                             Response to Comments
                                 December 2013

On the Proposed Federal Plan for Certifying Applicators of Restricted Use Pesticides within Indian Country, EPA received comments from the Tribal Pesticide Program Council (TPPC), Cherokee Nation, Kashia Band of Pomo Indians, and U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS). On the Proposed Federal Plan for Certification of Applicators of Restricted Use Pesticides within EPA Region 8 Indian Country, EPA Region 8 received comments from the Colorado Department of Agriculture, the Montana Department of Agriculture, the USDA APHIS Rangeland Grasshopper and Mormon Cricket Suppression Program, and two pesticide applicators. Below is a summary of all the comments received and EPA's responses. 

Comment 1: Notification of Tribes Prior to RUP Use
The TPPC and several tribes requested that EPA include a provision in the final EPA Plan for the Federal Certification of Applicators of Restricted Use Pesticides within Indian Country (EPA plan) that would require applicators to notify a tribe prior to application of restricted use pesticides (RUPs) on their lands. As an example, the TPPC pointed to the Gila River Indian Community requirement for notification of their tribe prior to pesticide application using the Arizona Department of Agriculture Form 1080. These commenters stated it is important for Indian tribes to know what, when and where pesticides are applied to their lands, not only for health-related purposes, but also for the protection of cultural practices. They also believe a notification requirement will provide tribes with some ability to say no to, or closely monitor, an RUP application if the intended location was in or near a cultural site or tribal resource. These commenters believe a notification requirement is necessary for EPA to meet its trust responsibility to tribes. They also believe a precedent exists with the soil fumigation notification system. The commenters believe the soil fumigation notification approach is a desirable model because it would allow Indian tribes to decide if they want to be notified prior to an application, which would support tribal self-determination. They also believe a notification requirement would not place undue burden on a tribe because it is strictly up to the tribe if it wants to take on any additional responsibilities that occur as a result of being notified in advance of a pesticide application. 

Some of these commenters stated that EPA should create an "opt-in" process for Indian tribes that want to be notified in advance of an RUP application on their land. Tribes that want notification prior to RUP use would be expected to identify a contact person to whom advance notification of a pesticide application should be provided. That contact person should be posted on an EPA website. They also believe EPA should develop a form for applicators to use to notify the tribes about proposed pesticide applications.

It was also requested that EPA make a database publicly available that lists applicators with their contact information and current certifications by state and EPA Region. This database could be maintained by the Agency's Regional Pesticide Program Offices. The database would provide Indian tribes with a better sense as to the applicators with federal certificates who might potentially apply RUPs on their lands.

One applicator was concerned that a notification provision would make it difficult to apply RUPs in emergency situations or on weekends.

Response 1: Under FIFRA and its current regulations, EPA is unable at this time to include a tribal notification provision in the plan, as explained below. However, EPA recognizes that tribal notification requirements may exist under tribal law, as is the case with the Gila River Indian Community in the example provided in the TPPC comments. Federal certifications issued by EPA under this EPA plan will explicitly inform applicators that they should take steps to determine if there are additional requirements under tribal law for RUP application, including tribal notification requirements.

While some commenters pointed to the notification process for soil fumigants as a precedent for EPA requiring notification of tribes prior to RUP applications, the justification and authorities that supported the notification requirements for soil fumigants are not available to support applicator notification requirements under a federal certification plan. In the case of soil fumigants, notification is required as part of EPA's reregistration risk mitigation decision to assure that soil fumigants meet FIFRA registration standards. EPA has not generally made that determination for other RUPs.

Under FIFRA section 11, which provides the authority for issuing federal certification plans, rulemaking is the mechanism required for commercial applicator reporting. EPA considers a notification requirement to be the same as a reporting requirement. Additionally, FIFRA section 11 does not provide EPA authority to require any reporting from, or recordkeeping by, private applicators. Development of a rulemaking to require commercial applicators to notify tribes prior to RUP application could take several years. EPA does not believe that we should delay the benefits of proceeding with the EPA plan while rulemaking is considered to require commercial applicators to notify tribes prior to use. Therefore, EPA will proceed with finalizing this EPA plan at this time. As the Agency gains experience implementing the plan, the Agency will re-evaluate if rulemaking to implement a tribal notification requirement is needed to allow both EPA and the tribes to protect human health and the environment from RUP application in Indian country. The Agency will continue to consult with tribes and coordinate with the TPPC on this issue, as appropriate, as the EPA plan is implemented.

In the meantime, to assist tribes in identifying and communicating directly with applicators certified under this EPA plan, EPA will implement the TPPC suggestion to make a database publicly available that lists applicators (with their location and current certifications) by state upon which the federal certification was based and by EPA Region. EPA expects to implement this recommendation by posting a list of federally certified applicators at http://www2.epa.gov/pesticide-applicator-certification-indian-country.

Comment 2: Training Needed That Is Specific to Indian Country
The TPPC, Cherokee Nation and Kashia Band of Pomo Indians were concerned that the training and exams that pesticide applicators receive through states (i.e., EPA-approved training) do not address the nuances of applying pesticides in Indian country and do not specifically require applicators to demonstrate that they are competent to apply pesticides in Indian country. They stated that EPA-approved training should include a discussion of tribal government, cultural practices, natural resources, examples of tribal regulations, information about the website identifying tribes that want to be notified prior to an RUP application, and other pertinent tribal information. A notification process requiring applicators to follow tribal laws, and incorporating that requirement onto pesticide labels, addresses the discrepancy and empowers the tribe to assure that applicators are competent.

Response 2: EPA developed online training for private applicators who choose the training under the EPA plan.  In this online training, EPA did not include all of the information relevant to Indian country requested by commenters because of the many differences among federally recognized tribes. However, the training does communicate that tribes may have more stringent requirements and refers applicators to the relevant tribe(s) for details.

EPA will also request that instructors of commercial and private applicator training available for state certification, which can be used to obtain federal certification, inform participants of their obligation to obtain federal certification when applying in Indian country.  Additionally, EPA will ask instructors to inform applicators, and will include on the federal certifications, that additional tribal requirements may exist for some areas of Indian country, such as prohibitions on the use of RUPs or requirements to notify the tribe prior to use, and that the applicator should determine whether any additional tribal laws or requirements exist.

Additionally, EPA is establishing a website that will list contact information for commercial applicators who have been issued a federal certification under this EPA plan, available at http://www2.epa.gov/pesticide-applicator-certification-indian-country. If they desire, tribes may use this contact information to notify federally certified commercial applicators who may apply in their Indian country of specific tribal information or requirements. Because of potential privacy concerns, EPA will not release the addresses of private applicators, but will include general location information (e.g., zip code) on the EPA website.

Comment 3: Option to Not Participate in the EPA Plan
The TPPC and Cherokee Nation commented that EPA should provide Indian tribes with an opportunity to opt-in or opt-out of the EPA plan so tribes can decide whether this EPA plan should apply on their lands. They stated that this approach was needed to support the principles of tribal self-determination and provide tribes with the ability to control their own affairs and make decisions that affect their respective community members. They point out that there may be some tribes that do not want RUPs applied to their lands for reasons including concerns with the impacts of pesticides on cultural and natural resources and the health of community members.

Response 3: The Agency supports the concepts of tribal self-determination and believes there are ways for tribes to exercise this more directly than with an opt-out provision. EPA generally does not provide an opportunity for tribes or states to opt-in or out of other pesticide actions (e.g., Section 3 registrations), so EPA will not provide that opportunity for this EPA plan. However, consistent with the principles of tribal sovereignty and self-determination, this EPA plan acknowledges several other mechanisms available to tribes which can supersede this plan. For example, subject to EPA approval, tribes may still develop their own tribal certification plans under 40 CFR 171.10(a)(2), or enter into an agreement under 40 CFR 171.10(a)(1) with a state to use a state certification program; both of these options would replace the EPA plan. Tribes may also further restrict or prohibit the use of RUPs in their areas through the implementation of tribal codes, laws or regulations. The EPA plan makes it clear that applicators should take steps to determine if there are additional restrictions or prohibitions to the use of RUPs in Indian country under tribal laws.

Establishing an opt-in or opt-out provision would pose numerous logistical and communication complications which would significantly increase the burden of this EPA plan on applicators, the tribes and EPA. Further, allowing an opt-in or opt-out provision would undermine the goals of establishing this EPA plan, which are to ensure that the same pest control tools and environmental and health protections are provided in Indian country as are provided throughout the United States.

Comment 4: Consultation
The TPPC and Cherokee Nation expressed concern over the tribal consultation approach that EPA used for the EPA plan. They stated that EPA should not conduct tribal consultations using conference calls and should instead develop a consultation plan based on tribal preferences. They also expressed concern that tribal representatives on the calls were not necessarily tribal leaders.

Response 4: EPA believes that the approach to tribal consultation for this EPA plan was both effective and in keeping with the Agency Tribal Consultation Policy and the Executive Order on Tribal Consultation. According to the Agency Tribal Consultation Policy:

      Consultation is a process of meaningful communication and coordination between EPA and tribal officials prior to EPA taking actions or implementing decisions that may affect tribes. As a process, consultation includes several methods of interaction that may occur at different levels. The appropriate level of interaction is determined by past and current practices, adjustments made through this Policy, the continuing dialogue between EPA and tribal governments, and program and regional office consultation procedures and plans. 

The policy also states:

      The specific form that any given consultation process takes is influenced by the variety of factors including, but not limited to, the issues being considered, the number of tribes potentially impacted, time and resource limitations of the tribes involved, and other pertinent factors. In some cases, EPA may need to rely on teleconferences or other approaches in order to conduct consultation. EPA cannot commit to face-to-face meetings in all instances. 

Specifically, for the EPA federal certification plan, EPA sent letters to each tribe. The letters went to the tribal chair/president, the environmental director, and/or the pesticide director, depending on the contact information available. We also asked each EPA region and the TPPC to notify tribes about the consultation via their networks. EPA then hosted two tribal consultation conference calls and webinars, on November 29 and December 13, 2010, to consult with all federally recognized tribes on the draft EPA plan, and provide an opportunity for tribal participants to ask questions and offer substantive input on the approach proposed. Although specifically offered, EPA has not received a request for additional tribal consultation. In addition to tribal consultation, over the past several years EPA has also had numerous discussions with the TPPC regarding this EPA plan, discussed the EPA plan as it was being developed with several of the Regional Tribal Operation Committees, and discussed issues surrounding this EPA plan with representatives from several individual tribes.

Initially, there was a separate federal certification plan in development for Region 8. Region 8 held three formal consultations with the tribes in Region 8. The tribal leadership received notification of the consultation events by letter and email. Additionally, updates were provided at the biannual Region 8 Tribal Regional Operations Committee meetings. In addition, updates were provided to the tribal pesticide program inspectors during the annual Region 8 Pesticide Manager's Meeting and during quarterly update calls with the tribes. Finally, Region 8 mailed informational postcards to each tribal office with the request that the tribe share the outreach postcards with applicators on their reservation.

Comment 5: EPA's Ability to Enforce the EPA Plan
The TPPC and the Cherokee Nation raised concerns with EPA's ability to implement and enforce the EPA plan given the current budget constraints. Specifically, they requested that the Agency provide further detail about how it intends to implement and enforce the EPA plan.
 
 Response 5: EPA will implement and enforce the plan using current resources, including EPA regional inspectors and tribal circuit riders. Even without implementing this EPA plan, EPA is already the entity with enforcement authority under FIFRA in Indian country, including enforcement of the illegal use of RUPs. Implementation of this EPA plan should not impose a significant additional burden for EPA. However, the EPA plan provides a mechanism to ensure competency and clear requirements that will support enforcement of FIFRA in Indian country. In addition, tribes with cooperative agreements may work with EPA regional offices to pursue FIFRA non-compliance, conduct inspections, and assure compliance.

Comment 6: Labeling Statement Requiring Adherence to Tribal Laws and Ordinances
The Kashia Band of Pomo Indians of the Stewarts Point Rancheria stated that EPA should include on the pesticide label the requirement to adhere to tribal laws and ordinances if applying on tribal lands. The comment stated that tribes can only enforce against a misuse of application as it applies to the label under this EPA plan. Further, the commenter stated that tribes do not have the authority, under FIFRA, to enforce against the applicator's certification.

Response 6: The EPA plan and certification letters will remind applicators certified under this EPA plan that they should take steps to determine if there are additional tribal requirements affecting application of RUPs. However, EPA does not believe that this federal certification plan is the appropriate mechanism for requiring revised labeling on RUPs. EPA will explore whether a labeling statement like the one recommended should be implemented through other mechanisms in the future.

Comment 7: EPA Plan will Interfere with Timely Applications
The USDA APHIS Rangeland Grasshopper and Mormon Cricket Suppression Program relies on timely pesticide application. APHIS is concerned that the short time between the contract award and treatment may not allow timely action if the applicator needs to go through a certification process, and thus compromise the ability to suppress grasshopper or Mormon cricket outbreaks.

Response 7: The USDA APHIS has a certification plan that allows for the certification of USDA employees for insect control applications and, as a federal agency, has authority to administer certificates for applications by its employees in Indian country. Therefore, an additional federal certificate is not required for these APHIS employees. However, the USDA APHIS plan does not extend to contracted applicators and these applicators would need to be certified under EPA's federal plan for Indian country. Although an EPA-issued federal certification is required, EPA understands the need for insect control applications to occur swiftly and without undue delay in order to suppress the pest populations. EPA will work with USDA APHIS to expedite the issuance of these certifications as these situations arise.

Comment 8: Cost of Applying for the Federal Certificate
One commenter pointed out that there is no mention of costs associated with applying for a federal certificate.

Response 8: There is no charge to obtain the federal certificate. EPA notes that states or tribes administering EPA-approved certification plans may have a fee associated with obtaining a state or tribal certificate or participating in training. The EPA plan does not affect such fees.

Comment 9: What is Considered "Indian Country" and which Residents within Indian Country are Covered by the EPA Plan
   (a) Several commenters asked for a clarification of the terms "Indian country" and "reservation." 
   (b) One commenter wrote that non-Indians residing on the reservation may take advantage of either the state or federal plan to apply RUPs in Indian country according to 40 CFR 171.10(2)(c), if RUPs have been historically utilized on the reservation without objection from the tribe. 
   (c) Also, several comments disagreed that the federal certification plan was required for all RUP applicators in Indian country as defined at Title 18 U.S.C. 1151; these comments stated that the federal certification should be applicable within `Indian reservations' as described in 40 CFR 171.10 and 40 CFR 171.11. 
   (d) One state was unclear if a tribe that is recognized by a state, but not federally recognized, would be covered by the Plan.

Response 9:
   (a) The term "Indian country" is defined in the United States Code at 18 U.S.C. 1151. Consistent with relevant Supreme Court precedent, this definition, although included in a criminal provision, also applies in the civil regulatory context. As defined by statute and as used in this certification plan, "Indian country" includes all land within Indian reservations (including both fee and trust lands within reservation boundaries and both formal and informal reservations), as well as allotments and dependent Indian communities that may be located outside of a reservation boundary.

   (b) Under EPA's regulations, Indian tribes may choose to enter into an agreement with a state to use a state certification plan (rather than the federal plan or an EPA-approved tribal certification plan) when EPA has approved this approach as described in 40 CFR 171.10(a)(1). In such cases, this approach would generally apply to all applicators (both Indian and non-Indian) of restricted use pesticides on the tribe's reservation. Neither FIFRA nor its implementing regulations at 40 CFR Part 171 require Indian tribes to utilize a state's certification plan. Rather, consistent with section 11 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA has promulgated the following three relevant options for tribes: (1) utilize an approved state plan with the state's concurrence and EPA approval consistent with the terms of 171.10(a)(1); (2) develop its own plan that is approved by EPA consistent with the terms of 171.10(a)(2); or (3) utilize a federal plan for certification that is administered by EPA consistent with 171.11. 40 CFR 171.10(c) does not create a separate mechanism for establishing a certification plan on Indian reservations. In addition, EPA's implementation of a federal plan for certification neither hinders the development of tribal pesticide codes nor impedes a tribe's decision to develop a tribal certification plan or use a state certification plan as described in 40 CFR 171.10(a). As stated in the plan, EPA remains supportive of tribal codes and certification plans. However, currently there are only four tribes nationally that utilize EPA-approved tribal plans to certify applicators and two tribes relying on a state plan as part of an agreement with the state. 
      
   (c) EPA believes that Indian country as defined in 18 U.S.C. 1151, as opposed to just the Indian reservation component of Indian country, is the appropriate geographic scope for this federal plan. EPA notes that primary jurisdiction over land that is Indian country generally rests with the federal government and the relevant Indian tribe, and not with the states. See Alaska v. Native Village of Venetie, 522 U.S. 520, 527 n.1 (1998). FIFRA and its implementing regulations at 40 CFR Parts 150-189 apply in Indian country, and EPA has authority to implement the statute and regulations in such areas, including over Indian and non-Indian residents. EPA has not approved any state to administer FIFRA or EPA's implementing regulations for any area of Indian country, and there is thus a gap in certification coverage for all areas of Indian country where there is no separate EPA-approved or EPA-implemented plan. 

   (d) This EPA plan applied in Indian country, which is generally associated with tribes which are federally recognized.

Comment 10: Tribes Should Utilize the State Plans to Provide Seamless Coverage
One state expressed a concern that EPA discourages tribes from using the state certification plan, even though the state's understanding is that it is encouraged or mandated by law. The view is that a more consistent pesticide program would be achieved by utilizing a state certification plan that crosses state and tribal boundaries. The state disagreed that the EPA plan would further environmental and public health protection and believes that the EPA plan would instead impede state and tribal cooperation.

Response 10: EPA disagrees that this plan is discouraging tribes from utilizing state certification plans. Only two tribes nationally have agreements with states to use the state plan. These agreements are not affected by the implementation of this EPA plan. Neither FIFRA nor its implementing regulations at 40 CFR Part 171 require Indian tribes to utilize a state's certification plan. Rather, EPA regulations provide three relevant options for Indian tribes: (1) utilize the state's plan with the state's concurrence and EPA approval (40 CFR 171.10(a)(1)); (2) develop a tribal plan that is approved by EPA (40 CFR 171.10(a)(2)); or (3) utilize a federal plan for certification that is administered by EPA (40 CFR 171.11). 

In addition, EPA's implementation of a federal plan for certification neither hinders the development of tribal pesticide codes nor impedes a tribe's decision to develop a tribal certification plan or use a state certification plan as described in 40 CFR 171.10(a). As stated in the plan, EPA remains supportive of tribal codes and certification plans.

EPA-approved state plans do not cover use of RUPs in Indian country. Without an EPA-approved federal or tribal plan, RUP applicators are unable to obtain valid certifications for applications within Indian country. The EPA federal plan will fill a gap in implementation of the certification program in Indian country and assist EPA in identifying the universe of RUP applicators so that compliance assistance and outreach can be provided. 

Comment 11: Regulate Applications in Indian Country vs. State Lands
One commenter asked: If a private applicator who is only federally certified wishes to buy an RUP at a dealer either on or off reservation, how will it be determined where the applicator will apply the product? In the event the private applicator owns property outside of the reservation, is the EPA plan allowing the private applicator to use RUPs within areas under state jurisdiction?

Response 11:  The plan only addresses the sale and use of RUPs within Indian country.  The plan does not limit where an applicator may purchase RUPs.  However, state law, regulations, or policy will determine whether the federal private applicator certification will be sufficient to allow the sale or use of an RUP outside of Indian country and on land within the state jurisdiction. If state law requires that RUPs can only be purchased by someone with a state certificate, then the private applicator will need to have a state certificate to purchase RUPs from dealers located in the state.  Likewise, in order for a private applicator to apply RUPs on state land, the state may determine whether it will issue the applicator a reciprocal state certificate based on the federal certificate or if the applicator must pursue a state certificate through another mechanism.

Comment 12: Verifying the Validity of the Underlying Certificate
Several states commented that if a state certificate is used as the underlying certificate, EPA should verify the validity of the state certificate prior to issuing a federal certificate.

Response 12: When an applicator completes and signs the form requesting to be certified, the applicator is attesting that the underlying certificate is valid and may be subject to both civil and criminal penalties if the certificate is later determined to be invalid. The EPA Regions, who are issuing the certificates, will take steps to monitor the validity of the underlying certificates. 

Comment 13: Reciprocity
 As it is currently written, the EPA plan only allows an applicator to provide a valid state certificate from a state which shares a contiguous boundary with the area of Indian country where an applicator would like to apply an RUP. Several states asked if an applicator will be able to use a state certificate to apply for a federal certificate when the state certificate is itself issued based on reciprocity with another state. 

Another commenter stated that EPA should allow certificates from states that do not share a contiguous boundary with the reservation, especially for applicators coming from out of state.

One commenter also stated that private applicators holding only a federal certificate would not be certified under state law and should not be able to use the federal certificate to apply in the state.

Response 13: EPA will accept valid state certificates even if that certificate was issued based on a reciprocal agreement. A state decision to offer reciprocity is based on that state's determination that the reciprocal state certification program assures competency to apply RUPs within the state. EPA is relying on the states to provide certificates to applicators who have the knowledge and skills to apply in their particular state. Therefore, certificates based on reciprocity can be used to apply for a federal certificate. 

If an applicator has an underlying certificate that is not from a state contiguous to the area of Indian country where the applicator intends to apply, then the applicator will need to obtain an appropriate underlying certificate before obtaining a federal certificate for that area. EPA is relying on certificates from states and tribes with contiguous boundaries because the use and other considerations, e.g., environmental factors, are likely to be similar for contiguous areas. However, EPA recognizes that situations may arise where an underlying certificate from a contiguous area cannot be obtained. EPA has also included revised  language in the final plan that gives the Regions limited flexibility to accept other underlying certificates in appropriate circumstances.

EPA recognizes that federal certificates for private and commercial applicators issued under this EPA-implemented plan for Indian country are not valid for RUP applications outside of the designated areas of Indian country, and may therefore not be lawfully used to apply RUPs in state lands. EPA intends to emphasize this point in the plan-related communication materials. If the applicator wants to apply in the state, it is the responsibility of the applicator to determine if a state will issue the applicator a reciprocal state certificate based on the federal certificate or if the applicator must pursue a state certificate through another mechanism.

Comment 14: No-Test Option
One commenter noted that it may be difficult for an applicator to obtain the training necessary to apply for a private applicator certification if not relying on the state certification. 

Response 14:  EPA developed an online training course for private applicators that can be used as the basis to obtain a federal certification.  This online training will be offered on a regular basis to facilitate private applicators obtaining the training required if they choose not to rely on the state certification to obtain the federal certification.   EPA had also developed another, interim option for private applicators to use state training as the basis for a federal certification while EPA developed the online training.  However, while the application form to apply for federal certification still reflects this interim option, this option will not be used while the online training is available.

Comment 15: Non State Option for Commercial Applicators
Some Indian tribes commented that they do not want the federal plan to rely so heavily on states for initial certification. Just as an option is provided in the EPA plan for private applicators, tribes would prefer that EPA provide a test for commercial applicators for certification that does not rely on the state process. 

Response 15: EPA does not believe the online training developed for private applicators is sufficient for commercial applicators and does not currently have the resources to develop additional training and testing for commercial applicators. However, we believe relying on existing certification programs can assure the level of competency needed to use RUPs in Indian country safely. Since states do offer extensive and comprehensive programs, EPA will require that commercial applicators use such state programs if they choose to obtain a federal certificate to apply RUPs in Indian country. While the federal certificate will be granted on the basis of a state certificate, it is the federal certificate that satisfies applicable requirements of FIFRA and its implementing regulations for RUP applications in Indian country, and states will have no authority to enforce this federal program in Indian country. Tribes continue to have the option of developing their own certification program that would not have to rely on state certification programs and could include training and testing for private and commercial applicators. 

Comment 16: Applicators with Less Training
Several states shared information about applicators that are certified by the state as `operators' and, since the training is less rigorous, these applicator/operators may only work under a certified `supervisory' applicator. The states expressed concern that EPA may certify the applicator/operators under the federal plan. 

Response 16: For applicators relying on a certificate issued pursuant to an EPA-approved state plan as the predicate for applying for a federal certificate under this EPA plan, only those that are certified applicators, as defined in section 2(e) of FIFRA, may obtain a federal certification. Applicators who do not possess a full certification to apply RUPs in a state will not be eligible to obtain a federal certification through this mechanism under the plan. EPA will take steps, including working with states, to assure `operators' are not issued federal certificates. As needed, EPA will work with the states to identify the differences between 'operator' certifications and RUP applicator cards, as well as any other distinctions that the states may make.

Comment 17: Categories for Private Applicators
Several states asked if EPA would allow categories in the federal plan for private applicators. Also, several states questioned how other applicators, such as government applicators, will be covered in the plan. 

Response 17: EPA will recognize any categories or restrictions on an underlying certificate. Therefore, if an underlying certificate has categories for private applicators, those categories would carry over to the federal certificate. If a state certifies applicators as `government applicators,' the federal plan will consider these applicators as commercial applicators. EPA will recognize the commercial applicator categories contained in the underlying state, tribal, or federal certificate with the exception of the sodium fluoroacetate and sodium cyanide categories. EPA recognizes that underlying certificates from different states, tribes, or federal agencies may have different applicator categories and that this will be reflected in the certificate issued under the EPA plan. 

Comment 18: Sodium Cyanide Capsules Used with Ejector Devices or Sodium Fluoroacetate Used in Livestock Protection Collars
While a written comment was not submitted, several states noted during meetings that they would be interested in becoming registrants on behalf of interested tribes, if the tribes wanted to allow the sodium cyanide capsules used with ejector devices or sodium fluoroacetate used in livestock protection collars to be used on their reservations. States questioned how applications of these products will occur if tribes do not have a pesticide program and cannot monitor the usage on their reservation, making them ineligible to become a registrant. 

Response 18: States cannot serve as a registrant of these products on behalf of an Indian tribe. Under the terms of the registrations for sodium cyanide capsules used with ejector devices and sodium fluoroacetate used in livestock protection collars, the registrant of these products must be able to supervise the use and enforce against the misuse of the product. Therefore, it would not be appropriate for the state to act as a registrant, since states are not generally approved to administer programs in Indian country under FIFRA.

A tribe that would like to be a registrant of one of these products must have the ability to provide a supervisory role in the application of the product and be able to inspect and enforce against any misapplication of the product (42 FR 8406; February 10, 1977). Therefore, some tribes will not have the capacity to serve as a registrant of these products. If a tribe is not in a position to serve as the registrant but would like to allow use of these products, that tribe could work with the United States Department of Agriculture Animal and Plant Health Inspection Service (APHIS), which is the only federal agency that is currently a registrant, or with another federal agency that might become a registrant. APHIS employees, once certified under the EPA plan, can apply sodium cyanide capsules used with ejector devices and sodium fluoroacetate used in livestock protection collars within the area of Indian country associated with the relevant Indian tribe. EPA expects that there would be an agreement in effect between the tribe and APHIS (or other federal agency) that includes application of sodium cyanide capsules used with ejector devices and sodium fluoroacetate used in livestock protection collars prior to any application.

Comment 19: Notification of Violations in Indian Country
One state was interested in being informed about any alleged violations by applicators in Indian country who are issued a federal certification based on that state's applicator certificate. The state was also interested in learning of any violations that occurred when state-registered pesticides are used in Indian country. 

Response 19: EPA understands that a state may be concerned when an applicator is investigated for an RUP misuse and the applicator's federal certificate is based on their state certificate. Just as one state may notify another state regarding a violation on a reciprocal certification, EPA may inform other states regarding violations that may occur when operating under the federal certificate. For minor issues, states do not generally notify other states and EPA plans to follow this model. 

If a federal certificate is revoked, EPA will inform the agency that issued the underlying certification as soon as possible. If the underlying state certificate is revoked, the federal certificate will also become invalid and the applicator will no longer be legally allowed to apply RUPs in Indian country. The applicator may appeal this decision in accordance with the procedures at 40 CFR 171.11(f).

Comment 20: Inspections of Applicators in Indian country
One state requested that EPA coordinate inspection activities with the state so that the state and EPA do not inadvertently inspect the same applicator. An applicator commented that the state and EPA will both investigate complaints in Indian country which could result in the possibility of double fines. 

Response 20: 
Under FIFRA, EPA has authority to implement a federal certification and training program for applicators of restricted use pesticides in Indian country in the absence of an EPA-approved program and authority to perform inspections in Indian country. In addition, under general principles of federal Indian law, primary jurisdiction in Indian country generally lies with the federal government and the relevant Indian tribe for the area at issue, and not with the states. No state is currently approved by EPA to administer a certification and training program for any area of Indian country. In the absence of an EPA-approved program, EPA is the appropriate implementing entity throughout Indian country, as defined at Title 18 U.S.C. 1151, for the certification and training program under FIFRA. RUP applicators in Indian country certified under the EPA plan will be operating under federal requirements and EPA will be responsible for enforcement. However, any applicator applying in multiple jurisdictions (e.g., both within and outside of Indian country) may be subject to inspections by those jurisdictions. EPA will attempt to coordinate inspections and enforcement response regarding applications on land that straddles both Indian country (where EPA is the implementing entity) and non-Indian country state lands (where a state implements the program) so that duplication will be minimized.

Comment 21: Enforcement of State C&T and Regulatory Requirements
When an applicator uses a valid state certificate as the underlying certificate to receive a federal certificate, can EPA enforce a) the state categories, b) the state C&T requirements, and c) the state regulations which are referenced in the state C&T plan?

Response 21: EPA is using the state certificate and categories as a way to determine the competency of an applicator to apply RUPs and therefore whether they can obtain a federal certificate. The federal certificate will encompass the same categories as the underlying state certificate. EPA is responsible for assuring compliance for applicators applying RUPs under the EPA plan but will not be enforcing the state requirements. 

Comment 22: Duplicative and Redundant
Several commenters questioned why EPA is issuing another certification when the state already issues a certificate. These commenters stated that it is duplicative for the state and EPA to issue certificates. They also believe the plan results in unnecessary bureaucracy because the federal certificate is based on the state certificate. The commenters are concerned that there may be double reporting because applicators may operate both within and outside of Indian country and dealers may be subject to multiple reporting requirements. They also stated that it is also not clear who will do the educational outreach for EPA. The commenters claim that there are no additional benefits to the federal certification and is a waste of federal dollars. One commenter discussed their experience making applications within Indian country and that they did not see the value of an additional certificate. 

Response 22: EPA notes that RUP applications require a valid certificate issued pursuant to an EPA-approved or EPA-implemented plan. EPA believes that this federal certification plan is necessary to fill a gap in areas of Indian country where no other EPA-approved or EPA-implemented plan exists. EPA has not approved any state to implement a certification program over any area of Indian country. Thus, currently under FIFRA and its implementing regulations, unless a tribe has chosen to utilize a state's plan and there is an agreement between the tribe and state, with EPA approval, consistent with 40 CFR § 171.10(a)(1), the tribe has its own EPA-approved tribal certification plan consistent with 40 CFR § 171.10(a)(2), or EPA has approved another federal agency's plan or implemented its own plan, there is no applicable plan to issue certificates for applications of RUPs in Indian country. Therefore, while we understand the commenter's concern about unnecessary bureaucracy, this plan is necessary to provide a mechanism for applicators to receive applicator certification where no legal mechanism currently exists. We believe we have constructed this plan to minimize the burden to obtain a federal certification. Under the federal plan, rather than requiring applicators to complete a separate examination to obtain a federal certificate, EPA is reducing the burden on the applicator and EPA by allowing the applicator to show proof of a certificate issued pursuant to an EPA-approved or EPA-implemented plan in order to demonstrate competency. There is no additional fee to apply for the federal certificate. 

We do not expect that double reporting will be a problem. Under the plan, dealers located within an area of Indian country that is covered by the plan will have to provide an initial report to EPA and comply with federal recordkeeping requirements. If a dealer is located on state land outside of Indian country, any RUP sales to federally certified applicators should be reported as indicated in the state plan. Commercial applicators are required to keep records. Among other things, these records must include the location of the application, so applications occurring under the state certification and federal certification should be identifiable. It is not unusual for applicators to have certificates in multiple states or jurisdictions. In addition, there are several tribal plans that rely on state certificates to demonstrate competency and a federal plan for Navajo Indian country that also uses state certificates to demonstrate competency. Double reporting and confusion with recordkeeping have not been a problem in these programs.

EPA, with the assistance of our tribal partners and pesticide educators, will do outreach on the plan. In addition, EPA is the appropriate entity with authority for implementation and enforcement.

Comment 23: Dealer Reports
One commenter asked if dealers located in Indian country are required to submit information to EPA.

Response 23: Dealers that are located within Indian country are required to supply information to EPA according to 40 CFR 171.11(g)(1). Specifically, dealers must report the business name by which the RUP retail dealer operates, and the name and business address of each dealership. The reports must be submitted within 60 days of the effective of this plan or within 60 days after then person first becomes a restricted use pesticide retail dealer.

Comment 24: Section 18 Record Requirements
One state questioned if the federal plan would require a change in the reporting requirements for Section 18 Emergency Exemptions.

Response 24: The EPA plan does not address section 18 reporting requirements.
