Summary of Consultation on Proposed Federal Plan for Certifying Restricted Use Pesticide Applicators within Indian Country
                    November 29, 2010 and December 13, 2010

Participants  -  November 29, 2010
Cherokee Nation
Kootenai Tribe 
Ak-Chin Indian Community
Confederated Salish and Kootenai Tribes
Gila River Indian Community
Aroostook Band of Micmacs
Coeur D'Alene Tribe
Yakama Nation
Three Affiliated Tribes
Two other tribes not clearly identifiable
EPA OPP Deputy Office Director and staff
EPA Office of General Counsel
EPA Office of Enforcement and Compliance Assurance

Participants  -  December 13, 2011
Aroostook Band of Micmacs
Mashantucket Pequot
Winnebago Tribe of Nebraska
Chickasaw Nation
Kashia Band of Pomo Indians of the Stewarts Point Rancheria
Confederated Salish and Kootenai Tribes
Ramona Band of Cahuilla
Paulo Band of Mission Indians
Yurok Tribe
Elk Valley Rancheria
Inter Tribal Council of Arizona
Salt River Maricopa-Pima Indians
St. Regis Mohawk Tribe
Three other tribes not clearly identifiable
EPA OPP FEAD Acting Division Director and staff
EPA Regions 1, 4, 6, 7, 8, 9, 10

Overall Summary of Consultation Calls

EPA provided an overview of the plan. The tribes were ok with many of the approaches EPA has proposed for the plan.  The biggest issue discussed was whether EPA should provide a notification provision, the benefits of such a provision, and how it could be done.  Other issues discussed included enforcement concerns, private applicator certification, opt-in/opt-out and making sure that the plan is specific to Indian country needs.

Both calls were scheduled for two hours.  Even though EPA provided many opportunities for tribal input, including long pauses, the first call ended after one hour.  The second call ended after nearly 2 hours.

Discussion of Issues

Consultation
   * One tribe stated that it does not consider the calls to be a formal consultation and reserved the right for additional consultation.  OPP stated that they believe the call is government to government consultation.  In addition, additional consultation can be arranged if a tribe feels their questions were not addressed or they did not have an opportunity to offer their views on the draft Plan during the two consultation calls provided.

Language
   * Language needs to make it clear that the plan applies to Indian country and it is differentiated from states. 

Notification
   * OPP gave an overview of the request and our thoughts on the request.
         o At the October 2010 TPPC meeting, the TPPC proposed adding a notification provision to the draft Federal Certification Plan for Indian Country.  This provision would require that applicators of RUPs to notify the tribe before each application.  This type of provision would provide tribes some benefit in knowing where and when RUP applications occur.  
         o OPP has been looking into this request with the Office of General Counsel. Although this provision may be possible for commercial applicators, under FIFRA, it doesn't look like we can require prior notification for private applicators.
         o From a practical standpoint, implementation of such a provision could be burdensome.   Tribes may see receiving notifications as burdensome and an unfunded mandate. It has also been suggested that the applicators could submit this information to a website but it is not clear who would develop and maintain the website.  Developing and maintaining a website for this purpose may be too resource intensive for EPA.
         o One idea is that the EPA could maintain a website that contains a list of applicators with the federal certification organized by the state or tribe of their underlying certificate (e.g., list all of the applicators who have received a federal certificate using their state certificate from New Mexico under New Mexico).  This would at least allow tribes to see potential applicators that have federal certificates contiguous to their area of Indian country and could allow the tribe the information needed to contact applicators.
         o We'd like to move forward with publishing the draft Federal Register Notice and highlight the notification provision as an issue for comment.  We think it would be useful to get broader tribal and public input on it. 
   * Tribes want to know if an applicator is going to apply pesticides/RUPs to their lands.
   * Benefits of notification are:
         o It would provide some ability for tribes to say no to an application if around a cultural site or tribal resources. As written, the plan does not provide a way for the tribe to refuse an application and this would give a way while the tribe develops its own ordinances.
         o Even if there isn't authority to stop a pesticide based on the notification provision, the information may allow tribes to target inspections or help them develop ordinances to protect tribal cultural resources in the future.  
   * EPA needs to inform applicators of tribal requirements and where will applicators get that information.
   * EPA should have a database that include tribal contacts and specific ordinances for each of the tribes
   * Suggestion that EPA include in application a field for applicators to let EPA know where the applicator intends to apply RUPs
   * Suggestion that the Region notify tribes of applicator certification and maintain database of tribal contacts and ordinances within the Region
   * Several tribes agreed that an applicator should notify the tribe or the Region prior to each use.  But one tribe did indicate that it could be an unfunded mandate.  Another tribe saw it as a Notice of Intent, and agreed that it would take time to receive and track incoming notifications but that the notification should be done.  Not for prior approval but to make tribes aware.  Also indicated that managing the notification system for their tribe is a large time burden.
   * When OPP asked how tribes feel about receiving notifications, the response was that some tribes may see it as an burden because then may feel obligation to act on notifications but felt that the tribe could decide what they want to do with the information.
   * Tribes have had similar notification systems, e.g., through the Clean Air Act.  Tribes also receive notifications on National Historic Preservation, which can result in a large volume. Tribes may ignore those not relevant and may only take action on those of particular interest to tribe.
   * There was some discussion about state maintained databases with applicator information and whether EPA could work with the states. Could tribes access this information? Tribe would have be ok with giving that type of information to the state.  Tribes could impose these types of requirements but can look into this federally.  Would also need to distinguish why we would do this for Indian country but not the rest of the country.
   * One tribe mentioned the use of tribal law for a preservation ordinance permits.  
   * Notification important for public health of tribal members.
   * Ability for notification through tribal ordinance  -  several tribal participants mentioned ability to do so but would take resources/time.
   * Discussed ways tribes could receive notifications:
         o Online
         o Information exchange  -  tribe can receive notifications
         o Database that would notify pesticide contacts
         o Paper system  -  fill out form and fax (e.g., Arizona system)
         o Could set up on TPPC website?  May be possible but not sure of logistics.

Enforcement
Tribes expressed many concerns about enforcement.
   * Discussed enforcement responsibilities: EPA is responsible for enforcing federal requirements and tribes are responsible for tribal requirements.  
   * Discussed how EPA would handle enforcement if the tribes does not have any inspectors with federal credentials  -  refer to the EPA Region for inspection/enforcement since expect most enforcement of the plan to come from tips and complaints.
   * If a tribe has an ordinance, e.g., no spraying of RUPs, and an applicator applies, concerned about who will inspect and don't think the plan is enforceable.  EPA explained that the ordinance would take precedence and that the tribe could enforce their ordinance.
   * The tribes expressed a desire for EPA to backup tribal laws, ordinances, etc.  EPA stated that the tribe is responsible for enforcing more stringent requirements that they place on RUP use on their lands.
   * The tribes wanted to know if an applicator has a violation on tribal lands, would EPA consider revoking based on tribal violations?  EPA stated they could revoke a certificate or apply civil penalties if there was a FIFRA violation.
   * Tribes suggested that EPA should consider revoking a federal certificate if an applicator violates tribal ordinances.

Opt-Out/Opt-In
   * On the November 29[th] call, there was only one comment.  Only one comment.  Agreed that an opt-in/opt-out provision is not needed. The plan should cover everyone unless the tribe has their own plan or program in place.  [Note:  When EPA asked for other thoughts, there were none.]
   * There was more discussion on opt-out/opt-in on the December 13[th] call.
         o Some tribes supported an opt-out provision with the idea that a tribe could change their position at the end of each year 
         o Opt-in or out should be based on a tribe's capacity
         o EPA described some of the concerns with an opt-out provision, e.g., EPA doesn't provide an opt-out provision for other actions, practicality of informing applicators

Contiguous States/Tribes Issue
   * Makes sense to choose applicators familiar with tribal areas.  May be special instances where need to contract out the work or may be other considerations and type of application.

   * Need to be clear in the Federal Register Notice in what we mean by contiguous (e.g., need to clear with regards to checkerboarding)

Private Applicator Certification
   * Private applicators should know about pertinent tribal regulations and the appropriate people to contact
   * Need certain number of hours over a period of time to remain certified for a state certificate.  The draft plan does include a time frame to renew and document that they've completed the documented training and self-study evaluation.
   * One suggestion is to include Indian country specific training  -  unique conditions, process, what subsistence gathering is, domestic water supply source information, etc.  EPA noted that we are not planning to create a new training program.  Curriculum for other programs (e.g., state training) don't exclude Indian country but doesn't go into tribal specific issues either.  

"Other Tribal Requirements" Language
   * Only one comment on November 29[th] call. Thought was good language.
   * On December 13[th] call, this topic led to a discussion of enforcement.

Other Questions
   * A tribe with a tribal plan asked about recertification period.  Explained that tribes if a tribe has a plan, that plan takes precedence over the federal plan. Also explained the situation for expiration dates under the federal plan for any interested tribes.  Also, the tribe explained how they notify of their plan requirements (cooperate with county extension agents).  This tribe does not require notification of pesticide use.
