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 29th 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 13th 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 29th call. Thought was good language.

 On December 13th 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.