### July 2006 - 1 - 

## Interim National Program Guidance for EPA Regional Offices On EPA’s Pesticide Applicator Certification Program 1 

## (40 CFR Part 171) July 2006

List of CFR Sections and Subjects/Issues Addressed Page

171.4(a)(5) - Wr itten Ex ams ................................................................................................... ................... 2

Issue: Requirements for Written Examin ations .......................................................................... 2

171.7(b)(1)(iii)(A) - Required Legal Auth orities for Certif ication Pl ans ................................................ 2

Issue: Requirements for Civil Penalty Provisions for Priv ate Applicators ................................ 2

171.8(b) - Modifications to Appr oved Certificat ion Plan s .................................................................... 3

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

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

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

171.10(a)(1) - State/Tribal Agr eements for Ce rtificat ion ...................................................................... 9

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

Issue 2: Requirements for 171.10(a)(1) St ate/Tribal Cooperat ive Agreem ents .................... 9

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

171.10(a)(2) - Tribal Ce rtificatio n Plan s ..................................................................................... ............ 13

171.11 - Federal Plans for Certification of Applicators in In dian Count ry ......................................... 13

1 The statements in this document are intended so lely 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.

### July 2006 - 2 - 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 provis ion 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 wri tten exams. EPA believes that the recognized and accepted standard process for determining competence through written examination entails having the exams be closed-book and pr octored. 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 a ssuring 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 differe nt 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 clearl y establish this as a requirement.

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

Issue: Requirements for Civil Penalt y 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 ce rtification plans). Guidance is needed on this provision of the regulation and EPA's policy rega rding 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 certificatio ns)to have their certification plans approved. However, EPA acknowledges there is some ambigui ty 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 pr ovide 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 recomme nds that states and tribes have both civil and criminal penalty provisions for private applicators (in addition to provisions for denying, suspending and revoking certifications).

### July 2006 - 3 - However, states/tribes will not be required to ha ve both civil and criminal penalty provisions for private applicators until such time that regula tory 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 authorit y. 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 plan s and criminal penalty authority. EPA is not establishing a requirement that states or tribes ha ve both civil and criminal penalty provisions for private applicators at t his time. When considering regulato ry 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 gov ernments and the unique issues associated with their situation.]

171.8(b) - Modifications to Approved Certification Plans

Issue 1: Requirements for Submission, Revi ew 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 subm ission 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 th eir 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 Agen cy (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) stat es that an approved ce rtification plan and the certification program carried out under such plan may not be substantially modified without prior approval of the Administrator. EPA views this A prior 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 A prior approval @ to mean that states/tribes have to get approval from EPA before amending laws/regulat ions 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 obst acles. 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/tribe s 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 es tablished in the regulation at 171.8(c)) if such modifications result in the certification plan being in non-compliance with federal regulations or

### July 2006 - 4 - 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 wi ll be asked to complete this section annually so EPA is systematically notified of plan modifications.]

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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 pl ans 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 Pesticid e 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 Data base 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. [Not e: 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 respons ible 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 th at 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 modif ication (see related issue below regarding the Agency = s policy on the types of certification plan changes or amendments that would

constitute a A substantially 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

### July 2006 - 5 - 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 commerc ial category without the necessary provisions for examination of applicators seek ing certification in that category.]

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Issue 1C: What is the Agency = s policy regarding: 1) the approval process for amended certification plans submitted through the web-ba sed C&T Plan and Reporting Database system; 2) how the approval process differs for A substantially modified @ certification plans versus amended plans where the changes are not consider ed 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 stan dard regional procedures for approval or disapproval of certification plan amendments. [Note: As ind icated 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 Re gister 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, Pest icides and Toxic Substances (OPPTS) for federal agency certification plans. The authorities dele gated to the Regional Administrators may not be redelegated.] Certification plan amendmen ts 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 certificat ion 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 certif ication 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 alte ring 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 certif ication plans. In a previous policy dated June 16, 1988, EPA had set forth a policy that all actions regarding approv al 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 approv al 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 pr evious federal-run programs in some cases, and EPA wanted to assure that any new state and tr ibal program requirements for certification of applicators were adequately and fairly commu nicated 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 an d 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 believ es it is a costly and unnecessary administrative burden that does not provide any tangible benefi t 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.

### July 2006 - 6 - In certain situations where EPA believes there is a broader public interest in modifications to applicator certification programs and/or certifi cation 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 C ompound 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 informati on 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.]

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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 provis ion of the regulation and EPA's policy regarding the types of certification plan changes or amendments that constitute a A substantially

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

amendments that do not constitute a A substantially 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 A substantial 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., Re gional Administrators). Table 2 lists types of changes or amendments in certification plans w hich EPA would generally not consider to be a

A substantial modification @ to a certification plan, and therefore approval by the Administrator would generally not be required.

Table 1: Types of Plan Changes Gene rally 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 agreemen ts 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 Comp ound 1080 Livestock Protection Collar (LPC) products

### July 2006 - 7 - Table 2: Types of Plan Changes Generally Not Co nsidered a Substantial Modification

$ Changes in personnel/titles

$ Changes in the passing grade for exams

$ Changes in competency standards for ex isting categories or subcategories (as long as they continue to meet federal standards)

$ Additions, deletions or changes to ex isting categories or subcategories.

$ Introduction of worksheets into training

$ Changes in the length/type of exams or training

$ Significant changes in methods of track ing recertification training sessions attended by the applicator

$ Establishment of a passing grades fo r 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 provisio ns for those previously covered under

the A direct 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 certificatio n plan which has been modified or amended is required to be submitted to the Agency. Cert ification plan amendments that constitute a substantial modification of the certification pl an (as indicated above) will require formal approval by the Regional Administrator of the re levant EPA regional office before substantial modifications are incorporated into the certificatio n plan of record on file with the Agency. Certification plan amendments which are cons idered 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 shou ld 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 approv e a modification to a certification plan that involves certifying appl icators in the use of M44 or Compou nd 1080 products (please see other guidance in this document for additional information on related policy issues).]

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Issue 3: Requirements for Plans Modified to Certify for M44 and Compound 1080. Pursuant to two decisions by the Agency, the M44 device an d Compound 1080 livestock protection collars (LPCs) may be used for predator control, prov ided that several conditions are met regarding certification of applicators for this use. Guid ance 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 cert ify 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 Ju dge's (ALJ) decision to allow the registration

### July 2006 - 8 - of M44 and Compound 1080 for certa in restricted uses, subject to se veral 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 substant ial 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 th at 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 on ly 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 publ ished. Therefore, in order for states/tribes to certify applicators to use M-44 and/or Comp ound 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 appli cators to demonstrate comprehension that use of 1080 LPC products must conform to all applicab le laws and regulations, as well as knowledge and understanding of the specific use restrict ions 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: fiel d 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; pr oper storage of collars; disposal of punctured or leaking collars and contaminated animal re mains, 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 ha ndling 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 en dangered 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 capsu les. [Note: Regional approval of amended certification plans that have been modified to allow th e use of M-44 or Compound 1080 LPC products must assure compliance with the above requirements. The Region, in cooperation with

### July 2006 - 9 - the national program office at EPA Headquarters , will generally publish a notice in the Federal Register regarding the Region's intent to appr ove 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 **A** Cooperative 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 bo dies. Guidance is needed on this provision of the regulation and EPA's policy re garding what is meant by the term A cooperative agreements @ as used in this provision of the regulation.

Guidance: EPA views the term A cooperative agreements @ as used in this provision of the regulation to mean any type of memoran dum 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 A cooperative 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.

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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 coop erative 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 i ssues related to requirements for state/tribal cooperative agreements established under 171.10(a)(1).

Issue 2A: What is the Agency = s policy regarding whether stat e/tribal cooperative agreements established under 171.10(a)(1) must be fo rmal, written and signed agreements?

Guidance: Based on the language in th e 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 pr ogram to certify or assist in the certification of applicators in Indian country not subject to state juri sdiction. 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 pa rties 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 enforc ement capabilities are in place, and recognize

the certification mechanisms es tablished 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.

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⊄ 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 it s 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 sh all be incorporated into the relevant state certification plan and forwarded to the Adminis trator for approval or disapproval (Regional Administrators have been delegated the authorit y 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 ma tters need to be addressed in the agreements in order for them to establish a proper program th at can be recognized by EPA as allowable in connection with establishing certification mecha nisms 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 a ssure that agreements es tablished 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 woul d 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 un der 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 In dian country through the agreement.

3. The roles, authorities and mechanisms for carrying out enforcement related to the certification program established through th e 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 enforcem ent cooperation; procedures for handling complaint referrals; responsibilities and proc edures for handling case development and
enforcement actions; limits on st ate or tribal roles in inspections or enforcement; mechanisms for coordinating exchange of information on enforcement actions and potential actions regarding certifications; and any other spec ial conditions related to enforcement.

[Note: EPA regional offices should retain dire ct 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 tr ibal 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.]

### July 2006 - 11 -

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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 th e 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 cons ented 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 requir ements 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 th e 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 establ ished under 171.10(a)(1) are appropriate. It is also strongly recommended that agreements esta blished under 171.10(a)(1) should be signed by the relevant EPA Regional Administrator or an EP A official designated to sign such agreements for the Regional Administrator. [Note: See relate d guidance below regarding the role of the EPA regional office in coordinating the establ ishment of agreements under 171.10(a)(1).]

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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 whos e 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. Re gions 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 regula tions 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 MO A 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 appr opriate and have the authority to act as the representatives for the parties inv olved and commit the parties to th e terms of the agreement. It is strongly recommended that agreements esta blished under 171.10(a)(1) should be signed by the relevant EPA Regional Administrator or an EP A 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 st ate/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 enforc ing 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.]

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Issue 2E: What is the Agency = s policy regarding whether an amendment to a state certification plan to include a description of an agreem ent established under 171.10(a)(1) constitutes a

A substantially modified @ certification plan?

Guidance: EPA generally considers amending a certifi cation plan to include a description of an agreement established under 171.10(a)(1) to be a A substantial 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 A Modifications to Approved

Certification Plans @ for further information concerning the Agency = s approval process for amended certification plans, what constitutes a A substantially modified @ certification plan under the regulation, and when publication of notices in the Federal Register is appropriate.

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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 applicat ors in Indian country. 171.10(a)(1) st ates that such agreements and any amendments thereto shall be incorporated into the state certification plan and forwarded to the Administrator for approval or disapproval. Guid ance 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 ma ke 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 certificat ion 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 enforcem ent capabilities are in place, and for EPA to be able to recognize the certification mecha nisms established under a 171.10(a)(1) agreement as being valid under FIFRA. [Note: If a state ha s 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 ag reement(s), then it will be sufficient for the state to incorporate such agreement(s) into the state certification plan by reference.]

### July 2006 - 13 - 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 subm ission 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 certificatio n plans submitted to EPA under 171.7. Th e relevant EPA regional office should review a tribal certification plan submitted to EP A under 171.10(a)(2) to determine: 1) if the plan has the necessary components and contains th e 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 certificat ion of pesticide appl icators in states or in Indian country where there is no approved state or tribal certif ication plan in effect. Guidance is needed on EPA's policy regarding whether it is appropriat e for the EPA regional office to develop and implement a A blanket @ 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 cert ification plan submitted under 171.10(a)(2)).

Guidance: There is nothing that would prohibit EPA regional offices from developing and implementing a A blanket @ 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.