adopting either option one or option two.
OPTION 1: TRIBE ADOPTS EPA'S FEDERAL STANDARDS FOR CERTIFICATION OF
PRIVATE APPLICATORS. [Must be in tribal laws or regulations.] If the tribe is adopting
all the Federal private applicator certification standards outright with no changes,
the tribe must include a statement that the tribe has adopted the EPA standards for
private applicator certification at §171.105 as is, and the tribe must also provide the
appropriate citations for the tribal laws and/or regulations demonstrating such
action. The citation and copy of the specific provisions that accomplish the
adoption of the Federal categories and standards should be included with the plan
as Attachment 7.
Tribe's Affirmation Statement: [INSERT HERE]
OR
OPTION 2: TRIBE ADOPTS ITS OWN STANDARDS FOR CERTIFICATION OF PRIVATE
APPLICATORS. [See each parts a through d on whether it must be in tribal laws or
regulations.] If the tribe is adopting its own standards for private applicator
certification, then the tribe must provide a statement that the tribe has adopted its
own standards that meet or exceed federal standards at §171.105 and provide all the
following:
(a) MINIMUM AGE REQUIREMENT. [§171.105(g)] [Must be in tribal laws or
regulations.] Documentation that the tribe has adopted a minimum age requirement
for private applicator certification of at least 18 years old. The documentation must
13
Executive Order 13891 Guidance
-------
include the citation and copy of the specific provisions that document adoption of
the tribal minimum age requirements and should be included with the plan as
Attachment 7-A.
(b) CORE STANDARDS OF COMPETENCY. [§171.105(a)] [Must be in tribal laws or
regulations.] Documentation that the tribe has adopted general core standards of
competency that meet or exceed federal standards at §171.105(a). The
documentation must include the citation and copy of the specific provisions that
document that the tribe has adopted general core standards of competency for
private applicators that meet or exceed federal standards and should be included
with the plan as Attachment 7-B.
(c) DETERMINATION OF COMPETENCY AND EXAMINATION STANDARDS. [§171.105(h)]
[Not required to be in tribal laws or regulations.] If private applicator certification is
based on examination, tribes must provide a detailed description of the tribe's
certification examination standards for private applicators and an explanation and
documentation of how they meet/exceed federal exam administration standards at
§171.103(a)(2) and listed in Appendix B, including a description of any alternative
identification that a tribe will authorize for qualification for certification in addition
to a valid, government-issued photo identification. If private applicator certification
is based upon (non-exam) training, tribes must provide a detailed explanation of how
the quantity, content, and quality of the tribe's training program ensure that a
private applicator demonstrates the level of competency required § 171.105 for
private applicators. This explanation must include at the minimum, all of the
following factors:
• The quantity of training required to become certified as a private applicator.
• The content that is covered by the training and how the tribe ensures that
required content is covered.
• The process the tribe uses to approve training programs for private applicator
certification.
• How the tribe ensures the ongoing quality of the training program for private
applicator certification.
The documentation must include the citation and copy of the specific provisions
that document that the tribe has adopted examination standards or alternative
determinations of competency that meet or exceed federal standards and should be
included with the plan as Attachment 7-C.
(d) EXCEPTIONS, IF APPLICABLE. [§ 171.105(i)] [Must be in tribal laws or regulations if
either of these exceptions exists. Tribes may choose not to have either of these
exceptions.] Tribes must provide a detailed description and documentation of any
exceptions to the tribal private applicator certification requirements in (e.g., persons
conducting laboratory research involving restricted use pesticides and/or Doctors of
Medicine and Doctors of Veterinary Medicine applying restricted use pesticides to
patients during the course of the ordinary practice of those professions). The
documentation must include the citation and copy of the specific provisions that
document that the tribe has adopted the exceptions to certification and should be
included with the plan as Attachment 7-D.
14
Executive Order 13891 Guidance
-------
Tribe's Affirmation Statement: [INSERT HERE]
Section 8. RE CERTIFICATION STANDARDS. [§171.307(b), §171.107,
§171.303(a)(6), and §171.107.303(b)(4)] [Must be in tribal laws or regulations.]
Tribes must provide documentation that the tribal standards for the recertification of
applicators of restricted use pesticides meet or exceed those standards prescribed by
the Agency under § 171.107 (and listed in Appendix C). Such documentation must
include a statement that the tribe has adopted its own standards that meet or exceed
the standards for recertification prescribed by the Agency under § 171.107 and a
detailed description of all of the Tribal standards for recertification of private and
commercial applicators, including all the following:
• The certification period, which may not exceed five years.
• If recertification is based upon written examination, a description of the
tribe's process for reviewing, and updating as necessary, the written
examination(s) to ensure that the written examination(s) evaluates whether a
certified applicator demonstrates the level of competency required by §
171.103 for commercial applicators or § 171.105 for private applicators.
• If recertification is based upon continuing education, an explanation of how
the quantity, content, and quality of the tribe's continuing education program
ensures that a certified applicator continues to demonstrate the level of
competency required by § 171.103 for commercial applicators or § 171.105 for
private applicators, including but not limited to:
o (A) The quantity of continuing education required to maintain
certification.
o (B) The content that is covered by the continuing education program
and how the tribe ensures the required content is covered,
o (C) The process the tribe uses to approve continuing education courses
or events, including information about how the tribe ensures that any
continuing education courses or events verify the applicator's successful
completion of the course or event,
o (D) How the tribe ensures the ongoing quality of the continuing
education program.
• If the tribe has adopted use of limited use category certifications, then the
tribe must provide a detailed description of the recertification standards for
the limited use category and how those standards meet or exceed the
standards prescribed by the Agency under § 171.107.
The documentation must include the citation and copy of the specific provisions
that document the tribe has adopted standards for recertification that meet or
exceed the Federal standards for recertification at §171.107 and should be included
with the plan as Attachment 8.
Tribe's Affirmation Statement: [INSERT HERE]
15
Executive Order 13891 Guidance
-------
Section 9. STANDARDS FOR THE DIRECT SUPERVISION OF NONCERTIFIED
APPLICATORS. [§171.307(b), §171.201, §171.303(a)(7) and §171.303(b)(5)] [Must
be in tribal laws or regulations for both options 1, 2 and 3.] Tribes must provide
documentation that their tribal standards for the direct supervision of noncertified
applicators by certified private and commercial applicators of restricted use
pesticides meet or exceed those standards prescribed by the Agency under § 171.201
(and listed in Appendix D). Documentation required is outlined for each of the
following three options available to tribes.
OPTION 1: TRIBE PROHIBITS APPLICATION BY NONCERTIFIED APPLICATORS. If the
tribe has adopted provisions prohibiting noncertified applicators from using
restricted use pesticides under the direct supervision of certified private and/or
commercial applicators, then the tribe must provide a statement that the tribe
prohibits noncertified applicators from using restricted use pesticides under the
direct supervision of certified private and/or commercial applicators, and a citation
of the specific tribal laws and/or regulations demonstrating that the tribe has
adopted such a prohibition. The citation and copy of the specific provisions
demonstrating that the tribe has adopted such a prohibition should be included with
the plan as Attachment 9.
Tribe's Affirmation Statement: [INSERT HERE]
OR
OPTION 2: TRIBE ADOPTS EPA'S FEDERAL STANDARDS FOR DIRECT SUPERVISION. If
the tribe has adopted the Federal standards for direct supervision of noncertified
applicators by certified private and/or commercial applicators prescribed by the
Agency under § 171.201, then the tribe must provide a statement that the tribe has
adopted the standards for direct supervision of noncertified applicators by certified
private and/or commercial applicators prescribed by the Agency under § 171.201 and
a citation of the specific tribal laws and/or regulations demonstrating that the tribe
has adopted such standards. The citation and copy of the specific provisions
demonstrating that the tribe has adopted Federal standards for direct supervisions
should be included with the plan as Attachment 9.
Tribe's Affirmation Statement: [INSERT HERE]
OR
OPTION 3: TRIBE ADOPTS ITS OWN STANDARDS FOR DIRECT SUPERVISION. If the
tribe has adopted its own standards for direct supervision of noncertified applicators
by certified private and/or commercial applicators, then the tribe must provide a
statement that the tribe has adopted its own standards that meet or exceed federal
standards at §171.201 (and listed in Attachment C), and a detailed explanation of
how the tribe standards for direct supervision meet or exceed the standards
prescribed by the Agency under § 171.201, including all the following:
16
Executive Order 13891 Guidance
-------
• Requirements for the certified applicator and supervisor responsibilities
• Requirements of the noncertified applicator under supervision, including
documenting requirements for a minimum age requirement of 18 for
noncertified applicators (or 16 years old if the supervisor is a certified private
applicator who is an immediate family member and the restricted use pesticide
is not a fumigant, sodium cyanide, sodium fluoroacetate, or applied aerially)
• Noncertified applicator qualifications
• Noncertified applicator training program(s)
• Recordkeeping requirements for noncertified applicator training
• Exceptions, if any (e.g., Doctors of Medicine and Doctors of Veterinary
Medicine)
The documentation must include the citation and copy of the specific provisions
that document that the tribe has adopted all the standards for direct supervision of
noncertified applicators by certified private and/or commercial applicators that
meet or exceed the Federal standards for direct supervision at §171.201, and this
should be included with the plan as Attachment 9.
Section 10. CREDENTIALS. [§171.307(b), § 171.303(a)(8), and
§171.303(a)(4)(vii)] [Not required to be in tribal laws or regulations.] Tribes must
provide a description below of the credentials or documents the tribe's certifying
authority will issue to each certified applicator verifying certification. If applicable,
tribes must also describe below the limited use certification credential. The limited
use credential must clearly state that the applicator is only authorized to purchase
and use the specific restricted use pesticide(s) identified in that credential. The tribe
should include example copies of the tribe's certification credentials with the plan
as Attachment 10.
Section 11. RELIANCE ON CERTIFICATIONS ISSUED BY OTHER CERTIFYING
AUTHORITIES. [§171.307(b), §171.303(a)(9)] [Not required to be in tribal laws or
regulations.] A tribe may waive any or all the procedures specified in §171.103,
§171.105, and §171.107 when certifying applicators in reliance on valid current
certifications issued by another state, tribal, or federal agency under an EPA-
approved certification plan. The tribe must provide an explanation below of whether,
and if so, under what circumstances, the tribe will certify applicators based in whole
or in part on their holding a valid current certification issued by another state, tribe,
or federal agency.
Tribes must also provide documentation below with their explanation to demonstrate
that certifications issued in reliance on certifications issued by other certifying
authorities are subject to all the following conditions:
17
Executive Order 13891 Guidance
-------
• A tribe may rely only on valid current certifications that are issued under an
approved state, tribe, or federal agency certification plan.
• The tribe has examined the standards of competency used by the state, tribe,
or federal agency that originally certified the applicator and has determined
that, for each category of certification that will be accepted, they are
comparable to its own standards.
• Any tribe that chooses to certify applicators based, in whole or in part, on the
applicator having been certified by another state, tribe, or federal agency,
must include in its plan a mechanism that allows the tribe to terminate an
applicator's certification upon notification that the applicator's original
certification terminates because the certificate holder has been convicted
under section 14(b) of FIFRA or has been subject to a final order imposing a
civil penalty under section 14(a) of FIFRA.
• The tribe issuing a certification based in whole or in part on the applicator
holding a valid current certification issued by another state, tribe, or federal
agency must issue an appropriate tribal credential or document to the
applicator.
If additional room is needed to provide the explanation or documentation it
should be included with the plan as Attachment 11.
Section 12. REPORTS TO EPA. [§171.307(b), §171.303(c)] [Not required to be in
tribal laws or regulations.] The tribe must provide a statement that the tribe agrees
to submit the following reports to the EPA in a manner and containing the
information that the EPA requires:
(1) An annual report to be submitted by the tribe's lead agency to the EPA by the
date established by the EPA that includes all the following information:
• The number of new general private applicator certifications and
recertifications issued during the last 12-month reporting period, and total
number of applicators holding a valid general private applicator certification
at the end of the last 12-month reporting period.
• For each private applicator category specified in the certification plan, the
numbers of new certifications and recertif ications issued during the last 12-
month reporting period, and the total number holding valid certifications in
each category at the end of the last 12-month reporting period.
• The numbers of new commercial applicator certifications and recertifications
issued during the last 12-month reporting period, and the total number of
applicators certified in at least one commercial applicator certification
category at the end of the last 12-month reporting period.
• For each commercial applicator certification category or subcategory specified
in the certification plan, the numbers of new certifications and recertifications
issued during the last 12-month reporting period, and the total number of
18
Executive Order 13891 Guidance
-------
commercial applicators holding a valid certification in each category or
subcategory at the end of the last 12-month reporting period.
• A description of any modifications made to the approved certification plan
during the last 12-month reporting period that have not been previously
evaluated by the Agency under § 171.309(a)(3).
• A description of any proposed changes to the certification plan that the tribe
anticipates making during the next reporting period that may affect the
certification program.
• A summary of enforcement activities related to the use of restricted use
pesticides during the last 12-month reporting period.
(2) Any other reports reasonably required by the Agency in its oversight of restricted
use pesticides.
Tribe's Affirmation Statement: [INSERT HERE]
Section 13. IMPLEMENTATION TIMEFRAME. [§171.307(b), §i7i.303(b)(6)(v)]
The tribe must provide below a schedule/document outlining the tribe's proposed
approach and anticipated timeframe for implementing the tribe's certification plan
after EPA approves the tribe's certification plan. The document should clearly
indicate the tribe's schedule for completing any legislative and regulatory changes
necessary to implement the plan and the timeframes for completing implementation
of all the tribe's plan components and requirements (e.g., adoption of new
procedures and standards, completion of revisions to the exams and training
materials, etc.) such that the tribe is in full compliance with the Part 171 revisions.
Tribe's Implementation Schedule: [INSERT HERE or provide as Attachment 13]
Executive Order 13891 Guidance
19
-------
APPENDIX A
Certification of Pesticide Applicators in Indian Country: Fact Sheet on
Certification Options Available to Federally Recognized Tribes
Introduction
In January 2017, EPA finalized the Certification of Pesticide Applicators (Certification Rule)
regulation which establishes standards and requirements for state, tribal, and federal agency
certification programs for pesticide applicators when applying restricted use pesticides (RUPs).
EPA classifies the most acutely toxic pesticides or those needing to be applied with special care
as RUPs, and these pesticide products may only be sold to a certified applicator or to another
person for use by a certified applicator and may only be used by a certified applicator or certain
persons working under his or her direct supervision.
The purpose of this document is to inform federally recognized tribes of new requirements for
certified applicators and EPA's intent to propose revisions to the EPA Plan for the Federal
Certification of Applicators of Restricted Use Pesticides within Indian Country (i.e., EPA Plan) and
associated options.
The 2017 Certification Rule includes the following new requirements:
• strengthened competency standards for private applicators;
• new certification categories for certified applicators;
• a maximum certification period of five years for private and commercial applicators;
• minimum competency requirements for noncertified applicators applying RUPs under
the supervision of a certified applicator;
• obligation for those supervising noncertified applicators to provide specific application
instructions and a means to immediately communicate with those under their
supervision;
• age minimum for all persons using RUPs (at least 18 years old) with an exception for
noncertified applicators on a farm under the direct supervision of a private applicator
who is an immediate family member to be at least 16 years of age;
• obligation for candidates for certification to present identification;
• certification exams to be proctored and only materials approved by certifying authority
allowed to be used during exams; and
• record keeping for all dealers of RUPs of sales and applicator's certification.
Three certification options are available to tribes in order to establish valid EPA-
recognized/approvable certification programs in Indian country under the 2017 Certification
Rule, along with a fourth "opt-out" option. Options 1-3 provide different mechanisms by which
individuals can become certified to use RUPs in specified areas of Indian country; establish
requirements that ensure applicator competency in the proper use and application of RUPs
20
Executive Order 13891 Guidance
-------
within those areas of Indian country; and provide for the enforcement of laws and regulations
concerning distribution, sale and use of RUPs within those areas of Indian country. Option 4
provides a mechanism for tribes to opt out of the EPA Plan, generally precluding use of RUPs in
their areas of Indian country.
Options at a glance:
1. Tribal Reliance on Certifications Issued by Specified Jurisdictions (Tribal-EPA
Agreement): A tribe may establish a certification plan with the relevant EPA region(s)
through a written agreement per 40 CFR § 171.307(a) where the tribe specifies certain
states, federal agencies, 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 plan will be negotiated with the appropriate region
and specified in the written agreement.
2. Certifications Issued by a Tribe (Tribal Certifications): A tribe may choose to submit its
own new or revised certification plan to the appropriate EPA region for approval per 40
CFR § 171.307(b). Such a plan would be similar to state certification plans.
3. 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 appropriate
EPA region will implement the EPA Plan as provided in 40 CFR § 171.307(c), except
where a tribe has elected to opt out per option 4. 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.
4. Opt-out of the EPA Plan: The Agency will not implement the EPA Plan for any 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 that the EPA Plan should
not be implemented per 40 CFR § 171.307(c)(2).
Certification Options Available to Federally Recognized Tribes
All applicators of RUPs in Indian country must hold a certification valid in that area of Indian
country or be working under the direct supervision of a certified applicator whose certification
is valid in that area of Indian country. A tribe may certify applicators of RUPs in Indian country
only pursuant to a certification plan approved by the Agency. See option 2 for further details.
Each option available to federally recognized tribes is detailed below:
Executive Order 13891 Guidance
21
-------
1. Tribal Reliance on Certifications Issued by Specified Jurisdictions (Tribal-EPA
Agreement):
A tribal certification plan that relies exclusively on certifications issued by other
jurisdictions would be created through a written agreement with the relevant EPA
region(s) and would contain all of the following information:
1) detailed map or legal description of areas of Indian country covered by the plan;
2) list of states, tribes or federal agencies upon whose certifications the tribe will rely;
3) description of tribal law, regulation, or code relating to the application of RUPs;
4) description of procedures, relevant authorities for carrying out compliance
monitoring under an enforcement plan which includes: roles and procedures for
conducting inspections, handling case development and enforcement actions,
procedures for exchange of information and handling complaint referrals;
5) description and copy of separate agreements relevant to administering the
certification plan and carrying out related compliance monitoring and enforcement
actions.2
This option allows the tribe to choose which jurisdictions' (states, tribes and federal
agencies) certifications will be valid in the tribe's areas of Indian country, and the extent
of the tribe's involvement in the implementation of the certification plan (subject to the
appropriate EPA regional office's approval).
To the extent that a tribe is precluded from exercising criminal activity authority, the
Federal government will exercise primary criminal enforcement authority under a tribal-
EPA agreement. The agreement must specify procedures whereby the tribe will provide
potentially criminal investigative leads to EPA and/or other appropriate Federal
agencies. This procedure must encompass, at a minimum, all circumstances in which the
tribe is precluded from exercising relevant criminal enforcement authority.
How does a tribe pursue the tribal-EPA agreement option? What are the
ramifications if a tribal-EPA agreement is not pursued?
Tribes interested in pursuing this tribal-EPA agreement option will submit their
proposed agreements to the relevant EPA regional office(s) for review. Agreements
become effective once signed by both the appropriate tribal authority and the EPA
Regional Administrator(s).
Tribes can develop and submit a proposed agreement at any time before or after March
4, 2020. If a tribe's area of Indian country is subject to an existing certification plan (i.e.,
either an existing agreement with a state, an existing EPA-approved tribal certification
plan, or an EPA plan for a particular area of Indian country) and the tribe submits a new
2 See 40 CFR § 171.307(a)(l)(i)-(v) for further details.
Executive Order 13891 Guidance
22
-------
proposed agreement with the relevant EPA region(s) by March 4, 2020, the existing
certification plan will remain in effect until the new agreement becomes effective.3
If a tribe with an existing tribal certification plan does not submit a proposed tribal-EPA
agreement (see 40 CFR § 171.307(a)) or a proposed tribal certification plan (see 40 CFR
§ 171.307(b)) by March 4, 2020, then the existing certification plan will cease to be
effective on March 4, 2020, and the tribe's areas of Indian country will become subject
to the 2014 EPA Plan. The tribe's areas of Indian country will then become subject to the
revised EPA Plan pending EPA's implementation timeline, unless the tribe has chosen to
opt out. See Option 4 for further details regarding opting out.
2. Certifications Issued by a Tribe (Tribal Certifications):
A tribe may choose to submit its own new or revised written certification plan for
certifying private and commercial applicators to use or supervise the use of RUPs to the
appropriate EPA region(s) for approval.4 A tribal certification plan is similar to state
certification plans. The plan must include, per 40 CFR § 171.307(b)(1), a detailed map or
legal description of the area(s) of Indian country covered by the plan as well as
demonstrate that the plan meets all requirements of 40 CFR § 171.303 applicable to
state 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
requirement for assessing criminal penalties.
To the extent that a tribe is precluded from exercising criminal activity authority, the
Federal government will exercise primary criminal enforcement authority under a
certification plan. The tribe and EPA region(s) will develop a procedure whereby the
tribe will provide potential investigative leads to EPA and/or other appropriate Federal
agencies. Per 40 CFR § 171.307(b)(2), all circumstances in which a tribe is precluded
from exercising relevant criminal enforcement authority shall be described in a
memorandum of agreement between the tribe and the EPA region(s).
3 For purposes of 40 CFR § 171.5 in Indian country, EPA considers a "certification plan approved by EPA" to include existing
agreements with state pursuant to the former section 40 CFR § 171.10(a), as well as existing EPA-approved tribal certification
plans, and any EPA plan for a particular area of Indian country plan. Existing certification plans approved by EPA before March
6, 2017, generally will remain in effect until March 4, 2020; if a tribe submits an amended certification plan to EPA for approval
by March 4, 2020, its existing certification plan will remain in effect until EPA has reviewed and responded to the amended
certification plan, but no longer than two years. However, in some cases, EPA may authorize further extension in its approval of
an amended certification plan. In its approval of an amended certification plan, EPA will specify how much longer the existing
plan may remain in effect while the tribe prepares to implement its amended certification plan. EPA will base each tribe's
implementation period on the particular circumstances of that jurisdiction and the requests from the tribe but anticipates that
most Tribes will be allowed two years from the date of EPA approval to fully implement their revised certification plans. 40 CFR
§ 171.5.
4 See 40 CFR § 171.307(b) for further details.
23
Executive Order 13891 Guidance
-------
How does a tribe pursue the new/revised certification plan option? What are
the ramifications if a new/revised certification plan is not pursued?
Tribes interested in pursuing this tribal certification option will submit electronically
their EPA requests the proposed certification plans to the relevant EPA region(s). The
certification plan will not be effective until the memorandum of agreement has been
signed by the tribe and relevant EPA region(s).
A tribe with an existing certification plan (i.e., either an existing agreement with a state,
an existing EPA-approved tribal certification plan, or an EPA plan for a particular area of
Indian country such as the Navajo Nation) must submit either a revised plan or a
proposed tribal-EPA agreement by March 4, 2020 to ensure its existing certification plan
remains in effect after March 4, 2020 (see footnote #2 for additional information).
Tribes that do not currently have an approved certification plan may submit a new plan
any time before or after March 4, 2020.
If a tribe that has an existing certification plan does not submit either a revised tribal
certification plan (see 40 CFR § 171.307(b)) or a proposed tribal-EPA Agreement (see 40
CFR § 171.307(a)) by March 4, 2020, then the tribe's existing certification plan will cease
to be effective on March 4, 2020, and the tribe's areas of Indian country will become
subject to the 2014 EPA Plan. The tribe's areas of Indian country will then become
subject to the revised EPA Plan pending EPA's implementation timeline, unless the tribe
has chosen to opt out. See option 4 for further details regarding opting out.
3. EPA-Administered Certification Plan (EPA Plan):
In any area of Indian country not covered by a new or existing certification plan (i.e., a
tribal-EPA agreement, a tribal certification plan, an existing agreement with a state (per
the former 40 CFR § 171.11(a)), an existing EPA-approved tribal certification plan, or an
EPA plan for a particular area of Indian country such as the Navajo Nation), EPA may, in
consultation with the affected tribe(s), implement an EPA-administered certification
plan.5 Since 2014, EPA has administered the 2014 EPA Plan for the Federal Certification
of Applicators of Restricted Use Pesticides within Indian Country (2014 EPA Plan) in areas
of Indian country not covered by any other certification plan. EPA is in the process of
updating the 2014 EPA Plan to address the standards and requirements of the 2017
Certification Rule, but, in the meantime, the 2014 EPA Plan is in effect in all areas of
Indian country not covered by another certification plan. When the revised EPA Plan is
implemented, it will apply in all areas of Indian country not covered by any other
certification plan, except where a tribe has opted out. See option 4 for further details.
EPA intends to publish a notice of availability of the proposed revisions to the EPA Plan
in a Federal Register notice. EPA expects to make the proposed revisions available for
5 See 40 CFR § 171.307(c) for further details.
Executive Order 13891 Guidance
24
-------
public comment for a minimum of 45 days, and the Agency will make copies of the
proposed plan available online/via email or via U.S. mail for hard copy upon request.
How does a tribe select the EPA Plan option?
Tribes without a tribal-EPA agreement; an agreement with a state (per the former 40
CFR § 171.11(a)); a Tribal Certification Plan; or an EPA plan for a particular area of Indian
country, are currently covered by the 2014 EPA Plan and will automatically be covered
by the revised EPA Plan pending EPA's implementation timeline, unless the tribe has
chosen to opt out. See option 4 for further details.
Upon implementation, EPA will, as appropriate, enforce the revised EPA Plan in areas of
Indian country where it is in effect. Tribes covered by the EPA Plan may impose
additional restrictions or prohibitions on some or all uses of RUPs in their areas of Indian
country through the enactment and implementation of tribal codes, laws, regulations or
other applicable requirements. EPA anticipates that the revised EPA Plan will rely, at
least in part, on certifications issued by adjacent states and tribes, but this reliance on
state certifications would not give states enforcement jurisdiction in Indian country or
over any federal certification issued pursuant to the EPA Plan. EPA has the authority to
assess civil and criminal penalties, and to issue stop sale, use and removal orders, for
conduct inconsistent with the Federal Insecticide, Fungicide, and Rodenticide Act and its
associated regulations in Indian country.
4. Opt-out of the EPA Plan:
EPA will not implement the revised EPA Plan in any area of Indian country where, prior
to the expiration of the public comment period provided in the Federal Register notice
EPA intends to issue announcing the availability of the proposed revisions to the EPA
Plan, the chairperson or equivalent elected leader of the relevant tribe provides EPA
with a written statement of the tribe's position that the EPA Plan should not be
implemented per 40 CFR § 171.307(c)(2). Opting out means that RUP use would
generally be prohibited in any area of Indian country where the tribe requested this
option and in the absence of a tribal-EPA agreement or EPA-approved tribal certification
plan for that area of Indian country.6
6 A tribal opt-out would not preclude use of RUPs by federal agency employees certified under a federal agency plan. The only
federal agencies currently approved to administer federal agency plans are the Department of Defense (DOD), Department of
Energy (DOE), two separate plans from the United States Department of Agriculture (USDA/APHIS/PPQ, and USDA/Forest
Service), and the Department of the Interior (DOI). The DOI plan covers three agencies within DOI - BLM, BIA and NPS - but no
others.
25
Executive Order 13891 Guidance
-------
How does a tribe pursue the opt-out option? What are the ramifications if the opt-out
option is not pursued?
To opt out, EPA requests that tribes notify EPA by one of following methods:
• Submitting a written statement with signature of the tribe's position to the docket
during the comment period of the revised EPA Plan;
• Submitting a written statement with signature of the tribe's position to:
Jacqueline E. Mosby
Director, Field and External Affairs Division
Office of Pesticide Programs
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W. (7506P)
Washington, D.C. 20460
• Submitting a written statement with signature of the Tribe's position via email to the
appropriate EPA regional office contact listed in the "Regional Contact Information"
table below and cc: Emily Ryan at ryan.emilv@epa.gov.
All opt-out written statements must be addressed to Jacqueline Mosby, Field and External
Affairs Division Director, and signed by the tribe's chairperson or equivalent elected leader of
the tribe. The opt-out must be submitted before the close of the comment period for the
proposed revisions to the EPA Plan.
If the opt-out option is not pursued, tribes without a tribal-EPA agreement, an agreement with
a state (per the former 40 CFR § 171.11(a)), a tribal certification plan, or an EPA plan for a
particular area of Indian country such as the Navajo Nation, are currently covered by the 2014
EPA Plan, and will automatically be covered by the revised EPA Plan when it takes effect.
Contact Information for the Regional Offices
The table below contains the regional contact information for EPA staff and can be used for region-
specific questions. Navajo Nation is only served by EPA Region 9 and should contact the EPA Region 9
Pesticides Office.
For additional information regarding questions from this fact sheet or consultations issues, please
contact Emily Ryan at ryan.emilv@epa.gov.
Region
Contact
Region
Contact
Executive Order 13891 Guidance
26
-------
1
Robert Koethe
617-918-1535
Koethe.Robert@epa.gov
6
Greg Weiler
214-665-7564
WeiIer.Gregorv@epa.gov
2
Tara Glynn
732-906-6183
GIvnn.Tara@epa.gov
7
Mike Daniels
913-551-7983
DanieIs.IVIichaeI@epa.gov
3
Courtenay Hoernemann
215-814-2216
Hoernemann.Courtenav@epa.gov
8
Blake Huff
303-312-6718
Mm!! BIake@epa.gov
4
Pat Livingston
404-562-9171
Livingston.Patricia@epa.gov
9
Katy Wilcoxen
415-947-4205
WiIcoxen.Katv@epa.gov
5
Amy Mysz
312-886-0224
Mvsz.Amv@epa.gov
10
Bethany Plewe
206-553-1192
PIewe.Bethanv@epa.gov
Executive Order 13891 Guidance
27
-------
APPENDIX B
Examination standards at 40 CFR § 171.103(a)(2)
Requirements of the certifying authority:
• All examinations will be presented and answered in writing.
• All persons serving as proctors will be prohibited from taking an examination for which they are
proctoring if they are also seeking pesticide applicator certification.
• All persons seeking certification will be required to present at the time of examination a valid,
government-issued photo identification and/or the following types of identification as proof of
identity and age: (fill in )
• All certification authority personnel will be required to keep exams secure before, during and after
the exam period so candidates have access to the exam only in the presence of a proctor.
• Prohibit the use of reference materials not approved by this certifying authority.
• Notify all candidates of his or her examination results.
Requirements for proctors:
• Keep exams secure before, during and after the exam period so candidates have access to the exam
only in the presence of a proctor.
• Give instructions on examination procedures to candidates before beginning examinations.
• Monitor examination candidates throughout examination periods.
• Prohibit any verbal or nonverbal communication between candidates and anyone other than the
proctor during the examination period.
• Prohibit examination or reference materials from being copied or retained by any person not
authorized by this certifying authority.
• Provide and collect certifying authority-approved reference materials for use during the
examination.
• Examine reference materials after the examination is complete for portions that may have been
removed, altered or destroyed.
• Report to the certifying authority any inconsistencies or irregularities such as cheating, use of
unauthorized materials, and attempts to copy or retain materials.
• Conduct examination sessions in accordance with the following exam administration requirements
required by this certifying authority: (Fill in ).
Executive Order 13891 Guidance
28
-------
APPENDIX C
Recertification standards at 40 CFR § 171.107
(a) Maintenance of continued competency.
• Each commercial and private applicator must recertify every five years or less from the date of
certification.
• The recertification period for commercial applicators is:
• The recertification period for private applicators is:
(b) Process for recertification.
(1) By written examination.
• A certified applicator is found eligible for recertification upon passing a written examination designed to
evaluate the level of competency that conforms to the examination standards in § 171.103(a)(2).
• Examinations for commercial applicators demonstrate the level of competency required by § 171.103.
• Examinations for private applicators demonstrate the level of competency required by § 171.105.
(2) By continuing education programs.
• A certified applicator may be found eligible for recertification upon successfully completing a continuing
education program pursuant to the certifying authority's EPA-approved certification plan.
o The quantity, content, and quality of a continuing education program to maintain applicator
certification must be sufficient to ensure the applicator continues to demonstrate the level of
competency required by § 171.103 for commercial applicators or § 171.105 for private
applicators.
o (ii) Any continuing education course or event relied upon for applicator recertification must be
approved by the certifying authority as being suitable for its purpose in the certifying authority's
recertification process.
o (iii) A certifying authority must ensure that any continuing education course or event, including
an online or other distance education course or event, relied upon for applicator recertification
includes a process to verify the applicator's successful completion of the course or event.
Executive Order 13891 Guidance
29
-------
APPENDIX D
Standards for the Direct Supervision of Noncertified Applicators at 40 CFR § 171.201
(b) General requirements.
(1) Requirements for the certified applicator.
(i)The certified applicator must have a practical knowledge of applicable Federal, State, and Tribal
supervisory requirements, including any requirements on the product label and labeling, regarding the
use of restricted use pesticides by noncertified applicators.
(ii) The certified applicator must be certified in each category applicable to the supervised pesticide use.
(2) Requirements for the noncertified applicator. The certified applicator must ensure that each noncertified
applicator using a restricted use pesticide under his or her direct supervision meets all of the following
requirements before using a restricted use pesticide:
(i) The noncertified applicator has satisfied the qualification requirements under paragraph (c) of this
section.
(ii) The noncertified applicator has been instructed within the last 12 months in the safe operation of
any equipment he or she will use for mixing, loading, transferring, or applying pesticides.
(iii) The noncertified applicator has met the minimum age required to use restricted use pesticides
under the supervision of a certified applicator.
o A noncertified applicator must be at least 18 years old, except that a noncertified applicator must be
at least 16 years old if all of the following requirements are met:
(A) The noncertified applicator is using the restricted use pesticide under the direct supervision
of a private applicator who is an immediate family member.
(B) The restricted use pesticide is not a fumigant, sodium cyanide, or sodium fluoroacetate.
(C) The noncertified applicator is not applying the restricted use pesticide aerially.
(3) Use-specific conditions that must be met in order for a noncertified applicator to use a restricted use
pesticide. The certified applicator must ensure that all of the following requirements are met before allowing a
noncertified applicator to use a restricted use pesticide under his or her direct supervision:
(i) The certified applicator must ensure that the noncertified applicator has access to the applicable
product labeling at all times during its use.
(ii) Where the labeling of a pesticide product requires that personal protective equipment be worn for
mixing, loading, application, or any other use activities, the certified applicator must ensure that any
noncertified applicator has clean, labeling-required personal protective equipment in proper operating
condition and that the personal protective equipment is worn and used correctly for its intended
purpose.
(iii) The certified applicator must provide to each noncertified applicator before use of a restricted use
pesticide instructions specific to the site and pesticide used. These instructions must include labeling
directions, precautions, and requirements applicable to the specific use and site, and how the
characteristics of the use site (e.g., surface and ground water, endangered species, local population) and
the conditions of application (e.g., equipment, method of application, formulation) might increase or
decrease the risk of adverse effects. The certified applicator must provide this information in a manner
that the noncertified applicator can understand.
(iv)The certified applicator must ensure that before each day of use equipment used for mixing, loading,
transferring, or applying pesticides is in proper operating condition as intended by the manufacturer,
and can be used without risk of reasonably foreseeable adverse effects to the noncertified applicator,
other persons, or the environment.
(v) The certified applicator must ensure that a means to immediately communicate with the certified
applicator is available to each noncertified applicator using restricted use pesticides under his or her
direct supervision.
Executive Order 13891 Guidance
30
-------
(vi) The certified applicator must be physically present at the site of the use being supervised when
required by the product labeling.
(vii) If the certified applicator is a commercial applicator, the certified applicator must create or verify
the existence of the records required by paragraph (e) of this section.
(c) Noncertified applicator qualifications. Before any noncertified applicator uses a restricted use pesticide under
the direct supervision of the certified applicator, the supervising certified applicator must ensure that the
noncertified applicator has met at least one of the following qualifications:
(1) The noncertified applicator has been trained in accordance with paragraph (d) [the "noncertified applicator
training program" explained below] of this section within the last 12 months.
(2) The noncertified applicator has met the training requirements for an agricultural handler under (Worker
Protection Standard -WPS regulations) 40 CFR 170.501 of this title within the last 12 months.
(3) The noncertified applicator has met the requirements established by a certifying authority that meet or
exceed the standards in §171.201(c)(1) [The "noncertified applicator training program" explained below in (d)].
(4) The noncertified applicator is currently a certified applicator but is not certified to perform the type of
application being conducted or is not certified in the jurisdiction where the use will take place.
(d) Noncertified applicator training program.
(1) General noncertified applicator training must be presented to noncertified applicators either orally from
written materials or audiovisually. The information must be presented in a manner that the noncertified
applicators can understand, such as through a translator. The person conducting the training must be present
during the entire training program and must respond to the noncertified applicators' questions.
(2) The person who conducts the training must meet one of the following criteria:
(i) Be currently certified as an applicator of restricted use pesticides under this part.
(ii) Be currently designated as a trainer of certified applicators or pesticide handlers by EPA, the
certifying authority, or a State, Tribal, or Federal agency having jurisdiction.
(iii) Have completed an EPA-approved pesticide safety train-the-trainer program for trainers of handlers
under (WPS) 40 CFR part 170.
(3) Content of noncertified applicator training materials.
(e) Recordkeeping.
(1) Commercial applicators must create or verify the existence of records documenting that each noncertified
applicator has the qualifications required in paragraph (c) Training for noncertified applicators or WPS handler
training within last 12 months, requirements of certifying authority, or certified applicator of this section. For
each noncertified applicator, the records must contain the information appropriate to the method of
qualification as provided in paragraphs (e)(l)(i) through (e)(l)(iv).
(i) If the noncertified applicator was trained in accordance with paragraph (c)(1) of this section, the
record must contain the following information:
(A) The noncertified applicator's printed name and signature.
(B) Date training requirement was met.
(C) The name of the trainer.
(D) The title or a description of the training provided.
(ii) If the noncertified applicator was trained as an agricultural handler under 40 CFR 170.501 in
accordance with paragraph (c)(2) of this section, the record must contain all of the information required
at 40 CFR 170.501(d)(1).
(iii) If the noncertified applicator qualified by satisfying the requirements established by the certifying
authority, the record must contain the information required by the certifying authority.
(iv) If the noncertified applicator is a certified applicator who is not certified to perform the type of
application being conducted or not certified in the jurisdiction where the use will take place, as
described in paragraph (c)(4) of this section, the record must include all of the following information:
Executive Order 13891 Guidance
31
-------
(A) The noncertified applicator's name.
(B) The noncertified applicator's certification number.
(C) The expiration date of the noncertified applicator's certification.
(D) The certifying authority that issued the certification.
(2) The commercial applicator supervisor must create or verify the existence of the record containing the
information in paragraph (e)(1) [method of qualification, etc.] of this section before allowing the noncertified
applicator to use restricted use pesticides under his or her direct supervision.
(3) The commercial applicator supervisor must have access to records documenting the information required in
paragraph (e)(1) of this section at the commercial applicator's principal place of business for two years from the
date the noncertified applicator used the restricted use pesticide.
(f) Exceptions. The tribe may exempt the following persons from the supervision requirements described in this
Appendix D:
(1) Persons conducting laboratory research involving restricted use pesticides.
(2) Doctors of Medicine and Doctors of Veterinary Medicine applying restricted use pesticides to patients during
the course of ordinary practice of those professions.
Executive Order 13891 Guidance
32
-------
APPENDIX E
Procedures for Reliance on Certifications Issued by Other Certifying Authorities
at 40 CFR § 171.303(a)(9)
The certifying authority will:
(i) rely only on valid current certifications that are issued under other approved state, tribe, or federal
agency certification plan.
(ii) examine the standards of competency used by the state, tribe, or federal agency that originally
certified the applicator and will determine that, for each category of certification that will be accepted,
they are comparable to its own standards.
(iii) have a mechanism to terminate an applicator's certification upon notification that the applicator's
original certification terminates because of a conviction under section 14(b) of FIFRA or was subject to a
final order imposing a civil penalty under section 14(a) of FIFRA.
(iv) issue an appropriate credential or document to the applicator.
Executive Order 13891 Guidance
33
------- |