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Interim National Program Guidance for EPA Regional Offices 

 On EPA’s Pesticide Applicator Certification Program1 

(40 CFR Part 171) 

July 2006 

List of CFR Sections and Subjects/Issues Addressed Page 

171.4(a)(5) - Written Exams ...................................................................................................................... 2 

 Issue: Requirements for Written Examinations .......................................................................... 2

171.7(b)(1)(iii)(A) - Required Legal Authorities for Certification Plans ................................................ 2 

 Issue: Requirements for Civil Penalty Provisions for Private Applicators ................................ 2

171.8(b) - Modifications to Approved Certification Plans .................................................................... 3

 Issue 1: Requirements for Submission, Review and Approval of Modified Plans .................. 3 

 Issue 2: Types of Plan Changes That Constitute a Substantially Modified Plan ..................... 6

 Issue 3: Requirements for Plans Modified to Certify for M44 and Compound 1080 .............. 7 

171.10(a)(1) - State/Tribal Agreements for Certification ...................................................................... 9 

 Issue 1: Meaning of the Term Cooperative Agreements as Used in 171.10(a)(1) ................ 9 

 Issue 2: Requirements for 171.10(a)(1) State/Tribal Cooperative Agreements .................... 9 

 Issue 3: State Plan Requirements Related to State/Tribal Cooperative Agreements ......... 12 

171.10(a)(2) - Tribal Certification Plans ................................................................................................. 13 

171.11 - Federal Plans for Certification of Applicators in Indian Country ......................................... 13 

 

1 The statements in this document are intended solely to provide internal EPA guidance. This 

document does not substitute for requirements in federal statutes or regulations, nor is it a 

requirement itself. This document is not intended, nor can it be relied upon, to create any right or 

trust responsibility enforceable in any cause of action by any party against the United States, its 

agencies, officers or any other person. It does not impose legally binding requirements on EPA or 

anyone else, and may not apply to a particular situation based upon the circumstances. EPA 

may change this guidance in the future, as needed or appropriate, without public notice. 
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171.4(a)(5) - Written Exams 

Issue: Requirements for Written Examinations. 171.4(a) states that, for commercial handlers, 

competence in the use and handling of pesticides shall be determined on the basis of written 

examinations. Guidance is needed on this provision of the regulation and EPA's policy regarding 

whether the written examinations required under 171.4(a) need to be closed-book exams, and 

whether they must be proctored. 

Guidance: EPA intended the language in 171.4(a) to mean that, for commercial handlers, 

competence in the use and handling of pesticides shall be determined on the basis of written 

examinations that are proctored, closed-book written exams. EPA believes that the recognized 

and accepted standard process for determining competence through written examination 

entails having the exams be closed-book and proctored. EPA has become aware, however, 

that not all states have interpreted this section of the regulation to require proctored, closedbook written exams, and as a result, several states have adopted a process of allowing openbook written exams for determining competence in the use and handling of pesticides for 

commercial applicators. EPA is concerned that open-book exams are allowing a lower 

standard for the process of determining and assuring competency than what was originally 

intended by the Agency when it established the requirement for written exams in the regulation. 

EPA is also concerned that having the different standards for the process of determining and 

assuring competency (open-book versus closed-book exams) is creating barriers to reciprocity. 

As a result, EPA strongly recommends that only proctored, closed-book written exams be used 

for determining competence in the use and handling of pesticides for commercial applicators. 

However, states will not be required to adopt the use of proctored, closed-book written exams 

until such time that regulatory changes are made to Part 171 that clearly establish this as a 

requirement. 

171.7(b)(1)(iii)(A) - Required Legal Authorities 

Issue: Requirements for Civil Penalty Provisions for Private Applicators. 171.7(b)(1)(iii)(A) requires 

states/tribes to have certain legal authorities in order to carry out their State/Tribal Plans for the 

Certification of Pesticide Applicators (hereafter certification plans). Guidance is needed on this 

provision of the regulation and EPA's policy regarding whether states and tribes are required to 

have civil penalty provisions for private applicators in order to have their certification plan 

approved by the Agency. 

Guidance: EPA views the language in 171.7(b)(1)(iii)(A) to mean that states/tribes should have 

appropriate civil and criminal penalty provisions for private applicators (in addition to provisions 

for denying, suspending and revoking certifications)to have their certification plans approved. 

However, EPA acknowledges there is some ambiguity in the final wording in the regulation which 

has resulted in some confusion and inconsistency in the interpretation of this part of the 

regulation, allowing some certification plans to be approved that do not have both civil and 

criminal penalty provisions for private applicators. EPA is concerned that the lack of civil penalty 

provisions for private applicators does not provide for an adequate range of enforcement 

options to allow the responsible state or tribal agency the flexibility to respond appropriately to 

the wide range of situations which may arise. Lacking provisions to initiate civil penalty action 

may leave states and tribes without an appropriate response for some enforcement situations. 

As a result, EPA strongly recommends that states and tribes have both civil and criminal penalty 

provisions for private applicators (in addition to provisions for denying, suspending and revoking 

certifications). 
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However, states/tribes will not be required to have both civil and criminal penalty provisions for 

private applicators until such time that regulatory changes are made to Part 171 that clearly 

establish this as a requirement. [Note: EPA is aware that in certain circumstances tribes may be 

precluded from exercising criminal penalty authority. EPA does not intend such limitations to 

prevent approval of tribal certification plans. The Regions should consult with their Offices of 

Regional Counsel about tribal certification plans and criminal penalty authority. EPA is not 

establishing a requirement that states or tribes have both civil and criminal penalty provisions for 

private applicators at this time. When considering regulatory changes to Part 171 that might 

establish such requirements, EPA will consider any issues relating to limitations on tribal criminal 

authorities and attempt to accommodate tribal governments and the unique issues associated 

with their situation.] 

171.8(b) - Modifications to Approved Certification Plans 

Issue 1: Requirements for Submission, Review and Approval of Modified Plans. 171.8(b) states 

that an approved State Plan may not be substantially modified without prior approval of the 

Administrator. This implies that some form of submission is necessary by states or tribes prior to 

making any changes to their certification plans, and that advance Agency approval is 

necessary in order for states or tribes to amend their approved certification plans to have them 

legally recognized by the Agency. Guidance is needed on this provision of the regulation and 

EPA's policy on the following issues related to requirements for the submission, review and 

approval of modified certification plans. 

Issue 1A: What is the Agency=s policy regarding the regulatory requirement for states or tribes to 

get prior approval from EPA before substantially modifying their certification plan (keeping in 

mind that states and tribes generally promulgate and adopt statute, regulatory, and/or policy 

changes related to operation of their certification program as a first step, and then they would 

submit the modified certification plan to EPA for approval after the program and legislative 

changes have been approved or made final)? 

Guidance: States and tribes are required to maintain their certification program in accordance 

with the certification plan approved by the Agency (171.8(a)), and they are also required to 

annually report to EPA any proposed changes to the certification plan that would affect the 

certification program (171.7(d)(vi)). 171.8(b) states that an approved certification plan and the 

certification program carried out under such plan may not be substantially modified without prior 

approval of the Administrator. EPA views this Aprior approval@ requirement to mean that EPA 

must approve a substantial modification before it is incorporated into and considered part of the 

EPA-approved plan. EPA does not view Aprior approval@ to mean that states/tribes have to get 

approval from EPA before amending laws/regulations governing their certification programs. 

EPA believes this would be overly burdensome for states/tribes given their need to be able to 

modify their program in response to evolving issues and the demands of their program 

stakeholders without unnecessary obstacles. Therefore, it is the Agency=s policy to allow 

states/tribes to make changes to their certification program without actual prior approval from 

EPA, as long as they make EPA aware of such modifications so they can be incorporated into 

the EPA-approved plan of record. States/tribes should make EPA aware of such modifications 

when they submit their annual report information required under 171.7(d) to EPA. EPA reserves 

the right to disapprove any modifications to an approved certification program and withdraw 

approval of the plan (according to procedures established in the regulation at 171.8(c)) if such 

modifications result in the certification plan being in non-compliance with federal regulations or 
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requirements. [Note: EPA is utilizing a web based "C&T Plan and Reporting Database" system, 

developed through a cooperative agreement with the National Association of State 

Departments of Agriculture, to reduce the burden associated with submission of annual reporting 

information and the updating of certification plans. The C&T Plan and Reporting Database 

system includes an area in the annual reporting section for notifying EPA of any anticipated 

changes that may be made to the certification plan, or any modifications made to the 

certification plan during the year. States/tribes will be asked to complete this section annually so 

EPA is systematically notified of plan modifications.] 

⊄ 

Issue 1B: What is the Agency=s policy regarding: 1) certification programs that have been 

changed over time but the changes may never have been incorporated into the certification 

plan and submitted to the Agency for approval; and 2) amended certification plans that were 

submitted to EPA for approval, but there is no record of approval by the Agency? 

Guidance: As noted above, EPA is utilizing a web based "C&T Plan and Reporting Database" 

system to facilitate the maintenance and updating of certification plans and reduce the burden 

associated with submitting amended certification plans to EPA for approval. As part of the grant 

conditions under the FY 2005-2007 Pesticide Program Cooperative Agreement Guidance for the 

area of Pesticide Worker Safety, states and tribes with a previously approved certification plan 

are required to enter their current certification plan information into the C&T Plan and Reporting 

Database system. Complete and accurate entry of all the requested information into the 

database system will generate a certification plan with the requisite components per the Part 

171 regulation. As a condition of the Pesticide Program Cooperative Agreement Guidance for 

the area of Pesticide Worker Safety states should complete entry of their certification plan 

information into the C&T Plan and Reporting Database system by September 30, 2005, and tribes 

should complete entry of their certification plan information into the database system by 

September 30, 2006. 

All certification plans entered into the database system will be reviewed by EPA against the 

approved certification plan of record on file with the Agency to determine whether the 

certification plan entered into the database represents a change over the approved version of 

the plan on file with EPA. [Note: The database system has a feature for states/tribes to indicate 

whether they think the certification plan entered in the database system represents a 

modification (substantial or otherwise) of the current approved certification plan on file with the 

Agency. EPA regional offices are still responsible for reviewing the certification plans in the 

database and making the final determination of whether the certification plan represents a 

modification (substantial or otherwise) of the current approved certification plan on file with the 

Agency.] If the EPA regional office determines that no changes have been made to the 

certification plan, then no further action will be necessary and the state or tribe will be notified 

that the certification plan in the database system will become the approved certification plan of 

record. If the EPA regional office determines that changes have been made to the certification 

plan, the EPA regional office should make a determination of whether the certification plan is still 

in conformance with the federal regulations and whether the changes to the certification plan 

represent a substantial or non-substantial modification (see related issue below regarding the 

Agency=s policy on the types of certification plan changes or amendments that would 

constitute a Asubstantially modified@ certification plan). As long as modified certification plans 

are in conformance with the regulations, the EPA regional office, in cooperation with the 

national program office, should approve the certification plans regardless of when the 

modifications were actually made to the program or whether there is no record of prior Agency 

approval of the amended plan. [Note: Examples of changes to a certification plan that might 
- 5 - July 2006 

lead to it no longer being in conformance with the federal regulations would include such things 

as amending the plan to add the use of M-44 or Compound 1080 without adding the required 

competency standards or adding a new commercial category without the necessary provisions 

for examination of applicators seeking certification in that category.] 

⊄ 

Issue 1C: What is the Agency=s policy regarding: 1) the approval process for amended 

certification plans submitted through the web-based C&T Plan and Reporting Database system; 

2) how the approval process differs for Asubstantially modified@ certification plans versus 

amended plans where the changes are not considered substantial; and 3) the publication of 

notices in the Federal Register concerning Agency approval of amended certification plans? 

Guidance: Certification plan changes that constitute a substantial modification of the 

certification plan will require formal approval by the Regional Administrator of the relevant EPA 

regional office, following standard regional procedures for approval or disapproval of 

certification plan amendments. [Note: As indicated in the FIFRA delegations manual and the 

delegation of authority pertaining to certification of pesticide applicators dated April 6, 1998, the 

authorities for the approval, disapproval and withdrawal of approval for certification plans, and 

the issuance of any corresponding Federal Register notices that may be necessary are 

delegated to: Regional Administrators for state and tribal certification plans; and to the Assistant 

Administrator for the Office of Prevention, Pesticides and Toxic Substances (OPPTS) for federal 

agency certification plans. The authorities delegated to the Regional Administrators may not be 

redelegated.] Certification plan amendments which are considered non-substantial 

modifications do not require the approval of the Agency. States and tribes can make nonsubstantial changes to their certification plans as needed, but they should still notify EPA of these 

changes when they submit their annual certification report to EPA. This is important so the 

changes can be incorporated into the EPA-approved plan of record on file with the Agency. 

Prior to approving a substantially-modified certification plan, the EPA regional offices should 

notify the national program office of their intent to approve the amended plan. Such notice 

should include: the state or tribal certification plan being amended; a list of the modifications to 

the state or tribal certification plan the EPA regional office has determined to be substantial; and 

the regional office=s determination regarding approval. 

Through this guidance document, EPA is now altering its previous policy in this area and the 

Agency will generally no longer publish notices in the Federal Register regarding its approval of 

substantial modifications to certification plans. In a previous policy dated June 16, 1988, EPA had 

set forth a policy that all actions regarding approval of substantial modifications to certification 

plans would be published in the Federal Register. Although FIFRA does not require EPA to publish 

notices in the Federal Register regarding its approval of modifications to certification plans, EPA 

initially established a policy of doing so because state/tribal certification programs were still 

relatively new, and they were evolving from previous federal-run programs in some cases, and 

EPA wanted to assure that any new state and tribal program requirements for certification of 

applicators were adequately and fairly communicated to the regulated community. EPA now 

believes that the existing state and tribal certification programs have been in operation long 

enough to have adequate public notice strategies in place for making the affected regulated 

community aware of the program requirements and any changes to those requirements, such 

that there is no need for EPA to publish notices in the Federal Register regarding its approval of 

modifications to certification plans. EPA believes it is a costly and unnecessary administrative 

burden that does not provide any tangible benefit and is no longer warranted, so - with a few 

exceptions as noted below - EPA will generally no longer publish notices in the Federal Register

regarding its actions on the approval of modifications to certification plans. 
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In certain situations where EPA believes there is a broader public interest in modifications to 

applicator certification programs and/or certification plans (such as the addition of a program 

to certify applicators to use products containing M44 or Compound 1080), EPA=s policy will be to 

publish a notice in the Federal Register regarding its intent to approve those modifications (see 

related issue below regarding the Agency=s policy on certification plan changes or 

amendments that would allow use of M44 or Compound 1080 products). [Note: The national 

program office has developed separate guidance for the EPA regional offices on the process for 

approving or disapproving certification plans through the C&T Plan and Reporting Database 

system. The guidance provides detailed information on using the database system, the specific 

certification plan review and approval/disapproval process, and the regional responsibilities 

associated with approval/disapproval of certification plans.] 

⊄ ⊄ ⊄ 

Issue 2: Types of Plan Changes That Constitute a Substantially Modified Plan. 171.8(b) states that 

an approved State Plan may not be "substantially" modified without prior approval of the 

Administrator. Guidance is needed on this provision of the regulation and EPA's policy regarding 

the types of certification plan changes or amendments that constitute a Asubstantially 

modified@ certification plan requiring approval by the Administrator versus those changes or 

amendments that do not constitute a Asubstantially modified@ certification plan requiring 

approval by the Administrator. 

Guidance: Table 1 below lists types of changes or amendments in certification plans which EPA 

would generally consider to be a Asubstantial modification@ to a certification plan, and would 

therefore necessitate approval by the Administrator or the appropriate Agency official 

delegated the authority for such matters (i.e., Regional Administrators). Table 2 lists types of 

changes or amendments in certification plans which EPA would generally not consider to be a 

Asubstantial modification@ to a certification plan, and therefore approval by the Administrator 

would generally not be required. 

 Table 1: Types of Plan Changes Generally Considered a Substantial Modification 

$ Deletion of a mechanism for certification and/or recertification 

$ Establishment of a new commercial or private applicator category and 

accompanying competency standards 

$ Any change that may subject significant numbers of new applicators (i.e., 

greater than 100) to the certification process 

$ Any change in the certification process that requires private applicators to 

take written exams where such a requirement did not previously exist 

$ Establishment of cooperative agreements between states and tribes under 

171.10(a)(1) for certification of applicators in Indian country 

$ Any changes that are expected to generate substantial public interest, such 

as allowing use of M-44 and/or Compound 1080 Livestock Protection Collar 

(LPC) products 
- 7 - July 2006 

 

Table 2: Types of Plan Changes Generally Not Considered a Substantial Modification 

$ Changes in personnel/titles 

$ Changes in the passing grade for exams 

$ Changes in competency standards for existing categories or subcategories 

(as long as they continue to meet federal standards) 

$ Additions, deletions or changes to existing categories or subcategories. 

$ Introduction of worksheets into training 

$ Changes in the length/type of exams or training 

$ Significant changes in methods of tracking recertification training sessions 

attended by the applicator 

$ Establishment of a passing grades for an examination where one did not 

previously exist 

$ Changes in a recertification period (as long as they continue to meet 

federal standards) 

$ The establishment of licensing provisions for those previously covered under 

the Adirect supervision@ provisions 

$ Establishment of a new or additional mechanism for certification and/or 

recertification (for example, a state or tribe may have previously allowed 

certification only by training and may now offer the option of training or self-study 

and examination) 

$ Establishment of reciprocal agreements with other state or tribal certification 

programs 

[NOTE: In summary from above, any certification plan which has been modified or amended is 

required to be submitted to the Agency. Certification plan amendments that constitute a 

substantial modification of the certification plan (as indicated above) will require formal 

approval by the Regional Administrator of the relevant EPA regional office before substantial 

modifications are incorporated into the certification plan of record on file with the Agency. 

Certification plan amendments which are considered non-substantial modifications do not 

require the approval of the Agency. States and tribes can make non-substantial changes to 

their certification plans as needed, but they should still notify EPA of these changes when they 

submit their annual certification report to EPA. It will be EPA=s policy to publish a notice in the 

Federal Register regarding EPA's intent to approve a modification to a certification plan that 

involves certifying applicators in the use of M44 or Compound 1080 products (please see other 

guidance in this document for additional information on related policy issues).] 

⊄ ⊄ ⊄ 

Issue 3: Requirements for Plans Modified to Certify for M44 and Compound 1080. Pursuant to two 

decisions by the Agency, the M44 device and Compound 1080 livestock protection collars 

(LPCs) may be used for predator control, provided that several conditions are met regarding 

certification of applicators for this use. Guidance is needed on EPA's policy regarding the 

requirements states and tribes must meet in their certification plans in order to be able to have 

their plan approved to certify applicators to use M44 and Compound 1080 LPC products. 

Guidance: In 1972, the Administrator suspended and then cancelled the registrations of M44 and 

Compound 1080 because of their hazards to humans and non-target animals. In 1975, however, 

the Administrator affirmed an Administrative Law Judge's (ALJ) decision to allow the registration 
- 8 - July 2006 

of M44 and Compound 1080 for certain restricted uses, subject to several conditions. Likewise, in 

1983, the Assistant Administrator for OPPTS modified and affirmed an ALJ's decision to allow the 

registration of Compound 1080 in light of substantial new evidence. The Assistant Administrator's 

decision allowed the use Compound 1080 in LPCs again under specific conditions. 

The two administrative decisions also required that non-governmental applicators must receive 

appropriate training in the handling, use, storage, etc. of LPCs containing Compound 1080 and 

the M44 device. The decisions also required that the training be carried out pursuant to an 

approved certification plan. In order to properly implement the M44 and Compound 1080 

decisions, states/tribes that wish to certify applicators to use LPCs containing Compound 1080 or 

M44 must amend their certification plans to include specific standards of competency for these 

products (see below). As with any substantial plan modification such as this, amending the 

certification plan to add this category of use along with the accompanying new standards of 

competency requires that it be submitted to EPA for approval. Given that these chemicals have 

historically been of great public interest, it will be EPA=s policy to publish a notice in the Federal 

Register regarding its intent to approve an amended certification plan to certify applicators in 

the use of LPCs containing Compound 1080 or the M44 device. 

Under EPA's implementation of the Administrative decisions, M-44 and Compound 1080 livestock 

protection collar products may only be used where the mechanism of the certification process is 

established, where a proper training curriculum has been developed, and where any 

appropriate certification guidelines have been published. Therefore, in order for states/tribes to 

certify applicators to use M-44 and/or Compound 1080 livestock protection collar (LPC) 

products, they must first amend their certification plans to include the specific competency 

standards listed below for the plan to be approved to allow for the certification of applicators to 

use these products. If the certification plan allows for use of both M44 and Compound 1080 LPC 

products, the plan must address all the required competency standards for both products. 

Pursuant to the Administrative decision on Compound 1080, the competency standards for 

Compound 1080 LPC products must require applicators to demonstrate comprehension that use 

of 1080 LPC products must conform to all applicable laws and regulations, as well as knowledge 

and understanding of the specific use restrictions for sodium fluoroacetate in the livestock 

protection collar, including: where and when 1080 LP collars can be used; safe handling and 

placement of collars; practical treatment of 1080 poisoning in humans and domestic animals; 

and specific requirements for the following: field posting; monitoring; record keeping; reporting of 

suspected/actual poisoning, accident or injury to threatened or endangered species, humans, 

domestic animals, or non-target wild animals; proper storage of collars; disposal of punctured or 

leaking collars and contaminated animal remains, vegetation, soil, and clothing. 

Pursuant to the Administrative decision on M-44, the competency standards for M-44 LPC 

products must require applicators to demonstrate comprehension that use of M-44 devices must 

conform to all applicable laws and regulations, as well as knowledge and understanding of all of 

the specific use restrictions, including: safe handling and proper placement of the capsules and 

device; proper use of the antidote kit and notification to medical personnel before use; 

conditions of and restrictions on where devices can be used, including consultation of US Fish 

and Wildlife Service maps to avoid affecting endangered species, and maximum density of M-44 

devices; provisions for supervision and/or monitoring of users or applicators; required information 

exchange where more than one agency is authorized to place M-44 devices; and specific 

requirements for the following: recordkeeping, monitoring; field posting; proper storage; and 

disposal of damaged or used sodium cyanide capsules. [Note: Regional approval of amended 

certification plans that have been modified to allow the use of M-44 or Compound 1080 LPC 

products must assure compliance with the above requirements. The Region, in cooperation with 
- 9 - July 2006 

the national program office at EPA Headquarters, will generally publish a notice in the Federal 

Register regarding the Region's intent to approve amended plans to allow these uses. After 

adequately addressing any public comment, the Region should then proceed with issuing a 

notice of final approval of the amended certification plan(s), at which time the amended 

plan(s) would be considered approved by EPA.] 

171.10(a)(1) - State/Tribal Agreements for Certification

Issue 1: Meaning of the Term ACooperative Agreements@ as Used in 171.10(a)(1). Section 

171.10(a)(1) of the regulation make reference to cooperative agreements that should be 

established between states and Indian governing bodies. Guidance is needed on this provision 

of the regulation and EPA's policy regarding what is meant by the term Acooperative 

agreements@ as used in this provision of the regulation. 

Guidance: EPA views the term Acooperative agreements@ as used in this provision of the 

regulation to mean any type of memorandum of agreement (MOA), memorandum of 

understanding (MOU), or other form of written agreement or arrangement that may be 

established between a state and an Indian governing body providing for cooperation in the 

certification of applicators in Indian country. The term Acooperative agreement@ as used in this 

provision of the regulation does not refer to a funding instrument commonly used by EPA for 

giving money to another party outside the Agency. 

⊄ ⊄ ⊄ 

Issue 2: Requirements for 171.10(a)(1) State/Tribal Cooperative Agreements. 171.10(a)(1) of the 

regulation indicates that if an Indian governing body decides to utilize a state certification 

program to certify or assist in the certification of applicators in Indian country not subject to state 

jurisdiction, then it should enter into a cooperative agreement with that state, and such 

cooperative agreements shall be incorporated into that state=s certification plan and 

forwarded to the EPA for approval or disapproval. Guidance is needed on this provision of the 

regulation and EPA's policy on the following issues related to requirements for state/tribal 

cooperative agreements established under 171.10(a)(1). 

Issue 2A: What is the Agency=s policy regarding whether state/tribal cooperative agreements 

established under 171.10(a)(1) must be formal, written and signed agreements? 

Guidance: Based on the language in the regulation at 171.10(a)(1), and the preamble text of 

the final rule where comments on the proposed rule were discussed (40 FR 11698, March 12, 

1975), EPA views the language in 171.10(a)(1) to mean that a written agreement should be 

established if a tribe is going to utilize a state program to certify or assist in the certification of 

applicators in Indian country not subject to state jurisdiction. EPA also firmly believes that it is 

important for the Agency to be able to verify that all parties to such agreements have 

consented to their terms. The signature of all parties on the written agreement is the appropriate 

indication of such consent. It is necessary, therefore, for an agreement established under 

171.10(a)(1) to be written and to be signed by all of the parties involved in the agreement to 

document their mutual understanding and acceptance of the terms of the agreement. This is 

necessary for EPA to be able to verify the terms of the agreement, assure appropriate 

compliance monitoring mechanisms and enforcement capabilities are in place, and recognize 

the certification mechanisms established under a 171.10(a)(1) agreement as being valid under 

FIFRA. Consent to the terms of the agreement should be indicated by signature of the parties. 
- 10 - July 2006 

⊄ 

Issue 2B: What is the Agency=s policy regarding the information that should be included in 

agreements established under 171.10(a)(1) between a state and an Indian governing body in 

order for the Agency to be able to make its determination of approval or disapproval? 

Guidance: Section 171.10(a)(1) states that cooperative agreements between states and Indian 

governing bodies should include matters concerning funding and proper authority for 

enforcement purposes, and such agreements shall be incorporated into the relevant state 

certification plan and forwarded to the Administrator for approval or disapproval (Regional 

Administrators have been delegated the authority for such matters). This provision of the 

regulation does not, however, establish any clear authority to require specific information to be 

contained in the agreements in order for the Agency to be able to make its determination of 

approval or disapproval of the agreements and/or the relevant state certification plans. The 

Agency does believe, however, that certain matters need to be addressed in the agreements in 

order for them to establish a proper program that can be recognized by EPA as allowable in 

connection with establishing certification mechanisms in Indian country. In order for the 

agreements to establish certification mechanisms in Indian country that can be recognized by 

EPA, the relevant EPA regional office should assure that agreements established between a state 

and an Indian governing body under 171.10(a)(1) appropriately spell out the roles and 

responsibilities of the respective parties and address the matters outlined below related to 

funding and enforcement authorities. 

1. The parties involved in the agreement that would potentially be committing funds or other 

resources (personnel, supplies, equipment, etc.) as a result of being party to the agreement, 

and the role of each of the these parties under the agreement. This should include the 

state(s) and state agencies or offices involved, the Indian country and Indian governing 

bodies or tribal entities involved, the EPA regional office(s) involved (if applicable), and any 

other parties that may have a role in carrying out aspects of the certification program as a 

result of the agreement. 

2. The laws, regulations, and requirements that applicators will be subject to in the relevant 

Indian country in order to obtain, hold and maintain their certifications under the certification 

mechanism/program being established in Indian country through the agreement. 

3. The roles, authorities and mechanisms for carrying out enforcement related to the 

certification program established through the agreement. At a minimum, the agreement 

should address the following matters related to enforcement: assurances that appropriate 

enforcement authorities exist; how inspections will be conducted and under what authority; 

specifics regarding inspection and/or enforcement cooperation; procedures for handling 

complaint referrals; responsibilities and procedures for handling case development and 

enforcement actions; limits on state or tribal roles in inspections or enforcement; mechanisms 

for coordinating exchange of information on enforcement actions and potential actions 

regarding certifications; and any other special conditions related to enforcement. 

[Note: EPA regional offices should retain direct implementation until such time that an 

agreement established under 171.10(a)(1) between a state and an Indian governing body has 

been signed and agreed to by all parties, incorporated into a state certification plan, and 

approved by EPA (or until such time that a tribal certification plan submitted under 171.10(a)(2) 

has been approved by EPA); thereby establishing a proper certification program that can be 

recognized by EPA as allowable in connection with establishing certification mechanisms in 

Indian country.] 
- 11 - July 2006 

⊄ 

Issue 2C: What is the Agency=s policy regarding whether agreements established under 

171.10(a)(1) must be signed by representatives of all parties involved in the agreement, and 

whether there are there are any requirements for the level of the government official that should 

be signing the agreements in order for the Agency to be able to make its determination of 

approval or disapproval? 

Guidance: As stated above, it is important for EPA to be able to verify that all parties to an 

agreement established under 171.10(a)(1) have consented to its terms; and the signature of all 

parties is the appropriate indication of such consent. [Note: See related guidance above 

regarding whether agreements established under 171.10(a)(1) need to be written and signed.] 

The regulation is silent regarding specific requirements for signatories, concurrences, or the level 

of the government official that should be signing the agreements established under 171.10(a)(1). 

EPA does not believe the regulations under 171.10(a)(1) establish any clear authority for EPA to 

require specific signatories or concurrences on the agreements. EPA believes, however, that it is 

necessary for the signatories to an agreement to have the authority to act as the representatives 

for the parties involved and commit the parties to the terms of the agreement. Regions should 

assure that the signatories to agreements established under 171.10(a)(1) are appropriate. It is 

also strongly recommended that agreements established under 171.10(a)(1) should be signed by 

the relevant EPA Regional Administrator or an EPA official designated to sign such agreements 

for the Regional Administrator. [Note: See related guidance below regarding the role of the EPA 

regional office in coordinating the establishment of agreements under 171.10(a)(1).] 

⊄ 

Issue 2D: What is the Agency=s policy regarding whether the EPA regional office should be 

involved in the negotiation and establishment of, and concurrence on, agreements established 

under 171.10(a)(1)?

Guidance: The relevant EPA regional office whose state(s) and/or tribe(s) are interested in 

establishing an agreement should, as appropriate, help the parties work toward establishing a 

solid meaningful agreement that clearly spell out the respective roles and responsibilities of all 

the parties that are part of the agreement. Regions should consider the following points when 

facilitating negotiation of an agreement under 171.10(a)(1): 1) the policies expressed in EPA=s 

1984 Indian Policy; 2) applicable federal regulations and requirements; 3) whether the parties 

involved in the agreement have agreed on the terms of the agreement and memorialized the 

agreement through some form of signed MOA or MOU or other document that clearly 

documents mutual understanding and acceptance of the terms of the agreement; and 4) 

whether the signatories to the agreement are appropriate and have the authority to act as the 

representatives for the parties involved and commit the parties to the terms of the agreement. It 

is strongly recommended that agreements established under 171.10(a)(1) should be signed by 

the relevant EPA Regional Administrator or an EPA official designated to sign such agreements 

for the Regional Administrator. [Note: In any case where an agreement established under 

171.10(a)(1) includes provisions for inspections by state/tribal inspectors, the EPA regional office(s) 

with jurisdiction should assure the following: that an appropriate and valid FIFRA Cooperative 

Enforcement Agreement with the state/tribe is in place; that any state/tribal inspectors use 

federal credentials in Indian country when enforcing FIFRA; and that any Federal EPA inspector 

credentials issued to state or tribal inspectors have been issued in accordance with applicable 

EPA policy and guidance.] 
- 12 - July 2006 

⊄ 

Issue 2E: What is the Agency=s policy regarding whether an amendment to a state certification 

plan to include a description of an agreement established under 171.10(a)(1) constitutes a 

Asubstantially modified@ certification plan? 

Guidance: EPA generally considers amending a certification plan to include a description of an 

agreement established under 171.10(a)(1) to be a Asubstantial modification@ of a certification 

plan; thus requiring the approval of the Regional Administrator. EPA approval of such an 

amended certification plan would not necessarily call for publication of a notice in the Federal 

Register. Please see other guidance in this document related to AModifications to Approved 

Certification Plans@ for further information concerning the Agency=s approval process for 

amended certification plans, what constitutes a Asubstantially modified@ certification plan under 

the regulation, and when publication of notices in the Federal Register is appropriate. 

⊄ ⊄ ⊄ 

 

Issue 3: State Plan Requirements Related to State/Tribal Cooperative Agreements: 171.7(e)(5) 

indicates that state certification plans should include a description of any cooperative 

agreements a state has made with any Indian governing body to certify or assist in the 

certification of applicators in Indian country. 171.10(a)(1) states that such agreements and any 

amendments thereto shall be incorporated into the state certification plan and forwarded to the 

Administrator for approval or disapproval. Guidance is needed on these provisions of the 

regulation and EPA's policy regarding: 1) what constitutes an adequate description of any 

agreement(s) a state has with any Indian governing body to certify or assist in the certification of 

applicators in Indian country; and 2) how such agreement(s) should be "incorporated" into the 

state certification plan for EPA to be able to make its determination of approval (i.e., is it 

adequate for states to incorporate any agreement(s) it has established with tribes by reference 

into the state certification plan, or must copies of the agreement(s) be submitted with the plan). 

Guidance: In general, states can meet the requirements of 171.7(e)(5) and 171.10(a)(1) by 

including copies of any applicable agreement(s) as attachments with their certification plan 

submission. It is EPA's view that the relevant EPA regional office should have copies of any 

agreement(s) a state has made with an Indian governing body under 171.10(a)(1) in order to be 

able to make its determination of approval or disapproval of such agreement(s) and the 

relevant state certification plan. In the absence of providing copies of any applicable 

agreement(s) as attachments with their certification plan submission, states must include in their 

plan an adequate description of any applicable agreement(s). The description should contain 

the following information: 1) the Indian country covered by the agreement(s); 2) the parties 

involved in the agreement(s); 3) the signatories to the agreement(s); and 4) the terms of the 

agreement(s) and the respective roles and responsibilities of all parties involved in the 

agreement(s). This information is necessary for the Agency to be able to assure appropriate 

compliance monitoring mechanisms and enforcement capabilities are in place, and for EPA to 

be able to recognize the certification mechanisms established under a 171.10(a)(1) agreement 

as being valid under FIFRA. [Note: If a state has knowledge that the relevant EPA regional office 

already has copies of any applicable agreement(s) the state has made with an Indian 

governing body under 171.10(a)(1) because the regional office was involved in the negotiation 

and establishment of, and concurrence on, the agreement(s), then it will be sufficient for the 

state to incorporate such agreement(s) into the state certification plan by reference.] 
- 13 - July 2006 

171.10(a)(2) - Tribal Certification Plans 

Issue: Guidance is needed on EPA's policy regarding the submission, review and 

approval/disapproval process for the initial submission to EPA of a tribal certification plan 

submitted under 171.10(a)(2). 

Guidance: The administrative process for submitting, reviewing and approving or disapproving 

initial tribal certification plans submitted to EPA under 171.10(a)(2) is not typically any different 

than the administrative process for submitting, reviewing and approving or disapproving initial 

state certification plans submitted to EPA under 171.7. The relevant EPA regional office should 

review a tribal certification plan submitted to EPA under 171.10(a)(2) to determine: 1) if the plan 

has the necessary components and contains the satisfactory assurances required by the 

regulations; and 2) if the plan adequately documents existence of the requisite legal authorities 

and provisions to allow the Agency to approve the plan. When working with tribal issues Regions 

should always consider the policies and principles of EPA=s 1984 Indian Policy and the unique 

issues that may arise when working in this area. Regions should consult with appropriate EPA 

offices and experts as needed. 

171.11 - Federal Plans for Certification of Applicators in Indian Country 

Issue: 171.11 addresses federal certification of pesticide applicators in states or in Indian country 

where there is no approved state or tribal certification plan in effect. Guidance is needed on 

EPA's policy regarding whether it is appropriate for the EPA regional office to develop and 

implement a Ablanket@ federal certification plan to cover all the tribes in a region not covered 

by one of the other certification mechanisms allowed under the regulation (i.e., an agreement 

established under 171.10(a)(1) or a full tribal certification plan submitted under 171.10(a)(2)). 

Guidance: There is nothing that would prohibit EPA regional offices from developing and 

implementing a Ablanket@ federal certification plan to cover all the tribes in a given EPA region 

not covered by one of the other certification mechanisms. In developing such plans, the EPA 

regional office should consult with all affected tribes and consider the policies and principles of 

EPA=s 1984 Indian Policy.