Options for Tribes to Establish EPA-Recognized Certification Programs in Indian Country
As a response to the COVID-19 public health emergency, mail services may be limited. If a federally recognized tribe plans to submit a certification plan for EPA approval or a letter describing a tribe’s decision using a physical mailing address, EPA’s ability to receive and respond to the submission may be delayed. Therefore, a tribe planning to submit a certification plan for EPA approval during this time should send an electronic copy of the certification plan submission to the relevant EPA region contact. For a tribe that chooses to opt out, the tribe must submit a written statement. More information on the ways to submit the opt out written statement is included below.
Recognizing EPA's commitment to work more closely with tribal governments to strengthen environmental protection in Indian country, the 2017 Certification of Pesticide Applicators regulation (2017 Rule) provided more practical options for establishing certification programs in Indian country. The 2017 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 region(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 region and specified in the written agreement.
- 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). A tribal 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 revised EPA Plan once it is finalized as provided in 40 CFR § 171.307(c), except where a tribe has elected to opt out. 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 existing 2014 EPA Plan will remain in full effect until the revised EPA Plan under this option is finalized, no later than March 4, 2022. Once finalized, some components of the 2014 EPA Plan may remain in effect while EPA prepares to implement the revised EPA Plan.
A fourth option for tribes is the ability to opt out of the revised EPA Plan for Indian country. Opting out of the revised EPA Plan 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. If a tribe chooses to opt out, the Agency will not implement the revised 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 that the revised EPA Plan should not be implemented per 40 CFR § 171.307(c)(2).
A tribe that chooses to opt out must:
- Address the written statement to Ed Messina, Acting Office Director.
- The written statement must indicate the tribe’s position that the revised 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 the written statement to EPA by one of the following methods:
- Submitting a written statement with signature of the tribe’s position to:
Ed Messina, Acting Office Director
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 relevant EPA regional office contact and cc: Jennifer Park at (email@example.com).
Federally recognized tribes that are currently covered by the 2014 EPA Plan, tribes that currently have their own certification mechanism in place, and tribes that have opted out of the revised EPA Plan may choose any of these options at any time to address the tribe’s certification needs. EPA advises tribes to engage the relevant EPA region(s) in discussions before creating and submitting a certification plan for EPA approval, opting into the revised EPA Plan, or opting out of the revised EPA Plan.
For more information on these four options, please see the fourth bullet titled Tribal Certification Plan Outline (Appendix A).