[Federal Register Volume 80, Number 211 (Monday, November 2, 2015)]
[Rules and Regulations]
[Pages 67496-67574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25970]
[[Page 67495]]
Vol. 80
Monday,
No. 211
November 2, 2015
Part II
Environmental Protection Agency
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40 CFR Part 170
Pesticides; Agricultural Worker Protection Standard Revisions; Final
Rule
Federal Register / Vol. 80 , No. 211 / Monday, November 2, 2015 /
Rules and Regulations
[[Page 67496]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR 170
[EPA-HQ-OPP-2011-0184; FRL-9931-81]
RIN 2070-AJ22
Pesticides; Agricultural Worker Protection Standard Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing updates and revisions to the existing worker
protection regulation for pesticides. This final rule will enhance the
protections provided to agricultural workers, pesticide handlers, and
other persons under the Worker Protection Standard (WPS) by
strengthening elements of the existing regulation, such as training,
notification, pesticide safety and hazard communication information,
use of personal protective equipment, and the providing of supplies for
routine washing and emergency decontamination. EPA expects this final
rule to prevent unreasonable adverse effects from exposure to
pesticides among agricultural workers and pesticide handlers,
vulnerable groups (such as minority and low-income populations, child
farmworkers, and farmworker families) and other persons who may be on
or near agricultural establishments, and to mitigate exposures that do
occur. In order to reduce compliance burdens for family-owned farms, in
the final rule EPA has expanded the existing definition of ``immediate
family'' and continued the existing exemption from many provisions of
the WPS for owners and members of their immediate families.
DATES: This final rule is effective January 1, 2016. Agricultural
employers and handler employers will be required to comply with most of
the new requirements on January 2, 2017, as provided in 40 CFR 170.2.
Agricultural employers and handler employers will be required to comply
with certain new requirements on January 1, 2018 or later, as provided
in 40 CFR 170.311(a)(3), 170.401(c)(3), 170.501(c)(3) and 170.505(b).
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2011-0184, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334,
1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the OPP
Docket is (703) 305-5805. Please review the visitor instructions and
additional information about the docket available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Jeanne Kasai, Field and External
Affairs Division (7506P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 308-3240; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. What is the Agency's authority for taking this action?
This action is issued under the authority of sections 2 through 35
of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7
U.S.C. 136-136y, and particularly section 25(a), 7 U.S.C. 136w(a).
B. What is the purpose of the regulatory action?
EPA is revising the existing Worker Protection Standard (WPS), 40
CFR part 170, to reduce occupational pesticide exposure and incidents
of related illness among agricultural workers (workers) and pesticide
handlers (handlers) covered by the rule, and to protect bystanders and
others from exposure to agricultural pesticide use. This regulation, in
combination with other components of EPA's pesticide regulatory
program, is intended to prevent unreasonable adverse effects of
pesticides among workers, handlers and other persons who may be on or
near agricultural establishments, including vulnerable groups, such as
minority and low-income populations.
C. What are the major changes from the proposal to the final rule?
This final rule revises the existing WPS. Some significant changes
are described in this Unit. Units V. through XIX. discuss in more
detail the proposed rule, public comments submitted, EPA's responses to
the public comments, and final regulatory requirements.
In regard to training, the final rule retains the proposed content
expansions (including how to protect family members and reduce take-
home exposure) and the requirement for employers to ensure that workers
and handlers receive pesticide safety training every year. Employers
are required to retain records of the training provided to workers and
handlers for two years from the date of training. The final rule
eliminates the training ``grace period,'' which allowed employers to
delay providing full pesticide safety training to workers (for up to 5
days under the existing rule and for up to two days under the proposal)
from the time worker activities began, if the workers received an
abbreviated training prior to entering any treated area.
In regard to notification, the final rule retains the proposed
requirements for employers to post warning signs around treated areas
in outdoor production when the product used has a restricted-entry
interval (REI) greater than 48 hours and to provide to workers
performing early-entry tasks, i.e., entering a treated area when an REI
is in effect, information about the pesticide used in the area where
they will work, the specific task(s) to be performed, the personal
protective equipment (PPE) required by the labeling and the amount of
time the worker may remain in the treated area. The final rule does not
include the proposed requirement for employers to keep a record of the
information provided to workers performing early-entry tasks. The final
rule retains the existing requirements concerning the sign that must be
used when posted notification of treated areas is required.
In regard to hazard communication, the final rule requires
employers to post pesticide application information and a safety data
sheet (SDS) for each pesticide used on the establishment (known
together as pesticide application and hazard information) at a central
location on the establishment (the ``central display''), a departure
from the proposal to eliminate the existing requirement for a central
display of pesticide application-specific information. The final rule
also requires the employer to maintain and make available to workers
and handlers, their designated representatives, and treating medical
personnel upon request, the pesticide application-specific information
and the SDSs for pesticides used on the establishment for two years.
The final rule does not include the proposed requirement for the
employer to maintain copies of the labeling for each product used on
the establishment for two years.
In regard to protections during pesticide applications, the final
rule designates the area immediately surrounding the application
equipment as the area from which workers and other persons must be
excluded. This ``application exclusion zone'' differs
[[Page 67497]]
from the proposed ``entry-restricted areas,'' which would have extended
a specified distance around the entire treated area during application
based on the application equipment used. The final rule requires
handlers to suspend application, rather than cease application, if they
are aware of any person in the application exclusion zone other than a
properly trained and equipped handler involved in the application.
In regard to establishing a minimum age for handlers and workers
performing early-entry tasks, the final rule requires that handlers and
workers performing early-entry tasks be at least 18 years old, rather
than the proposed minimum age of 16 years old. This minimum age does
not apply to an adolescent working on an establishment owned by an
immediate family member. The final rule does not require the employer
to record workers' or handlers' birthdates as part of the training
record, but does require the employer to verify they meet the minimum
age requirements.
In regard to PPE, the final rule cross-references certain
Occupational Safety and Health Administration's (OSHA) requirements for
respirator use that employers will be required to comply with, i.e.,
fit test, medical evaluation, and training for handlers using
pesticides that require respirator use. The final rule expands the
respirators subject to fit testing beyond the proposal to include
filtering facepiece respirators. The final rule maintains the existing
exception from the handler PPE requirements when using a closed system
to transfer or load pesticides, and adopts a general performance
standard for closed systems, which differs from the specific design
standards based on California's existing standard for closed systems
discussed in the proposal.
D. What are the incremental impacts of the final rule?
EPA has prepared an economic analysis (EA) of the potential impacts
associated with this rulemaking (Ref. 1). This analysis, which is
available in the docket, is summarized in greater detail in Unit II.C.,
and the following chart provides a brief outline of the costs and
impacts.
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Category Description Source
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Monetized Benefits Avoided $0.6-2.6 million/ EA Chapter 4.5.
(Acute Pesticide Incidents). year after
adjustment for
underreporting of
pesticide incidents.
Qualitative Benefits........ Willingness to pay EA Chapter 4.
to avoid acute
effects of
pesticide exposure
beyond cost of
treatment and loss
of productivity.
Reduced latent
effects of avoided
acute pesticide
exposure.
Reduced chronic
effects from lower
chronic pesticide
exposure to
workers, handlers,
and farmworker
families, including
a range of
illnesses such as
Non-Hodgkins
lymphoma, prostate
cancer, Parkinson's
disease, lung
cancer, chronic
bronchitis, and
asthma.
Monetized Costs............. $60.2-66.9 million/ EA Chapter 3.3.
year.
Small Business Impacts...... No significant EA Chapter 3.5.
impact on a
substantial number
of small entities.
The rule will affect
over 295,000 small
farms, nurseries,
and greenhouses,
and commercial
entities that are
contracted to apply
pesticides.
Impact less than
0.1% of the annual
value of sales or
revenues for the
average small
entity.
Impact on Jobs.............. The rule will have a EA Chapter 3.4.
negligible effect
on jobs and
employment.
The marginal cost of
a typical
farmworker is
expected to
increase $5/year.
The marginal cost
for a more skilled
pesticide handler
is expected to
increase by $50 per
year, but this is
less than 0.2% of
the cost of a part-
time employee.
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II. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you work in or
employ persons working in crop production agriculture where pesticides
are applied. The following list of North American Industrial
Classification System (NAICS) codes is not intended to be exhaustive,
but rather provides a guide to help readers determine whether this
document applies to them. Potentially affected entities may include:
Agricultural Establishments (NAICS code 111000),
e.g., establishments or persons, such as farms, orchards, groves,
greenhouses, and nurseries, primarily engaged in growing crops, plants,
vines, or trees and their seeds.
Nursery and Tree Production (NAICS code 111421),
e.g., establishments or persons primarily engaged in (1) growing
nursery products, nursery stock, shrubbery, bulbs, fruit stock, sod,
and so forth, under cover or in open fields and/or (2) growing short
rotation woody trees with a growth and harvest cycle of 10 years or
less for pulp or tree stock.
Timber Tract Operations (NAICS code 113110),
e.g., establishments or persons primarily engaged in the operation of
timber tracts for the purpose of selling standing timber.
Forest Nurseries and Gathering of Forest
Products (NAICS code 113210), e.g., establishments or persons primarily
engaged in (1) growing trees for reforestation and/or (2) gathering
forest products, such as gums, barks, balsam needles, rhizomes, fibers,
Spanish moss, ginseng, and truffles.
Farm Workers (NAICS codes 11511, 115112, and
115114), e.g., establishments or persons primarily engaged in providing
support activities for growing crops; establishments or persons
primarily engaged in performing a soil preparation activity or crop
production service, such as plowing, fertilizing, seed bed preparation,
planting, cultivating, and crop protecting services; and establishments
or persons primarily engaged in performing services on crops,
subsequent to their harvest, with the intent of preparing them for
market or further processing.
Pesticide Handling on Farms (NAICS code 115112),
e.g., establishments or persons primarily engaged in performing a soil
preparation activity or crop production service, such as seed bed
preparation, planting, cultivating, and crop protecting services.
Farm Labor Contractors and Crew Leaders (NAICS
code 115115), e.g., establishments or persons primarily engaged in
supplying labor for agricultural production or harvesting.
Pesticide Handling in Forestry (NAICS code
115310), e.g., establishments or persons primarily providing support
activities for forestry, such as forest pest control.
[[Page 67498]]
Pesticide Manufacturers (NAICS code 325320),
e.g., establishments primarily engaged in the formulation and
preparation of agricultural and household pest control chemicals
(except fertilizers).
Farm Worker Support Organizations (NAICS codes
813311, 813312, and 813319), e.g., establishments or persons primarily
engaged in promoting causes associated with human rights either for a
broad or specific constituency; establishments or persons primarily
engaged in promoting the preservation and protection of the environment
and wildlife; and establishments primarily engaged in social advocacy.
Farm Worker Labor Organizations (NAICS code
813930), e.g., establishments or persons primarily engaged in promoting
the interests of organized labor and union employees.
Crop Advisors (NAICS codes 115112, 541690,
541712) e.g., establishments or persons who primarily provide advice
and assistance to businesses and other organizations on scientific and
technical issues related to pesticide use and pest pressure.
B. What action is the Agency taking?
EPA is finalizing changes to the WPS. The WPS is a regulation
primarily intended to reduce the risks of injury or illness resulting
from agricultural workers' and handlers' use and contact with
pesticides on farms, forests, nurseries and greenhouses. The rule
primarily seeks to protect workers (those who perform hand-labor tasks
in pesticide-treated crops, such as harvesting, thinning, pruning) and
handlers (those who mix, load and apply pesticides). The rule does not
cover persons working with livestock. The existing regulation has
provisions requiring employers to provide workers and handlers with
pesticide safety training, posting and notification of treated areas,
and information on entry restrictions, as well as PPE for workers who
enter treated areas after pesticide application to perform crop-related
tasks and handlers who mix, load, and apply pesticides.
The final rule takes into consideration comments received from the
public in response to the proposed rule (Ref. 2), as well as additional
information such as reported incidents of pesticide-related illness or
injury.
EPA believes that the changes to the WPS offer targeted
improvements that will reduce risk through protective requirements and
improve operational efficiencies. Among other things, EPA expects the
changes to:
Improve effectiveness of worker and handler
training.
Improve protections to workers during REIs.
Improve protections for workers during and after
pesticide applications.
Expand the information provided to workers, thus
improving hazard communication protections.
Expand the content of pesticide safety
information displayed to improve the display's effectiveness.
Improve the protections for crop advisor
employees.
Increase the amounts of decontamination water
available, thus improving the effectiveness of the decontamination
process.
Improve the emergency response when workers or
handlers experience pesticide exposures.
Improve the organization of the WPS, thus making
it easier for employers to understand and comply with the rule.
Clarify that workers and handlers are covered by
the rule only if they are employed, directly or indirectly, by the
establishment (i.e., receiving a salary or wage).
Protect adolescents by establishing a minimum
age for handlers and for workers who enter a treated area during an
REI, but adding an exemption to the minimum age requirement for
adolescents who work on an establishment owned by an immediate family
member.
Improve flexibility for small farmers and
members of their immediate family by expanding the definition of
immediate family members to be more inclusive and retaining the
exemptions from almost all WPS requirements for owners and their
immediate family members.
C. What are the costs and benefits of the rule?
EPA estimates the incremental cost of the revisions to the WPS to
be between $60.2 and $66.9 million per year, given a three percent
discount rate. Using a seven percent discount rate, the rule is
estimated to cost between $56.2 and $66.9 million per year. The
majority of the costs, $53.0 to $62.2 million per year, are borne by
farms, nurseries, and greenhouses that hire labor and use pesticides,
which account for about 20 percent of all farms producing crops in the
United States. The approximately 2,000 commercial pesticide handling
establishments, which are contracted to apply pesticides on farms, may
collectively see an incremental cost of about $1.9 million per year.
Family-owned farms that use pesticides and do not hire labor may
collectively bear costs of about $1.4 million per year. Total costs
amount to an average expenditure of about $30 per year per farm worker.
Benefits, in terms of reduced illness from exposure to pesticides, are
likely to exceed $64 million per year in terms of avoided costs
associated with occupational pesticide incidents and with reductions in
chronic diseases associated with occupational pesticide exposure,
although the amount EPA can quantify is much less. The estimated
quantified benefits from reducing acute worker and handler exposure to
pesticides total between $0.6 million and $2.6 million annually.
The changes to the current WPS requirements are expected to lead to
an overall reduction in incidents of unsafe pesticide exposure and to
improve the occupational health of the nation's agricultural workers
and pesticide handlers. This section provides an overview of the
qualitative benefits of the proposal and the estimated benefits that
would accrue from avoiding acute pesticide exposure in the population
protected by the WPS. It also provides an estimate of the number of
chronic illnesses with a plausible association with pesticide exposure
that would have to be prevented by the rule changes in order for the
total estimated benefits to meet the estimated cost of the proposal.
A sizeable portion of the agricultural workforce may be exposed
occupationally to pesticides and pesticide residues. These exposures
can pose significant long- and short-term health risks. It is difficult
to quantify a specific level of risk and project the risk reduction
that would result from this rule, because workers and handlers are
potentially exposed to a wide range of pesticides with varying
toxicities and risks. However, there is strong evidence that workers
and handlers may be exposed to pesticides at levels that can cause
adverse effects and that both the exposures and the risks can be
substantially reduced. EPA believes the provisions in the final rule
will reduce pesticide exposures and the associated risks.
The estimated quantified benefits from reducing acute worker and
handler exposure to pesticides total between $0.6 million and $2.6
million annually (Ref. 1). This conservative estimate includes only the
avoided costs in medical care and lost productivity to workers and
handlers and assumes that just 10% of acute pesticide incidents are
reported. It does not include quantification of the reduction in
chronic effects of pesticide exposure to workers and handlers, reduced
effects of exposure, including developmental impacts, to children and
pregnant
[[Page 67499]]
workers and handlers or willingness to pay to avoid symptoms of
pesticide exposure. Because the chronic effects of pesticide exposures
are seldom attributable to a specific cause, and thus are unlikely to
be recorded in pesticide poisoning databases, EPA is not able to
quantify the benefits expected to accrue from the final WPS changes
that are expected to reduce chronic exposure to pesticides. However,
associations between pesticide exposure and certain cancer and non-
cancer chronic health effects are well documented in the peer-reviewed
literature, and reducing these chronic health effects is an important
FIFRA goal.
Even if the lack of quantitative data impairs the reliability of
estimates of the total number of chronic illnesses avoided, it is
reasonable to expect that the proposed changes to the WPS will reduce
pesticide exposure, and thereby reduce the incidence of chronic disease
associated with pesticide exposure. Therefore, EPA conducted a ``break
even'' analysis to consider the plausibility of the changes to the WPS
reducing the incidence of chronic disease enough to cause the net
benefits of the proposed rule to exceed its anticipated costs. Under
this analysis, EPA looked at the costs associated with non-Hodgkin's
lymphoma, prostate cancer, Parkinson's disease, lung cancer,
bronchitis, and asthma and their frequency among agricultural workers,
and found that reducing the incidence of lung cancer by 0.078% and the
incidence of the other chronic diseases by 0.78% per year (about 44
total cases per year among the population of workers and handlers
protected under the WPS) would produce quantified benefits sufficient
to bridge the gap between the quantified benefits from reducing acute
incidents and the final rule's estimated high-end cost of $66.9
million. Overall, the weight of evidence suggests that the requirements
will result in long-term health benefits to agricultural workers and
pesticide handlers in excess of the less than 1% reduction in just six
diseases that corresponds with the break-even point for the final rule,
not only by reducing their daily risk of pesticide exposures, but also
by improving quality of life throughout their lives, resulting in a
lower cost of health care and a healthier society.
The changes to the current WPS requirements, specifically improved
training on reducing pesticide residues brought from the treated area
to the home on workers' and handlers' clothing and bodies and
establishing a minimum age for handlers and early entry workers, other
than those covered by the immediate family exemption, mitigate the
potential for children to be exposed to pesticides directly and
indirectly. The unquantified benefit to adolescent workers and
handlers, as well as children of workers and handlers is great;
reducing exposure to pesticides could translate into fewer sick days,
fewer days missed of school, improved capacity to learn, and better
long-term health. Parents and caregivers reap benefits by having
healthier families, fewer missed workdays, and better quality of life.
By finalizing several interrelated exposure-reduction measures, the
rule is expected to avoid or mitigate approximately 44 to 73% of annual
reported acute WPS-related pesticide incidents. EPA believes the final
rule will substantially reduce for these workers and handlers the
potential for adverse health effects (acute and chronic) from
occupational exposures to such pesticides and their residues. These
measures include requirements intended to reduce exposure by:
Ensuring that workers and handlers are informed
about the hazards of pesticides--the final rule changes the content and
frequency of required pesticide safety training, as well as making
changes to ensure that the pesticide safety training is more effective.
Reducing exposure to pesticides--among other
things, the final rule changes and clarifies the requirements for
personal protective equipment. It also makes changes to the timing of
applications when people are nearby. These and other provisions should
directly reduce exposure in the agricultural workforce.
Mitigating the effects from exposures that
occur--some accidental exposures are inevitable. EPA expects the final
rule will mitigate the severity of health impacts by updating and
clarifying what is required to respond to exposures.
Further detail on the benefits of this proposal is provided in the
document titled ``Economic Analysis of the Agricultural Worker
Protection Standard Revisions'' which is available in the docket for
this rulemaking (Ref. 1).
III. Introduction and Procedural History
The existing WPS was published in 1992 and implemented fully in
1995. Since implementation, EPA has sought to ensure that the rule
provides the intended protections effectively and to identify necessary
improvements. To accomplish this, EPA engaged diverse stakeholders,
individually and collectively through organized outreach efforts, to
discuss the rule and get feedback from affected and interested parties.
Groups with which EPA engaged included, but were not limited to,
farmworker organizations, health care providers, state regulators,
educators and trainers, pesticide manufacturers, farmers, organizations
representing agricultural commodity producers and crop advisors. EPA
engaged these groups formally through the National Assessment of the
Pesticide Worker Safety Program (http://www.epa.gov/pesticides/safety/workshops.htm), public meetings (e.g., National Dialogue on the Worker
Protection Standard), federal advisory committee meetings (e.g.,
Pesticide Program Dialogue Committee, http://www.epa.gov/pesticides/ppdc/) and a Small Business Advocacy Review Panel (Ref. 3). EPA also
engaged stakeholders informally, as individual organizations and in
small groups.
Using feedback from stakeholders, along with other information, EPA
developed proposed changes to the WPS and published them for public
comment (Ref. 2). EPA received substantial feedback on the proposal,
including about 2,400 written comments with over 393,000 signatures.
Commenters included farmworker advocacy organizations, state pesticide
regulatory agencies (states) and organizations, public health
organizations, public health agencies, growers and grower
organizations, agricultural producer organizations, applicators and
applicator organizations, pesticide manufacturers and organizations,
PPE manufacturers, farm bureaus, crop consultants and organizations,
and others. The comments received covered a wide range of issues and
took diverse positions. Overall, the comments were thoughtful and
demonstrated a high level of interest in ensuring the protection of
workers and handlers, while minimizing burden on employers and
regulatory agencies. This document discusses some of the significant
comments received and EPA's responses. A full summary of comments
received and EPA's responses are available in the docket for this
rulemaking (Ref. 4).
While considering stakeholder feedback and suggestions in
developing the final rule, EPA also gathered additional information,
such as updated demographic information for farmworkers, new data from
the U.S. Department of Agriculture's (USDA) National Agricultural
Statistics Service, information on other federal rules (e.g.,
respirator standards, anti-retaliatory provisions), and more recent
data on
[[Page 67500]]
incidents related to occupational pesticide exposure in agriculture.
EPA reviewed the methodology used to estimate the number of acute
pesticide-related incidents in agriculture and used the updated
information to revise the estimated number of incidents that could be
prevented under the final rule. EPA also revised the Economic Analysis
for the final rule to include more recent information from the National
Agricultural Statistics Service and with input from public comments.
IV. Context and Goals of This Rulemaking
A. Context for This Rulemaking
1. Statutory authority. Enacted in 1947, FIFRA established a
framework for the pre-market registration and regulation of pesticide
products; since 1972, FIFRA has prohibited the registration of
pesticide products that cause unreasonable adverse effects. FIFRA makes
it unlawful to use a pesticide in a manner inconsistent with the
labeling and gives EPA's Administrator authority to develop regulations
to carry out the Act. FIFRA's legislative history indicates that
Congress specifically intended for FIFRA to protect workers and other
persons from occupational exposure directly to pesticides or to their
residues (Ref. 5).
Under FIFRA's authority, EPA has implemented measures to protect
workers, handlers, other persons, and the environment from pesticide
exposure in two primary ways. First, EPA includes specific use
instructions and restrictions on individual pesticide product labeling.
These instructions and restrictions are the result of EPA's stringent
registration and reevaluation processes and are based on the risks of
the particular product. Since users must comply with directions for use
and restrictions on a product's labeling, EPA uses the labeling to
convey mandatory requirements for how the pesticide must be used to
protect people and the environment from unreasonable adverse effects of
pesticide exposure. Second, EPA enacted the WPS to expand protections
against the risks of agricultural pesticides without making individual
product labeling longer and much more complex. The WPS is a uniform set
of requirements for workers, handlers and their employers that are
generally applicable to all agricultural pesticides and are
incorporated onto agricultural pesticide labels by reference. Its
requirements complement the product-specific labeling restrictions and
are intended to minimize occupational exposures generally.
2. EPA's regulation of pesticides. EPA uses a science-based
approach to register and re-evaluate pesticides, in order to protect
human health and the environment from unreasonable adverse effects that
might be caused by pesticides. The registration process begins when a
manufacturer submits an application to register a pesticide. The
application must contain required test data, including information on
the pesticide's chemistry, environmental fate, toxicity to humans and
wildlife, and potential for human exposure. EPA also requires a copy of
the proposed labeling, including directions for use and appropriate
warnings.
Once an application for a new pesticide product is received, EPA
conducts an evaluation, which includes a detailed review of scientific
data to determine the potential impact on human health and the
environment. EPA considers the risk assessments and results of any peer
review, and evaluates potential risk management measures that could
mitigate risks that exceed EPA's level of concern. In the registration
process, EPA evaluates the proposed use(s) of the pesticide to
determine whether it would cause adverse effects on human health, non-
target species, and the environment. In evaluating the impact of a
pesticide on occupational health and safety, EPA considers the risks
associated with use of the pesticide (occupational, environmental) and
the benefits associated with use of the pesticide (economic, public
health, environmental). However, FIFRA does not require EPA to balance
the risks and benefits for each audience. For example, a product may
pose risks to workers, but risk may nevertheless be reasonable in
comparison to the economic benefit of continued use of the product to
society at large.
If the application for registration does not contain evidence
sufficient for EPA to determine that the pesticide meets the FIFRA
registration criteria, EPA communicates to the applicant the need for
more or better refined data, labeling modifications, or additional use
restrictions. Once the applicant has demonstrated that a proposed
product meets the FIFRA registration criteria and any applicable
requirements under the Federal Food, Drug, and Cosmetic Act (FFDCA), 21
U.S.C. 321 et seq., EPA approves the registration subject to any risk
mitigation measures necessary to meet the FIFRA registration criteria.
EPA devotes significant resources to the regulation of pesticides to
ensure that each pesticide product meets the FIFRA requirement that
pesticides not cause unreasonable adverse effects to the public and the
environment.
When EPA approves a pesticide, the labeling generally reflects all
risk mitigation measures required by EPA. The risk mitigation measures
may include requiring certain engineering controls, such as the use of
closed systems for mixing pesticides and loading them into application
equipment to reduce potential exposure to those who handle pesticides;
establishing conditions on the use of the pesticide by specifying
certain use sites, maximum application rate or maximum number of
applications; or establishing REIs during which entry into an area
treated with the pesticide is generally prohibited until residue levels
have declined to levels unlikely to cause unreasonable adverse effects.
Because users must comply with the directions for use and use
restrictions on a product's labeling, EPA uses the labeling to
establish and convey mandatory requirements for how the pesticide must
be used to protect the applicator, the public, and the environment from
pesticide exposure.
Under FIFRA, EPA is required to review periodically the
registration of pesticides currently registered in the United States.
The 1988 FIFRA amendments required EPA to establish a pesticide
reregistration program. Reregistration was a one-time comprehensive
review of the human health and environmental effects of pesticides
first registered before November 1, 1984 to make decisions about these
pesticides' future use. The 1996 amendments to FIFRA require that EPA
establish, through rule making, an ongoing ``registration review''
process of all pesticides at least every 15 years. The final rule
establishing the registration review program was signed in August 2006
(Ref. 16). The purpose of both re-evaluation programs is to review all
pesticides registered in the United States to ensure that they continue
to meet current safety standards based on up-to-date scientific
approaches and relevant data.
Pesticides reviewed under the reregistration program that met
current scientific and safety standards were declared ``eligible'' for
reregistration. The results of EPA's reviews are summarized in
Reregistration Eligibility Decision (RED) documents. The last RED was
completed in 2008. Often before a pesticide could be determined
``eligible,'' additional risk reduction measures had to be put in
place. For a number of pesticides, measures intended to reduce exposure
to handlers and workers were needed and are reflected on pesticide
labeling. To
[[Page 67501]]
address occupational risk concerns, REDs include mitigation measures
such as: Voluntary cancellation of the product or specific use(s);
limiting the amount, frequency or timing of applications; imposing
other application restrictions; classifying a product or specific
use(s) for restricted use only by certified applicators; requiring the
use of specific PPE; establishing specific REIs; and improving use
directions. During this process, EPA also encouraged registrants to
find replacements for the inert ingredients of greatest concern. As a
result of EPA's reregistration efforts, current U.S. farm workers are
not exposed to many of the previously used inert ingredients that were
of the greatest toxicological concern.
EPA's registration review program is a recurring assessment of
products against current standards. EPA will review each registered
pesticide at least every 15 years to determine whether it continues to
meet the FIFRA standard for registration. Pesticides registered before
1984 were reevaluated initially under the reregistration program. These
and pesticides initially registered in 1984 or later are all subject to
registration review.
In summary, EPA's pesticide reregistration and registration reviews
assess the specific risks associated with particular chemicals and
ensure that the public and environment do not suffer unreasonable
adverse effects from those risks. EPA implements the risk reduction and
mitigation measures identified in the pesticide reregistration and
registration review programs through amendments to individual pesticide
product labeling.
3. WPS. The WPS regulation is incorporated by reference on certain
pesticide product labeling through a statement in the agricultural use
box. The WPS provides a comprehensive collection of pesticide
management practices generally applicable to all agricultural pesticide
use scenarios in crop production, complementing the product-specific
requirements that appear on individual pesticide product labels.
The risk reduction measures of the WPS may be characterized as
being one of three types: Information, protection and mitigation. To
ensure that employees will be informed about exposure to pesticides,
the WPS requires that workers and handlers receive training on general
pesticide safety, and that employers provide access to information
about the pesticides with which workers and handlers may have contact.
To protect workers and handlers from pesticide exposure, the WPS
prohibits the application of pesticides in a manner that exposes
workers or other persons, generally prohibits workers and other persons
from being in areas being treated with pesticides, and generally
prohibits workers from entering a treated area while an REI is in
effect (with limited exceptions that require additional protections).
In addition, the rule protects workers by requiring employers to notify
them about areas on the establishment treated with pesticides, through
posted and/or oral warnings. The rule protects handlers by ensuring
that they understand proper use of and have access to required PPE.
Finally, the WPS has provisions to mitigate exposures if they do occur
by requiring the employer to provide to workers and handlers with an
ample supply of water, soap and towels for routine washing and
emergency decontamination. The employer must also make transportation
available to a medical care facility if a worker or handler may have
been poisoned or injured by a pesticide and provide information about
the pesticide(s) to which the person may have been exposed.
EPA manages the risks and benefits of each pesticide product
primarily through the labeling requirements specific to each pesticide
product. If pesticide products are used according to the labeling, EPA
does not expect use to cause unreasonable adverse effects. However,
data on incidents of adverse effects to human health and the
environment from the use of agricultural pesticides show that users do
not always comply with labeling requirements. Rigorous ongoing
training, compliance assistance and enforcement are needed to ensure
that risk mitigation measures are appropriately implemented in the
field. The framework provided by the WPS is critical for ensuring that
the improvements brought about by reregistration and registration
review are realized in the field. For example, the requirement for
handlers to receive instruction on how to use the pesticide and the
application equipment for each application is one way to educate
handlers about updated requirements on product labeling to ensure they
use pesticides in a manner that will not harm themselves, workers, the
public or the environment. In addition, the REIs are established
through individual product labeling, but action needs to be taken at
the use site to ensure that workers are aware of areas on the
establishment where REIs are in effect and given directions to be kept
out of the treated area while the REI is in effect. The changes to the
WPS are designed to enhance the effectiveness of the existing structure
of protections and to better realize labeling-based risk mitigation
measures at the field level.
B. Goals of This Rulemaking
Discussions with stakeholders over many years, together with EPA's
review of incident data, led EPA to identify several shortcomings in
the current regulation that will be addressed by this final rule. As
discussed in Unit IV.A., EPA uses both product-specific labeling and
the WPS to effectuate occupational protections for workers and
handlers. EPA engages in ongoing reviews and reassessments of pesticide
products to ensure they continue to meet the standard of not causing
unreasonable adverse effects to human health and the environment. The
WPS must be updated to ensure that the rule continues to complement the
labeling-based protections and to address issues identified through
experience with the WPS, and review of incident data and stakeholder
engagement.
1. Purpose of the WPS. The WPS is intended to reduce the risks
associated with occupational pesticide exposure to workers, handlers
and their families, and to protect others and the environment from
risks of pesticide use in agricultural production. The rule makes
employers of workers and handlers responsible for providing protections
to workers and handlers on their establishments. By imposing this
obligation, EPA seeks to ensure those who make pesticide use decisions
(employers) internalize the effects of their decisionmaking rather than
passing on the costs associated with these decisions (risks of
pesticide exposure) to others (workers and handlers).
As noted in Unit IV.A., the components of the WPS generally can be
grouped into three categories: Information, protection, and mitigation.
Employers must provide workers and handlers with information needed to
protect themselves, others, and the environment from pesticides and
pesticide residues through pesticide safety training, pesticide
application and hazard information, and access to labeling. Employers
must provide protections to workers and handlers during and after
applications in order to minimize potential for exposure. Finally,
employers must be prepared to mitigate exposures that do occur by
providing supplies for washing and emergency decontamination, and
emergency transportation to a medical facility if necessary. These
elements are
[[Page 67502]]
necessary to implement product-specific labeling requirements
effectively. For example, pesticide safety training informs workers
that areas treated with pesticides are off limits for entry for a
certain period after the application, i.e., a product-specific REI, and
that their employers will inform them of where and when REIs are in
effect and entry into the treated areas is prohibited. In some
instances, employers must provide further protection by posting warning
signs at treated areas while REIs are in effect to remind workers to
keep out of the treated areas. For handlers, training informs them
about basic pesticide safety and handling precautions and reducing the
potential to expose themselves or others. In addition, the employer
must provide information for each application, informing the handler
about the product-specific labeling restrictions and requirements.
In summary, the WPS works in conjunction with product labeling to
protect workers and handlers from occupational pesticide exposure. The
rule imposes on the employer the responsibility for providing
protections to workers and handlers and to ensure they have access to
information necessary to protect themselves and others during and after
pesticide application.
2. Surveillance data. When EPA promulgated the existing rule, it
used existing data on occupational pesticide-related incidents to
estimate that that approximately 10,000 to 20,000 incidents of
physician-diagnosed (not hospitalized) pesticide poisonings occurred in
the WPS-covered workforce annually. For this rulemaking, EPA estimates
that about 1,810 to 2,950 acute pesticide exposure incidents occur
annually on agricultural establishments that potentially could be
prevented by the WPS. This substantial drop in the estimated number of
incidents shows that the existing rule and efforts by employers,
workers and handlers have made great accomplishments in reducing
pesticide exposure for workers and handlers. Pesticide use in
agriculture is safer than it was 20 years ago.
Current occupational health incident surveillance data show,
however, that avoidable incidents continue to occur. For example, some
of the occupational pesticide illnesses reported to state health
agencies have occurred when workers entered a treated area before the
REI expired. Although employers are obligated to warn workers to keep
out of treated areas and to ensure that workers receive training on and
information about treated areas, incidents continue to occur. Another
example of potentially avoidable exposure is spray drift. Labeling
instructs handlers to apply pesticides in a manner that does not
contact other persons, but pesticide drift continues to cause exposure
incidents. In addition to surveillance data, studies also show that
pesticide residues are brought home by workers and handlers on their
bodies and clothing (known as ``take-home exposure''), creating an
exposure pathway for family members.
This rulemaking is intended to reduce avoidable incidents by
improving information, protections, and mitigations for workers and
handlers without imposing unreasonable burdens on employers. Although
EPA cannot quantify the specific reduction in incidents from any single
change to the regulation, taken together, EPA estimates that the final
rule will result in an annual reduction of between 540 and 1,620 acute,
health-related incidents. In addition, EPA expects that the final rule
will help reduce chronic health problems among workers and handlers by
reducing daily pesticide exposures, and thereby improving quality of
life throughout their lives, resulting in a lower cost of health care
and a healthier society. (See Unit II.C.) Units V. through XIX.
describe the final regulatory requirements and their potential to
reduce avoidable incidents. The Economic Analysis for this rulemaking
provides an estimate of the costs of the requirements and a
quantitative and qualitative discussion of the potential benefits,
including avoiding acute pesticide-related illnesses in workers and
handlers (Ref. 1).
3. Demographics of workers and handlers. In addition to the
complexity of the science issues involving pesticide use, variability
of pesticide use patterns and incomplete information about occupational
pesticide-related illnesses and injuries, the diversity of the labor
population at risk and the tasks they perform makes it challenging to
ensure that workers and handlers are adequately protected.
According to the most recent public data set available from the
Department of Labor's (DOL) National Agricultural Worker Survey (NAWS)
for 2011-2012, 64% of agricultural workers in the United States were
born in Mexico and 6% in Central and South America (Ref. 6). A majority
(69%) of all survey respondents speak Spanish as their primary language
(Ref. 6). Approximately 65% of this population speaks a little or no
English; 38% cannot read English at all and another 30% can only read
English ``a little'' (Ref. 6). Many have received only some formal
education; on average, the highest grade completed by foreign-born
workers was seventh grade (Ref. 6).
Approximately 17% of the survey respondents were classified as
migrant, having traveled at least 75 miles in the previous year to find
a job in agriculture (Ref. 6). Only 17% of respondents lived in housing
provided by their employer and 55% rented housing from someone other
than their employer (Ref. 6). In general, agricultural workers surveyed
by NAWS do not have access to employer-provided health insurance--in
2011-2012, only 21% of farmworkers reported having the option for
employer-provided health insurance (Ref. 6). USDA research, based on
NAWS data, also reports that workers have difficulty entering the
health care system to receive treatment (Ref. 7). Cost was a
significant barrier for two-thirds of farmworkers, while about a third
listed language barriers as an impediment to receiving care. Most
workers fear that seeking treatment will result in losing their job
because someone will replace them while they are getting treatment or
the employer will label them as troublemakers and dismiss them. The
problem is more severe among undocumented workers because they fear
seeking treatment will lead to deportation or other adverse legal
action (Ref. 7). A USDA report indicates that the factors mentioned
previously contribute to the disadvantaged status of hired workers in
agriculture (Ref. 7).
The NAWS found that 19% of workers and handlers surveyed earned
less than $10,000 annually from agricultural work, and another 39% earn
between $10,000 and $20,000 annually. Over 55% of respondents reported
a total family income below $22,500 (Ref. 6).
Both the existing WPS and the changes included in the final rule
seek to eliminate some of the potential barriers to achieving effective
protection of these persons by requiring training in a manner that
workers and handlers can understand, requiring the employer to ensure
that handlers understand relevant portions of the labeling before
handling a pesticide, and expanding training to provide information on
seeking medical care in the event of a pesticide exposure and
highlighting the anti-retaliation provisions of the WPS.
4. Summary of the final rule. The final rule amends the WPS by:
Requiring pesticide safety training at one-year
intervals and amending the existing pesticide safety training content.
Requiring recordkeeping for pesticide safety
training.
[[Page 67503]]
Eliminating the ``grace period'' that allowed
workers to enter a treated area to perform WPS tasks before receiving
full pesticide safety training.
Establishing a minimum age of 18 for handlers
and for workers who enter an area under an REI.
Establishing requirements for specific training
and notification for workers who enter an area under an REI.
Restricting persons' entry into certain areas
surrounding application equipment during an application.
Clarifying requirements for supplies for routine
washing and emergency decontamination.
Requiring employers to post warning signs around
treated areas when the product applied has an REI greater than 48 hours
and allowing the employer to choose to post the treated area or give
oral notification when the product applied has an REI of 48 hours or
less (unless the labeling requires both types of notification).
Requiring employers to maintain and make
available copies of the SDSs for products used on the establishment.
Requiring employers to provide application
information and SDSs to designated representatives making the request
on behalf of workers or handlers.
Adding elements to the requirement to maintain
application-specific information.
Adopting by cross reference certain OSHA
requirements for employers to provide training, fit testing and medical
evaluations to handlers using products that require use of respirators.
Requiring employers to provide supplies for
emergency eye flush at all pesticide mixing and loading sites when
handlers use products that require eye protection.
Maintaining the immediate family exemption and
ensuring it includes an exemption from the new minimum age requirements
for handlers and early-entry workers.
Expanding the definition of ``immediate family''
to allow more family-owned operations to qualify for the exemptions to
the WPS requirements.
Revising definitions to improve clarity and to
refine terms.
Restructuring the regulation to make it easier
to read and understand.
Units V. through XVIII. discuss the final rule requirements and
elements considered in the proposal but not included in the final rule.
Unit XIX. discusses implementation of the final regulatory
requirements. Each of these Units generally describes the existing
rule, proposal and final regulatory requirements (where appropriate),
and summarizes the major comments received and EPA's responses. A
separate document summarizing the comments received that were relevant
to the proposal and EPA's responses has also been prepared and is
available in the docket for this rulemaking (Ref. 4).
EPA has grouped the discussion of the final rule and elements
considered in the proposal but not included in the final rule as
follows:
Unit V: Pesticide Safety Training for Workers
and Handlers.
Unit VI: Notification.
Unit VII: Hazard Communication.
Unit VIII: Information Exchange Between Handler
and Agricultural Employers.
Unit IX: Drift-Related Requirements.
Unit X: Establish Minimum Age for Handling
Pesticides and Working in a Treated Area while an REI is in Effect.
Unit XI: Restrictions on Worker Entry into
Treated Areas.
Unit XII: Display of Pesticide Safety
Information.
Unit XIII: Decontamination.
Unit XIV: Emergency Assistance.
Unit XV: Personal Protective Equipment.
Unit XVI: Decision not to Require Monitoring of
Handler Exposure to Cholinesterase-Inhibiting Pesticides.
Unit XVII: Exemptions and Exceptions.
Unit XVIII: General Revisions.
Unit XIX: Implementation.
V. Pesticide Safety Training for Workers and Handlers
A. Shorten Retraining Interval for Workers and Handlers
1. Current rule and proposal. The existing WPS requires employers
to ensure that workers and handlers are trained once every five years.
EPA proposed to establish an annual retraining interval for workers and
handlers in order to improve the ability of workers and handlers to
protect themselves and their families from pesticide exposure.
2. Final rule. In the final rule, EPA has adopted the proposed
requirement for workers and handlers to receive full pesticide safety
training annually. The final regulatory text for these requirements is
available at 40 CFR 170.401(a) and 170.501(a).
3. Comments and responses.
Comments. Several farmworker advocacy groups and public health
organizations supported full, annual training, stating that the more
frequent training would improve workers' and handlers' ability to
protect themselves and their families, and that annual training would
be simple to track administratively. Agricultural producer
organizations, pesticide producers, and the Small Business
Administration's Office of Advocacy recommended an initial in-depth
training for new workers followed annually by a shortened ``refresher''
training. A similar suggestion was to require initial in-depth training
for workers and handlers, followed by four years of refresher training,
with an in-depth training every fifth year. Some states suggested
training every two or three years, or allowing each state to set its
own training interval, to parallel the state's pesticide applicator
recertification interval. A few states recommended a system where the
training timeframe is based on the calendar year, to allow flexibility
for employers. For example, under this proposal, an employee trained in
March 2014 could be retrained as late as December 2015. This suggestion
would extend the permitted interval between worker and handler
trainings to as long as two years. Comments from pesticide industry
organizations suggested that the frequency of worker safety training be
commensurate with an individual workers' tasks, previous training, and
experience.
EPA Response. EPA considered the alternatives described for
training frequency, and agrees with the comments that annual training,
in some form, is the appropriate interval to ensure that workers and
handlers receive more frequent reinforcement of the safety principles.
EPA rejected the suggestion for a limited refresher training based on
the difficulty both employers and regulators would face in tracking
multiple levels of training among a mobile workforce, the burdens of
maintaining multiple forms of training materials and providing
different trainings where employees are on differing cycles for full
and refresher training, and the fact that very little of the
substantive content of the required training appears to be material
that would not need to be brought to employees' attention annually.
The suggestions for biennial or triennial training and allowing the
states to base the frequency of training for workers and handlers on
their pesticide applicator recertification requirements would present
similar administrative problems with tracking trainings and introduce
the possibility that workers or handlers would miss information needed
to protect themselves. Finally, the alternative to establish the
frequency of training based on the calendar year presents similar
issues with tracking training and needed frequency of repetition.
[[Page 67504]]
The recommendation for training to be tailored to the individual
workers' tasks, experience, and prior training was rejected based on
the difficulty in tracking the specific training needs with a mobile
workforce, the need for multiple forms of training materials, and the
potential burden on employers to determine specific needs for each
employee. In addition, the training gives practical information that is
useful to everyone who works with or around agricultural pesticides.
B. Establish Recordkeeping Requirements To Verify Training for Workers
and Handlers
1. Current rule and proposal. The existing WPS does not specify how
an employer must verify that a worker or handler has received pesticide
safety training. EPA proposed to eliminate the existing voluntary
training verification card system and to require employers to maintain
records of WPS worker and handler training for two years. EPA proposed
that the training record include, among other things, the employee's
birthdate to verify minimum age for early-entry worker or handler
activities. EPA proposed to require the employer to provide a copy of
the record to each worker or handler upon completion of the training.
2. Final rule. EPA has finalized the proposed requirement for
employers to maintain records of worker and handler training for two
years. Required information for the record of worker and handler
training includes the trained worker's or handler's name and signature,
the date of training, the trainer's name, evidence of the trainer's
qualification to train, the employer's name, and which EPA-approved
training materials were used. EPA has not included in the final rule
the proposed requirement for the employer to record or retain birthdate
of the employee. The final rule does not require employers to
automatically provide a copy of the training record to each worker and
handler; instead, the final rule only requires the employer to provide
a copy of the training record to the trained employee upon the
employee's request. The final regulatory text for the worker and
handler training recordkeeping requirements appears at 40 CFR
170.401(d) and 170.501(d), respectively.
3. Comments and responses.
Comments--compliance monitoring. Comments in support of a
requirement for recordkeeping stated that it would ensure employees
received the training and that it would improve enforcement and
compliance.
EPA Response. EPA agrees with these commenters that recordkeeping
is necessary for the purpose of compliance monitoring.
Comments--burden. Commenters stated that the proposed requirement
to distribute the record to every trained worker or handler would be
burdensome and that most workers or handlers would not take or keep the
records.
EPA Response. EPA agrees with these commenters and has modified the
requirement. The final rule requires employers to provide training
records to the trained employee only on the employee's request. This
will reduce the burden on employers while ensuring that interested
employees will be able to demonstrate to future employers that they
were appropriately trained.
Comments--birthdate. There were a number of comments, particularly
from states, related to the proposed requirement that employers include
the trained employee's birthdate among the information to be recorded
to document training. EPA proposed including the trained employee's
birthdate in the recordkeeping in order to facilitate its use to verify
that workers or handlers met the proposed minimum age requirement for
handling pesticides or entering treated areas while under an REI as
allowed under the early entry exceptions. States noted that a person's
birthdate can be considered confidential and personal information, the
distribution of which can lead to identity theft.
EPA Response. EPA has decided the advantages of requiring the
employer to record the birthdate of the trained worker or handler are
outweighed in this instance by the concerns for protecting confidential
and personal information. Under the final rule, the employer is
responsible for determining that each employee has met the minimum age
requirement. The final rule does not include the proposed requirement
for the employer to collect or retain specific documentation of the
employee's birthdate or age.
C. Establish Trainer Qualifications for Workers and Handlers
1. Current rule and proposal. The existing WPS allows workers and
handlers to be trained by a variety of persons, including pesticide
applicators certified to use restricted use pesticides (RUPs) under 40
CFR part 171, persons identified by the agency with jurisdiction for
pesticide enforcement as a trainer of certified applicators, or persons
having completed an approved pesticide safety train-the-trainer course.
In addition, persons trained as handlers under the WPS are also
eligible to train workers.
EPA proposed to limit eligible trainers of workers to those who
complete an EPA-approved train-the-trainer program or are designated by
EPA or an appropriate state or tribal agency as trainers of certified
applicators; being a certified applicator or trained as a handler under
the WPS would not automatically qualify a person to train workers under
the proposal. EPA did not propose to change the qualifications for
trainers of handlers.
2. Final rule. In the final rule, EPA has expanded the class of
persons qualified to train workers relative to the proposed rule. Under
the final rule, qualified trainers of workers include persons who: Have
completed a pesticide safety train-the-trainer program approved by EPA,
are designated as a trainer of certified applicators, handlers or
workers by EPA or a state or tribal agency responsible for pesticide
enforcement, or are certified pesticide applicators under 40 CFR part
171. Unlike the proposal, certified applicators are considered
qualified to train workers under the final rule. However, consistent
with the proposal, the persons trained as handlers under the WPS are
not considered qualified to train workers under the final rule.
The final rule does not make any changes from the existing rule and
proposal related to who is qualified to provide training to handlers.
The final regulatory text for worker and handler trainer
qualifications is available at 40 CFR 170.401(c)(4) and 170.501(c)(4),
respectively.
3. Comments and responses.
Comments. Many of the comments advised EPA to retain certified
applicators as trainers of workers in the final rule. Several
commenters stated that without certified applicators providing worker
training, resources such as cooperative extension trainers would be
severely strained and there might not be adequate resources to provide
annual training for workers. Several states and others noted that
certified applicators possess the necessary competence to provide
training to workers; in some states, they must receive training
specifically for the purpose of training workers in order to meet their
certification requirements. Commenters also questioned how a certified
applicator could be considered qualified to train handlers, but not
workers, as many handlers have the same demographic profile as workers.
There were few comments in support of retaining handlers as
trainers for workers. One comment suggested that handlers could be
required to take an
[[Page 67505]]
approved train-the-trainer course to ensure they can adequately train
workers.
EPA Response. EPA is persuaded by the comments that it is
reasonable to expect that certified applicators can competently train
workers, as well as handlers. Commenters note that certified
applicators possess knowledge of pesticide safety from their
certification training and pesticide handling experience. The
commenters stated that the additional burden from the proposed
requirement for annual training in combination with the elimination of
certified applicators as trainers would severely strain trainer
resources and potentially result in fewer workers receiving annual
training. This concern persuaded EPA to include certified applicators
as qualified to train workers in the final rule.
EPA agrees with the comment that handlers who have gone through a
train-the-trainer course should be eligible to train workers. Under the
final regulation, any person, including a handler, is qualified to
train workers after successfully completing an approved train-the-
trainer course.
D. Expand the Content of Worker and Handler Pesticide Safety Training
1. Current and proposed rule. The existing WPS requires employers
to provide pesticide safety training covering specific content to
workers and handlers. Under the existing rule, worker safety training
content must include the following 11 points:
Where and in what form pesticides may be
encountered during work activities.
Hazards of pesticides resulting from toxicity
and exposure, including acute and chronic effects, delayed effects, and
sensitization.
Routes through which pesticides can enter the
body.
Signs and symptoms of common types of pesticide
poisoning.
Emergency first aid for pesticide injuries or
poisonings.
How to obtain emergency medical care.
Routine and emergency decontamination
procedures, including emergency eye flushing techniques.
Hazards from chemigation and drift.
Hazards from pesticide residues on clothing.
Warnings about taking pesticides or pesticide
containers home.
Requirements of the WPS designed to reduce the
risks of illness or injury resulting from workers' occupational
exposure to pesticides, including application and entry restrictions,
the design of the warning sign, posting of warning signs, oral
warnings, the availability of specific information about applications,
and the protection against retaliatory acts.
Under the existing rule, pesticide handler safety training must
include the following 13 basic safety training points:
Format and meaning of information contained on pesticide
labels and in labeling, including safety information such as
precautionary statements about human health hazards.
Hazards of pesticides resulting from toxicity
and exposure, including acute and chronic effects, delayed effects, and
sensitization.
Routes through which pesticides can enter the
body.
Signs and symptoms of pesticide poisoning.
Emergency first aid for pesticide injuries or
poisonings.
How to get emergency medical care.
Routine and emergency decontamination
procedures.
Need for and appropriate use of PPE.
Prevention, recognition, and first aid treatment
of heat-related illness.
Safety requirements for handling, transporting,
storing, and disposing of pesticides.
Environmental concerns.
Warnings about taking pesticides or pesticide
containers home.
Training on the requirements of the regulation
related to handling.
EPA proposed additional content in worker pesticide safety training
including, among other things, information on the requirements for
early-entry notification and emergency assistance, how to reduce
pesticide take-home exposure, the availability of hazard communication
materials for workers, the minimum age requirements for handling and
early entry, and the obligations of agricultural employers to provide
protections to workers.
EPA proposed additional content in handler pesticide safety
training, including the requirement for handlers to cease application
if they observe a person, other than another trained and properly
equipped handler, in the area being treated or the entry-restricted
area, and information about the requirement for OSHA-equivalent
training on respirator use, fit-testing of respirators, and medical
evaluation in the event a handler must wear a respirator.
2. Final rule. EPA has finalized the proposed additions to and
expansions of the worker and handler pesticide safety training. The
final regulatory text for the content of worker and handler pesticide
training is available at 40 CFR 170.401(c)(2)-(3) and 170.501(c)(2)-
(3).
The final rule requires employers to ensure that workers are
trained on the following topics after EPA has announced the
availability of training materials (see Unit XIX. for information on
the timing of implementation):
The responsibility of agricultural employers to
provide workers and handlers with information and protections designed
to reduce work-related pesticide exposures and illnesses. This includes
ensuring workers and handlers have been trained on pesticide safety,
providing pesticide safety and application information, decontamination
supplies and emergency medical assistance, and notifying workers of
restrictions during applications and on entering pesticide treated
areas. A worker or handler may designate in writing a representative to
request access to pesticide application and hazard information.
How to recognize and understand the meaning of
the warning sign used for notifying workers of restrictions on entering
pesticide-treated areas on the establishment.
How to follow directions and/or signs about
keeping out of pesticide-treated areas subject to an REI and
application exclusion zones.
Where and in what form pesticides may be
encountered during work activities and potential sources of pesticide
exposure on the agricultural establishment. This includes exposure to
pesticide residues that may be on or in plants, soil, tractors,
application and chemigation equipment, or used PPE, and that may drift
through the air from nearby applications or be in irrigation water.
Potential hazards from toxicity and exposure
that pesticides present to workers and their families, including acute
and chronic effects, delayed effects, and sensitization.
Routes through which pesticides can enter the
body.
Signs and symptoms of common types of pesticide
poisoning.
Emergency first aid for pesticide injuries or
poisonings.
Routine and emergency decontamination
procedures, including emergency eye flushing techniques, and if
pesticides are spilled or sprayed on the body, to use decontamination
supplies to wash immediately or rinse off in the nearest clean water,
including springs, streams, lakes, or other sources, if more readily
available than decontamination supplies, and as soon as possible, wash
or shower with soap and water, shampoo hair, and change into clean
clothes.
How and when to obtain emergency medical care.
When working in pesticide-treated areas, wear
work clothing that protects
[[Page 67506]]
the body from pesticide residues and wash hands before eating,
drinking, using chewing gum or tobacco, or using the toilet.
Wash or shower with soap and water, shampoo
hair, and change into clean clothes as soon as possible after working
in pesticide-treated areas.
Potential hazards from pesticide residues on
clothing.
Wash work clothes before wearing them again and
wash them separately from other clothes.
Do not take pesticides or pesticide containers
used at work to your home.
Safety data sheets provide hazard, emergency
medical treatment and other information about the pesticides used on
the establishment they may come in contact with.
The responsibility of agricultural employers to do all of the
following: Display safety data sheets for all pesticides used on the
establishment, provide workers and handlers information about the
location of the safety data sheets on the establishment, and provide
workers and handlers unimpeded access to safety data sheets during
normal work hours.
The rule prohibits agricultural employers from
allowing or directing any worker to mix, load or apply pesticides or
assist in the application of pesticides unless the worker has been
trained as a handler.
The responsibility of agricultural employers to
provide specific information to workers before directing them to
perform early-entry activities. Workers must be 18 years old to perform
early-entry activities.
Potential hazards to children and pregnant women
from pesticide exposure.
Keep children and nonworking family members away
from pesticide-treated areas.
After working in pesticide-treated areas, remove
work boots or shoes before entering your home, and remove work clothes
and wash or shower before physical contact with children or family
members.
How to report suspected pesticide use violations
to the state or tribal agency responsible for pesticide enforcement.
The rule prohibits agricultural employers from
intimidating, threatening, coercing, or discriminating against any
worker or handler for complying with or attempting to comply with the
requirements of this rule, or because the worker or handler has
provided, caused to be provided, or is about to provide information to
the employer or to the EPA or its agents regarding conduct that the
employee reasonably believes violates this part, and/or has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing concerning compliance with this
rule.
The final rule requires employers to ensure that handlers are
trained on the following topics after EPA has announced the
availability of training materials (see Unit XIX. for information on
the timing of implementation):
All content for worker training.
Information on proper application and use of pesticides.
Handlers must follow the portions of the labeling
applicable to the safe use of the pesticide.
Format and meaning of information contained on pesticide
labels and in labeling applicable to the safe use of the pesticide.
Need for and appropriate use and removal of all PPE.
How to recognize, prevent, and provide first aid treatment
for heat-related illness.
Safety requirements for handling, transporting, storing,
and disposing of pesticides, including general procedures for spill
cleanup.
Environmental concerns, such as drift, runoff, and
wildlife hazards.
Handlers must not apply pesticides in a manner that
results in contact with workers or other persons.
The responsibility of handler employers to provide
handlers with information and protections designed to reduce work-
related pesticide exposures and illnesses. This includes providing,
cleaning, maintaining, storing, and ensuring proper use of all required
personal protective equipment; providing decontamination supplies; and
providing specific information about pesticide use and labeling
information.
Handlers must suspend a pesticide application if
workers or other persons are in the application exclusion zone.
Handlers must be at least 18 years old.
The responsibility of handler employers to ensure handlers
have received respirator fit-testing, training and medical evaluation
if they are required to wear a respirator by the product labeling.
The responsibility of agricultural employers to post
treated areas as required by this rule.
EPA intends to develop the training materials that meet the final
training requirements and to publish in the Federal Register a notice
of their availability. To allow time for the completion and
distribution of revised training materials and to allow time for
trainers to become familiar with them and begin training workers and
handlers, the rule extends the implementation period for training on
the new requirements for two years, or until six months after EPA has
made the revised training materials available, whichever is longer.
The final requirements for the content of worker and handler
pesticide safety training are available at 40 CFR 170.401(c)(2)-(3) and
170.501(c)(2)-(3), respectively.
3. Comments and responses.
Comments. Farmworker advocacy organizations, many states, and
public health organizations provided support for the expanded training
topics, in particular information about preventing take home exposure
and medical evaluation, fit testing and training on respirator use for
handlers who need to wear respirators. Some farmworker advocacy
organizations commented on the importance of information about worker
rights.
Agricultural producer organizations expressed concern for the
additional burden of the lengthier training. Some states asserted that
several of the handler training points are beyond the scope of the WPS
and should be addressed in applicator certification only. Specifically,
they requested that EPA eliminate training on environmental concerns
from pesticide use; proper application and use of pesticides; and
requirements for handlers to understand the format and meaning of all
information contained on pesticide labels and labeling, and to follow
all pesticide label directions. These commenters stated that these
training points are appropriate for persons who work under the
supervision of certified applicators, but they do not relate directly
to worker or handler safety. Two states recommended a revision to
language in the handler training topics requiring that ``all''
information on the pesticide label would be required to be covered,
stating that all labeling information may not be relevant to a given
application.
EPA Response. EPA does not agree with comments from states that the
handler training topics related to environmental concerns from
pesticide use, proper application and use, requirements for handlers to
understand the format and meaning of information on labels and to
follow label directions are beyond the scope of the WPS and may expand
the liability of handlers. First, the ``Worker Protection Standard''
title is descriptive, and not jurisdictional. The WPS is, in essence, a
codification of material that EPA would otherwise have to require to
[[Page 67507]]
appear on the labels of agricultural pesticides. Thus its potential
scope is as broad as EPA's labeling authority. While there may be some
point at which a prospective provision might be so tangentially related
to the rest of the WPS that its inclusion in the WPS would cause
excessive confusion that is not the case with the provisions included
in this final rule.
In addition, this is not the first time that requirements included
in the WPS have served purposes beyond the protection of agricultural
workers and handlers. Section 170.210(a) of the existing rule requires
that ``The handler employer and the handler shall assure that no
pesticide is applied so as to contact, either directly or through
drift, any worker or other person, other than an appropriately trained
and equipped handler'' (emphasis added). Section 170.234(c) of the
existing rule requires that, among other things, when application
equipment is sent to non-handlers for repair, the handler employer must
assure that pesticide residues have been removed, or else warn the
person who would perform the repair. The handler training point on
environmental concerns from pesticide use already appears in the
existing rule at 40 CFR 170.230(c)(4)(xi). In response to a similar
comment on the proposal that resulted in the existing regulation, EPA
stated:
One comment questioned the relevancy of environmental information
in worker protection training. The Agency believes such training is
relevant to worker protection. Many environmental concerns are
applicable not only to the organisms in the environment, but also to
workers and other persons who may be in that environment. Ground and
surface water warnings, for example, are designed not to protect only
aquatic organisms, but to protect workers and other persons who may be
using the water for drinking, cooking, bathing, etc. The Agency notes
that FIFRA defines ``environment'' as including ``water, air, land, and
all plants and man and other animals living therein, and the
interrelationships which exist among these (Ref. 8).''
The final rule retains the requirement for handler training on
environmental concerns related to pesticide use from the current WPS.
EPA does not agree that the training topic requiring handlers to
receive instruction on proper application and use of pesticides is only
appropriate for noncertified applicators making application under the
direct supervision of a certified applicator. First, handlers routinely
apply pesticides, and misapplication of pesticides can result in injury
to persons covered by the WPS, including workers and handlers. Training
on proper use can help prevent such misapplication and consequent
exposure to people. Second, relying solely on the training of
noncertified applicators under direct supervision would cover only
applicators using Restricted Use Products (RUPs), and many agricultural
use products covered by the WPS are not RUPs. To ensure that handlers
under the WPS have the training to apply pesticides properly, it is
necessary for them to be trained on proper use. The final rule includes
the handler training topic requiring information on proper application
and use of pesticides.
EPA does not agree with the commenters that requirements for
handlers to understand the format and meaning of information on labels
and to follow labeling directions are only appropriate for noncertified
applicators applying under the supervision of certified applicators. To
properly handle agricultural pesticides covered by the WPS rule,
handlers need to understand the information on the labeling related to
safe use of the pesticide and follow the use instructions. Use of a
product in a manner inconsistent with the labeling may cause injury or
illness to the handler and to others. For a more detailed discussion of
the comments and EPA's responses on issues related to labeling, see
Unit XVIII.A.
E. Exception to Full Pesticide Safety Training for Workers Prior to
Entry Into Treated Areas (Grace Period)
1. Current rule and proposal. Except in regard to workers entering
treated areas during an REI, the existing WPS permits the agricultural
employer to delay providing full pesticide safety training until the
end of the fifth day after the worker's entry into a treated area,
often called the ``grace period,'' provided that the worker receives
training in a basic set of two safety points before entering the
treated area (i.e., an area that has been treated or where an REI has
been in effect within the last 30 days). Under this exception, the
worker must receive the full safety training on the content outlined in
the rule prior to the sixth day of entry into a treated area. EPA
proposed to shorten the ``grace period'' to two days, require that full
training take place before the third day of entry into a treated area,
and expand the basic set of safety information to be provided prior to
the worker's first entry into a treated area under the ``grace
period.''
2. Final rule. EPA has eliminated the ``grace period'' entirely.
The final rule requires employers to ensure that workers receive full
pesticide safety training before entering a treated area (i.e., an area
that has been treated or where an REI has been in effect within the
last 30 days).
3. Comments and responses.
Comments. Few commenters supported the proposed two day grace
period coupled with the expanded basic safety points prior to first
entry. Many agricultural producer organizations and the Small Business
Administration's Office of Advocacy requested that EPA retain the five
day grace period in the existing rule, stating it is needed for
flexibility in scheduling training sessions as workers arrive at
various times on the establishment. Several farmworker advocacy
organizations and two states recommended elimination of the grace
period entirely. One state recommended, as an alternative, adoption of
the two day grace period with reduced material relative to the proposal
required prior to first entry. Farmworker advocacy organizations that
supported the elimination of the grace period cited the importance of
workers having full safety information prior to entering an area with
pesticide residues. One state that supported the elimination of the
grace period expressed concern that this change would heighten concerns
about the number of qualified trainers in the event that EPA would
follow through on its proposal to make certified applicators ineligible
to train workers.
EPA Response. While EPA recognizes the flexibility that the grace
period offers agricultural employers in scheduling training sessions
for workers, and the economic importance of that flexibility, EPA
remains convinced that the elimination of the grace period is
reasonable. The full pesticide safety training provides information
that workers need to have before their exposure to pesticide treated
areas so they can protect themselves. Under OSHA, training must take
place at the time of the employee's initial assignment. EPA has decided
that the cost of eliminating the grace period is reasonable when
compared to the benefit from workers receiving the complete pesticide
safety training before their first exposure to pesticides.
EPA acknowledges concerns raised by agricultural producer
organizations and states that eliminating the ``grace period'' combined
with the proposal to limit who is qualified to conduct worker training
could result in an inadequate number of people available to provide
worker training. The final rule continues to allow certified
applicators to be trainers of workers (see Unit V.D.).
[[Page 67508]]
As a result, EPA expects that there will be an adequate number of
trainers to provide full pesticide safety training for workers prior to
their entry into treated areas.
F. Training Program Administration Requirements
1. Current rule and proposal. Under the existing WPS, pesticide
safety training must be presented either orally from written materials
or in audiovisual format. The information must be presented in a manner
that the worker or handler can understand, and the trainer must respond
to questions, but the existing rule does not require the trainer to be
present for the entire training period. EPA proposed to retain the
requirement to provide training in an oral and audiovisual format, to
require that the trainer remain present throughout the training
session, and to require that the training be presented in a place that
is conducive to learning and reasonably free of distractions.
2. Final rule. EPA has finalized the proposed requirements for the
presentation of training. Trainers of workers and handlers must remain
present during training sessions to respond to questions. The training
environment must be conducive to training and be reasonably free of
distractions, to help ensure training quality. The final rule retains
the existing requirement for pesticide safety training to be delivered
either orally from written materials or by audiovisual means.
The final regulatory text for these requirements is available at 40
CFR 170.401(c)(1) and 170.501(c)(1).
3. Comments and responses.
Comments on use of videos. Some farmworker advocacy organizations
endorsed the use of videos, stating that when used they enhance
understanding of the material, especially when combined with hands-on
activities or other kinds of learning approaches. Other farmworker
advocacy organizations stated that there is a lack of interaction
between the trainer and the employees trained using a video, resulting
in reduced information transfer. Agricultural producer organizations
and states also supported the use of the video, citing ease of use, and
effectiveness. Many commenters from each category urged EPA to update
the videos; a few suggested EPA evaluate different media presentations.
EPA Response. EPA agrees with the commenters who consider videos to
be effective and useful training material. EPA recognizes that a video
is a passive form of training, and has added the requirement for the
trainer to be present to answer questions during the entire session to
mitigate this problem. EPA also expects the requirement for the
training to be in a location reasonably free of distractions to improve
the ability of workers and handlers to absorb and retain information.
Comments on the requirement for trainers to remain present during
entire training session. Farmworker advocate organizations and another
commenter supported the proposal for trainers to remain present during
the entire training, citing the need for them to be interactive with
workers to enhance the training and facilitate discussion. One
commenter, experienced in providing pesticide safety training, noted
that the interaction with trainees, through hands-on training and
sharing of experiences, was effective. Agricultural producer
organizations opposed the requirement, stating that it would be
distracting for the video to be interrupted for questions, and there
would be lost time for the trainer. One commenter suggested it would
lead to larger training conferences that would discourage post-video
interaction. Some states opposed the requirement for the trainer to be
present throughout the training; one state recommended that the trainer
only needs to be available before and after the training if a video is
used.
EPA Response. EPA agrees that having trainers present during the
entire training program could facilitate discussion and promote
interaction. EPA disagrees that the questions for the trainer would be
disruptive to the training. A 2006 study (Burke) cited interactive
training activities as a best practice for supporting training
transfer. EPA is convinced that the trainer's presence during the video
enhances the training by enabling questions and discussion during the
presentation (Ref. 9).
Comments on the requirement for the training environment to
relatively free of distractions and conducive to learning. The
commenters were mostly in agreement that the learning environment needs
to have minimal distractions and be conducive to learning. Farmworker
advocacy organizations and public health organizations supported the
proposed requirement as a way to improve the learning environment. Two
farm bureaus suggested allowing the trainer to be absent during the
video, and to have a supervisor present to ensure the quality of the
training environment. One state supported the proposed requirement for
the training to be conducted in an environment free of distractions.
Finally, one agricultural organization described the environment where
their workers receive training as taking place either on or outside
their transportation bus or in the field, and noted that the low number
of incidents is evidence that the training is effective.
EPA Response. EPA agrees that the requirement for the training
environment to be reasonably free from distractions and conducive to
training would make it easier for workers and handlers to learn. As
discussed in the previous response, EPA disagrees with comments
requesting that EPA eliminate the requirement for the trainer to be
present throughout the training. The proposal and final rule establish
requirements for the training location; the ultimate responsibility for
ensuring the requirements are met rests with the employer. EPA
recognizes that there are challenges in locating environments in
agriculture that are quiet and present few distractions; classrooms are
rarely convenient. However, EPA is requiring employers to provide a
training environment that is reasonably free from distractions and
conducive to training. EPA notes that the final rule does not prohibit
providing training in any specific location, such as outdoors or on a
bus, as long as the environment is reasonably free from distraction and
conducive to training.
G. Require Employers To Provide Establishment-Specific Information to
Workers and Handlers
1. Current rule and proposal. The existing WPS does not clearly
require employers to provide to workers and handlers establishment-
specific information on the location of decontamination supplies or
hazard information as part of their pesticide safety training. EPA
proposed that in addition to required pesticide safety training,
employers must provide workers and handlers with establishment-specific
information about the location of decontamination supplies and
pesticide safety and hazard information, as well as how to obtain
medical assistance. EPA proposed that agricultural and handler
employers would be required to provide this establishment-specific
information to all workers and handlers, including those previously
trained on other establishments.
2. Final rule. EPA has finalized the proposed requirement for
employers to provide establishment-specific information to workers and
handlers. The final rule requires employers to provide establishment-
specific information for workers and handlers when they enter the
establishment and before beginning WPS tasks in areas
[[Page 67509]]
where within the last 30 days a product requiring compliance with the
WPS has been applied or an REI has been in effect. Content for the
establishment-specific information includes the location of the
pesticide safety information, the location of pesticide application and
hazard information, and the location of decontamination supplies.
Employers are required to provide this information in a manner that the
worker or handler can understand, such as through a translator, and
prior to the worker or handler performing activities covered by the
WPS. Lastly, this information is required even if the employer can
verify that the worker or handler has already received the general
pesticide safety training on another establishment, because the
information required is specific to each establishment. The final
regulatory text for these requirements is available at 40 CFR 170.403
and 170.503(b).
3. Comments and responses.
Comments. Commenters largely supported the addition of the
establishment-specific training, with some noting that it is currently
being provided voluntarily.
EPA Response. EPA agrees with the commenters that the
establishment-specific training is necessary for workers and handlers
to know where to find information on the establishment to protect
themselves from pesticides and their potential effects. EPA notes that
some of this information is required under the existing rule. However,
EPA is convinced that consolidating the requirements for establishment-
specific training will make them easier for employers to find and
comply with, resulting in a higher likelihood that workers and handlers
will receive the necessary information.
H. Costs and Benefits of Revisions to Pesticide Safety Training
1. Costs. EPA estimates the cost of changes to pesticide safety
training for workers and handlers, including increased frequency,
expanded content, recordkeeping, eliminating the ``grace period,''
changing who is qualified to conduct training, and amending training
program administration requirements would be $29.9 million annually and
range from approximately $62 to $80 per agricultural establishment per
year. For a complete discussion of the costs see the ``Economic
Analysis of Final Revisions to the Worker Protection Standard'' (Ref.
1).
2. Benefits. While EPA can estimate the costs of the changes to
pesticide safety training for workers and handlers, quantifying the
benefits is more difficult. Nonetheless, as explained in the NPRM, it
is reasonable to expect that more frequent training would lead to
better retention of information by workers and handlers, ultimately
resulting in fewer incidents of pesticide exposure and illness in
workers and handlers, improved decontamination procedures, reduced
take-home exposure, and better protection of children. Similarly,
providing workers with training before they enter a treated area will
give them tools they need to protect themselves before they encounter
pesticides as part of their occupation. Improving the quality of worker
training by limiting trainers to persons who have completed a train-
the-trainer course, are certified applicators under Part 171, or have
been designated by the regulatory agency responsible for pesticide
enforcement as a trainer of workers, handlers or certified applicators
is expected to advance worker comprehension of the safety principles
and result in better self-protection. Finally, enhancing the quality of
the training environment and ensuring that there is a knowledgeable
person available throughout the training session to respond to
questions will improve the ability of the trainee to retain the
information.
The expansion of information provided in the training will enable
workers and handlers to better protect themselves and their families,
by increasing their knowledge of how to reduce take-home residues from
treated areas. The training gives practical information that is useful
to everyone who works with or around agricultural pesticides.
The requirement for recordkeeping is an important element of the
training requirement. Although in itself not a protective factor, it
will support the determination of compliance when partnered with worker
and employer interviews and therefore promote adherence to the
requirements. In the final rule the employer must provide the record to
the worker or handler upon request. The burden of providing copies of
training records will be offset by the reduction in the number of
trainings that would otherwise have to be provided to workers and
handlers who have already been trained at another establishment.
VI. Notification
A. Posted Notification Timing and Oral Notification
1. Current rule and proposal. The current WPS requires agricultural
employers to notify workers about pesticide applications and areas on
the agricultural establishment subject to an REI. Notification is
required when workers are on the establishment during application or
the REI and will pass within one-quarter mile of the treated area. On
farms, and in forests and non-enclosed nurseries (referred to as
``outdoor production'' in the proposal) the agricultural employer may
choose either to post warning signs at the usual points of entry around
the treated area or to notify workers orally about applications that
will take place on the establishment. In greenhouses and some other
enclosed spaces (referred to as ``enclosed space production'' in the
proposal), the agricultural employer must post warning signs for all
applications, regardless of the product's REI. In cases where the
product labeling requires both written and oral notification of
workers, the WPS also requires this ``double notification.''
For outdoor production, EPA proposed requiring agricultural
employers to post warning signs where the pesticide to be applied has
an REI greater than 48 hours, and to allow the option of oral warning
or posted notification for products with an REI of 48 hours or less.
For enclosed space production, EPA proposed requiring posting of
warning signs only when the product applied has an REI greater than
four hours, and to allow the option of oral warning or posted
notification for products with an REI of four hours or less.
2. Final rule. EPA has finalized the proposed requirements to post
warning signs for all ``outdoor production'' when a product with an REI
longer than 48 hours is used, and to allow either oral or posted
warnings for ``enclosed space production'' when a product with an REI
of 4 hours or less is used. The final regulatory text for these
requirements is available at 40 CFR 170.409(a)(1)(ii)-(v). The final
rule modifies the existing requirement for employers to take down
posted warning signs within three days of the expiration of the REI by
prohibiting worker entry into the area until the posted warning signs
have been removed (except for early entry pursuant to 40 CFR 170.603).
The final regulatory text for this prohibition is available at 40 CFR
170.409(b).
3. Comments and Responses.
Comments. Many states and some farmworker advocacy organizations
and public health organizations supported the ``field posting'' and
notification requirements as proposed. They noted the potential benefit
to workers and employees of crop advisors of mandatory posting for the
most toxic pesticides. They agreed with EPA's assessment that
additional posting
[[Page 67510]]
would provide added protection for workers while placing a minimal
burden on employers.
Several grower associations and farm bureaus supported the proposed
change in notification requirements for indoor production but opposed
the proposal for additional posting for outdoor production. They noted
that signs can be destroyed, removed, or relocated and that
agricultural producers may not return to some fields more than once per
week. One grower association specifically requested that EPA clarify
how enforcement would address these challenges without inappropriately
penalizing agricultural employers. This group stated that workers are
fully capable of understanding oral notification and suggest focusing
instead on reinforcing the existing oral notification. Several grower
organizations also did not agree that EPA justified the cost of the
proposal with the benefits.
Farmworker advocacy organizations suggested a number of
alternatives, including requiring both posting signs and providing oral
warnings for all pesticide applications, or at a minimum for those
pesticides with an REI of 12 hours or more. Some farmworker advocacy
organizations suggested mandatory posting of any treated area subject
to an REI greater than 24 hours, and others requested that EPA require
mandatory posting of any treated area subject to an REI. They
reiterated EPA's rationale that oral notification of pesticide
application information is difficult to recall over multiple days, that
oral notification may not be clearly communicated due to multiple
language barriers and that it is difficult to verify whether oral
notification was in fact given.
EPA Response. EPA considered the comments submitted and agrees that
increasing workers' awareness of treated areas will lead to an overall
reduction in occupational pesticide-related illnesses at reasonable
cost.
EPA disagrees with comments that suggest oral notification alone
would provide sufficient notification to workers and agrees with
comments that support increased posting requirements. As noted in the
proposal for this rule, research has shown that oral instruction alone
may not be an effective method of safety instruction. EPA is aware that
compliance with the posting requirement for outdoor production could
require some establishments to change their business practices or
monitor posted fields more often.
EPA considered additional posting requirements presented by
farmworker advocacy organizations and was not convinced that the
increased cost to employers to post all treated areas, or to post areas
treated with products with REIs of 12 hours or greater, or 24 hours or
greater would result in significantly more increased protections than
the requirement to post areas treated with products with an REI longer
than 48 hours. EPA concluded that it is reasonable to expect workers to
remember oral warnings regarding REIs for two work days, or about 48
hours total, and reasonable to require visual reminders for longer
periods.
4. Costs and benefits. EPA estimates the annual cost of posting
treated areas under an REI of more than 48 hours and allowing oral
notification for indoor production applications of products with an REI
of 4 hours or less to be $10.4 million annually, with the per
establishment cost of $33, and finds this cost to be reasonable in
comparison to the benefit to workers to avoid pesticide illness by
remaining out of treated areas under an REI.
B. Revise Content of Warning Sign
1. Current rule and proposal. The existing WPS requires
agricultural employers to post warning signs with the words ``DANGER,''
``PELIGRO,'' ``PESTICIDES'' and ``PESTICIDAS,'' at the top of the sign,
and the words ``KEEP OUT'' and ``NO ENTRE'' at the bottom of the sign.
A circle containing an upraised hand on the left and a stern face on
the right must be near the center of the sign. EPA proposed replacing
``KEEP OUT'' and ``NO ENTRE'' with ``Entry Restricted'' and ``Entrada
Restringida,'' and changing the shape containing the face and hand to
an octagon (similar to a stop sign).
2. Final rule. EPA has decided not to change the text or graphic of
the existing warning sign. The final regulatory text for the warning
sign content is available at 40 CFR 170.409(b)(2).
3. Comments and responses.
Comments. Two states and several grower organizations supported the
proposed changes on the grounds that ``Entry Restricted'' would be less
confusing to workers than ``KEEP OUT,'' since entry is allowed under
certain circumstances. Many more state, farmworker advocacy
organizations, and public health organizations opposed changing the
existing warning sign. Those commenters asserted that ``KEEP OUT''
sends a much clearer message than ``Entry Restricted,'' particularly to
people with lower levels of literacy. They noted that the term
``Entrada Restringida'' is not common in Spanish, which is the first
language of the majority of farmworkers in the U.S., whereas ``KEEP
OUT'' is simple and well understood even by people who do not speak or
read English. Commenters pointed to standard readability test results
confirming that ``KEEP OUT'' is easily understood by most six-year-
olds, while ``Entry Restricted'' is placed at the grade 12-13 reading
level and would be beyond the reading and comprehension level of the
majority of farmworkers in the U.S.
A number of states commented that the existing sign is sufficient.
They noted that although ``Entry Restricted'' is more accurate, it
would be a costly change for growers that may lead to confusion and not
be more protective than the language on the existing warning sign.
States also commented that 20 years of training and experience with the
current sign is what makes it effective for keeping workers out of
fields under an REI. The states and farmworker advocacy organizations
agreed that for the predominantly low-literacy population of
farmworkers, a simpler message, along with training on the message, is
more protective than the proposed wording for the warning sign.
EPA Response. EPA was persuaded that the proposed changes to the
warning sign would be costly for employers and not increase protections
for workers as much as expected. A significant factor in EPA's decision
was the additional information presented in public comments regarding
the potential lack of understanding of the term ``Entrada
Restringida.'' EPA was convinced that eliminating the existing
language, ``KEEP OUT,'' in favor of a technically more accurate sign
would be less protective for the majority of workers. The goal of the
warning sign is to keep workers out of areas that are treated with
certain pesticides. Entry into these areas is prohibited while the REI
is in effect with a few narrow exceptions. Workers that are directed to
enter treated areas under an REI and/or areas where the warning sign is
posted must have received pesticide safety training, be provided
additional protections, and be informed that their entry is subject to
the limitations established for early entry exceptions in the
regulation. Because EPA expects that the majority of workers would
never enter treated areas during an REI, because 20 years of training
and experience have familiarized workers with the message and intent of
the sign, and because EPA has added additional training and protection
for workers entering treated areas while an REI is in effect, EPA
agrees with commenters that the easily understood message of ``KEEP
OUT'' is most appropriate.
4. Costs and benefits. Since the final rule does not change the
requirement in
[[Page 67511]]
the existing rule, there are no costs associated with this decision.
C. Warning Sign Location Revisions
1. Current rule and proposal. Under the existing rule, when signs
are required for applications in outdoor production, they ``shall be
visible from all usual points of worker entry to the treated area,
including at least each access road, each border with any labor camp
adjacent to the treated area, and each footpath and other walking route
that enters the treated area.'' EPA proposed maintaining the existing
posting requirement for outdoor production and clarifying the language
to require posting be visible from ``each border with any worker
housing area within 100 feet of the treated area,'' rather than ``labor
camps adjacent to the treated area.''
2. Final rule. EPA has finalized the proposed changes to the
warning sign location requirements for outdoor production. The final
regulatory text for this requirement is available at 40 CFR
170.409(b)(3)(ii).
3. Comments and responses.
Comments. Several states, grower organizations, and farmworker
advocacy organizations supported the proposal and agreed that it would
support EPA's goal of increasing clarity of the rule and enhance the
ability of employers to understand their responsibilities under the
regulation. Commenters in support of the change noted that ``adjacent''
is a vague term that may be interpreted differently by different people
and that ``labor camp'' is too limited and does not technically include
worker housing. They noted that clearer posting requirements could lead
to better compliance and thus be a better system for keeping people
living in close proximity to treated fields safe.
Some pesticide manufacturers opposed the proposal on the grounds
that it is an overly prescriptive, costly, and unnecessary provision
which would not provide additional protection above that already
provided by the label and existing WPS.
A public health organization proposed adding pesticide application
information and REIs to the posting requirement near worker housing
areas. One state suggested revising the language by stating ``Each
border with any worker housing area provided by this establishment/
employer within 100 feet of the treated area.''
EPA Response. EPA was not persuaded by the comments that the
requirement would be a significant additional burden on employers. The
requirement only clarifies where employers need to post warning signs
but does not increase posting requirements beyond what was intended in
the existing regulation. EPA agrees with commenters who noted that
increased clarity on posting requirements will lead to better
compliance and increase awareness of treated fields by workers who live
near treated areas.
4. Costs and benefits. Because this change only clarifies an
existing requirement, the cost, if any, would be negligible.
VII. Hazard Communication
A. Hazard Information--Location and Accessibility
1. Current rule and proposal. The existing WPS requires employers
to display certain information about pesticide applications at a
central location on the establishment when workers or handlers are
present and an application of a pesticide requiring compliance with the
WPS has been made or an REI has been in effect within the past 30 days
(referred to as the ``central display'' requirement).
EPA proposed to replace the existing requirement for the
application information to be located at the central display with a
requirement for employers to make the application information and
additional hazard information accessible upon request by workers,
handlers or their authorized representatives.
2. Final rule. EPA has decided not to finalize the proposal. The
final rule generally retains the existing requirement related to the
location of, and accessibility for workers and handlers to, the
pesticide application information, makes some changes to the content of
the required information, requires display of hazard information, and
includes the accessibility requirements proposed for workers, handlers,
and their designated representatives (``authorized representatives'' in
the proposal). The employer must display the information at a place on
the establishment where workers or handlers are likely to pass by (the
``central display''). The information must be displayed when workers or
handlers are on the establishment and an application of a WPS-covered
pesticide has been made or an REI has been in effect within the past 30
days. After this time, the information must be kept on the
establishment for two years and made available to workers, handlers, or
their designated representatives or any treating medical personnel. The
final rule contains more specificity than the proposal, particularly in
reference to the designated representative, where details are drawn
from OSHA's rule at 29 CFR 1910 (Ref. 17).
The designated representative must provide written evidence of such
designation, including the name of the worker or handler being
represented, a description of the specific information being requested,
including dates of employment of the employee, the dates for which the
records are requested, the type of work conducted by the worker or
handler during that period, a statement indicating that the
representative is designated by the worker or handler, the specific
application and/or hazard information requested, a statement
designating the representative to request the information on the
worker's or handler's behalf, the date of the designation, and the
printed name and contact information for the designated representative.
If the information is to be sent to the requester, direction for where
that information must be sent is to be included. When the employer is
presented a request that contains all of the necessary information
specified in the regulations, the employer must provide a copy of, or
access to, all of the requested information that is applicable within
15 working days from the receipt of the request. Failure to respond to
the request would be a violation of the rule. The final regulatory text
for this requirement is available at 40 CFR 170.311(b)(9).
Workers and handlers who worked on the establishment may request,
orally or in writing, the pesticide-specific information retained by
the employer. The information must have been displayed while the worker
or handler worked on the establishment. The employer must provide
access to, or a copy of, the information within 15 days of the request.
The regulatory text for this requirement is available at 40 CFR
170.311(b)(7).
Under the requirements to provide records to workers, handlers, and
designated representatives, EPA also added language similar to that
found in OSHA regulations (see 29 CFR 1910.1020(e)(1)(v)) to ensure
that whenever a record has been previously provided without cost to a
worker, handler, or their designated representative, the agricultural
employer may charge reasonable, non-discriminatory administrative costs
(i.e., search and copying expenses but not including overhead expenses)
for a request by the worker or handler for additional copies of the
same record.
Medical personnel or persons acting under their supervision may
also request the pesticide-specific
[[Page 67512]]
information required to be retained in 170.311(b)(6) to inform
diagnosis or treatment of workers or handlers who were employed on the
establishment during the time the information was required to be
displayed. The request may be provided orally or in writing to the
agricultural employer, and the employer must respond promptly to the
request. The regulatory text for this requirement is available at 40
CFR 170.311(b)(8).
Lastly, the final rule makes some changes to the content of the
required pesticide application information and when it must be posted,
as explained in Units VII.C. and VII.D. The final regulatory text for
this requirement is available at 40 CFR 170.311(b).
3. Comments and responses.
Comments. The overwhelming majority of commenters requested EPA to
keep the existing central display requirement. Many comments from
farmworker advocacy organizations, public health organizations, states,
and some members of Congress noted that they thought it was
unreasonable and unrealistic to think a vulnerable population such as
workers and handlers would request hazard information from their
employers. These commenters cited many reasons for this position,
including barriers (e.g., language differences, concern about
compromising their immigration status, and fear of retribution,
retaliation or job loss) and the power and social dynamics between
employer and employee. These commenters were adamant that workers and
handlers needed ready, anonymous, unhampered access to hazard
information as currently provided through the central display
requirement.
Most of these commenters supported the inclusion of a designated
representative who could request the hazard information on behalf of a
worker or handler, including farmworker advocacy organizations citing
OSHA's requirements at 29 CFR 1910.1020(e)(1) that establish access to
exposure records for workers in other industries. Comments in support
of including access to hazard information by workers' or handlers'
designated representatives note that workers and handlers may be
reluctant to request the information for themselves due to their
inability to communicate effectively with, or fear of, their employer,
or because they may not be able to understand the information without
help. One comment described a situation where a farmworker advocacy
organization requested such information from an employer on behalf of
two ill workers, but their request was denied because the workers
themselves did not make the request.
In contrast, there was significant opposition from the agricultural
industry to the proposal for the authorized representative, including
growers, pesticide manufacturers, and their organizations, some states,
and the Small Business Administration's Office of Advocacy. Comments
from these groups centered on the additional burden on employers to
provide the records. Commenters also expressed concerns that allowing
access to pesticide application information by designated
representatives could be abused by anti-pesticide organizations, who
could send people onto the establishment requesting information
purportedly on behalf of a worker or handler. In addition, some farm
bureau comments stated that the requirement for providing the
information to a representative is a violation of farmer's legal and
privacy rights, stating that the representative could demand all
information related to pesticides on that establishment.
Some commenters provided recommendations to improve the proposed
requirement for a designated representative. Suggested improvements
included limiting the designated representative requirement to current
workers and handlers or to employees who worked on the establishment
within two years of the request, limiting access to medical personnel
only, or limiting the request to a specific incident. Many commenters
recommended that the request be in written form, and include
designation of the representative by the worker or handler. One state
recommended defining a time frame for provision of the information to
the requester. Another state suggested that the request clearly
identify the information required to be provided to the authorized
representative, and the purpose of the request or intended use of the
information.
Many of the commenters in favor of keeping the existing central
display requirement explained that a central display requirement that
provides information about general pesticide safety, including symptoms
of pesticide illness, and the specific pesticides used on the
establishment, is necessary to protect the health of workers and
handlers. First, having information available in non-emergency
situations could help workers and handlers be aware of symptoms before
they occur, help them avoid exposure, and possibly enhance the
reporting of illnesses. Secondly, they stated that emergency medical
personnel would not have to lose critical time tracking down
information instead of treating the ill or injured person if they could
rely on accessing the information quickly from the central display.
EPA also received comments from one pesticide manufacturer
organization, a couple of states and some farm bureaus in favor of the
proposal to eliminate the existing requirement for a central display of
pesticide application information. These commenters agreed with EPA's
observations in the preamble to the proposal that this requirement
imposes a paperwork burden and that states often cite employers for
technical violations of the display requirement. The commenters stated
it is difficult to keep the displayed information current when
application plans change, especially on large establishments. They also
noted the difficulty keeping information legible when it is displayed
at a central location subject to weather conditions. These commenters
encouraged EPA to eliminate the existing central display requirement,
not to finalize the proposed requirement to provide hazard
communication information to workers, handlers, or their designated
representative, and to require employers to only keep records of
pesticide applications on their establishment.
EPA Response. EPA agrees with those commenters who argued that
workers and handlers must have relatively unhindered access to
pesticide-specific information, and has decided to retain the central
display requirement. Although the extent and type of barriers and
employer-employee dynamics are unique to each situation, EPA recognizes
that a significant number of workers and handlers face disadvantages
that can reasonably be expected to make them hesitant to ask their
employers for information relating to their pesticide exposure.
Consequently, EPA believes that it is not reasonable to make an
employee's task of obtaining this information more difficult,
particularly given the potential usefulness of the information if an
employee may have been harmed by a pesticide. Therefore, EPA has
decided to retain the requirement for the pesticide application
information to be displayed at a place on the establishment where
workers and handlers are likely to pass by or congregate and has added
the requirement that the SDS must also be displayed at that location.
In addition, in the final rule, workers and handlers and their
designated representative may request either a copy of or access to the
pesticide-specific information that was required to be displayed while
the worker or handler was employed on the
[[Page 67513]]
establishment. The records of application and SDSs must be retained for
two years after the application. Access to the SDSs after the display
period will afford workers and handlers information about the
pesticides they may have been exposed to, and the hazards they may
present.
EPA recognizes, however, that there can be difficulties in
complying with the central display requirement. In response to comments
about the difficulty of keeping accurate information posted, EPA has
attempted to simplify the central display requirement by changing the
required time frame for posting the application-specific information
(see Unit VII.D.). EPA expects this modification to the requirement for
the timing to post the application information will reduce the burden
on employers, while providing employees with ready access to accurate
information. In response to the comments about the difficulty of
maintaining a legible central display when it is subject to weather
conditions, EPA notes that the central display requirement does not
mandate that employers post the information outdoors. The information
must be displayed ``where workers and handlers are likely to pass by
and congregate and where it can be readily seen and read'' and workers
and handlers must be able to access the information at all times during
work hours. This does not preclude the central display from being
maintained in a location sheltered from weather conditions, such as a
bathroom, break area, or changing area, as long as the requirements of
this section are met.
EPA has been convinced by comments in support to retain the option
for a designated representative to access hazard information
(application information and SDS) on behalf of a worker or handler. EPA
agrees that including in the rule a requirement, based on OSHA's rule
at 29 CFR 1910.1020, for employers to provide the information to a
representative who has been designated to act on the behalf of the
worker or handler would give workers and handlers more access to
information related to pesticides used in their workplace. Also, EPA is
aware that California and Texas regulations include requirements for
employee representatives' to be given access to hazard information for
farmworkers, and comments from the Texas Department of Agriculture
encouraged EPA to require the designation in writing and to limit
access to records to the retention timeframe of two years. EPA is
unaware of issues related to worker representatives in those states.
In response to the many comments opposing the establishment of the
authorized or designated representative based on concerns for the
potential for anti-chemical activists fraudulently acquiring records,
the final rule includes a requirement for the representative to provide
to the employer documentation (written authorization) signed by the
worker or handler that clearly designates that person to act as his or
her designated representative. The information that can be obtained is
limited to the application and hazard information that is required by
Sec. 170.311(b) of the final rule that was required to be displayed
while the worker or handler was on the establishment, and for the dates
applicable to the worker's or handler's dates of employment on the
establishment. The employer must provide the information regardless of
the worker's or handler's employment status on that establishment at
the time of the request.
EPA was convinced by comments about the need for the pesticide
specific information by medical personnel treating workers or handlers
who may have been exposed to pesticides on the establishment, and has
added a requirement that employers promptly provide the information to
the requesting medical personnel or persons they supervise. The
information would help ensure that the medical considerations would
include the possibility that a pesticide exposure was involved in the
worker's or handler's illness.
B. Pesticide-Specific Hazard Communication Materials--General
1. Current rule and proposal. The existing WPS requires employers
to provide workers and handlers with specific pesticide application
information, but not pesticide-specific hazard information on the
pesticides they may be exposed to in the workplace.
EPA proposed to require employers to provide workers and handlers
with access to the SDSs and pesticide labeling for products that have
been applied on the establishment and to which workers and handlers may
be exposed, in addition to the pesticide application information
already required to be made available.
2. Final rule. EPA has finalized the requirement for agricultural
employers to display at a central location pesticide application
information and SDSs for pesticide products used on the establishment
(referred to as ``pesticide application and hazard information'' in the
final rule). EPA has not finalized the proposal to require employers to
provide access to pesticide labeling. The final regulatory text for
this requirement is available at 40 CFR 170.311(b).
3. Comments and responses.
Comments on providing safety data sheets and pesticide labeling.
EPA received many comments in favor of the proposed requirement.
Although many farmworker advocacy organizations expressed support for a
requirement that employers maintain both labeling and SDS and make them
available to workers and handlers, few discussed the merits or
drawbacks. Many farmworker advocacy organizations, public health
organizations and academics, a grower organization and others supported
a requirement to maintain and provide SDSs. Some of these commenters
indicated that the information on a SDS would be helpful for the
correct diagnosis and treatment of pesticide-related illnesses.
Farmworker advocacy organizations explained that workers want more
information on what pesticides are used and what they are exposed to,
along with possible side effects. On the other hand, a few grower
organizations, a farm bureau, a pesticide manufacturer organization and
a couple of states were against a requirement to provide SDSs. These
commenters argued that EPA had not made a case strong enough to justify
why workers need SDSs. They also opposed display of SDSs on the grounds
that while the pesticide product label poses legally enforceable
requirements on users, SDSs do not.
Some farmworker advocacy organizations, public health
organizations, a grower organization, a farm bureau and others thought
it would not be much of a burden on agricultural employers to acquire
the SDSs of pesticide products because they are easily available online
or can be requested from the pesticide manufacturer or distributor. One
farmworker advocacy organization gave the Washington State Employer
Hazard Communication rule (EHC rule) as an example of a requirement for
employers to make SDSs available to employees that is feasible. http://www.lni.wa.gov/IPUB/413-012-000.pdf. The Washington State EHC rule
applies to employers with one or more employees who either handle or
are potentially exposed to hazardous chemicals, including pesticides,
in their workplace. It requires employers to make SDSs for each
chemical that employees may encounter readily accessible and easily
obtained without delay during each work shift, and to ensure that
employees traveling between workplaces during a work shift can
immediately obtain the
[[Page 67514]]
SDS in an emergency. In contrast, a couple of grower associations
stated that it is overly burdensome for agricultural employers to get
SDSs. One state thought it would be difficult for employers to locate
the correct SDS for pesticide products. They also noted that small
businesses and private applicators will have the most difficulty since
they are not already accustomed to keeping SDSs.
EPA received some comments both for and against providing pesticide
product labeling. Many farmworker advocacy groups supported a
requirement for the employer to provide the labeling. These commenters
maintained that workers and handlers want more information on chemicals
to which they may be exposed. On the other hand, farm bureaus, growers
and grower organizations and states opposed a requirement to provide
the labeling. These commenters expressed concern that EPA is expanding
its mandate by requiring agricultural employers to provide the product
``labeling'' when it should be limited only to the WPS portions of the
``label.'' These commenters argued that an agricultural employer could
easily violate this requirement by not having the most current or
correct version of the labeling, such as a specimen or technical label.
EPA Response. After consideration of the comments, EPA remains
convinced that access to SDSs offers significant health and safety
benefits to workers and handlers. SDSs contain information that is not
generally included in pesticide labeling regarding chronic,
developmental, and reproductive toxicity that can be valuable to
exposed and potentially exposed workers, and to medical personnel and
others who provide treatment to an ill or injured person. Moreover,
given the ubiquity of chemicals subject to the OSHA Hazard
Communication Standard that mandates the development and distribution
of SDSs, it is likely that many health care professionals are more
familiar with SDSs than pesticide labeling. Requiring the SDS as part
of the central display facilitates a quicker identification of the
pesticide product used in case of an incident and may assist in
diagnosis. The SDS contains information about symptoms expected in a
person exposed to the chemical (immediate, delayed and chronic effects)
as well as recommended treatment, whereas the label may not include
detailed information on symptoms or treatment. EPA recognizes that
state pesticide regulatory agencies do not review, approve, or take
enforcement action based on the information in SDSs. However, comments
from worker advocates indicate that workers and handlers want to have
more information on health effects, which is available on SDSs and
generally not available on the pesticide labeling. OSHA is requiring
that all SDSs be in a standard format, making it easier to locate
health information (Ref. 17). Accordingly, EPA concludes that a
requirement to post SDSs is an effective way to communicate pesticide
hazard information important to workers and handlers. EPA notes that
under the final rule workers and handlers will learn during pesticide
safety training about SDSs, the information they contain, and their
availability at central display locations. This addition to the
training will further reinforce workers' and handlers' awareness and
potential use of SDSs.
EPA is persuaded that access to SDSs is not a significant obstacle
to requiring agricultural employers to keep and display SDSs for
pesticide products used on the establishment. Agricultural employers
can obtain SDSs from the distributor of the pesticide, online, or upon
request from the product manufacturer. For example, employers in
industries other than agriculture--including retailers and wholesalers
of agricultural chemicals--are required by the OSHA Hazard
Communication Standard to make available SDSs to their employees.
Upon consideration of the comments, EPA has decided not to require
agricultural employers include the pesticide product label or labeling
as part of the central display requirement. EPA recognizes the burden
on employers to provide both the SDS and label or labeling in addition
to the pesticide application information. As noted previously, the SDS
contains the health-related information requested in comments by worker
advocates, and that would be most useful to persons providing treatment
to those who may have been exposed to pesticides. EPA agrees that if
necessary, the labeling for a product used for a specific application
can be located using the application-specific information that
employers are also required to post. See Unit XVIII.A. for a complete
discussion of comments related to labels and labeling.
Comments on the extent of the requirement. EPA received comments
both to narrow and to expand the scope of the proposal requiring
employers to maintain SDSs and make them available to employees. Among
the suggestions to narrow the scope of the proposal, one state
suggested EPA keep a central repository of SDSs for agricultural
employers to access and require employers to keep the SDS only while
the associated pesticide product remains on the establishment.
Farmworker advocacy organizations and public health organizations
recommended expanding the proposed requirement to a full Hazard
Communication Standard as required by the Washington State ECHC for all
hazardous chemicals, which requires employers to develop a written
Hazard Communication program, maintain availability and access to SDSs,
provide information and training on hazards in the workplace, translate
certain documents upon request, and keep and provide access to exposure
records for at least 30 years.
Many farmworker advocacy organizations suggested that EPA require
SDSs to be available in multiple languages and provided two examples of
similar requirements. First, one farmworker advocacy organization cited
the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C.
1801, et seq.), administered by the DOL, which requires written
information on the terms of employment to be provided in English,
Spanish or other language common to workers. Second, one farmworker
advocacy organization claimed that in Washington State, agricultural
employers are required to provide translated documents if requested.
Farmworker advocacy organizations asserted that it would be easy to
translate SDSs because of the standard format required by OSHA's
adoption of the Globally Harmonized System of Classification and
Labeling of Chemicals. One pesticide manufacturer organization was
opposed to translating the SDS because of the many indigenous languages
present among workers.
EPA Response. After reviewing the comments, EPA has decided on an
approach that will provide workers and handlers with more information
about the potential health effects associated with the pesticides to
which they may be exposed without overly burdening agricultural
employers. Obtaining the SDSs for products used on the establishment
should not be overly burdensome to employers; SDSs are available from
pesticide dealers and the internet. An EPA-managed repository of the
SDSs of all WPS pesticides would not significantly improve access and
would be a significant burden for EPA because of the number of
pesticides included. Stakeholders such as grower organizations are free
to voluntarily develop SDS repositories with assistance from members.
Voluntary programs of this sort would involve limited subsets of all
WPS-scope pesticide products and could possibly
[[Page 67515]]
be accomplished within a short period in comparison to a national,
full-scale repository program.
EPA has decided not to reduce the amount of time the SDS must be
available. The cost of retaining the SDS, once obtained, is negligible.
Employees and medical personnel could benefit from access to the health
effects information in the SDS in case of symptoms that develop
sometime after the application has been completed.
EPA disagrees with commenters' request to adopt a full hazard
communication proposal as required by the Washington State ECHC for all
hazardous chemicals. The full set of the WPS requirements in the final
rule provide protections similar to those provided to workers in other
industries under OSHA's Hazard Communication Standard program, while
recognizing differences between agriculture and other industries. As
discussed in the Agency's 1992 proposed rule on the Worker Protection
Standard; Hazard Information (Ref. 18), in response to numerous
concerns about potential overlap or conflict between EPA's July 1988
proposed WPS (Ref. 18) and OSHA's August 1988 proposed Hazard
Communications Standard (Ref. 19), EPA committed to work with OSHA to
minimize confusion and avoid duplication between the two agencies'
requirements. Rather than require agricultural establishments that may
not routinely use the same pesticides to develop and maintain a written
Hazard Communication Standard plan listing all chemicals that will be
used in the workplace, EPA's approach, in both the 1992 proposed rule
on Hazard Information (Ref. 20) and this final rule, has been to
identify specific requirements, tailored to fit the context of
pesticide use in agricultural production that serve a purpose similar
to the Hazard Communication Standard requirements in other industries.
These requirements include pesticide safety training, display of basic
pesticide safety information, notification or posting of treated areas,
and access to information about pesticides used in the workplace at a
central location. EPA notes that the WPS does not exempt employers with
10 or fewer employees, unlike OSHA's Hazard Communication Standard. EPA
also notes that the cost of a developing and implementing a full hazard
communication program specific to each establishment could be
burdensome to small agricultural establishments.
Lastly, although EPA is not requiring that SDSs be translated at
this time, EPA encourages and supports employers to display this
information in such a way that workers and handlers can understand,
including translation. EPA is open to conferring with stakeholders on
the need for translation and identifying content to be translated, if
necessary. EPA notes that some pesticide manufacturers already make
pesticide product SDSs available in Spanish and EPA encourages
employers to display Spanish SDSs where available and appropriate.
Comments on other forms of hazard communications materials. Many
farmworker advocacy organizations suggested EPA develop and provide
crop sheets, booklets, or other types of materials that describe the
health effects of pesticides, either in lieu of or in addition to the
SDS. These commenters identified a need for a pictorial booklet
designed for low-literacy audiences on the health effects from exposure
to pesticides, based on the information in SDSs. One state suggested
that a small booklet with basic pesticide exposure symptoms by classes
of chemicals or modes of action, described in layman's terms would be
more helpful to workers than SDSs. One pesticide manufacturer
organization opposed the development of crop sheets.
EPA Response. EPA agrees with the basic concept of providing
workers and handlers with information on the health effects of
pesticides for workers and handlers in a manner they can understand.
Pesticide safety training and the pesticide information display provide
workers and handlers with information on the symptoms that may be
associated with exposure to different pesticides. If workers or
handlers need information about the specific effects of a pesticide
with which they have worked, they can consult the SDS. However, EPA
does not agree with the commenters' request to require crop sheets or
similar materials because, in EPA's judgment, the benefits of such a
requirement would not justify the substantial costs associated with
creating, updating, translating and distributing materials for every
crop, growing region, and WPS-scope pesticide product. As noted in the
proposal for this rule, crop sheets and other types of material have
been developed in the past, with very limited success. For example, one
state's crop sheet program proved to be expensive and labor intensive,
and the crop sheets were left as litter in the fields, unused. SDSs
already contain information about the potential health effects (acute,
delayed, and chronic) associated with use of pesticide products and
will be readily available in a uniform format, including provide hazard
information in words and in pictograms.
Comments on inconsistencies in information between labels and SDSs.
A pesticide manufacturer organization opposed any requirement by EPA to
provide SDSs to worker and handlers upon request. This commenter
expressed concern about the confusion that may be caused by
inconsistencies between pesticide labels and SDSs. OSHA requires
manufacturers to use GHS terms and chemical classification criteria on
SDSs whereas EPA does not require their use on pesticide product
labels. As a result, SDSs and pesticide product labels could have
different hazard statements, pictograms and signal words.
EPA Response. EPA has not finalized the proposed requirement for
the employer to make available pesticide product labeling upon request.
Instead, the final rule requires the employer to display only pesticide
application information and SDSs for pesticide products used on the
establishment. The SDS provides succinct information about the known
health hazards of the product that typically is not presented as part
of the product label or labeling. Such information can be invaluable to
medical professionals for the diagnosis and treatment of certain
pesticide-related illnesses and injuries. Because EPA is not requiring
the employer to display the labeling, EPA does not expect issues with a
perception of conflict between labeling and SDSs. The persons who wear
PPE and have access to the label are pesticide handlers who receive
more thorough training than workers. If pesticide handlers encounter
conflicting information on labeling and SDSs, such as the PPE
identified, they should know they must follow the instructions on the
pesticide labeling, as they are trained to do. For information on
OSHA's adoption of the Globally Harmonized System of Classification and
Labeling of Chemicals for SDSs and the pesticide product labeling, see
EPA's Pesticide Registration (PR) Notice 2012-1, ``Material Safety Data
Sheets as Pesticide Labeling'' (http://www2.epa.gov/sites/production/files/2014-04/documents/pr2012-1.pdf).
C. Pesticide Application Information--Content of Pesticide Application
Information
1. Current rule and proposal. In the existing WPS, the agricultural
employer must record and display the following information about each
pesticide application: The location and description of the area to be
treated, the product name, EPA registration number and active
ingredient(s) of the pesticide product, time and date the pesticide is
to be applied, and REI for the pesticide.
[[Page 67516]]
EPA proposed to require the agricultural employer to record and
make available, in addition to the information required in the existing
regulation: The specific crop or site treated, the start and end dates
and times of the application, and the end date and duration of the REI.
2. Final rule. EPA has finalized the proposed requirements for the
contents of pesticide application information, with one change. The
final rule requires agricultural employers to record and display the
following pesticide application information: Product name, EPA
registration number, and active ingredient(s) of the pesticide product
applied; the crop or site treated and the location and description of
the treated area; the date(s) and times the application started and
ended; and the duration of the REI. The final rule does not require the
employer to record the end date of the REI. The final regulatory text
for this requirement is available at 40 CFR 170.311(b)(1)(ii)-(v).
The agricultural employer must record and display the information
about the crop or site treated and the location of the treated area.
EPA encourages employers to display the information in such a way that
workers and handlers can understand and distinguish each treated area
from all other areas on the establishment; in some cases, a map or
diagram may be appropriate.
EPA encourages and supports the provision and display of the
application information so it is most useful to workers and handlers on
the establishment. One such option is to separate the information about
treated areas, so those areas where an REI is in effect are distinct
from those where the REI has expired, allowing the viewer to more
quickly identify areas where entry is restricted. Similarly, maps
highlighting areas where an REI is in effect and those where the REI
has expired could also present the information in a user friendly,
pictorial manner. EPA also sees an opportunity for employers to provide
information of this nature through texting and other electronic means
to their employees, and encourages such communication, in addition to
the requirement for maintaining this information as part of the central
display.
3. Comments and responses.
Comments. Many farmworker advocacy organizations, a few pesticide
regulatory agencies, a grower organization and others supported the
proposed expansion of the content requirement for pesticide application
information records. According to these commenters, it would be a small
burden to require additional application information, such as crops
treated, that could help workers proactively avoid exposure to
pesticides. One state asked EPA to parallel the information required by
USDA to avoid confusion, while another suggested that more information
be required in addition to the information proposed to assist state
pesticide regulatory personnel in determining compliance.
Several farm bureaus, one grower organization and several states
opposed any changes. These commenters asserted that the content
required by the existing regulation is already too burdensome. Several
farm bureaus opposed EPA's proposed expansion of the content of records
stating that EPA had not justified it with quantifiable benefits. A few
states, two farmworker advocacy organizations and other commenters
suggested various combinations of records limited to three or fewer
pieces of information. One grower organization argued that only a
record of the active ingredient is needed for medical treatment, while
another questioned how a record of the REI benefits the health and
safety of workers. Lastly, these commenters maintained that
recordkeeping of general use pesticide applications is not required by
law, the proposed requirement is duplicative of state and federal
requirements, and commercial applicators already keep records.
EPA Response. EPA agrees with the comments that adding more
information to application records is a small burden compared to the
benefits of determining compliance and giving workers and handlers
information to verify the location of treated areas. The crop or site
treated, start and end times and date(s) of the application, and
duration of the REI are important for protecting worker and handlers
and useful for determining compliance. Agricultural employers,
compliance officers, workers, handlers and others will be able to
calculate the end date and time of the REI by having the end date and
time of the application and the duration of the REI included in the
pesticide application information. The combined information will also
help workers and handlers identify the areas where an REI is in effect.
EPA did not propose requiring more information because the proposed
content of application records fits the needs of stakeholders to
determine compliance and to give workers and handlers the ability to
discern which area had been treated. An arbitrary limit of only three
or fewer pieces of information may not achieve the same benefits.
The WPS requires agricultural employers to maintain records because
those records provide information that is important for the protection
of their employees. While a significant number of agricultural
employers may also be certified as private pesticide applicators, their
status as private applicators does not exempt them from the WPS
recordkeeping required of agricultural employers. The WPS does not
require private applicators to maintain records on account of their
status as private applicators.
The risks of concern under the WPS include both RUPs and non-RUPs,
while certification requirements at the federal level, including
recordkeeping, only apply to those using RUPs. Neither the USDA
application record requirements for private applicators of RUPs, nor
state application record requirements for commercial applicators fully
cover the information needed under the WPS for the protection of
workers and handlers. The USDA required information does not include
the active ingredients, duration of the REI or the start and end dates
and times of applications, nor does it apply to applications of non-RUP
pesticides. Commercial applicators would have to record the information
required by the state pesticide regulatory agency, which must at a
minimum include the kinds, amounts, uses, dates and places of RUP
applications. 40 CFR 171.7(b)(1)(iii)(E). Also, state pesticide
regulatory agencies may or may not require records of non-RUP
applications. Therefore, it is unlikely that all states' commercial
applicator RUP application records will match exactly the record
requirements of the WPS. Because the records required to be maintained
by USDA and the states do not include all of the information needed for
protection of workers and handlers, it is appropriate to require such
recordkeeping through the WPS.
D. Pesticide Application and Hazard Information--When Information Must
Be Made Available
1. Current rule and proposal. In the existing rule, the
agricultural employer must record and display the pesticide application
information before the application takes place, if workers or handlers
are present on the establishment before the application begins.
Otherwise, the information must be recorded and displayed at the
beginning of any worker's or handler's first work period. If the
employer posts warning signs for a treated area, the pesticide
application information must be displayed at the same time as, or
earlier than, the warning signs. The
[[Page 67517]]
information must remain on display when workers are on the
establishment and from the time of the application until 30 days after
the REI expires or until 30 days after the application end date if the
REI is 0 hours (or in the rare instance where a label might not have an
REI).
EPA proposed to require the agricultural employer to provide the
pesticide application information, the SDS and labeling upon request
during normal work hours, no later than the end of the day.
2. Final rule. The final rule requires the agricultural employer to
display the pesticide application information and the SDS (pesticide
application and hazard information) at the central display no later
than 24 hours after the application is complete. Also, the employer
must display the pesticide application and hazard information for each
treated area before any worker is permitted to enter the treated area,
even if the applicable REI has expired. If workers will be in the area,
they must be notified of the application before it starts, by posted
signs or orally, and warned not to enter the area. The application
information and SDS must remain posted for 30 days from the expiration
date of the REI or from the application end date if the REI is 0 hours
(or in the rare instance where a label might not have an REI). EPA did
not finalize the proposed requirement for the agricultural employer to
make available the pesticide application information and the SDS no
later than the end of the day of the application. The final rule
eliminates the existing requirement to display the application
information before or at the same time a warning sign is posted at a
treated area. The final regulatory text for this requirement is
available at 40 CFR 170.311(b)(5) and 40 CFR 170.309(l).
3. Comments and responses.
Comments. Several farmworker advocacy organizations and one public
health organization requested that EPA keep the existing requirement to
make information available before the application so workers and
handlers would be able to connect symptoms to an application if the
exposure occurred during the application. While many farmworker
advocacy groups supported the display of information before an
application, some expressed concern about the accuracy of the pesticide
application information displayed when information about the
application changed from what was planned and the displayed information
was not updated. One farm bureau and one pesticide manufacturer
organization requested that EPA require employers to make the
information available after the application.
EPA Response. EPA agrees with the commenters that it is important
to provide workers and handlers with accurate information about
pesticide applications. Displaying the information after the
application is complete benefits workers and handlers because they can
be confident the information is correct, and the employer no longer has
to change the information when application plans change. Under the
final rule, EPA expects all displays of pesticide application
information will contain accurate information. The final rule retains
the requirement for workers to receive oral notification, or to see
posted warning signs, or both before an application begins, informing
them to stay out of an area before an application begins.
E. Pesticide Application and Hazard Information--Retention of Records
1. Current rule and proposal. The existing WPS requires employers
to maintain pesticide application information at the central display
from the time of application until 30 days after the REI expires. There
is no requirement for the employer to retain the pesticide application
information in any form after that time.
EPA proposed to require employers to retain, for each application
of a WPS-covered pesticide, the pesticide application information,
labeling and SDS, for two years from the date of the end of the REI for
each product applied.
2. Final rule. The final rule requires agricultural employers to
retain the pesticide application information and the SDS for the
product used (pesticide application and hazard information) for two
years from the date of expiration of the REI applicable to the
application conducted. EPA has not included the proposed requirement
for the employer to retain the pesticide labeling in the final rule.
The final regulatory text for this requirement is available at 40 CFR
170.311(b)(6).
3. Comments and responses.
Comments. EPA received comments supporting a two year recordkeeping
requirement from several states and one grower organization. One state
commented that it did not have a need for the information after one
year, but that two years was not much more of a burden. Many farmworker
advocacy and public health organizations requested EPA to require
recordkeeping ranging from more than two years to as many as 30 years
to help with the diagnosis of chronic health effects that could be
related to pesticide exposure.
Commenters from some farm bureaus, grower associations, and Small
Business Administration's Office of Advocacy opposed a two-year
recordkeeping requirement, in part because they asserted that EPA could
not show quantifiable benefits. These commenters argued it would be a
paperwork exercise without health and safety benefits driven based on
the needs of enforcement, and instead should be replaced with a
minimal, non-intrusive requirement. One commenter suggested requiring
employers to keep records only during the harvest season.
EPA Response. EPA has concluded that a two-year recordkeeping
requirement would be helpful for health diagnoses and investigation
purposes. EPA considered requiring the retention of records for five
years and asked state pesticide regulatory agencies about their needs
for access to pesticide application records. These enforcement agencies
informed EPA that they rarely need to rely on records beyond the two-
year timeframe.
EPA notes that this recordkeeping requirement does not necessarily
impose a duplicative burden on agricultural employers to obtain
pesticide application information and SDSs twice--once to satisfy the
central display requirement and once to satisfy the recordkeeping
requirement. Agricultural employers may satisfy this recordkeeping
requirement by the removal of the pesticide application information and
SDS from the central display 31 days from the expiration of the REI (or
from the end of the pesticide application if there is no REI) and
retaining those records for two years from the date of application. EPA
recognizes that some employers may choose to maintain electronic copies
of pesticide application records and the product SDS. The WPS does not
specify that records must be kept on paper, so an employer can maintain
records electronically as long as the employer satisfies all related
requirements of the WPS, such as being able to quickly access and
provide the required materials in the event of a pesticide emergency.
F. Costs and Benefits
1. Costs. EPA estimates the cost for these final hazard
communication requirements, implemented together, to be $9.3 million
annually, or $25 annually per establishment (Ref. 1). The cost of the
hazard communication requirements differs from the proposed
requirements because EPA is maintaining and revising the existing
central display requirement, allowing the agricultural employer to
display
[[Page 67518]]
information after the application negating the need to update
information later, and requiring the agricultural employer to display
and keep records of the pesticide application information and SDS but
not the labeling.
2. Benefits. Although EPA cannot quantify benefits specific to any
of these requirements, the qualitative benefits from workers' and
handlers' ready access to accurate information about areas under an
REI, pesticides in use, and potential health impacts from those
pesticides convinced EPA to adopt these requirements Ref. 1). The final
rule retains the central posting requirement, and allows the employer
some flexibility in posting the information so accurate information is
displayed.
VIII. Information Exchange Between Handler and Agricultural Employers
1. Current rule and proposal. The existing WPS requires handler and
agricultural employers to exchange information about pesticide
applications. When handlers are employed by an employer other than the
agricultural employer, the existing WPS requires the agricultural
employer to provide the handler employer with information about treated
areas on the agricultural establishment the handler may be in (or may
walk within one-quarter mile of), including specific location and
description of any such areas and restrictions on entering those areas.
The existing WPS requires handler employers to provide agricultural
employers with the following information prior to making a pesticide
application on the agricultural establishment:
Location and description of the area to be
treated.
Time and date of application.
Product name, active ingredient(s), and EPA
registration number for the product.
REI for pesticide(s) applied.
Whether posted notification, oral notification,
or both are required.
Any other product-specific requirements on the
product labeling concerning protection of workers or other persons
during or after application.
The agricultural employer must display this information for workers
and handlers employed by the establishment at the central location. The
current WPS requires handler employers to inform agricultural employers
before the application takes place when there will be changes to
scheduled pesticide applications, such as changes to scheduled
pesticide application times, locations, and subsequent REIs.
In addition to maintaining the current requirements, EPA proposed
to require the agricultural employer to also provide to the handler
employer information about the location of ``entry-restricted areas''
on the establishment. EPA also proposed to require the handler employer
to communicate to the agricultural employer the start and end times of
pesticide applications and the end date of the REI. EPA also proposed
to relax existing WPS requirements by requiring handler employers to
provide information about any changes to pesticide application plans to
the agricultural employer within two hours of the end of the
application rather than before the application. Changes to the
estimated application end time of less than one hour would not require
notification.
Finally, in the proposal, EPA unintentionally omitted the provision
in the existing WPS that the agricultural employer need not provide
information to the handler employer about treated areas if the handler
will not be in or walk within one-quarter mile of those treated areas.
2. Final Rule. Information exchange from agricultural employer to
handler employer. The final rule requires the agricultural employer to
notify the handler employer of any treated areas where an REI is in
effect and any restrictions on entering those areas. EPA has not
included in the final rule a requirement for the agricultural employer
to communicate to the handler employer information about the location
of ``entry-restricted areas'' on the establishment because of the
changes to the requirement concerning entry-restricted areas, as
discussed in Unit IX.B. EPA has also revised the final rule to correct
the unintentional omission of the existing rule's exception that the
agricultural employer need not provide information to the commercial
handler employer about treated areas if the handler will not be in, or
walk within one-quarter mile of those areas. The final regulatory text
for these requirements is available at 40 CFR 170.309(k).
Information exchange from handler employer to agricultural
employer. EPA has finalized the proposal to expand and clarify the
information the pesticide handler employer must provide to the
agricultural employer with minor modifications. The final rule does not
require the handler employer to convey the end date of the REI to the
agricultural employer. The final regulatory text for these requirements
is available at 40 CFR 170.313(i).
Timing of exchange of information from handler employer to
agricultural employer. EPA has modified the final rule to specify those
situations where the handler employer must notify the agricultural
employer of changes to the application information before the
application takes place. EPA has also modified the rule to specify the
timing for notifying agricultural employers if the notification is not
required before the application. The final regulatory text for these
requirements is available at 40 CFR 170.313(j).
3. Comments and responses.
Comments. Many states and a few farmworker advocacy organizations
expressed general support for the proposal to expand the information to
be exchanged. These commenters agreed the additional information would
help agricultural employers protect workers, reduce pesticide-related
illnesses and exposure from drift during applications. Many farm
bureaus, states, applicators and applicator associations and an
agricultural organization generally disagreed with the proposed
expansion. Some of these commenters argued that the proposed
requirements are unrealistic and impractical given the dynamics and
unpredictable factors involved in a farming operation, such as pest
infestations and weather changes. In addition, they argued that the
proposal would require multiple parties to exchange information,
resulting in the potential for miscommunication. Some commenters also
opposed the proposed expansion of information exchange because EPA did
not provide documented justification. Crop consultants, an applicator
association and a farm bureau indicated the proposal is unnecessary
because close coordination of information already exists between
applicators, handlers, crop consultants, and growers. Furthermore, they
stated that not only are handlers already required to keep workers out
of areas during applications, applications are often scheduled to take
place when workers are absent. A few states, farm bureaus and a crop
consultant opposed EPA's proposal to add to the information the
agricultural employer is required to give the handler employer. One
crop consultant indicated the information is already on purchase orders
or sales agreements between growers and commercial handlers or their
employers. One state requested that EPA omit the application start time
because it is not used to calculate the REI.
EPA's proposal on the timing to provide notice of a change in
application plans elicited many comments. EPA proposed that this
[[Page 67519]]
notice be provided within 2 hours of the end of the application, unless
the only change was a difference of less than 1 hour between scheduled
and actual application times. One state and several farmworker advocacy
organizations endorsed the requirement because of the ease of providing
the information in the timeframe by relying on existing electronic
capabilities. One farmworker advocacy organization urged EPA to require
that changes be communicated before the start of the application in
order to enable employers to be able to keep workers out of the treated
area.
To prevent confusion about scheduled and actual start and end times
and to avoid miscommunication, one state suggested that EPA require the
handler employer to inform the agricultural employer of changes at any
time on the application day. Two aerial applicators explained that a
two-hour window for notification of change sounds reasonable on paper,
but not in practice. During long workdays of the busy season,
applicators would have to make phone calls in the middle of the night
and send text messages, usually from the airplane during or in between
applications. Also, it can take more than one day to complete an
application because of factors such as the weather, a change in wind
direction, or verifying the presence of bystanders. These situations
could require the handler to give several updates to multiple parties,
resulting in a greater chance for errors and noncompliance.
One commenter requested that EPA require notification of a change
within 24 hours from the end of the actual application, while another
advised EPA to require notification if the actual application
completion time is two or more hours later than the scheduled
application time. Several farm bureaus, a pesticide applicator and a
crop consultant organization advised EPA to require that changes in
application plans be communicated: Before the scheduled date and times,
if the application is going to be made earlier than expected, or before
the end of the REI as scheduled, if the application is made later than
expected. One aerial applicator stated that if an REI is greater than
24 hours, EPA should require an information update before the scheduled
REI expires or within 24 hours of the scheduled application time.
Another aerial applicator recommended the handler employer and handler
give the agricultural employer a window of estimated start and
completion date(s) and time(s). In this situation, the handler would
not make the application outside of that window without the approval of
the agricultural employer, who in turn must keep workers out of the
area during that time, unless notified of a change in the application
start and completion date(s) and time(s).
Many commenters noted the absence of the existing provision that
the agricultural employer need not provide information to the
commercial handler employer if the handler will not be in or walk
within one-quarter mile of an area that may be treated with a pesticide
or under an REI, and noted this could result in the need to provide
excessive, unnecessary information.
EPA Response. The information exchange requirements ensure that
agricultural employers and handler employers have the information they
need to comply with the requirements for notifying workers and handlers
of risks associated with pesticide applications and treated areas
(i.e., agricultural employers are required to notify workers of treated
areas and display pesticide application and hazard information at the
central location on the establishment for workers and handlers to see,
and handler employers must inform their handler employees of treated
areas on the agricultural establishment near where they work).
EPA has been convinced not to adopt the proposed change to expand
the information required to be communicated by the agricultural
employer to the handler employer to include information about the
location of ``entry-restricted areas'' on the establishment. Requiring
employers to exchange this information would not be practical given
other changes in the rule related to the ``entry-restricted areas''
(replaced by ``application exclusion zones'' in the final rule) that
make the tracking of such areas infeasible. EPA also agrees that it is
not necessary for the handler employer to calculate the end time of the
REI for each application and include it in the information conveyed to
the agricultural employer. The requirement to provide this piece of
information has been deleted from the final rule.
Most of the other information required to be exchanged by the final
rule is already required to be exchanged by the existing rule, and
therefore EPA does not agree that this requirement presents a
substantially increased or unreasonable burden. Agricultural and
handler employers are currently required to exchange information so
agricultural employers may provide notification of application and
treated areas under an REI to workers and handlers. Without this
information transfer, accurate and timely notification would be
difficult to achieve, exposing workers and handlers to potential
exposure to pesticides. It is critical that the agricultural employer
know the start times of applications in order to be able to notify
workers and handlers (when they are on the establishment) so they may
avoid treated areas. EPA recognizes that exchange of the expanded
information may already occur on some establishments and expects those
entities to experience less burden than in situations where such
coordination has not already developed.
EPA recognizes that much of the information required may be
available on sales agreements and purchase orders between commercial
pesticide handlers and agricultural employers, which will reduce the
burden for employers to gather it; however, without inclusion of the
information exchange requirements in the WPS there is no assurance of
timely exchange of all of the necessary information.
EPA considered the range of options suggested for the timing of the
information exchange. Several of the recommendations for notification
of application changes from the commercial pesticide handler employer
to the agricultural employer can be accommodated under the final rule.
For example, the applicator and agricultural employer can agree on a
window of the estimated start and end times, with the understanding
that the application would be made during that period, unless the two
communicate and agree to a different timeframe. This would allow the
agricultural employer to notify workers of the treatment, keep them
from the area, and create and post the application information,
satisfying the requirement.
EPA did not identify any suggestions from commenters, apart from
those that would be covered by the final rule that would meet the needs
for agricultural employers to provide employees notification of the
application and inform them of treated areas under an REI, and to
record and display the pesticide application information. Agricultural
employers must have information about the start time of the application
before it begins to ensure they have the ability to notify workers of
the application before it commences. Agricultural employers must have
the end time of the application to notify workers that although the
application has ended, entry to the treated area remains prohibited
because an REI is in effect. Without these details being provided prior
to the application, agricultural employers are not able to fulfill
their responsibilities to protect workers.
[[Page 67520]]
EPA notes that the method for notification of changes to
application information should be agreed upon between the handler
employer and the agricultural employer to ensure receipt, and can be
accomplished through electronic media, telephone, or other means. The
agricultural employer must receive the information in sufficient time
to record and display the information for workers and handlers.
4. Costs and benefits. EPA has estimated the cost of the
information exchange requirements to be negligible because the existing
rule already requires handler employers and agricultural employers to
collect and exchange information. The changes in the final rule are
minor and offer flexibility for employers. The information the
agricultural employer must give the handler employer has been
clarified. EPA has made minor changes to the information the handler
employer must give the agricultural employer. The timing to notify the
agricultural employer of most changes to the information has remained
the same as the existing regulation, i.e., before the application
begins. In the final rule, two changes provide the handler employer
flexibility. If the product changes or the application is made later
than originally scheduled, the handler employer must notify the
agricultural employer within two hours of the end of the application.
If the only change was a difference of less than one hour between the
scheduled and actual application times, notification is not required.
EPA expects these changes will ensure that the agricultural
employer provides workers and handlers with accurate application
information, which was problematic under the existing rule, and
maintains accurate application records. The information exchanged and
the timing of notification of changes of actual applications from
scheduled applications remains essentially unchanged. Although
notification can be given after the fact if a different pesticide
product is applied or the application is completed after it was
scheduled, this change does not make the WPS any less protective of
workers, handlers and others. The agricultural employer will still have
the essential information needed to know when and where to keep
workers, handlers and others out of areas to be treated during and
after treatment, and the revised information will be available in time
for proper medical treatment if needed. The cost of including
additional details is reasonable compared to the improved ability of
workers and handlers to identify areas where pesticides are being
applied or have recently been applied.
IX. Drift-Related Requirements
The requirements discussed in this section are intended to decrease
the number of incidents in which workers and other persons are exposed
to pesticides through unintentional contact during application. Drift
is the off-site movement through the air of pesticide droplets or
particles originating from pesticides applied as liquids or dry
materials. Workers errantly in the area being treated may be directly
exposed to pesticides during application. In addition, bystanders (both
workers and non-workers) located outside a treated area may be exposed
when pesticide droplets or particles move outside the area being
treated through the air during and/or immediately after the pesticide
application. As used here, the term ``drift'' includes both of these
modes of exposure, but does not include off-site movement of pesticide-
imbedded soil-borne particles by wind or vapor drift through
volatilization of applied pesticide, although these are often
categorized as ``drift'' in other contexts. EPA has developed
methodologies for assessing the risks to bystanders from exposure to
pesticides from drift and also from volatilization, and addresses risks
of concern and other issues via the registration review process. The
purpose of the requirements discussed in this section is to prevent
workers and other persons from being exposed to pesticides by
unintentional contact during application. The term ``drift'' is used as
shorthand in this section to refer to unintentional exposure from both
direct exposures to workers in the area being treated and drift
exposures to workers and bystanders.
A. Overarching Performance Standard
1. Current rule and proposal. The existing WPS includes two related
requirements that prohibit a pesticide from being applied in a way that
contacts workers or other persons. Agricultural products subject to the
WPS must have this statement on the label: ``Do not apply this product
in a way that will contact workers or other persons, either directly or
through drift. Only protected handlers may be in the area during
application.'' 40 CFR 156.206(a). Also, the existing WPS requires the
handler employer and the handler to assure that no pesticide is applied
so as to contact, either directly or through drift, any worker or other
person, other than an appropriately trained and equipped handler. These
requirements prohibit application in a way that contacts workers or
other persons both on and off the agricultural establishment where the
pesticide is being applied.
EPA did not propose any changes to the label statement. EPA
proposed several minor wording changes to the WPS requirement for the
handler employer and the handler, but the impact of the proposed
requirement would be the same as under the existing WPS.
2. Final rule. EPA has finalized the proposed changes to the
requirement for the handler employer and handler with a minor change.
The final rule changes the language from the proposed ``handler located
on the establishment'' to ``handler involved in the application.'' As
with the existing rule, the final rule prohibits contact to workers and
other persons regardless of whether or not they are on the agricultural
establishment. The final regulatory text for this requirement is
available at 40 CFR 170.505(a). There are no changes to the label
statement at 40 CFR 156.206(a).
3. Comments and responses.
Comments. Many commenters, including states and their
organizations, grower associations, farm bureaus and pesticide
manufacturer associations, stated that the existing two requirements
adequately protect workers and bystanders from exposure during
applications. These commenters opposed the other drift-related
requirements that EPA proposed (entry-restricted areas for farms and
forests and the requirement to suspend applications under certain
conditions) as unnecessary, asserting the proposed requirements do not
provide any additional protection.
Many respondents from states and their organizations, grower
associations, farm bureaus and pesticide manufacturer associations
commented that EPA's risk assessments and pesticide labels include
conservative protections for applicators, handlers, workers and
bystanders. Some of these commenters argued that the existing
restrictions on the labels, including REIs and pesticide-specific
buffers, provide sufficient protection to workers and bystanders.
Many respondents from all commenter types commented on incidents
where workers or bystanders reported being contacted by pesticides that
were being applied. Some of these incidents involve workers in the
areas where pesticides were applied and other incidents involve workers
or bystanders being exposed to pesticides that drifted off the target
site. Many of the commenters cited three broad studies that looked at
data from SENSOR-
[[Page 67521]]
Pesticides and California's Pesticide Illness Surveillance Program
(Refs. 10, 11 and 12). Other commenters cited specific incidents of
exposure from drift or workers in the area being treated being sprayed
directly. Some applicator and pesticide manufacturer associations cited
state data showing that there has been a decrease in drift complaints
over time, dropping from an average of 333 complaints per year
nationwide (from 1996 through 1998) to an average of 247 complaints per
year (from 2002 through 2004).
EPA response. EPA disagrees with the assertion that the ``do not
contact'' requirements, along with the other protections on pesticide
labels, are by themselves sufficient to protect workers and bystanders
from being directly contacted by pesticides that are applied. First,
many commenters cited incidents where people were directly exposed to
pesticide applications, even if there was disagreement about how
regularly these types of incidents happen. Second, EPA's risk
assessments and registration decisions are based on the premise that
the WPS protections effectively prevent people (workers and bystanders)
from being sprayed directly (Ref. 13). In other words, incidents where
workers or bystanders are sprayed directly result in people being
exposed to pesticides in a way that is not considered in EPA's risk
assessments or registration decisions. These types of incidents are
misuse violations but they continue to occur, as described in the
following sections. Therefore, there is a need to supplement the
existing WPS protections to reduce exposures to workers and other
persons from being directly sprayed with pesticides.
There is no one solution that can prevent all drift incidents and
it will take a comprehensive approach, including additional regulatory
requirements, education, outreach, and some common-sense voluntary
measures to further reduce the number of people who are directly
exposed to pesticide spray/applications. The additional regulatory
requirements include revised requirements for entry restrictions during
pesticide applications and for handlers to suspend applications in
certain circumstances. Common-sense voluntary measures include a grower
talking to his/her neighbors to let them know when pesticides are being
applied so the neighbors can keep workers and others away from the
boundary of adjacent establishments during that time, and participating
in voluntary communication programs such as Spray Safe (http://www.spraysafe.org/) and Drift Watch (https://driftwatch.org/). EPA
intends to include information about good management practices as well
as the regulatory requirements during outreach for implementation of
the final rule. It is also worth noting that EPA is working to assess
and mitigate any product-specific risks from exposure to pesticides
from drift and from volatilization within the registration review
process.
B. Entry Restrictions To Protect Workers and Other Persons During
Application
1. Current rule and proposal. The existing WPS establishes entry-
restricted areas adjacent to treated areas that apply during pesticide
application for nurseries and greenhouses only. The existing rule
requires that the agricultural employer must not allow or direct any
person, other than an appropriately trained and equipped handler, to
enter or remain in the entry-restricted area during a pesticide
application in a nursery or greenhouse. The size of the entry-
restricted area depends on the type of product applied and the
application method. The entry restrictions for greenhouses also include
ventilation requirements. The existing entry restriction requirement
applies only within the boundaries of the agricultural establishment.
The existing provisions at 40 CFR 170.110 regarding entering entry-
restricted areas during application are different than the existing
provisions at 40 CFR 170.112 regarding entry into treated areas after
the application of a pesticide and before the REI specified on the
pesticide labeling has expired.
EPA proposed to establish entry-restricted areas during pesticide
applications on farms and in forests, while slightly modifying the
requirement for entry-restricted areas for nurseries and greenhouses.
EPA proposed two types of entry restrictions: One for enclosed space
production, which would apply to greenhouses and other types of indoor
production operations (e.g., mushroom houses, hoop houses, polyhouses),
and one for outdoor production, which would apply to farms, forests and
nurseries. In addition, EPA proposed to define the entry-restricted
area as the area from which workers or other persons must be excluded
during and after the pesticide application.
2. Final rule. In regard to enclosed space production (e.g.,
greenhouses, mushroom houses, hoop houses), EPA has finalized the
requirements for entry restrictions during pesticide applications with
several minor changes. For the most part, the final rule incorporates
the existing entry restriction and ventilation requirements for
greenhouses as the requirements for enclosed space production. The
final rule deletes the term ``entry-restricted area'' and adjusts the
descriptions of the application types to be consistent with the changes
to the description of application exclusion zones for outdoor
production. In addition, EPA changed the definition of ``enclosed space
production'' to clarify that it applies only to areas with non-porous
covering, so structures with a covering made of fencing or fabric to
provide shade on plants (no walls) such as shade houses, are not
considered enclosed spaces under the final rule. See the discussion of
definitions in Unit XVIII.C. of this document for more information
about the changes to this definition.
In regard to outdoor production (e.g., farms, forests, nurseries,
shade houses), the final rule differs substantially from EPA's proposed
requirements. The final rule makes the following changes from the
proposal:
Replacing the phrase ``entry-restricted area''
with ``application exclusion zone'' to make it more distinct from the
requirements regarding REIs. The final regulatory text for this
requirement is available at 40 CFR 170.405(a).
Revising the corresponding definition to clarify
that the application exclusion zone exists only during (not after) a
pesticide application. The final regulatory text for this definition is
available at 40 CFR 170.305.
Revising the corresponding definition and
regulatory description of an application exclusion zone so it is a
specified distance from the application equipment rather than from the
edge of the treated area, and clarifying that the application exclusion
zone moves with the application equipment. The final regulatory text
for this requirement is available at 40 CFR 170.405(a)(1).
Revising some of the application methods in the
description of the application exclusion zone to reflect current
application methods and to differentiate the distances based on the
spray droplet size rather than pressure. The final regulatory text for
this requirement is available at 40 CFR 170.405(a)(1).
Adding a provision to the regulatory text to
clarify that any labeling restrictions supersede the requirements of
the WPS, including those related to application exclusion zones. This
was discussed in the preamble of the proposed rule (Ref. 2 at 15490)
but was inadvertently left out of the proposed regulatory text. The
final regulatory text for this requirement is available at 40 CFR
170.303(c) and 170.317(a).
3. Comments and responses.
[[Page 67522]]
Comments--supporting the proposal or more stringent measures. Many
commenters, including farmworker advocacy organizations, public health
organizations, and a state, generally supported the proposed
requirement for entry-restricted areas. The commenters stated that the
proposed change should provide modest improvements in protecting
workers from pesticide drift during application if there is enough
training and education of applicators. One farmworker advocacy
organization described an incident where workers were in a field
topping tobacco at the same time a plant growth regulator with a 24-
hour REI was being applied to the adjacent row. The workers were close
enough to have to move out of the path of the tractor. However, because
the treated area was defined to be only the rows being treated, this
was permissible under the existing WPS. Many commenters provided other
examples of incidents where workers were unintentionally exposed
directly to the pesticide spray. A few farmworker advocacy
organizations commented that many workers say that they have felt the
spray of pesticides from fields close to where they work. A farmworker
advocacy organization commented that in 2012, about 20% of farmworkers
in New Mexico reported to the organization that pesticides were applied
to the fields at the same time that they were working. Another
farmworker advocacy organization stated that about half of the child
tobacco workers interviewed by the organization in 2013 reported that
they saw tractors spraying pesticides in the fields in or adjacent to
the ones where they were working.
Many farmworker advocacy organizations and several public health
organizations argued that EPA should revise the approach for entry
restrictions to protect workers on neighboring property and to increase
the length of the entry-restricted area. The recommended distances
ranged from 60 to 200 feet for ground application and 300 feet to a
mile or more for aerial application. EPA responded to some of these
suggestions in its response to ``Pesticides in the Air--Kids at Risk:
Petition to Protect Children from Pesticide Drift (2009)'' (Ref. 13).
Comments--opposing the proposal. Many states and their
organizations, grower organizations, farm bureaus, applicator
organizations, agricultural producer organizations, pesticide
manufacturer organizations, and the Small Business Administration's
Office of Advocacy opposed the proposed requirement to apply the entry-
restricted areas to farms and forests. Most of these commenters argued
that the approach is too complicated because it establishes another
area to be controlled that varies by application type, may include
persons other than those employed by the agricultural establishment and
may be different than label restrictions. (Note: Some of the comments
appear to reflect a misunderstanding of the proposal, i.e., that the
entry-restricted areas would be ``buffer zones'' that would remain in
effect after the application was complete.) Some states and their
organizations commented that the requirement to keep individuals out of
varying widths of areas surrounding treated areas would be difficult
for an agricultural employer to implement and even more difficult for a
state to enforce.
Most of these commenters asserted that the proposed requirement to
apply entry-restricted areas to farms and forests would present some
logistical issues that could effectively shut down parts of the
establishment. For example, many ground and aerial pesticide
applications occur along rural roads or near access points to the
agricultural establishment. These roads and access points would be
within the proposed entry-restricted areas. On larger fields, pesticide
applications could take several hours to complete. Commenters claimed
that prohibiting workers from using these roads or gaining access to
farm buildings for long periods of time would be impractical and could
have an adverse economic impact. Many of the commenters stated that EPA
did not account for the cost of stopping business during some pesticide
applications. As an example, one grower organization opposed the
``worker buffers'' because they could take a lot of area out of
cultivation on smaller farms, farms with widely varied crop maturities
and farms that are not laid out in large blocks. Instead of arbitrary
buffers, this commenter argued to keep the standard as it is--do not
apply where workers are present and do not allow spray (or drift) to
contact workers.
Comments on application types and distances. Some commenters
addressed the specific application methods and the distances of 100
feet and 25 feet in the proposed entry-restricted areas. Some states,
grower organizations, agricultural organizations and pesticide
manufacturer organizations commented that the distances of 25 to 100
feet are not supported by drift reduction technologies, applicator
standard operating procedures or incident data. A state commented that
the table of application methods and distances is flawed because it
does not account for all application scenarios and does not logically
apply distances.
EPA Response. Based on the comments, EPA has made some changes in
the final rule from the proposed requirement to extend entry-restricted
areas to farms and forests. However, experiences such as those of
workers having to move to get out of the way of the tractor that was
applying pesticide (described previously) and workers being directly
sprayed confirm EPA's position that additional protections are
necessary during pesticide applications on farms and in forests. The
existing WPS prohibits a farm or forest agricultural employer from
allowing or directing any worker to enter or remain in a treated area,
which is defined to include areas being treated. The existing
regulations require oral notifications before pesticide applications to
include the location and description of the treated area, the time
during which entry is restricted and instructions not to enter the
treated area until the REI has expired. The existing regulations
require handler employers to ensure that pesticides are applied in a
manner that will not contact a worker either directly or through drift.
Inasmuch as these requirements--clearly intended to prevent direct
exposure of workers during pesticide applications--have proven
insufficient for that purpose, additional measures are needed.
EPA has changed the final rule in several ways to address some of
the concerns expressed in the comments about the logistical problems
with the proposal. First, in the final rule EPA replaced the term
``entry-restricted area'' with ``application exclusion zone,'' which
more clearly associates this restriction with the period during the
pesticide application. This new term is also less likely to be confused
with the term ``restricted-entry interval.'' Second, EPA revised the
requirements for the application exclusion zone so that it is not based
on the ``treated area,'' but instead a specified distance from the
application equipment. The application exclusion zone is essentially a
horizontal circle surrounding the application equipment that moves with
the application equipment. For example, if a pesticide is applied
aerially, the border of the application exclusion zone is a horizontal
circle that extends 100 feet from the place on the ground directly
below the aircraft, and moves with the aircraft as the application
proceeds.
Because the application exclusion zone is based on the location of
the application equipment, rather than the location of the treated
area, the application exclusion zone could extend
[[Page 67523]]
beyond the boundary of the agricultural establishment. However, in 40
CFR 170.405(a)(2), the final rule limits the requirement for the
agricultural employer to keep workers and other persons out of the
treated area or the application exclusion zone during application to
areas that are within the boundaries of the agricultural establishment,
as proposed. The existing entry-restricted area requirement for
nurseries is also limited to areas that are within the boundaries of
the agricultural establishment. EPA retained the existing and proposed
limitation because this requirement applies to the agricultural
employer. The agricultural employer can control what happens on the
agricultural establishment but could have difficulty limiting access to
roads or fields that are beyond his property.
The comments reflected a general lack of understanding that the
proposed entry-restricted areas would exist only during application,
and many comments anticipated conflicts between no-spray buffers on
some pesticide labels and the proposed entry-restricted area. However,
these are two different types of requirements. If a label specifies a
``no-spray'' buffer, pesticide cannot be applied in that area at any
time. Under the final rule, a pesticide can be applied in an
application exclusion zone, and the requirement for agricultural
employers is to keep workers and other people out of this zone during
the pesticide application. These two types of requirements are
distinct, and as a result should not be problematic to implement.
EPA reassessed the application methods and distances in the
proposed requirements for entry-restricted areas for outdoor production
and made some changes in the description of application exclusion zones
in the final rule in Sec. 170.405(a)(1). The final rule maintains the
proposed distances of 100 feet and 25 feet but revises the application
methods associated with each distance.
The application methods that have an application exclusion zone of
100 feet are the ones where pesticide is expected to move a longer
distance from where they are applied. The changes include:
Adding air blast applications, to more
accurately and more broadly describe current application methods.
Deleting pesticides applied as an aerosol
because it is unnecessary.
Including pesticides applied as a spray using a
spray quality (droplet spectrum) of smaller than medium (volume median
diameter less than 294 microns). The volume median diameter refers to
the midpoint droplet size or mean, where half of the volume of spray is
in droplets smaller, and half of the volume is in droplets larger than
the mean. EPA chose to establish this criteria based on the spray
quality rather than just the pressure because the drop size depends on
a number of variables, including the pressure, the nozzle type, liquid
properties, and the spray angle. Focusing on the spray quality, rather
than pressure, is also consistent with EPA's voluntary Drift Reduction
Technology program and current models of drift used in EPA's risk
assessments.
The application methods that have an application exclusion zone of
25 feet are the ones where pesticide is expected to move a shorter
distance from where they are applied. The changes include:
Replacing several of the proposed criteria with
pesticides applied as a spray using a spray quality (droplet spectrum)
of medium or larger (volume median diameter of 294 microns or larger).
Eliminating the criterion based on the product
label requiring a respirator because it is intended to apply to
enclosed spaces like greenhouses and was accidentally included in the
proposed criteria for outdoor production.
The corresponding changes to application methods were made to the
Table--Entry Restrictions During Enclosed Space Production Pesticide
Applications at 40 CFR 170.405(b)(4) for consistency.
EPA acknowledges that some pesticide labels will have restrictions
that apply during applications that are different than the application
exclusion zones. For example, the restrictions on soil fumigant labels
are more restrictive than the application exclusion zone of 100 feet
specified in Sec. 170.405(a)(1)(i)(D). In situations like this,
pesticide users must follow the product-specific instructions on the
labeling. As stated in Sec. Sec. 170.303(c) and 170.317(a), when 40
CFR Part 170 is referenced on a pesticide label, pesticide users must
comply with all of the requirements in 40 CFR Part 170, except those
that are inconsistent with product-specific instructions on the
pesticide product labeling.
C. Suspend Application
1. Current rule and proposal. As discussed in Unit IX.A., the
existing WPS requires handler employers and handlers to assure that no
pesticide is applied so as to contact, either directly or through
drift, any worker or other person, other than an appropriately trained
and equipped handler. However, the existing WPS does not include an
explicit requirement for handlers to stop or suspend application. EPA
proposed to add a provision to require a handler performing a pesticide
application to immediately stop or suspend the pesticide application if
any worker or other person, other than an appropriately trained and
equipped handler, is in the treated area or the entry-restricted area.
Based on the description of entry-restricted areas in the proposed
rule, the requirement for handlers to stop or suspend application in
certain circumstances would apply only within the boundaries of the
agricultural establishment.
2. Final rule. In the final rule, EPA has made several changes to
the proposed requirement to suspend applications. First, EPA revised
the language to require a handler to ``immediately suspend a pesticide
application'' rather than to ``immediately stop or suspend a pesticide
application'' to clarify that the application must be suspended but can
be restarted once workers or other persons are out of the zone. Second,
EPA changed the area that is covered by the requirement to suspend
application in two ways. EPA replaced ``entry-restricted area'' with
``application exclusion zone,'' decreasing the size of the area that is
covered by the requirement. See Unit IX.B. Also, EPA removed the
treated area from the requirement. For outdoor production, the area
covered by the requirement is much smaller than the area that would
have been covered by the proposed rule, which would have been the
treated area plus up to 100 feet beyond the edge of the treated area.
Third, the application exclusion zone can extend beyond the boundaries
of the agricultural establishment for the purposes of this requirement,
i.e., the handler must suspend application if any person other than
another handler involved in the application is in the application
exclusion zone, regardless of whether the application exclusion zone
extends off of the employer's property.
The final rule requires the handler performing the application to
suspend application if people who should not be present are in the
application exclusion zone (which ranges up to 100 feet from the
application equipment for outdoor production) or in the area identified
for exclusion for enclosed space production (which ranges from 25 feet
to the entire enclosed space plus any adjacent structure that cannot be
sealed off.) The final regulatory text for this requirement is
available at 40 CFR 170.505(b).
3. Comments and responses.
Comments. Some commenters, including farmworker advocacy
organizations, public health organizations, academics, and a state
[[Page 67524]]
generally supported the proposed requirement for applicators to stop or
suspend pesticide applications under certain conditions. A farmworker
advocacy organization supported the proposed requirement, stating that
current rules do not provide meaningful guidance on how applicators can
prevent human exposure during applications. Some other commenters from
farmworker advocacy organizations, public health organizations and
public health agencies supported the proposed requirement but urged EPA
to extend the protections to workers at neighboring establishments.
Many of these commenters provided information suggesting that workers
may be more likely to be affected by drift from a different
establishment. For example, commenters cited a Washington Department of
Health report that documented 43 workers in Washington being affected
by drift from another farm while only 13 workers reported being
affected by drift from the farm where they were working in 2010-2011.
In comments arguing against the need for entry-restricted areas, some
applicator organizations provided examples supporting the requirement
to suspend applications, stating that it is standard operating
procedure for aerial applicators to temporarily avoid making passes
adjacent to roads or other areas if workers happen to be passing by in
vehicles or on foot.
Many states and their organizations, grower organizations, farm
bureaus, applicator organizations, agricultural producer organizations
and pesticide manufacturer organizations opposed the proposed
requirement for handlers to stop or suspend pesticide applications in
certain circumstances. Most of these commenters argued that the
provision is unnecessary because it would not offer any protections or
prevent contact from pesticide applications beyond the existing ``do
not contact'' requirement. Some commenters raised logistical concerns:
Applicators may not be aware that a person has entered a treated area
or entry-restricted area in many situations, such as in a forest or an
orchard in full leaf, in a very large field, or if there are restricted
sight lines or rolling hills; the proposed requirement would impose
unwarranted expectations for pilots, who would have to be fully aware
of boundaries 100 feet on all sides of the target area while traveling
at 150 mph; as proposed, an applicator would have to stop if a person
is in an entry-restricted area even if it is not possible for that
person to encounter pesticides because of wind conditions.
A few grower organizations and farm bureaus commented that there is
a difference between stopping and suspending an application and asked
whether this would require applicators to cease application altogether
or suspend the application until a person is no longer in the area.
EPA Response. As stated in the proposal, EPA has identified a need
to supplement the ``do not contact'' performance standard because
exposure to drift or direct spray events still happen despite the ``do
not contact'' requirement, and EPA's risk assessments and registration
decisions presume that no workers or other persons are being sprayed
directly. Therefore, the final rule includes an explicit requirement
for handlers to suspend pesticide applications under certain
conditions, which mandates applicators to take specified actions to
prevent exposing people to pesticide during applications.
However, EPA revised the final rule in response to several points
made by commenters. First, the final rule requires a handler to
``immediately suspend a pesticide application'' rather than to
``immediately stop or suspend a pesticide application.'' This change
was made to clarify that the application must be suspended immediately
if workers or persons other than handlers are in the specified areas
but can be restarted once workers or other persons are out of the
specified area.
EPA was persuaded by the commenters who raised logistical concerns
about the proposed requirement, which were related to the handler not
being able to see the person or a person entering an edge of a large
area that is not near the application equipment. EPA revised the
requirement in the final rule to decrease the size of the area that the
handler must monitor for workers or persons other than handlers by
removing the treated area from the area covered by this requirement and
by changing the ``application exclusion zone'' so it is measured from
the application equipment rather than from the edge of the treated
area. In the final rule, the handler performing the application must
suspend application if any of the identified people are in the
application exclusion zone (which ranges up to 100 feet from the
application equipment) rather than if any of the people are in the
entire treated area plus that distance (up to 100 feet) from the edge
of the treated area.
EPA was also persuaded by the comments and incident information
about workers at neighboring establishments being directly contacted by
drift. The incidents cited by commenters show that workers are directly
exposed to pesticide applications from neighboring establishments as
well as from the establishment where they are working. To reduce the
number of incidents where workers are exposed to drift from neighboring
establishments, the final rule extends the application exclusion zone
beyond the boundaries of the agricultural establishment for this
requirement, thus requiring applicators to immediately suspend
applications if people other than a properly trained and equipped
handler are in the application exclusion zone.
EPA has decided to extend the application exclusion zone beyond the
boundaries of the agricultural establishment for the requirement to
suspend applications for several reasons. First, this addresses more of
the worker drift cases, where workers are within 100 feet of the
agricultural establishment to protect more workers. Out of 17 incidents
identified in the comments, only one would have been prevented if the
application exclusion zone was limited to the boundaries of the
agricultural establishment as provided in the proposed rule. The
requirement in the final rule would have prevented at least four of the
incidents reported in the comments, and possibly as many as 12,
depending on the actual distances between the workers and application
equipment, which were not specified in the comments. Second, the
existing requirement that the handler must assure the pesticide is
applied in a way that does not contact workers or other persons already
extends beyond the boundary of the agricultural establishment. The new,
explicit requirement to suspend application if people other than
handlers are in the application exclusion zone is intended to
supplement the existing ``do not contact'' requirement by giving the
applicator specific criteria for suspending application. These specific
criteria should be equally useful to applicators attempting to comply
with the existing ``do not contact'' requirement beyond the boundaries
of the agricultural establishment. Third, the application exclusion
zone would extend a maximum of 100 feet beyond the boundary of an
agricultural establishment only for the length of time it takes for the
equipment applying the pesticide to pass by, so this should not shut
down roads or access points to the establishment for long periods of
time.
[[Page 67525]]
To reiterate a point made in Unit IX.B., the final rule does not hold
agricultural employers responsible for keeping workers and other
persons out of portions of the application exclusion zone that extend
beyond the boundaries of the agricultural establishment. On the other
hand, this provision in Sec. 170.505(b) of the final rule imposes a
requirement on the handler applying the pesticide to immediately
suspend the application if workers or persons other than handlers
involved in the application are in the application exclusion zone,
whether on the establishment or beyond the boundaries of the
establishment.
D. Costs and Benefits
1. Costs. In the proposal, EPA estimated the cost for restricting
entry to areas adjacent to an area being treated would be negligible.
EPA assumed that employers could generally reassign workers to other
tasks for the duration of the pesticide application in instances where
worker tasks in the adjacent areas had to be stopped until the
application was complete. In the proposal, EPA estimated the cost of
the requirement to suspend application would be negligible because it
essentially clarifies an existing requirement. In the final rule, EPA
estimates the costs of both requirements remains negligible.
2. Benefits. EPA believes both of the drift-related requirements
discussed in this section of the preamble will help reduce the number
of exposures of workers and other non-handlers to unintentional contact
to pesticide applications. Therefore, the benefits of these
requirements outweigh the negligible costs.
X. Establish Minimum Age for Handling Pesticides and Working in a
Treated Area While an REI Is in Effect
A. Current Rule and Proposal
The existing regulation does not establish any age restriction for
handlers or early-entry work. EPA proposed to prohibit persons younger
than 16 years of age from handling pesticides, with an exception for
handlers working on an establishment owned by an immediate family
member. EPA requested comment on an alternative option of prohibiting
any person under 18 years old from handling pesticides.
The existing WPS establishes conditions for when a worker may enter
into a treated area under an REI. The conditions are related to the
type of work performed (often referred to as ``early-entry'' tasks) and
the length of time the worker may be in the treated area. However, the
existing WPS establishes no minimum age for workers entering a treated
area under an REI to perform early-entry tasks. EPA proposed to
prohibit any worker under 16 years old from entering a treated area
under an REI to perform early-entry tasks, with an exemption from this
prohibition for persons covered by the immediate family exemption. EPA
requested comment on an alternative option of prohibiting any person
under 18 years old from entering treated areas during the REI to
perform early-entry tasks.
B. Final Rule
The final rule prohibits persons younger than 18 years old from
handling pesticides. EPA has retained the proposed exemption for
handlers working on an establishment owned by an immediate family
member. The final regulatory text for the prohibition is available at
40 CFR 170.309(c) and 170.313(c). The final regulatory text for the
exemption is available at 40 CFR 170.601(a)(1)(i).
The final rule prohibits persons younger than 18 years old from
entering treated areas during the REI to perform early-entry tasks, and
retains the proposed exemption for persons working on an establishment
owned by an immediate family member. The final regulatory text for this
prohibition is available at 40 CFR 170.309(c) and 170.605(a). The final
regulatory text for the exemption is available at 40 CFR
170.601(a)(1)(xii).
C. Comments and Responses
Comments. Many commenters requested that EPA establish a minimum
age of 18 for handlers and early-entry workers. Commenters cited
several reasons for their request. First, many commenters noted that
adolescents' bodies are still developing and they may be more
susceptible to the effects of pesticide exposure. Second, commenters
noted that adolescents are less mature and their judgment is not as
well developed as that of adults. This immaturity may mean that
adolescents may be less consistently aware of risks associated with
handling pesticides or entering a treated area while an REI is in
effect, that they may not adequately protect themselves or other
workers from known risks, and that spills, splashes, and improper
handling practices may be more likely. A few commenters submitted
studies related to development of maturity and decision-making skills
in adolescents in support of this assertion. Third, commenters asserted
that restricting handling activities to persons at least 18 years old
could result in higher potential economic benefit from avoiding
exposure and any potentially related chronic effects to children,
because they have a longer potential life span. Fourth, because
information on the potential chronic effects of pesticide exposure on
developing systems is not known, commenters recommended that EPA
prohibit adolescents from handling pesticides and entering treated
areas while an REI is in effect as a precaution until it can be shown
that they would not suffer adverse chronic effects from potential
exposure. Finally, a few commenters noted that persons under 18 years
old are protected in other industries by OSHA and should receive
similar protections under the WPS, and that some states have already
prohibited handling of pesticides in agriculture by anyone under 18
years old.
Some commenters expressed support for a minimum age of 16. States
primarily supported EPA's proposal to establish a minimum age of 16,
noting that establishing a minimum age of 18 would require them to
change their state laws. Other commenters supporting the proposed
minimum age of 16 noted that this requirement would align with DOL's
restriction on handling pesticides in toxicity categories I and II in
agriculture.
A few commenters opposed establishing any minimum age. These
commenters asserted that EPA should not take any action because the
DOL's hazardous occupations orders under the Fair Labor Standards Act
(FLSA) already prohibit adolescents under 16 years old from handling
pesticides in toxicity categories I and II in agriculture with limited
exceptions. Some commenters also assert that establishing any minimum
age for pesticide handlers is a matter that should be handled by the
states, not EPA.
Some commenters requested that EPA eliminate the exception from any
minimum age requirement for members of the owner's immediate family.
Commenters assert that adolescents' developmental status does not
differ if they are an employee on a farm owned by an immediate family
member or by someone unrelated to them. Other commenters supported
EPA's proposal or requested that EPA establish a higher minimum age
only if EPA also retains the exception for members of the owner's
immediate family.
EPA Response. Based on the comments received and an evaluation of
existing literature related to adolescents' development of maturity and
judgment, EPA has decided that the benefits of further reductions in
adolescent pesticide exposures justify their cost; the final rule
generally prohibits persons under 18 years old from
[[Page 67526]]
handling pesticides or entering a treated area while an REI is in
effect. EPA recognizes that adolescents' bodies and judgment are still
developing. While studies have not demonstrated a clear cut off point
at which adolescents are fully developed, literature indicates that
their development may continue until they reach their early to mid-20s.
EPA also agrees that research has shown that adolescents may take more
risks, be less aware of the potential consequences of their actions on
themselves and others, and be less likely to protect themselves from
known risks. All of this information supports establishing a higher
minimum age than proposed in order to allow those handling pesticides
to develop more fully before putting themselves, others, and the
environment at risk, and to allow those performing early-entry
activities to develop more fully in order to adequately protect
themselves from the risks of entering a treated area while an REI is in
effect. The final rule will reduce the potential for misuse by
adolescent handlers who may less consistently exercise good judgment
when handling agricultural pesticides.
EPA notes commenters' assertions that avoiding pesticide exposure
in adolescents could result in higher potential economic benefit
because of adolescents' longer potential lifespans. EPA agrees that it
is appropriate to take reasonable precautions to protect adolescents
from pesticide exposures, both because of the potential impact of
pesticides on further development and because adolescents may not
properly appreciate (and take appropriate steps to avoid) the risks of
potential pesticide exposure. While statistical associations have been
observed in studies that estimate the relation between pesticide
exposure and chronic health outcomes such as cancer, the causal nature
of these associations has not yet been determined; thus quantifying the
magnitude of the chronic health risk reduction expected as a result of
pesticide exposure reduction is not possible. However, based on what is
known about the potential for biologically active chemicals generally
to disrupt developmental processes, it is reasonable to have heightened
concern for adolescents under the age of 18 in situations where they
face particularly high pesticide exposures. Prohibiting adolescents
under the age of 18 from handling agricultural pesticides will protect
them from any potential risks of pesticide use through handling
activities, ensuring that adolescents do not suffer unreasonable
adverse effects from handling agricultural pesticides. Prohibiting
adolescents under 18 years old from entering a treated area while an
REI is in effect will protect them by delaying their entry into treated
areas until residues are at a level that should not cause unreasonable
adverse effects.
EPA recognizes that DOL prohibits persons under 18 years old from
engaging in hazardous tasks in other industries, and that some states
have taken action to prohibit certain adolescents from handling
pesticides in agriculture (state minimum ages for pesticide handlers,
where established, range from 16 years old to 18 years old). These
examples of protections for adolescents in other industries or by
states indicate a recognition that different standards for certain
adolescents and adults are appropriate.
EPA disagrees with commenters' assertions that EPA should defer to
the states or the FLSA and not establish any age-related restrictions
on pesticide handling or early-entry activities. EPA has the
responsibility under FIFRA to regulate the use of pesticides to avoid
unreasonable adverse effects, apart from any requirements established
by other federal or state laws. The DOL's actions under the FLSA
limiting the use of certain pesticides to persons at least 16 years old
do not preclude EPA from taking actions to ensure that human health and
the environment are protected from unreasonable adverse effects. While
DOL's hazardous occupations order prohibiting those under 16 years old
from handling certain pesticides satisfies the purposes of the FLSA,
those purposes are distinct from those of FIFRA. EPA has concluded that
because, as discussed previously, adolescents' bodies, maturity, and
judgment are still developing, the handling of agricultural pesticides
and entry into a treated area while an REI is in effect by persons
under 18 years old presents an unreasonable likelihood of adverse
effects. Therefore, the final rule generally limits pesticide handling
and early-entry activities to persons who are at least 18 years old.
EPA agrees that adolescents' developmental status does not differ
if they are employees on a farm owned by an immediate family or by
someone unrelated to them. However, EPA recognizes that imposing a
minimum age for handling agricultural pesticides or performing early-
entry tasks on owners or members of their immediate families could
significantly disrupt some immediate family-owned farms. Given the high
social cost of imposing a minimum age requirement on owners and members
of their immediate families on farms owned by members of the same
immediate family, EPA has finalized the proposed exemption to this
requirement.
4. Costs and benefits. EPA estimates the cost of requiring handlers
and early-entry workers to be at least 18 years old would be $3.1
million annually. EPA estimates that, on average, the cost would be
about $8 per agricultural establishment per year. The cost per
commercial pesticide handling establishment per year is estimated to be
over $360. The estimated cost of the final requirement is likely to be
overstated, particularly for commercial pesticide handling
establishments, because EPA made some very conservative assumptions
regarding the amount of time an adolescent works.
EPA cannot quantify the benefits associated with this specific
proposal. However, this requirement would improve the health of
adolescent handlers, as well as other workers and handlers on the
establishment and the environment. It would also improve the health of
adolescent workers by reducing their potential for exposure to
pesticides in a treated area when an REI is in effect. As discussed in
the preamble to the proposed rule, adolescents' judgment is not fully
developed. Restricting adolescents' ability to handle pesticides will
lead to less exposure potential for the handlers themselves, and less
potential for misapplication that could cause negative impacts on other
handlers or workers on the establishment, as well as the environment.
XI. Restrictions on Worker Entry Into Treated Areas
A. Requirements for Entry During an REI
1. Current rule and proposal. The existing WPS establishes specific
exceptions to the general prohibition against sending workers into a
treated area while an REI is in effect. Workers who enter pesticide-
treated areas during an REI (known as ``early-entry workers'') without
adequate protection may face an elevated risk from pesticide exposure.
Under the existing rule, the employer must: Ensure that the worker has
read or been informed of the human health hazards on the product
labeling; provide instruction on how to put on, use, and remove PPE;
stress the importance of washing after removing the PPE; and instruct
the worker on how to prevent, recognize, and treat heat-related
illness. The employer must also implement measures to prevent heat
related illness when workers must wear PPE.
In addition to these existing requirements, EPA proposed to require
[[Page 67527]]
employers to inform workers sent into a treated area while the REI is
in effect of the specific exception under which they would enter, to
describe the tasks permitted and any limitations required under that
exception, and to identify the PPE required by the labeling. EPA also
proposed to require the employer to create a record of the oral
notification provided to early-entry workers, to obtain the signature
of each early-entry worker acknowledging the oral notification prior to
the early entry, and to maintain the record for 2 years.
2. Final Rule. EPA has finalized the proposed requirements for the
employer to inform the worker of the type of exception which permits
the entry into the area under an REI, to describe the tasks that the
worker may perform and other limitations under the exception, and to
identify the PPE that must be worn. However, EPA has decided not to
require employers to create or maintain records of the oral
notification. The final regulatory text for this requirement is
available at 40 CFR 170.605.
3. Comments and responses.
Comments on oral notification. Comments on the proposal to inform
workers of the early entry exception and to explain the PPE were
largely supportive, recognizing the reasonable nature of the proposed
information. Commenters in support of the proposal included a pesticide
manufacturer organization and farmworker advocacy organizations. One
public health organization supported the proposal, but recommended that
the requirement be modeled after OSHA's confined space regulations, to
include: Specific training for early entry, a requirement for workers
to be provided respirators and other necessary PPE, written emergency
rescue procedures and resources in case of an overexposure or other
mishap, on-site monitoring of the worker from outside the entry zone,
and recordkeeping of each entry.
Several agricultural producer organizations and pesticide
manufacturer organizations supported the proposal, but expressed
concern for the requirement for employers to manage heat stress.
EPA Response. EPA has decided not to amend the final rule based on
OSHA's confined space regulations. OSHA's definition of a confined
space is one in which there is limited or restricted means for entry or
exit. These characteristics exacerbate any hazard to the employee, in
that the employee could be overcome by a toxic atmosphere or by
physical engulfment, such as in a grain storage bin, and be unable to
quickly exit. EPA recognizes a similar potential for pesticide handlers
making fumigant applications in greenhouses to be overcome by the
fumigant. The WPS provides protections for such scenarios by requiring
PPE, including respirators where required by the label, and continuous
monitoring by a handler outside of the treatment area. The handler
entering the greenhouse would have specific instructions on the labeled
hazards. The monitoring handler must have access to the PPE required by
the product labeling in case they would need to enter the greenhouse
for rescue of the applicator. However, except for the use of fumigants,
which have specific label requirements because of their increased
potential for inhalation risk, the more common scenario of a worker
entering a treated area on a farm, forest, or in a nursery during the
REI would not pose such risks from a toxic atmosphere. It is unlikely
that there would be an environment that could concentrate the pesticide
and produce a potentially life-threatening environment. The predominant
component of exposure during work in a treated area where an REI is in
effect is dermal, with rare exceptions. Specific information about the
entry must include the human health hazards on the pesticide labeling,
explanation of the required PPE and the proper way to wear and remove
PPE, description of the tasks that may be performed and any limitations
on the time permitted in the area. Workers directed to enter a treated
area during the REI must have had the pesticide safety training so they
may protect themselves. Employers must provide the PPE required by the
product label for early entry to minimize exposure. Employers must
provide early entry workers with the decontamination supplies
appropriate for pesticide handlers.
EPA agrees with commenters that heat stress can be a problem for
workers in warm, humid climes and when employees must wear PPE. EPA
notes that requirements related to heat stress for early entry workers
are already included in the existing rule at 40 CFR170.112(c)(6)(x) and
170.112(c)(7).
Comments in opposition to the early-entry exceptions. A number of
farmworker advocacy organizations voiced opposition, in general, to
most or all of the early entry exceptions in the existing rule,
suggesting that workers should not be required to enter treated areas
under an REI, due to risk of exposure.
EPA Response. In deciding whether to allow workers to enter treated
areas prior to the expiration of the REI, EPA considered the risk to
the workers and the benefits from the early-entry activities. In each
case, EPA determined that the potential risks to properly trained and
equipped early-entry workers are reasonable in comparison to the
significant economic impacts from delaying necessary activities,
provided that the required limitations to each exception are observed.
Comments on recordkeeping of oral notification. One farmworker
advocacy organization supported the recordkeeping requirement, stating
that the ``proposed changes will ensure early entry workers are
adequately informed about the risks of the work they are asked to do.''
In contrast, several states and their organizations expressed concern
for the recordkeeping requirement, stating that it is not practical and
would result in technical violations, such as failures to obtain the
necessary signatures, without enhancing worker protection.
EPA Response. EPA was convinced by the rationale provided by the
states that the requirement for records of notification to early-entry
workers was too burdensome for agriculture, while adding little or no
protections for the workers. There is typically some urgency to the
need for entry into a treated area while the REI is in effect; the
added burden to create records during this time could be unreasonable
as it would not necessarily increase protection of early-entry workers.
EPA retained the requirement for employers to provide protective
information to early-entry workers, but did not include the proposed
recordkeeping requirement because it is unclear that such records would
improve the transmission of information.
B. Clarify Conditions of the ``No Contact'' Exception
1. Current rule and proposal. The existing WPS allows workers to
enter areas while an REI is in effect for activities that do not result
in contact with any treated surfaces. In the proposal, EPA sought to
clarify the ``no contact'' requirement of the exception by explaining
that performing tasks while wearing PPE does not qualify as ``no
contact.'' The proposal offered three examples of acceptable ``no
contact'' activities.
2. Final rule. EPA has finalized the proposed clarification. The
final rule adds to the exception the following language: ``This
exception does not allow workers to perform any activities that involve
contact with treated surfaces even if workers are wearing personal
protective equipment.'' The final regulatory text for this requirement
is available at 40 CFR 170.603(a)(1).
3. Comments and responses.
[[Page 67528]]
Comments. One farm bureau stated that workers are prevented from
having contact with pesticides and their residues through the medium of
PPE.
EPA Response. Although PPE--when properly fitted, worn, removed,
cleaned and maintained--can provide significant protection against
pesticide exposures, it does not eliminate exposure. The variation in
exposure reduction offered by various types of PPE can be seen in EPA's
``Exposure Surrogate Reference Table'' (http://www.epa.gov/opp00001/science/handler-exposure-table.pdf). Use of PPE for activities
involving contact with pesticide-treated surfaces does not reduce risks
to the same level as no-contact activities. EPA has finalized the ``no
contact'' exception as proposed because the PPE appropriate for early
entry into treated areas under this exception is appropriate only for
activities that do not involve contact with treated surfaces.
C. Limit ``Agricultural Emergency'' Exception
1. Current rule and proposal. The existing WPS permits entry into a
treated area during an REI when a state, tribal, or federal agency
having jurisdiction declares the existence of conditions that could
cause an agricultural emergency. EPA proposed that only agricultural
emergency determinations by EPA, state and tribal pesticide regulatory
agencies, and state departments of agriculture, could authorize early
entry under the agricultural emergency exception.
In addition, EPA proposed to limit the time a worker may be in the
treated area under the agricultural emergency exception when the label
of the product used to treat the area requires both oral and written
notification (``double notification''). Under the existing rule, there
is no time limit; EPA proposed to establish allowing workers to be in a
treated area under this exception for a maximum of 4 hours in any 24
hour period.
2. Final rule. EPA has finalized the proposal, with one change. The
final rule does not include EPA as an agency with authorization to
declare the existence of conditions that could cause an agricultural
emergency because EPA decided that States and Tribes are best situated
to decide what conditions in their respective jurisdictions could
constitute an agricultural emergency. The final regulatory text for
this requirement is available at 40 CFR 170.603(c).
3. Comments and responses.
Comments on restricting the declaration of an agricultural
emergency. One state supported the proposal, but recommended broadening
it to include the state governor. Another state found the proposal
satisfactory. One grower organization opposed the proposal, stating
that pre-approval to enter the treated area would be cumbersome and
unnecessary if the criteria are clearly defined and documented. Another
grower organization and a farm bureau from the same state expressed
concern that this change would seriously impact growers' ability to
enter a treated area to manage fires, fix broken irrigation and
chemigation pipes, and address other problems that could pose risks to
adjacent public areas and cause crop loss. These commenters recommended
that EPA develop guidance to instruct relevant municipal agencies such
as local fire departments to declare agricultural emergencies.
Commenters also suggested that there is a need for entities other
than EPA, state departments of agriculture and the state pesticide
regulatory agencies to declare agricultural emergencies. In the
examples provided by commenters, fires and broken irrigation or
chemigation pipes could pose risks to the public and the crop.
EPA Response. As described in the preamble to the proposed rule,
EPA noted that entities other than the state pesticide regulatory
agencies, state departments of agriculture, and EPA might not have the
background and technical expertise to assess the benefits and risks to
workers from the entry while the REI is in effect, and might not
understand the statutory requirement to consider both risks and
benefits when establishing conditions for early-entry workers. EPA
decided not to include state governors as an entity authorized to
declare an agricultural emergency because it is not necessary; a state
governor could direct the state department of agriculture or pesticide
regulatory agency to determine whether conditions that could result in
an agricultural emergency exist.
The need for pre-approval for conditions that may result in an
agricultural emergency is a requirement in the existing rule. EPA has
responded to the concern of the grower organization through its
Interpretive Guidance Workgroup on the existing WPS, which clarified
that state pesticide regulatory agencies may establish guidance or
regulations describing the circumstances that could constitute an
agricultural emergency and for which entry into areas under an REI is
permitted. If a grower determines that such conditions exist at a site,
then workers may enter the area while the REI is in effect under the
agricultural emergency exception, consistent with applicable
restrictions.
EPA has decided not to expand the declaring agencies to include
municipal agencies such as local fire departments, but will work with
state pesticide regulatory agencies and departments of agriculture to
support identification of circumstances that could constitute an
agricultural emergency in their jurisdictions. EPA recommends that
these entities identify, in their states, local conditions that could
constitute such emergencies. Through state regulation or by policy,
these agencies may pre-approve entry when such conditions occur.
D. Codify ``Limited Contact'' and ``Irrigation'' Exceptions
1. Current rule and proposal. EPA established ``limited contact''
and ``irrigation'' exceptions as administrative exceptions in 1995.
Although these exceptions are noted in the existing rule at 40 CFR
170.112(e)(7), the terms and conditions of these exceptions are not
included in the existing rule. These exceptions permit entry into a
treated area during the REI for certain non-hand labor activities,
including irrigation. The existing exception for irrigation requires
that the need for the early entry be unforeseen.
EPA proposed to incorporate the terms and conditions for these
exceptions into the final rule, and to eliminate the requirement for
the need for irrigation to be unforeseen.
2. Final rule. EPA has finalized the rule as proposed. The final
regulatory text for this requirement is available at 40 CFR 170.603(d).
3. Comments. Two farm bureaus specifically supported the
codification of the limited contact and irrigation exceptions.
E. Eliminate the Option for an Exception Requiring Agency Approval
1. Current rule and proposal. Under the existing rule, an applicant
may request approval from EPA for an exception to the prohibition on
worker entry into a treated area during the REI for a specific need.
EPA proposed to eliminate the process for requesting an exception from
the rule.
2. Final rule. EPA is finalizing the proposal to eliminate the
provision for exceptions requiring Agency approval.
3. Comments and responses.
Comment. One grower opposed the elimination of the provision,
citing the evolution of farming practices and the potential for
conflict between new practices and the rule. The commenter
[[Page 67529]]
stated that there is no administrative burden to the EPA, except to
evaluate requests if they are submitted.
EPA Response. EPA included the administrative exception process
into the WPS in 1992 in recognition that the general prohibition on
routine early entry might significantly affect various agricultural
entities or practices in ways that might only become apparent as the
1992 WPS was put into effect. EPA created a small number of exceptions
during the 1990s, but none since 1997. The effects of reentry intervals
on agricultural entities and practices are now sufficiently well
understood that the administrative exception process is no longer
needed in the WPS. As explained in the preamble to the proposed rule,
EPA finds the pesticide re-evaluation process a more appropriate venue
than the WPS for considering the economic impacts of REIs on particular
agricultural entities and practices. Under EPA's registration review
process, applicants may request alternative REIs for specific needs for
their crop. This process takes into account the potential increased
risk to workers and the benefits to the production of the crop. In
cases where EPA finds that the revision of an REI is warranted, the
product label will be amended to specify the REI for that particular
use.
F. Costs and Benefits
1. Costs. EPA estimates the cost of implementing the requirement
for oral notification prior to workers' entry into a treated area under
an REI to be about $706,000 per year, or about $2 per establishment
annually. EPA estimates that the revisions to the exceptions allowing
entry into a treated area before the REI expires would have negligible
cost, if any.
2. Benefits. EPA concludes that the benefit of providing detailed
information about the tasks they are to undertake and the limitations
on their exposure to the worker prior to entry into an area under an
REI is reasonable compared with the cost.
XII. Display of Pesticide Safety Information
A. Pesticide Safety Information Content
1. Current rule and proposal. The existing rule requires employers
to display a pesticide safety poster containing the following
information:
Avoid getting on your skin or into your body any
pesticides that may be on plants and soil, in irrigation water, or
drifting from nearby applications.
Wash before eating, drinking, using chewing gum
or tobacco, or using the toilet.
Wear work clothing that protects the body from
pesticide residues (long-sleeved shirts, long pants, shoes and socks,
and a hat or scarf).
Wash/shower with soap and water, shampoo hair,
and put on clean clothes after work.
Wash work clothes separately from other clothes
before wearing them again.
Wash immediately in the nearest clean water if
pesticides are spilled or sprayed on the body. As soon as possible,
shower, shampoo, and change into clean clothes.
Follow directions about keeping out of treated
or restricted areas.
There are federal rules to protect workers and
handlers, including a requirement for safety training.
The existing rule also requires the employer to provide contact
information for the nearest emergency medical care facility and to
promptly update the safety information poster when any of the required
contact information changes.
EPA proposed changing the term for what employers must display from
``pesticide safety poster'' to ``pesticide safety information.'' EPA
proposed retaining the existing content requirements of the existing
rule, with one exception. EPA proposed removing the item regarding
federal rules to allow the other information to be more prominent. EPA
proposed retaining the requirement to display the contact information
for the medical facility and amending the language from ``nearest
emergency medical care facility'' to ``a nearby operating medical
facility.'' Finally, EPA proposed requiring the employer to provide on
the display the name, address, and telephone number of the state or
tribal pesticide regulatory agency.
2. Final rule. EPA has finalized the proposed requirements for
content, and has added a point to the proposed display requirements
that advises workers and handlers to seek medical attention as soon as
possible if they believe they have been made ill from pesticides. EPA
has also amended one of the existing required points to clarify that if
pesticides are spilled or sprayed on the body, workers and handlers
should rinse immediately in the nearest clean water if more readily
available than the decontamination supplies, and should wash with soap
and water as soon as possible. The final rule refers to the requirement
as ``pesticide safety information'' and allows display of the
information in any format that meets the requirements of the rule,
rather than only as a pesticide safety poster. EPA has included a
requirement in the final rule for the employer to update the pesticide
information display within 24 hours of notice of any changes to the
medical facility or pesticide regulatory agency contact information.
Finally, EPA has provided an option in the regulatory text that allows
employers to comply by following the requirements at 40 CFR
170.311(a)(1)-(4) before they are fully implemented. The final
regulatory text for these requirements is available at 40 CFR
170.311(a)(1)-(4).
The final rule delays implementation of the changes to the required
pesticide safety information until two years after the rule is made
final, in order to allow time for model pesticide safety information
display materials to be developed and distributed.
3. Comments and responses.
Comments. Farmworker advocacy groups and public health
organizations supported the emergency medical care change and inclusion
of the state or tribal agency responsible for enforcement. However,
they urged implementation sooner than the proposed two years from the
effective date of the final rule. One commenter reported that a recent
survey they conducted indicated that 25% of respondents did not
complain about pesticide-related health problems or pesticide
applications to the fields while they were working because they did not
know to whom to complain and 62% feared losing their jobs if they were
to complain.
In general, agricultural producer organizations did not object to
the proposed changes for providing emergency medical information but
two commenters were concerned about spurious reporting of alleged
violations resulting from inclusion of the state or tribal regulatory
agency in the pesticide safety information. Two commenters interpreted
the proposal as requiring injured workers to contact state or tribal
agencies responsible for enforcement for emergency medical attention. A
grower organization pointed out that the nearest operating medical
facility might change depending on the time of day and wondered if they
needed to list hours of operation and addresses of all emergency
medical care facilities in the area where the employer operates.
One commenter suggested the safety poster should always be in a
standardized format and requested that EPA not allow the information to
be displayed in several different formats.
EPA Response. EPA has concluded that there was general support for
the proposed requirement regarding the content of the safety
information display. EPA has delayed implementation of the final
requirements for two years after
[[Page 67530]]
publication of the final rule to allow time for display material to be
updated, printed and distributed. However, EPA encourages employers to
implement the new requirements prior to that date by allowing employers
the option to use the new safety information content.
In response to concerns about the placement of the medical facility
information and the inclusion of regulatory agency information in the
display, EPA has revised the regulatory text to clarify that the
contact information about the medical facility must be clearly
identified as the emergency medical contact information on the display.
Displaying the regulatory agency information is important for the
ability of workers and handlers to report possible violations, and in
those states where it is already required, it does not appear to have
generated spurious reporting of alleged violations. EPA appreciates
that some states may already require employers to make such medical and
regulatory information available and where state requirements meet or
exceed the federal requirement, they do not need to be duplicated.
However, EPA has added this requirement to the WPS to ensure the
information is available to workers and handlers in all states.
EPA is finalizing the proposed requirement to identify a nearby
operating emergency medical care facility to simplify the requirement
in situations where the nearest operating emergency medical facility
varies with the location of workers and handlers.
EPA disagrees with the comment requesting that the information be
displayed in a standardized format. As long as the information is
provided in a way that workers and handlers can understand, EPA sees no
need to mandate a specific format.
B. Location of Pesticide Safety Information Display
1. Current rule and proposal. The existing rule requires
agricultural and handler employers to display the pesticide safety
poster at a central location on the establishment. EPA proposed to
require that agricultural employers display the pesticide safety
information at locations where decontamination supplies must be
provided, in addition to the existing requirement to display it at a
central location.
2. Final rule. In the final rule, EPA has amended the proposal to
require that in addition to displaying pesticide safety information at
a central location, employers must also display it at permanent
decontamination supply locations and where decontamination supplies are
provided in quantities to meet the needs of 11 or more workers or
handlers. The final regulatory text for this requirement is available
at 40 CFR 170.311(a)(5).
3. Comments and responses.
Comments. Farmworker advocacy organizations and public health
organizations supported requiring display of pesticide safety
information where decontamination supplies are provided for easy access
to safety information for farm workers and families at strategic
locations. They asserted that this would improve the ability of
farmworkers and their families to stay healthy. They maintained that
due to language barriers, immigration status, and fear of retaliation,
farmworkers are often reluctant to ask their employers for information.
Three individual farmworkers also commented on the proposed rule and
echoed concerns expressed by farmworker advocacy groups and public
health organizations. The commenters requested clear information in
Spanish and English at a central location with easy access that
includes telephone numbers, places to go for help, and hospitals in the
area. They stated that it was important that employers give farmworkers
the necessary information about the pesticide application without
workers having to ask for information. About half of the grower
organizations commenting had no objection to the additional mandate on
employers and agreed that the additional reminders at decontamination
sites have potential benefits.
The remaining grower organizations believed that the proposed
requirement would pose a significant burden. One commenter stated that
duplicating the pesticide safety information at multiple sites
throughout an agricultural organization did not equate to a better
training program and believed this requirement would likely result in
additional fines for noncompliance without raising safety awareness.
Some pointed out that workers are bused in for a day in the field and
irrigators are sent to different areas by phone; none of these
congregate at a central location.
Many states opposed displaying the pesticide safety information at
decontamination sites. Because of the mobile nature of many
decontamination sites, such as the back of a pickup truck, some noted
the proposed requirement would be burdensome. One indicated that it
would be difficult for a grower owning fields across multiple counties
to keep the pesticide safety information accurate. They generally
supported displaying the pesticide safety information at permanent
decontamination sites and base of operation mix/load sites. Several
states asked for clarification about what types of decontamination
sites would be required to display the pesticide safety information and
suggested that portable toilet facilities and plumbed wash sites would
be more appropriate locations.
Others mentioned the lack of protection from the weather of the
pesticide safety information at OSHA-required restroom facilities and
the lack of access to this information when the vehicles carrying
decontamination supplies are locked up at night. Two states recommended
different sizes for the pesticides safety information. One state
suggested that pesticide safety information displays be no larger than
11 x 17 inches and laminated to withstand at least one year's worth of
weather conditions for use at decontamination sites; this state also
recommended resizing the existing pesticide safety information to 8.5 x
11 inches or less and made of durable card stock or plastic for the
agricultural workers to take home.
EPA Response. EPA agrees with the commenters who supported
requiring safety information displays at a central location and
anywhere decontamination supplies must be provided because the
information is a useful reminder of the hygienic safety principles from
their training. However, EPA was persuaded by arguments that the burden
to display the information at mobile decontamination sites could be
substantial, based on concerns for their ability to display the
information so that it could be easily seen by workers, such as by
posting it on a vertical surface. The final rule requires employers to
display the information at the central display and all permanent sites,
including a lavatory or bathroom, where decontamination supplies are
provided to meet the requirements of the rule. However, for other
locations where decontamination supplies must be provided, the
pesticide information display is required only when the supplies are
provided for 11 or more workers or handlers. This aligns with OSHA's
field sanitation standard that requires toilet facilities for 11 or
more workers. EPA notes that employers may use these portable toilet
facilities or permanent wash sites to display the information, as
recommended by some states.
EPA does not agree with the contention that requiring the pesticide
safety information display at multiple locations would result in fines
for noncompliance, without greatly benefiting the employee. The
pesticide safety information display reinforces the
[[Page 67531]]
hygienic training principles from the safety training, and when coupled
with access to decontamination supplies, offers a hands-on opportunity
for workers and handlers to adopt these practices. Additionally,
information about medical facilities available to workers where they
may be exposed to pesticides may help them take steps to respond to an
emergency.
EPA appreciates the comments regarding display size and options for
lamination. The final rule does not establish a specific size for the
information or require it to be laminated. However, the final rule
requires the information to be legible at all times while it is
displayed, and EPA expects that employers will opt for the optimal size
and protection from the elements for their specific needs. Because the
final rule limits the type of decontamination sites covered by this
requirement and includes flexibility for identifying the regulatory
agency and a nearby operating emergency medical care facility, it is
possible but unlikely that some growers with larger establishments may
need to provide different specific contact information about the
regulatory agency and/or the medical facility, depending on the area
where workers or handlers are working.
Commenters suggested the information be available in English and
Spanish. EPA notes that the requirement is for the information to be
provided in a manner that the workers and handlers can understand,
which may include making it available in English and Spanish, or in
other languages as appropriate.
EPA plans to develop and make available to agricultural and handler
employers posters bearing the pesticide safety information, in a
bilingual and pictorial format and with space for employers to add the
required regulatory agency and medical facility information. As
discussed in the proposed rule, the information does not have to be
displayed as a poster as long as the display includes the required
information and meets the requirements of the section.
C. Costs and Benefits
1. Costs. EPA estimates the cost of requiring additional pesticide
safety information displays at permanent sites with decontamination
supplies and at other locations where there are 11 or more workers or
handlers and of requiring contact information on the display to be
updated to be $390,000 annually, or about $1 annually per establishment
per year.
2. Benefits. Workers and handlers will benefit from having access
to information about basic pesticide safety at locations they are
likely to visit. In addition, workers and handlers will benefit from
having accurate information about nearby medical facilities and how to
contact the state regulatory agency if necessary. EPA finds the costs
from this requirement are reasonable when compared to the benefits of
reminding employees about basic pesticide safety and hygienic practices
at the sites where they routinely wash.
XIII. Decontamination
A. Clarify the Quantity of Water Required for Decontamination
1. Current rule and proposal. The existing rule requires employers
to provide ``enough water for routine washing and emergency eye flush''
when workers are performing activities in areas where a pesticide was
applied and the REI has expired. For early-entry workers, the existing
WPS requires employers to provide ``a sufficient amount of water'' for
decontamination. The existing WPS requires employers to provide
handlers with ``enough water for routine washing, for emergency eye
flushing and for washing the entire body in case of an emergency.'' EPA
proposed to require specific quantities of water for workers, early-
entry workers and handlers based on its 1993 guidance, ``How to Comply
with the Worker Protection Standard for Agricultural Pesticides; What
Employers Need to Know.'' In the guidance, EPA recommended one gallon
of water per worker for routine decontamination, three gallons of water
for early-entry workers for decontamination and three gallons of water
per handler for routine handwashing and potential emergency
decontamination.
EPA requested comment on the proposed quantities of water and the
use of waterless cleansing agents in place of soap, water, and single-
use towels. EPA also requested information on the efficacy of waterless
cleansing agents for removing pesticide residues.
2. Final rule. EPA has finalized the proposed decontamination water
requirements. EPA has also clarified that employers must make the
required quantities of water and other decontamination supplies
available at the beginning of the work period. The final rule does not
allow waterless cleansing agents to be used in place of water, soap,
and single-use towels. The final regulatory text for these requirements
is available at 40 CFR 170.411(b), 170.509(b) and 170.605(h).
3. Comments and responses.
Comments. A majority of commenters supported the proposal to
require one gallon of water per worker for routine decontamination,
three gallons of water for early-entry workers for decontamination and
three gallons of water per handler for routine washing and emergency
decontamination but many requested clarification of the time frame
associated with the supply; they wondered if the prescribed amounts
were the maximum quantity per site or per number of workers, the
minimum amount at the beginning of the day or at all times during the
work period. Six commenters were in favor of replacing soap and water
with a waterless cleansing agent. One commenter noted such a
substitution would be effective for workers but not handlers; another
suggested that these agents might be less bulky than the existing
required supplies. One commenter provided information on a specific
waterless cleansing agent.
EPA Response. EPA notes that the proposed quantities of water for
decontamination are intended for agricultural settings that are not
subject to the field standards of OSHA and the American National
Standards Institute (ANSI). Based on comments, EPA has clarified the
final rule to require that the specified amount of supplies be
available at the beginning of the work period and that they are to be
calculated per worker and per handler. The final rule does not require
the replenishment of used supplies until the beginning of the next work
period. The information supplied by commenters was insufficient to
convince EPA to replace water, soap, and single-use towels with a
waterless cleansing agent. The one waterless cleansing agent discussed
in the comments had limited use since the information indicated it
could be used to remove only one family of pesticides; workers and
handlers are likely to encounter residues from various families of
pesticides.
B. Eliminate the Substitution of Natural Waters for Decontamination
Supplies
1. Current rule and proposal. For sites where worker or handler
activities are farther than one-quarter mile from the nearest vehicular
access, the existing rule permits employers to allow workers and
handlers to use clean water from springs, streams, lakes or other
sources (``natural waters'' for the purposes of this section) for
decontamination, if such water is more accessible than the employer-
provided water. The employer must ensure any water used for
decontamination, including natural waters, is of a quality and
temperature that will not cause illness or injury. EPA
[[Page 67532]]
proposed to eliminate the provision that allows employers to permit
workers and handlers to substitute natural waters for the required
decontamination supplies at remote sites. For remote sites, the
proposal would have maintained the existing requirement for employers
to provide all decontamination supplies (soap, single-use towels, clean
change of clothing and water) at the nearest point of vehicular access.
However, the existing regulation does not permit substitution of waters
from natural sources for the decontamination water at the point of
nearest vehicular access, and EPA's proposed change mischaracterized
the existing requirements.
2. Final rule. In the final rule, EPA has removed from the
regulatory text the provision that allows employers to permit workers
and handlers to use clean water from springs, streams, lakes or other
sources if that water is more accessible in remote locations where the
decontamination supplies are farther than one-quarter mile from where
workers and handlers are working. EPA is taking this approach to remove
confusion about the employer's responsibilities. The employer must
always provide the decontamination supplies in quantities outlined in
the regulation. When workers or handlers are performing tasks at remote
sites more than one-quarter mile from the nearest point of vehicular
access, employers must provide all required decontamination supplies
(soap, single-use towels, and water, plus clean change of clothing if
required) at the nearest point of vehicular access. Under the final
rule, employers are required to make the decontamination supplies
available as close as possible to the remote site (as determined by how
close a vehicle can get) and employers do not have to check or confirm
that water from springs, streams, lakes or other sources at remote
sites meets the standard of being of a quality and temperature that
will not cause illness or injury. EPA has amended the training
requirements to cover the proper use of natural waters at remote sites
by workers and handlers. EPA believes that workers and handlers in
these remote areas should primarily rely on the decontamination water
that is provided by the employer for routine washing and emergency
decontamination because the quality of the natural waters at the remote
site is unknown. In case of an overexposure, such as a spill, contact
from drift, or direct spray, workers and handlers should always use the
emergency decontamination supplies if they are more readily available.
However, training will emphasize that workers or handlers should rinse
immediately using the nearest source of clean water to mitigate the
exposure, and to use the nearest source of clean water, including
springs, streams, lakes or other sources, if more readily available
than the decontamination supplies. Workers and handlers will be advised
through training that as soon as possible they should decontaminate
thoroughly with the soap, water and towels provided by the employer
and, if available, change into clean clothes. EPA plans to modify
training materials to incorporate this information. The final
regulatory text for worker and handler decontamination is available at
40 CFR 170.411(b)(1), 170.509(b)(1), and 170.605(h)-(j).
3. Comments and responses.
Comments. Many commenters supported not using natural waters to
replace the required decontamination supplies. Two states, a farmworker
advocacy organization, and a grower organization supported the need for
employees to access the nearest clean water in case of an exposure.
Some farmworker advocacy organizations expressed concern that the
quality of the natural waters might be questionable and not the best
choice for decontamination.
Finally, one farm bureau commenter stated that large scale planting
activities can place workers more than one-quarter mile from vehicular
access, and retaining the existing requirement is more reasonable than
expecting workers to carry washing water with them.
EPA Response. EPA maintains its position that the employer-provided
decontamination supplies, provided within one-quarter mile of the
workers and handlers--or in remote areas, at the nearest point of
vehicular access to worker and handler work sites--are the appropriate
supplies for routine washing and emergency decontamination. The
employer must ensure this water meets the minimum criteria for quality.
However, EPA agrees with commenters that prompt washing in clean water
is an important step in reducing overexposure, for example, from a
spill, contact from drift, or direct spray. EPA has identified acute
incidents that would have been mitigated if the exposed worker or
handler had decontaminated promptly. EPA is concerned that the existing
requirements for employers to ensure the quality of natural waters
prior to its use and for them to permit its use will prevent workers
and handlers from using these waters to decontaminate in case of an
emergency. Ensuring the quality of all natural waters on their
establishment could be burdensome for employers, and as a result they
might not evaluate the quality or permit the use of natural waters.
To ensure that workers and handlers needing emergency
decontamination can use water that is more accessible than the
decontamination water provided by the employer, the employer no longer
must predetermine that the quality of the water meets the criteria or
permit their employees access. The rule permits the use of natural
waters for emergency decontamination, but does not require it. Workers
and handlers seeking to mitigate an emergency exposure will be informed
in their training to use the nearest clean water to immediately rinse
off if such water is more readily available than the employer-provided
decontamination supplies, and then go to where the employer-provided
supplies are to fully decontaminate. EPA believes the benefits of using
natural clean waters to decontaminate immediately in an emergency
pesticide exposure situation outweighs the potential risks of making
workers or handlers wait until they can use supplied decontamination
water that has been evaluated for quality but may be less available to
immediately address the exposure. EPA thinks that washing in natural
waters in any agricultural area is unlikely to pose risks comparable to
a significant direct pesticide exposure.
C. Requirements for Ocular Decontamination in Case of Exposed Pesticide
Handlers
1. Current rule and proposal. The existing rule requires employers
to provide ``enough'' water to handlers for routine and emergency
washing and emergency eye flushing. For handlers who use products that
require eye protection, employers must provide each handler with at
least one pint of water that they can carry for use in the event of an
ocular pesticide exposure. EPA proposed to require employers to provide
clean, running water at permanent (i.e., plumbed and not portable)
mixing and loading sites for handlers to use in the event of an ocular
pesticide exposure when using a pesticide with labeling that requires
eye protection.
2. Final rule. Under the final rule, employers must provide water
for ocular decontamination either through a system capable of
delivering 0.4 gallons/minute for at least 15 minutes or from six
gallons of water able to flow gently for about 15 minutes. This water
must be available at all mixing and loading sites where handlers are
mixing or loading a product that requires eye
[[Page 67533]]
protection or when closed systems, operating under pressure, are in
use. The final rule amends the existing requirement for employers to
provide at least one pint of water per handler in portable containers
that are immediately available to handlers applying the pesticide,
rather than to all handlers mixing, loading and applying pesticides, if
the pesticide labeling requires protective eyewear. The final
regulatory text for these requirements is available at 40 CFR
170.509(d).
The term ``potable'' in the preamble and regulatory text for the
proposed rule was a typographical error and has been corrected to
``portable'' in the final rule.
3. Comments and responses.
Comments. There was general support for this proposal. Many
commenters urged EPA to adopt or coordinate with American National
Standards Institute (ANSI) standard Z358.1-2009 and/or the OSHA
requirements, 29 CFR 1928.110, as several states have done. Many
requested a definition of ``permanent mixing and loading site'' and ``a
system capable.'' Some qualified their support based on the inclusion
of ``nurse rigs,'' ``nurse tanks'' and ``gravity-fed tanks'' in the
final rule. Commenters also explained that much of the mixing and
loading is done in the field rather than at a site with running water.
Other commenters wondered if the water for decontamination needed to be
potable.
EPA Response. The OSHA standard at 29 CFR 1910.151(c) specifies
that ``. . . where the eyes or body of any person may be exposed to
injurious corrosive materials, suitable facilities for quick drenching
or flushing of the eyes and body shall be provided . . .''. The ANSI
standard provides specifications for two types of eyewash stations,
plumbed and gravity-fed. The specifications describe a system with a
precise rate of flow (0.4 gallons/minute for 15 minutes), that can
activate in 1 second or less and does not require the user to control
the flow of water. While the OSHA and ANSI standards are very
protective, EPA believes that the final rule requirements provide
handlers with mitigation appropriate to pesticide exposure in
agricultural settings at significantly lower costs than the ANSI
standards. Based on the comments, EPA realized that there might have
been some confusion regarding the nature of permanent mixing and
loading sites, the plumbing associated with non-permanent mixing and
loading sites, and the quality of the water required. In the final
rule, EPA decided to apply the requirements to all mixing and loading
sites where pesticides whose labeling requires protective eyewear are
handled because the risk to handlers who mix and load these products is
the same, regardless of where they perform the tasks. Rather than
specify what types of water tanks or eye wash systems would comply with
the requirement, EPA opted for flexibility. The final rule allows
employers to provide either at least 6 gallons of water in containers
suitable for providing a gentle eye flush for about 15 minutes, or a
system capable of delivering gently running water at a rate of 0.4
gallons per minute for at least 15 minutes to satisfy the requirement.
One emergency eyewash system is required at a mixing/loading site when
a handler is mixing or loading a product whose labeling requires
protective eyewear for handlers, regardless of how many handlers are
mixing or loading at that site. The final retains the existing
requirement for water to be of ``a quality and temperature that will
not cause illness or injury.''
D. Showers for Handler Decontamination
1. Current rule and proposal. The existing rule establishes
specific requirements for routine and emergency handler decontamination
supplies, but these requirements do not include shower facilities. EPA
considered but did not propose a requirement for handler employers to
provide shower facilities.
2. Final rule. EPA has not included in the final rule a requirement
for employers to provide shower facilities for handlers.
3. Comments and responses.
Comments. Many commenters supported the proposal for not providing
shower facilities for handlers while others requested that EPA require
employers to provide shower facilities for handlers. Those against
adding the shower requirement noted the provision would not necessarily
guarantee use in order to reduce take-home or handler exposure. Those
supporting a requirement for shower facilities indicated that handlers
would use them if they were provided. Both groups, however, agreed that
better training and adequate information on reducing take-home
exposure, as suggested by EPA, would be a better approach.
EPA Response. EPA agrees that additional training for handlers and
clarified decontamination provisions such as the provision of at least
3 gallons of water per handler for routine and emergency washing,
available at the beginning of the day, would help reduce take-home
exposure without requiring shower facilities. The estimate of the cost
of installing showers as provided in the proposal, combined with the
lack of confidence that most handlers would routinely use showers if
provided, led to the conclusion that a shower requirement would be
unlikely to reduce risks to an extent commensurate with the costs.
E. Costs and Benefits
1. Costs. EPA estimates the total cost of the revisions to the
decontamination requirements to be approximately $412,000 annually, or
about $1 per establishment per year, CPHEs $21 per establishment per
year.
EPA does not believe there will be any cost associated with
deleting the provision allowing employers to direct workers and
handlers to use natural waters in addition to the decontamination
supplies required by the rule. The final rule still allows workers and
handlers to use clean, natural waters, but removes employers'
obligation to ensure that the water is of a temperature and quality
that will not cause harm.
Because EPA is not imposing a requirement for employers to provide
shower facilities for handlers, there is no estimated cost. Refer to
the Economic Analysis of the proposed rule for details regarding the
estimated cost of requiring showers for handlers (Ref. 14).
2. Benefits. EPA expects that workers and handlers will benefit
from having access to sufficient supplies for routine washing and
decontamination. In addition, handlers will benefit by having
sufficient water available to rinse their eyes in the event of an
accident while mixing or loading certain pesticides. Employers will
benefit from certainty about the amount of water that they must supply
and when that water must be available.
XIV. Emergency Assistance
A. Current Rule and Proposal
The existing WPS requires employers of workers or handlers,
including those handlers employed by the agricultural establishment or
those working for a pesticide handling establishment, to provide prompt
transportation to an emergency medical facility to employees who have
been poisoned or injured by exposure to pesticides used on the
establishment. Emergency medical assistance under the existing rule
consists of the prompt provision of transportation to an emergency
medical facility for the worker or handler and the provision of
obtainable information about the exposure, including information about
the product(s) that may have been used, to emergency
[[Page 67534]]
medical personnel or the exposed employee.
EPA proposed to require agricultural and handler employers to
provide emergency medical assistance within 30 minutes after learning
that an employee may have been poisoned or injured by exposure to
pesticides as a result of his or her employment, replacing the current
standard of ``prompt.'' The proposed change was intended to ensure that
the potentially injured party would be on route to a medical facility
within 30 minutes.
EPA also proposed that the employer provide a copy of the pesticide
label, or specific information from the label, along with the SDS and
circumstances of the pesticide use and potential exposure, to employees
potentially injured by exposure to pesticides and to treating medical
personnel.
B. Final Rule
EPA has retained the existing requirement for providing
transportation and information promptly. The final rule clarifies that
these requirements apply only to current or recently employed workers,
and that emergency assistance must be provided if there is reason to
believe that a worker or handler has been potentially exposed to
pesticides or shows symptoms of pesticide exposure.
EPA has amended the requirement for the information that the
employer must provide related to emergency assistance. The final rule
requires the employer to provide to treating medical personnel a copy
of the SDS, product name, EPA registration number and active ingredient
for each pesticide product to which the person may have been exposed,
as well as the circumstances of application or use of the pesticide on
the agricultural establishment and the circumstances that could have
resulted in exposure to the pesticide. This is a slight change to the
existing rule which makes the information available to the worker or
handler. In this final rule, the worker or handler has access to the
information through the hazard communications requirement. This
provision deals specifically with meeting the needs for medical
assistance, and requires that the information be provided to the
medical personnel.
EPA has clarified in the final rule that the provision of the
emergency assistance requirement for transportation and information
applies only to currently employed workers seeking emergency medical
assistance or recently employed workers within 72 hours after their
employment for acute exposures occurring on the agricultural
establishment.
The final regulatory text for these requirements is available at 40
CFR 170.309(f) and 170.313(k).
Readiness is among the most important factors in an employer's
ability to promptly carry out the emergency assistance requirements.
EPA strongly encourages employers to develop an emergency response plan
and to address in such a plan details related to the emergency medical
assistance requirements of the WPS. EPA also encourages employers to
periodically test, evaluate and, if necessary, update the plan. EPA
will develop a sample plan to help employers prepare for possible
pesticide-related emergencies. Employers can also find additional
information concerning the development and implementation of an
emergency preparedness program at the U.S. Department of Homeland
Security's Web site, http://www.ready.gov/business/.
Although EPA believes that it is important for employers to develop
emergency response plans, EPA has not made this a requirement of the
final rule. EPA recognizes that pesticide exposure is just one of many
hazards that should be addressed in an emergency response plan, and
that EPA has very little information about the extent of emergency
planning in the agricultural community. Accordingly, EPA has decided
that it would be unwise to address this issue in the WPS without the
benefit of a more robust dialogue with all stakeholders.
C. Comments and Responses
Comments. Many private citizens and farmworker advocacy
organizations, some pesticide state regulatory agencies and several
public health organizations supported the proposal to require
agricultural employers and handler employers to provide emergency
medical assistance within 30 minutes after learning that an employee
may have been poisoned or injured by exposure to pesticides as a result
of his or her employment, replacing the current standard of ``prompt.''
They stated that the clarification of time for the provision of
transportation and information would improve the safety of farmworkers.
The Progressive Congressional Caucus, many farmworker advocacy
organizations and public health organizations expressed concern that
the proposed emergency response time of 30 minutes is too long and
recommended that it should be further reduced. Commenters reasoned that
pesticide poisoning can be fatal or result in long-term effects if not
quickly treated.
On the other hand, many commenters, mostly growers and farm
bureaus, and some states and agricultural producer organizations
expressed opposition to the proposal and favored retaining ``prompt ''
to allow more flexibility due to geographical constraints. The Small
Business Administration's Office of Advocacy stated that small farms
that are farther away from medical facilities would not be able to
obtain emergency transportation within the timeframe. Those with few
employees and limited transportation options would be overburdened in
attempting to comply with a 30 minute timeframe.
Commenters representing many states, several agricultural
industries, many growers and farm bureaus, and the Small Business
Administration's Office of Advocacy recommended that emergency response
requirements should apply only to current employees seeking emergency
medical assistance for acute incidents.
Additional comments from states and their organizations recommended
that the agriculture emergency requirement address only acute exposures
to current employees of the establishment. They raised concerns for the
potential for former employees or those with exposures in the past to
request emergency assistance. One commenter stated that allowing any
person who was ever employed by the establishment the ability to demand
emergency assistance could cause problems with compliance and
enforcement. Some of these organizations requested clarification of the
term ``emergency medical facility.''
Commenters also recommended that the requirement allow, similar to
OSHA, trained first aid providers on the establishment to provide care,
which could enable more timely treatment.
Commenters noted that requiring the employer to provide the label
to employees potentially injured by exposure to pesticides and to
treating medical personnel could lead to further exposure, if the
employee takes an open container of pesticides bearing the label.
Further, commenters suggested that the information outlined in the
proposal could be obtained from sources other than the label.
EPA Response. EPA was convinced by the concerns raised by members
of the agricultural community that geographical constraints, in some
cases, would make the 30 minute response timeframe for transportation
difficult or impossible to meet. Agricultural establishments can be
very large and are
[[Page 67535]]
often distant from population centers. Remote locations, including
those in forestry, are common; and the distance to an emergency medical
facility or to an ambulance service can be significant.
The final rule requires employers to comply with the emergency
assistance requirements by promptly making transportation available to
an emergency medical facility for potentially injured employees and
providing the SDS, specific product information, and information about
the exposure to the treating medical personnel. Because the information
about the pesticide may be critical to effectively manage the illness,
EPA decided to focus the requirement to ensure that treating medical
personnel receive the information. The agricultural employer must
provide that information in a way that is reasonably expected to be
accessible to the treating medical personnel. The requirement does not
preclude the employer providing the information to injured employees
and does not prevent injured employees from requesting this
information. This requirement will allow continued flexibility for
employers and encourage timely medical treatment for potentially
injured employees.
In deciding to retain the requirement for prompt provision of
transportation, EPA also took into consideration OSHA's standard for
the provision of transportation to persons in construction, which
requires ``Proper equipment for prompt transportation of the injured
person to a physician or hospital.'' 29 CFR 1926.50(e).
EPA agrees with the recommendation to clarify that the requirement
applies only to current or recently employed workers seeking emergency
medical assistance for acute exposures occurred at the agricultural
establishment, and has revised the final rule accordingly.
EPA notes that for some cases of suspected pesticide injury, the
attention of a trained first aid provider can mitigate the injury. Such
treatment would not negate the obligations of the employer to provide
transportation promptly to an injured employee, or to provide
information about the pesticide and exposure to medical personnel, but
is encouraged. Allowing a competent first aid provider to administer
timely treatment to an injured employee could offset complications from
longer exposures.
EPA agrees with comments that a requirement to provide the label in
the event of an emergency could be burdensome and place employees at
risk for additional exposure if the label is attached to an open
container of pesticides. EPA has not included the proposed requirement
to provide the label or information from the label; rather, the final
rule requires the employer to provide the necessary information, but
does not specify the source of the information. EPA has removed from
the list of specific pieces of information the employer must provide
information about antidote, first aid, and recommended treatment
because the SDS contains this information. EPA notes that the
information about the product and the SDS will be available as part of
the pesticide application and hazard information.
In response to the requests for clarification of what qualifies as
an emergency medical facility, EPA notes that a hospital, clinic, or
infirmary offering emergency health services qualifies.
Finally, the employer must provide information about the pesticide
and the exposure to the treating medical personnel.
D. Costs and Benefits
There are no incremental costs associated with the decision to
retain the requirement of prompt provision of transportation in the
existing rule. The cost associated with the SDS were included in the
costs for the pesticide application and hazard information. There are
significant benefits to reducing damage from pesticide exposure by
prompt medical attention.
XV. Personal Protective Equipment
A. Respirators: Fit Testing, Training and Medical Evaluation
1. Current rule and proposal. The existing regulation requires
handler employers to ensure that each handler's respirator fits
correctly. However, the existing rule does not provide specific details
on ensuring that a respirator fits properly, nor does it require
employers to conduct medical evaluations of the handler's fitness for
respirator use, provide training on the proper use of respirators, or
retain fit test records.
EPA proposed to require handler employers to comply with the
respirator fit testing, training, and medical evaluation requirements
set by OSHA at 29 CFR 1910.134 whenever a respirator other than a dust
or mist filtering mask is required by the labeling. EPA did not propose
any new requirements for filtering facepiece respirators (OSHA's term
for dust or mist filtering masks). The OSHA standard includes a
specific standard for fitting a user for respirator use, training on
recognizing when the respirator seal may be broken, and what steps to
take to properly use and maintain respirators. OSHA also requires
respirator users to be medically evaluated to ensure the respirator use
does not cause undue stress on their bodies. EPA proposed to require
that employers comply with the OSHA requirements for fit testing,
training, and medical evaluation by cross-referencing 29 CFR 1910.134,
in order to avoid creating a duplicative regulation and to ensure that
if technology advances lead OSHA to amend its standard, the change
would automatically apply to pesticide uses subject to the WPS as well.
EPA also proposed to require handler employers to maintain records of
the fit test, training, and medical evaluation for two years.
2. Final rule. EPA has retained the proposed elements in the final
rule, with some changes and clarifications. Specifically, the final
rule cross references and requires compliance with the OSHA standards
for fit testing, training, and medical evaluation when a respirator is
required by the labeling. The final rule expands from the proposal the
types of respirators covered by the requirement to include filtering
facepiece respirators. The final rule also adds an additional item to
the list of conditions that would trigger replacement of the gas- or
vapor-removing canisters or cartridges.
In the final rule, EPA has retained the proposed requirement for
handler employers to maintain records of the fit testing, medical
evaluation, and training. The final rule clarifies that the required
training is limited to the care and use of respirators, 29 CFR
1910.134(k)(1)(i)-(vi), and does not include the training on the
general requirements (i.e., 29 CFR 1930.134(k)(1)(vii)).
The final regulatory text for these requirements is available at 40
CFR 170.507(b)(10) and 170.507(d)(7).
3. Comments and responses.
Comments. EPA received many comments in favor of requiring handler
employers to comply with the respirator fit testing, training, and
medical evaluation requirements established in the OSHA standard. Many
farmworker advocacy organizations and some PPE manufacturers asserted
that EPA should also apply the proposed standards for fit testing,
training, and medical monitoring to users of filtering facepiece
respirators in addition to the other respirator types (e.g., tight
fitting elastomeric facepieces). Commenters suggested that filtering
facepiece respirators are widely used and covered by OSHA's respirator
requirements, and that their exclusion would result in inadequate
protection for many pesticide handlers. OSHA defines a filtering
facepiece as ``a negative
[[Page 67536]]
pressure particulate respirator with a filter as an integral part of
the facepiece or with the entire facepiece composed of the filtering
medium'' in 29 CFR 1910.134(b).
Furthermore, many farmworker advocacy organizations stated that EPA
should require compliance with all elements of 29 CFR 1910.134, rather
than the proposal to just include fit testing, training, and medical
evaluation. Specifically, they urged EPA to adopt OSHA's requirements
for employers to develop a respiratory protection program (29 CFR
1910.134(c)) and conduct a workplace hazard evaluation (29 CFR
1910.134(d)(1)(iii)).
Nearly all commenters expressed support for a general requirement
related to proper respirator care and use, such as appears in the
existing rule. However, many pesticide manufacturers and their
associations, state farm bureaus and agricultural producer
organizations questioned the feasibility of the proposed requirement
for medical evaluations because locating qualified physicians
practicing in rural areas would be difficult. Other farm bureaus noted
that the OSHA standard applies to general industries, shipyards, marine
terminals, longshoring and construction, and it would not likely be
easily adopted in agricultural settings. Some commenters, including the
Small Business Administration's Office of Advocacy, also asserted that
EPA's cost estimates associated with the medical evaluations and fit
testing were too low.
Some commenters, including a state farm bureau, raised concerns
that EPA's reference to OSHA's regulations could give OSHA legal
grounds to pursue oversight of certain small farming operations,
contrary to provisions of existing law.
EPA Response. In the final rule, EPA has required that employers
comply with the respirator fit testing, training, and medical
evaluation requirements described in the proposed rule when the use of
respirators is required by the labeling. The final rule also expands
its coverage to include filtering facepiece respirators (referred to as
dust/mist filtering respirators in the proposal). EPA included
filtering facepiece respirators in the final rule to ensure that
handlers required to use any type of respirator are adequately
protected. Filtering facepiece respirators need to be fit tested and
used properly to provide the intended protection. In addition, this
will ensure that respirators used under the WPS provide the same level
of protection as comparable respirators used under OSHA's respiratory
protection requirements.
EPA acknowledges that, if the final rule were to require handler
employers to comply with the OSHA requirement to adopt a worksite-
specific respiratory protection program, such a requirement would
address in detail the selection, cleaning, storing, repair and
replacement of respirators, as well as worksite-specific procedures
when respirator use is required. EPA has decided not to expand the
final rule to include the OSHA requirement to adopt a worksite-specific
respiratory protection program because specific respirator requirements
are described on EPA-approved, product-specific pesticide labeling.
These product-specific respirator requirements are based on the acute
inhalation toxicity of the end-use product or a comprehensive risk
assessment informed by incident data, or on extensive pesticide active
ingredient toxicology data, exposure science and epidemiology data (if
available), or on both. Therefore, requiring a general worksite-
specific respiratory protection program would duplicate the analysis
underlying product-specific respirator requirements included on
pesticide labeling.
EPA acknowledges that implementing respirator fit testing,
training, and medical evaluation in agriculture will place additional
burden on agricultural employers. However, the proper fit and use of
respirators is essential in order to realize the protections
respirators are intended to provide. EPA's pesticide risk assessment
process relies on National Institute for Occupational Safety and Health
(NIOSH) protection factors (i.e., respirators used according to OSHA's
standards) when deciding whether handler inhalation exposure can be
mitigated by respirator use. If the handler inhalation exposure can be
mitigated by a particular type of respirator, EPA may require the use
of that respirator on the pesticide label, among other risk mitigation
measures. Without the protection provided by the respirators identified
on the label, use of those pesticides would cause unreasonable adverse
effects on the pesticide user, i.e., the handler.
EPA is aware of several states, including California, Oregon and
Washington, that have successfully incorporated all aspects of the OSHA
standard for respirators in agriculture, demonstrating the feasibility
of applying OSHA's requirements in agriculture. North Carolina has
incorporated many innovative ways to facilitate the medical evaluation
and fit testing process, and helped farmers (including handler
employers) locate reputable sources for online services for fit testing
and medical evaluation, and sources for NIOSH-approved respirators,
filters, and cartridges. EPA plans to work with stakeholders such as
state regulatory agencies, universities, and others to provide outreach
assistance such as training programs and written materials and to
encourage the dissemination of information about fit testing and
medical evaluation resources.
EPA has reviewed and revised its cost estimates for fit testing,
training and medical evaluation. The cost estimate assumes that farms
would designate one handler to be fit tested so the incremental costs
for the filtering facepiece respirators reflects the need to fit test
and train on multiple types of respirators. The increased costs also
reflects the cost of the on-line medical evaluation, which replaces the
estimated time of a medical technician reviewing the evaluation, and
the cost of the employer's time to arrange (if off-site) or oversee (if
on-farm) the evaluation and fit test, which was previously omitted. EPA
has also updated wages, price of materials and services such as the
cost of the medical evaluation and the fit test materials. Details of
the revised estimate are available in the Economic Analysis for this
final rule (Ref. 1).
EPA recognizes that some handlers may not be able to use a tight-
fitting respirator. EPA notes that the purpose of the medical
evaluation is to ensure handlers are able to tolerate the physical
burden caused by the use of respirators. Many medical conditions, such
as cardiovascular diseases and the reduced pulmonary function caused by
smoking, could impede the ability of the handler to wear a respirator
without adverse health impacts. The medical evaluation should identify
these potential issues and disqualify the handler from using a tight-
fitting respirator. Tight fitting respirators include filtering
facepiece respirators, full and half face elastomeric respirators and
tight fitting powered air purifying respirators (PAPR). However, for
these handlers, loose-fitting PAPRs are an option for respiratory
protection because they do not require medical evaluations or fit
testing. EPA notes that many handler employers may be able to rely on
online services where medical evaluations can be performed by relying
on medical questionnaires. The employee would complete the medical
questionnaire, which would be provided to the licensed medical
professional for review. If the employee is cleared by the review, he
or she is approved to wear a respirator. If the employee is not cleared
through the review of the questionnaire, the employer may send the
employee for further medical review
[[Page 67537]]
or the employer may identify a different employee to handle the
pesticide.
EPA does not believe that including in the WPS a requirement that
employers must perform respirator fit testing, training, and medical
evaluation in accordance with OSHA's requirements by cross-reference to
29 CFR 1910.134 affects the scope of OSHA's jurisdiction. This final
rule changes only the FIFRA WPS, which is implemented and enforced by
EPA, the States and Tribes, and not by OSHA.
However, in consideration of the commenters who asked that EPA
require compliance with all elements of OSHA requirements at 29 CFR
1910.134, the Agency re-evaluated other elements of that regulation. As
part of that re-evaluation, EPA identified an inconsistency between the
Agency's proposal and OSHA's requirements concerning a change schedule
for the replacement of the gas- or vapor-removing canisters or
cartridges. Specifically, OSHA requirements address change schedules
that utilize NIOSH end-of-service-life indicator designations (29 CFR
1910.134(d)(3)(iii)(B)(2)). To ensure respirator protections are of
greater consistency across industries, EPA has added the OSHA
requirement that triggers the replacement of the gas- or vapor-removing
canisters or cartridges to the list of conditions in the final rule at
Sec. 170.507(d)(7) through an incorporation by reference.
4. Costs and benefits. EPA estimates the cost to employers of
complying with the WPS respirator requirements that cross-reference the
OSHA standard would be $10.6 million annually, or about $43 per year,
on average, for agricultural establishments with handlers and about $8
for commercial pesticide handling establishments per year. On family-
owned farms that use pesticides and do not hire labor, the estimated
annual cost of the respirator requirements is approximately $9 per
establishment per year. As explained previously, the estimated cost
increased in the final rule because the cost analysis was revised to
account for handlers to be fit tested and trained to use multiple types
of respirators, the cost of an on-line medical evaluation, and the
employer's time to arrange for the fit testing, evaluation and
training. EPA assumes that about 30 percent of handlers working on 60
percent of farms that employ handlers will be fit tested in any year;
the average cost per farm reflects this assumption. The cost to
commercial pesticide handling establishments only reflects the cost of
recordkeeping because EPA assumes that they already comply with OSHA's
respirator requirements because they engage in activities outside of
the scope of the WPS that are covered by OSHA. The cost estimates for
agricultural establishments are very conservative because of broad
assumptions regarding the number of handlers and farms affected, and
the fact that some establishment owners are already required to comply
with OSHA requirements related to respirator use for other reasons.
EPA cannot quantify the benefits associated with this specific
requirement. However, ensuring that handlers can safely use respirators
and that those respirators fit properly will increase the protections
offered by respirators to the levels presumed in EPA's pesticide
registration decisions. This should lead to a reduction in occupational
pesticide-related illnesses. In comparison to these expected benefits
of proper respirator use and reduced illnesses, the costs associated
with the final rule requirements appear to be reasonable.
B. Chemical-Resistant PPE
1. Current rule and proposal. The definition for ``chemical
resistant'' in the existing WPS is a ``material that allows no
measurable movement of the pesticide being used through the material
during use.'' Prior to the proposed rule, EPA received many comments
from stakeholders suggesting that there was no way for agricultural
employers, handlers, early-entry workers, pesticide educators and
inspection personnel to ensure the PPE being used was ``chemical
resistant.'' EPA proposed requiring employers to provide PPE defined by
its manufacturer as chemical resistant.
2. Final rule. EPA has rejected the proposed change. The final rule
retains the existing definition of chemical resistance. The final
regulatory text for this requirement is available at in 40 CFR
170.507(b)(1).
3. Comments and responses.
Comments. While several commenters representing states and academia
supported the idea of PPE manufacturers defining chemical resistant in
principle, many also questioned the feasibility of such an approach.
Specifically, the commenters questioned whether manufacturers can
reliably label PPE as chemical resistant in a permanent manner that
would be easy for enforcement personnel to check during inspections.
Several other commenters from pesticide manufacturers and PPE
manufacturers suggested such claims may not be able to be made for the
wide range of pesticide formulations and active ingredients. One PPE
manufacturer asserted that the existing definition was purposefully
worded to ensure worker protection and that EPA's proposal over-
simplifies a very complex and critical issue. Many other commenters
reiterated this latter comment regarding over-simplification of the
process for developing chemical resistant PPE.
EPA Response. EPA recognizes the many comments highlighting the
challenging issues involved with having PPE being defined as chemical
resistant by the equipment manufacturer, who does not know the
ingredients in every pesticide product. EPA agrees with commenters that
the proposed approach would create more problems than it would resolve.
Therefore, the final rule retains the existing chemical resistant
definition.
4. Costs and benefits. Because EPA is retaining the current
definition of chemical resistant, there are no estimated costs.
C. Contaminated PPE
1. Current rule and proposal. The existing WPS requires employers
to ensure that PPE is cleaned before each day of reuse. If the article
cannot be properly cleaned, the employer must dispose of it in
accordance with applicable Federal, State, and local regulations. EPA
proposed to add a requirement for employers to render unusable
contaminated PPE that cannot be properly cleaned before it is disposed.
2. Final rule. In the final rule, the employer must ensure that
contaminated PPE is made unusable as apparel or disposed of in such a
way that it is unavailable for further use. EPA has also included in
the final rule a requirement for the person who cleans, disposes, or
otherwise handles the contaminated PPE to wear the gloves required for
mixing and loading the pesticide that contaminated the PPE. The final
regulatory text for this requirement is available at 40 CFR
170.507(d)(2).
3. Comments and responses.
Comments. Prior to the proposed rulemaking, state pesticide
regulatory agencies expressed concern that unless proper measures are
taken, contaminated PPE might be reused either as PPE or simply as a
garment, placing the person wearing it at risk from pesticide exposure.
In support of the proposal, one public health organization commented
that rendering contaminated garments unusable would prevent adverse
health effects. A state noted that the proposal was an effective method
to reduce the potential for access to contaminated PPE. One grower
[[Page 67538]]
organization noted that the potential for exposure exists when
individuals cut or render contaminated PPE unusable, and suggested a
requirement to seal the contaminated PPE in a disposal container and to
dispose of the container in an appropriate manner.
In contrast, some grower organizations stated that the current
requirement is adequate and EPA should not adopt the proposal. Some
farm bureaus opposed the proposal and thought the concern for
individuals gaining access to contaminated PPE was well meaning yet
hypothetical. Some of these commenters suggested it could lead to
confusing violation scenarios, specifically from the interpretation of
``render unusable.''
EPA Response. The final rule clarifies that the requirement is to
make the PPE ``unusable as apparel.'' EPA agrees that access to
contaminated PPE might be prevented by sealing it in a container and
entrusting it to a waste disposal system that effectively prevents
diversion of waste, and that such an approach would reduce pesticide
exposure to the person handling the contaminated article relative to
many methods of rendering the PPE unusable. EPA has included in the
final rule a provision allowing the PPE to be ``made unavailable for
further use'' as an alternative to the proposed requirement to render
the contaminated PPE unusable. To reduce the potential exposure to a
person handling contaminated PPE, the final rule requires that a person
must wear gloves while handling PPE covered by 40 CFR 170.507(d)(2).
EPA disagrees with comments from farm bureaus suggesting that there
is little likelihood of persons accessing contaminated PPE. As
mentioned in the preamble to the proposed rulemaking, state pesticide
regulatory agencies have raised concerns for the potential reuse of
contaminated PPE to EPA. EPA relies on state pesticide regulatory
agencies to raise issues with implementation of the existing WPS that
arise when they conduct inspections of WPS establishments. EPA has
chosen to amend the existing rule in response to the input provided by
the States.
4. Costs and benefits. EPA has estimated that the cost of rendering
the PPE unusable or unavailable is negligible. Although the benefits
cannot be quantified, contact with contaminated PPE may result in
significant exposure, especially if worn repeatedly. The negligible
cost of this requirement compared to the benefit from ensuring that
contaminated PPE cannot continue to cause exposure is reasonable.
XVI. Decision Not To Require Monitoring of Handler Exposure to
Cholinesterase-Inhibiting Pesticides
A. Current Rule and Proposal
The existing WPS does not have a requirement to monitor
cholinesterase (ChE) levels in workers or handlers. In the proposal,
EPA invited comment on whether to require routine ChE monitoring of
handlers. However, because EPA's initial judgement was that the
benefits of routine ChE monitoring would not justify the cost, EPA did
not propose to add a requirement for routine monitoring of ChE
inhibition in handlers.
B. Final Rule
The final rule does not include a requirement for routine ChE
monitoring for handlers.
C. Comments and Responses
Comments. In response to the proposal, several grower
organizations, state farm bureaus, crop consultants and their
organizations, and states and their organizations expressed support for
EPA's decision not to require a mandatory routine ChE monitoring
program as part of the WPS. Several commenters stated that the most
effective approach to prevent handler exposure to any pesticide product
is to address the potential for exposure in advance of use, rather than
after exposure has taken place. Many of these commenters agreed with
EPA's assessment in the proposal that EPA's worker risk assessments and
mitigation measures are sufficient to provide the necessary protection
from pesticide exposure during handling. One commenter also suggested
that requiring ChE monitoring may add to confusion and provide a false
sense of safety to workers, health care providers, and regulators
because it only measures exposure. These commenters suggested that the
best approach that can be taken to mitigate exposure would be to
address it through product-specific risk assessments supporting the
registration of pesticide products, robust handler training on specific
pesticides, and effective enforcement of label requirements.
In addition, some of the commenters objected that ChE monitoring is
an invasive process, and that routine ChE monitoring would be extremely
time-consuming and costly and would provide information of questionable
value. One commenter stated that a proper ChE monitoring program would
require that a baseline be established for employees, and that it would
be highly unlikely that a baseline could be obtained for many workers
because of previous exposure to organophosphate insecticides, while
another commenter suggested that exposure to other common materials can
change the levels of ChE, especially in serum level measurements,
making it difficult to establish a baseline. Another commenter added
that the timing of meals, stress, physical activity, and changes in
body mass can cause ChE levels to fluctuate within an individual, and
that the baseline value should be taken on the day of handling a ChE-
inhibiting pesticide prior to exposure due to this intra-individual
variability. The commenter suggested that baselines established every 1
to 2 years, as currently recommended by Washington State and
California, respectively, would not provide meaningful information
concerning the degree of exposure due to these daily fluctuations.
Conversely, several commenters, including some members of Congress,
the California Department of Public Health, Washington State's
Department of Health and Department of Labor and Industries, several
public health organizations, academics, and farmworker advocacy
organizations supported the idea of adopting a routine ChE monitoring
program as part of this rulemaking, particularly for handlers who use
ChE-inhibiting pesticides like organophosphates and N-methyl-carbamate
pesticides. Many of these commenters cited the existing ChE monitoring
programs in California and Washington State in their arguments for why
ChE monitoring should be expanded nationally.
Some commenters stated that California and Washington have
longstanding medical monitoring programs with proven track records in
reducing exposure to, and illnesses from, highly neurotoxic chemicals.
These commenters stated that the successful implementation of these
monitoring programs has helped health professionals understand the
effects of these classes of pesticides and prevent poisoning by
identifying overexposure. Two commenters stated that Washington's
program is effective and protects workers as reflected by worksite
field evaluations of action level ChE depressions, which have
identified multiple pesticide WPS violations that are believed to
contribute to worker exposure. A couple of commenters stated that the
benefits realized by the state programs, which would expand nationally
if monitoring were to be required, include:
Greater certainty about the frequency of pesticide
overexposure.
[[Page 67539]]
Avoidance of serious pesticide illness.
Improved compliance with the WPS.
Identification of any existing PPE, work
practice, and engineering control requirements that are not sufficient
to protect pesticide handlers from exposure.
Greater awareness of chemical and exposure
hazards.
Some commenters cited Washington State's data that shows that the
percentage of overexposed participating handlers who required remedial
action fell from 20% when the program started in 2004 to 6% in 2013,
for a reduction of 70%. These commenters stated that Washington's
Department of Labor and Industries found that ChE monitoring helped
identify the causes of overexposure, which allowed for those causes to
be corrected by alerting employers and handlers to unsafe work
practices, conditions, or equipment. Additionally, a couple of
commenters stated that the percentages of handlers who actually reached
the removal level from handling ChE-inhibiting pesticides remained
consistently low after the implementation of the ChE monitoring
program, with the percentages being 3.8% in 2004, 0% in 2010 and 2011,
2.3% in 2012, and 4% in 2013. These commenters believed that the sharp
decline in the number of handlers needing remedial action, along with
the consistently low percentage of handlers who exceeded 20% below
their baseline (i.e., those who reach the evaluation level in the state
programs), shows that the program has been effective in reducing
exposure to OPs and carbamates, and that monitoring should be
implemented nationally so that all workers receive similar benefits.
Some commenters in support of requiring ChE monitoring also
discussed the costs associated with ChE monitoring. They stated that
the cost of implementation should not deter EPA from requiring medical
monitoring on a national level. A few commenters stated that EPA's
estimate that the cost of ChE monitoring would average $53 per year per
agricultural establishment was a small cost when contrasted with the
70% reduction in overexposure according to Washington State's data. A
couple of commenters also stated that monitoring in California and
Washington has led to substantially fewer pesticide poisonings and
reduced use of these highly toxic pesticides, and can, in turn, reduce
long-term medical costs to farmworkers and the agricultural economy.
Some commenters stated that EPA's analysis did not include an
estimation of the medical expenses that were saved, the lost wages
prevented, and the pesticide-related illnesses avoided as a result of
early detection and intervention. As a result, the commenters believed
that the benefits of a national ChE monitoring program would more than
justify the costs given the severe effects of overexposure to ChE-
inhibiting pesticides.
Other commenters supporting ChE monitoring stated that employees
who handle ChE-inhibiting chemicals in non-agricultural sectors
routinely receive the protection of medical monitoring. For example,
some commenters stated that OSHA requires medical monitoring for
workers who handle a wide range of toxic substances. They also stated
that USDA requires monitoring of its employees who may be exposed to
organophosphate or carbamate pesticides. These commenters stated that
these safeguards should be provided for all workers who handle these
pesticides, and therefore should be included in the final rule.
EPA Response. After reviewing the comments, EPA continues to
believe that the expected benefits of a routine ChE monitoring program
for handlers are not sufficient to justify the costs. As stated in the
proposed rule, EPA believes that Washington State's efforts have
identified the primary reasons for ChE inhibition among pesticide
handlers. In many cases, ChE depression was caused by handlers not
following basic safety and hygiene procedures, e.g., not wearing the
label-required PPE and failing to wash before meals or bathroom breaks.
Additionally, several handlers who did wear respirators as required by
labeling had beards, which compromised the seal between the face and
the respirator and reduced the protection intended to be afforded by
the PPE. EPA believes that requiring expanded and more frequent handler
training, in combination with requirements for fit testing and training
on proper respirator use for handlers, addresses the primary reasons
for overexposure to ChE-inhibiting pesticides.
The revised labeling with increased protections and new mitigation
measures resulting from the reregistration of organophosphates and
carbamates will also result in lowered handler exposure. Reregistration
has resulted in some uses of the most acutely toxic organophosphates
being phased out. For the remaining uses, EPA has imposed additional
PPE requirements, requirements for closed-system mixing and loading,
and reductions to rates of application and number of annual
applications permitted. As labels with updated PPE requirements for
handlers are seen and followed in the field, EPA expects to see reduced
numbers of overexposures. Additionally, the organophosphates and
carbamates that are still registered are being used less frequently and
being replaced by pesticides with lower risks, also reducing the
potential for overexposure.
While EPA estimated the costs of a national, routine ChE monitoring
program to be at least $15.2 million annually, or about $53 per
agricultural establishment per year and $120 per commercial pesticide
handling establishment per year, this estimate does not include the
full costs that would be expected of a national ChE monitoring program.
As stated in the proposed rule, a national, routine ChE monitoring
program would likely include program components such as training,
recordkeeping, clinical testing, and field investigations, which were
not included in the estimated costs because the initial $15.2 million
estimate appeared by itself to be disproportionately high in comparison
to the expected benefits. Additionally, the estimated costs do not
include the states' costs to build infrastructure to support ChE
monitoring or to cover continued laboratory costs such as equipment
maintenance and administrative support. If EPA were to calculate these
additional costs, the estimated costs would be much higher than $15.2
million annually. Therefore, EPA stands by its assessment in the
proposed rule that the cost of implementing a national, routine ChE
monitoring program is not justified by its limited benefits.
EPA believes that the increased handler protections being finalized
in this rulemaking, combined with the product-specific risk mitigation
measures, will appropriately address the elevated potential for ChE
inhibition in handlers. Moreover, the training and PPE elements of the
final rule will have the combined effect of providing important
protective benefits to all pesticide handlers through increased
knowledge of exposure risks and prevention strategies. This approach
will lead to a reduction of pesticide exposures because it prevents
handler exposure before it occurs.
D. Costs and Benefits
Since EPA is not requiring routine ChE monitoring, there are no
costs associated with this decision.
[[Page 67540]]
XVII. Exemptions and Exceptions
A. Immediate Family
1. Current rule and proposal. The WPS currently exempts the owners
of agricultural establishments from requirements to provide certain WPS
protections to themselves and their immediate family members. Owners
are required to comply with all applicable provisions of the WPS for
any worker or handler employed on the establishment who is not a member
of the owner's immediate family. The definition of ``immediate family''
in the existing rule includes only the owner's spouse, children,
stepchildren, foster children, parents, stepparents, foster parents,
brothers, and sisters. EPA proposed to expand the definition of
``immediate family'' to add father-in-law, mother-in-law, sons-in-law,
daughters-in-law, grandparents, grandchildren, brothers-in-law, and
sisters-in-law.
Note, too, that the existing WPS definitions of workers and
handlers depend upon them being employed for compensation. Therefore,
any person performing worker or handler tasks who does not receive a
wage, salary or other compensation is not a worker or handler protected
by the WPS, regardless of familial relationship to the owner.
EPA requested comment on but did not propose changes narrowing the
immediate family exemption in two ways: (1) Limiting it only to those
immediate family members of an owner of an agricultural establishment
who are at least 16 years old, and (2) eliminating the exemptions from
requirements regarding emergency assistance for workers and handlers
and regarding handler monitoring during fumigant application.
As part of the proposal to establish a minimum age for pesticide
handlers and early-entry workers, EPA proposed to add an exemption from
the minimum age requirements to the immediate family exemption.
2. Final rule. EPA has finalized the definition of ``immediate
family'' as limited to the owner's spouse, parents, stepparents, foster
parents, father-in-law, mother-in-law, children, stepchildren, foster
children, sons-in-law, daughters-in-law, grandparents, grandchildren,
brothers, sisters, brothers-in-law, sisters-in-law, aunts, uncles,
nieces, nephews, and first cousins. ``First cousin'' means the child of
a parent's sibling, i.e., the child of an aunt or uncle. The final
regulatory text for this definition is available at 40 CFR 170.305.
EPA has amended the exemption from certain provisions of the WPS
for owners and members of their immediate families to include
exemptions from the minimum age requirements for handlers and early-
entry workers. The final regulatory text for this exemption is
available at 40 CFR 170.601(a)(1)(i) and 170.601(a)(1)(xii).
EPA has clarified the final regulatory text related to the
exemption from certain provisions of the WPS for owners and members of
their immediate families. The exemption in the final rule will apply to
owners and members of their immediate family on any agricultural
establishment where a majority of the establishment is owned by one or
more members of the same immediate family. The final regulatory text
for this exemption is available at 40 CFR 170.601(a)(1).
EPA has not included in the final rule any of the other changes to
the owner and immediate family exemption considered in the proposal.
3. Comments and responses.
Comments. Most of the commenters expressed general support for the
proposed expansion to the definition of immediate family and the
inclusion of an exemption from the minimum age requirement. Some
commenters asserted that the definition provides greater clarity about
who qualifies under the immediate family exemption and will assist both
the regulated community and state regulatory agencies in ensuring
compliance with the proposed rule.
A few commenters requested that EPA expand the definition to
include cousins. Many commenters, including the Small Business
Administration's Office of Advocacy, requested that EPA expand the
definition further to include aunts, uncles, nieces, nephews, and
cousins. Commenters requesting further expansion of the definition
noted that an expansion of the family members considered immediate
family under the WPS would better reflect the reality of the family
farm in America. Commenters also requested that EPA further expand the
definition and exemption to recognize varying ownership patterns used
to assure the continued operation of the farm and the involvement of
siblings and their heirs. One commenter suggested that EPA align the
exemption with USDA's interpretation of farm ownership by family
members, which considers a ``family farm'' to be one where a majority
of the farm is owned by family members, rather than retaining EPA's
interpretation of the exemption as applying only on establishments that
are wholly owned by one or more members of the same immediate family.
A few commenters requested that EPA delete the definition of
immediate family and eliminate the exemption. These commenters noted
that risks from pesticide exposure are the same for family and non-
family members, so all persons need the same level of protection
regardless of their familial relationship to the owner.
EPA Response. EPA has further expanded the definition of immediate
family to also include aunts, uncles, nieces, nephews, and first
cousins (i.e., child of a parent's sibling, child of an aunt or uncle)
and is retaining the exemption in the WPS. EPA believes that the
proposed definition of ``immediate family'' represents an appropriate
accommodation to the social costs of the WPS to farm owners and members
of their immediate families relative to FIFRA's requirement to prevent
unreasonable adverse effects.
EPA considered commenters' requests to expand the definition of
``immediate family.'' Commenters suggested that a definition that
includes cousins, or cousins, aunts, uncles, nieces and nephews would
better reflect the actual patterns of family-based farm ownership in
the United States. EPA agrees with commenters' suggestions that family-
based farm ownership may extend beyond relationships covered by EPA's
existing or proposed definition. EPA agrees with commenters' requests
to expand the definition to include aunts, uncles, nieces, nephews, and
first cousins. For clarity, EPA has chosen to define ``first cousin''
as the child of a parent's sibling, i.e., the child of an aunt or
uncle.
EPA has clarified the applicability of the exemption in the final
rule in response to comments. The exemption in the final rule applies
to the owners and their immediate family members on any agricultural
establishment where a majority of the establishment is owned by one or
more members of the same immediate family. A ``majority of the
establishment'' means that more than 50 percent of the equity in the
establishment is owned by one or more members of the same immediate
family as defined in the WPS.
EPA agrees that the risks associated with pesticide exposure do not
vary based on a person's relationship to the owner of the
establishment. However, EPA recognizes that family-owned farms need
flexibility and expects that those family members working on an
establishment covered by the immediate family exception would be
adequately prepared and supervised by family members. Although owners
and their immediate family members are exempted from certain provisions
of the WPS (e.g., providing pesticide safety training and specific
decontamination supplies for immediate family
[[Page 67541]]
members), they are obligated to follow the pesticide labeling and other
WPS provisions that are established to protect workers and handlers
from risks associated with specific pesticides. For these reasons, EPA
has chosen not to eliminate the definition of immediate family or the
exemption from certain portions of the rule for the establishment owner
and members of his or her immediate family.
Although owners of establishments and members of their immediate
family are exempt from some of the provisions of the rule, EPA expects
that they will voluntarily follow the provisions from which they are
exempt, or achieve equivalent risk mitigations through other means. EPA
encourages owners and family members to carefully study the WPS
requirements and assure themselves that they are not placing each other
at risk of unreasonable adverse effects.
4. Costs and benefits. EPA estimates changing the definition of
immediate family and adding to the existing exemptions for owners and
members of their immediate family an exemption from the minimum age
requirements would not substantially change the cost of the final rule.
B. Crop Advisors and Employees
1. Current rule and proposal. The existing rule exempts employers
from complying with certain handler requirements when the employee
performs crop advising tasks in a treated area under an REI and is a
certified or licensed crop advisor or directly supervised by a
certified or licensed crop advisor. A certified or licensed crop
advisor is one who has fulfilled the requirements of a program
acknowledged as appropriate in writing by EPA or a state or tribal
agency responsible for pesticide enforcement. The existing rule allows
a certified or licensed crop advisor to make specific determinations
regarding the appropriate PPE, decontamination and safe method of
conduct for those working under his or her direct supervision. A person
employed by a commercial pesticide handling establishment performing
crop advising tasks after expiration of an REI is not subject to any
provisions of the WPS. The rule also exempts employers from complying
with worker requirements such as providing decontamination supplies and
emergency assistance for certified or licensed crop advisors and for
persons they directly supervise.
EPA proposed to eliminate the exemptions for employees directly
supervised by certified or licensed crop advisors. EPA also proposed to
eliminate the exemption from the worker decontamination and emergency
assistance provisions for certified or licensed crop advisors employed
as workers on agricultural establishments.
2. Final Rule. EPA has eliminated both exemptions as proposed.
However, EPA has included in the final rule added flexibility in the
PPE requirements for crop advisors and their employees. Specifically,
EPA has added language to the final regulation that allows crop
advisors and their employees who perform crop advising tasks while an
REI is in effect to substitute the label-required handler PPE with
either the label-required PPE for early-entry activities or a standard
set of crop advisor PPE. The standard set of PPE for crop advising
tasks included in the final rule consists of coveralls, shoes plus
socks, chemical-resistant gloves made of any waterproof material and
eye protection if the labeling of the pesticide product applied
requires protective eyewear for handlers. The final regulatory text for
this requirement is available at 40 CFR 170.601(b) and 170.607(g).
3. Comments and responses.
Comments. In response to the proposal, crop consultant
associations, several states and other commenters objected to
eliminating the exemption currently in place for employees working
under the direct supervision of a certified or licensed crop advisor.
They asserted that certified and licensed crop advisors often exceed
the minimum safety training requirements when educating their employees
and those employees are aware of the risks associated with their work.
Some crop consultant associations and other commenters noted that they
are not aware of any case of endangerment or harm that has occurred to
any employee under the direct supervision of a certified or licensed
crop advisor.
The crop advisor associations also expressed concern that EPA
underestimated the economic impact to crop advisors, and in turn to
farmers, of eliminating this exemption, citing specifically the
increased costs of additional PPE, the cost of work done by certified
or licensed crop advisors instead of by their employees, and the cost
of increased management time. Crop consultant associations and other
commenters contended that these increased costs could discourage
investment in integrated pest management (IPM) and result in increased
pesticide use that might put workers at increased risk of pesticide
exposure. Several states supported EPA's proposal to eliminate the crop
advisor exemption.
EPA Response. After consideration of the comments submitted, EPA
has concluded that the burdens associated with eliminating the
exemption for employees of crop advisors are justified by the
additional protections provided to workers performing crop advising
tasks who are not certified or licensed crop advisors. EPA has retained
the exemption to the WPS for certified or licensed crop advisors
because these individuals are highly trained about pesticide risks and
how to protect themselves. EPA eliminated the exemption for crop
advisors' employees because pest scouting tasks may result in
substantial contact with a pesticide on treated surfaces in pesticide-
treated areas. The amount of contact with pesticides during scouting
depends on variables such as the height and density of the crop, the
nature of the activity, the surface that contains the pesticide
residue, and whether residues are dry or wet. While EPA recognizes that
the crop consulting industry has implemented a training program for
employees, the program is not required and can vary in content and
quality from employer to employer. Additionally, crop scouts and
assistant crop advisors are generally entry-level employees who may not
feel empowered to ask an employer for PPE or other protections and may
not understand the complex factors influencing risk well enough to take
appropriate protective measures for themselves.
Incident monitoring programs do not capture illness data
specifically associated with crop advising tasks because cases are
categorized under a general ``field worker'' label. However, EPA's risk
assessments indicate that people doing crop advising tasks during an
REI are at risk of chronic, low-level pesticide exposure over time. PPE
requirements and availability of decontamination supplies during and
after an REI are fundamental to mitigating risks of concern for
workers. Allowing workers who are supervised by certified or licensed
crop advisors to conduct crop advising tasks without the same basic
protections provided for other workers would establish a lesser
standard of protection for similar types of work. EPA understands that
IPM programs require post-application entry and the timing is critical
to efficacy. By retaining the exemption for certified or licensed crop
advisors to conduct crop advising tasks during an REI and allowing
flexibility for employers to substitute the label required PPE for
handlers with either PPE for early-entry workers or a standard set of
PPE, the
[[Page 67542]]
increased costs noted in comments are reduced.
4. Costs and Benefits. EPA estimates the cost of amending the
exemption for crop advisors would be negligible. EPA finds that the
incremental cost of employers providing decontamination supplies and
PPE for crop advisor employees are reasonable compared to the cost. EPA
is allowing flexibility in the choice of PPE for crop advisor employees
who must enter treated areas under an REI to accommodate entry into
multiple fields with the same attire. Benefits from reduced exposure to
pesticides as a result of requiring the standard protections for all
workers, including those supervised by certified or licensed crop
advisors, are reasonable when compared to their cost.
C. Closed Systems
1. Current rule and proposal. The existing WPS permits exceptions
to the label-specified PPE when using a closed system for certain
pesticide handling activities. The existing rule does not adequately
describe the specific characteristics of an acceptable closed system.
EPA proposed to establish specific design criteria and operating
standards for closed systems based on California's existing standards
in the 1998 Closed Systems Director's Memo (http://www.cdpr.ca.gov/docs/whs/cac/cacwhs98-01.pdf).
2. Final Rule. EPA has modified the proposed approach regarding
closed systems. Specifically, in the final rule EPA has adopted a broad
definition, a performance-based standard, and basic operating
standards. The operating standards require the handler employer to
ensure that written operating instructions for the closed system are
available, that the handler receives training on use of the closed
system, and that the system is maintained according to the written
instructions. Specific design criteria and recordkeeping requirements
that EPA proposed are not included in the final rule.
The final rule retains the existing requirements for PPE when a
closed system is used: Labeling-mandated PPE must be immediately
available for use in an emergency and handlers must use protective
eyewear for closed systems that operate under pressure.
The final regulatory text for the definition of closed systems is
available at 40 CFR 170.305. The final regulatory text for the closed
system exception is available at 40 CFR 170.607(d)(3).
3. Comments and responses.
Comments. Most comments that addressed closed systems supported the
goal of encouraging their use as an engineering control through a WPS
exception; however, very few individuals, states or organizations
supported the proposal as written. Several farmworker advocacy
organizations and public health organizations suggested that EPA
require closed systems for all Toxicity Category I pesticide products
rather than continuing the voluntary system. Comments from states and
grower and industry associations supported the existing voluntary,
performance-based system and objected to the proposed specific design
criteria, noting a number of weaknesses in the criteria. Specifically,
they noted that the pressure requirements were too prescriptive and
would not allow effective mixing, that the proposal did not address
water soluble packaging or lock and load systems used for dry
formulations, and that the complicated requirements would be a
deterrent to increased adoption of closed systems. A number of
commenters also noted that the design standards are too restrictive to
accommodate future innovation. States commented that assessing
compliance with the design standard would require extensive inspector
training and could result in technical violations without providing
additional handler protection.
EPA Response. EPA considered the comments submitted and was
convinced that the prescriptive requirements in the proposal would be a
disincentive to the voluntary adoption of closed systems. In response,
EPA has finalized a closed system performance standard that will permit
flexibility for the system while meeting the protection goals.
In response to comments advocating that EPA require closed systems
for all Toxicity Category I pesticides under the rulemaking, EPA
reminds the commenters that worker risk assessments and the risk
management processes establish the required protections that appear on
product labels. EPA identifies the basic protections, often PPE, to
protect handlers from risks of concern. If handler exposure during
mixing and loading is above the established level of concern, and if
PPE does not reduce exposure to below the level of concern, the
pesticide label may require a closed system for mixing and loading. EPA
has required the use of closed systems on some product labeling.
EPA recognizes that the reduction in handler PPE alone is not
likely to be enough incentive for an employer to use closed systems.
However, EPA is convinced that on larger establishments, the efficiency
and comparative protection value of a closed system, combined with the
reduction in PPE that must be worn by the handler, may induce users to
adopt closed systems. Establishing requirements for such closed
systems--whether required or used voluntarily--is necessary to protect
handlers, who could be exposed to concentrated pesticides if they use
poorly designed or constructed closed systems.
EPA agrees with the comments that a broad definition of ``closed
system'' will encourage industry innovation better than the proposed
prescriptive rule and will allow flexibility for employers to design
systems specific to their needs. A broad performance standard, along
with requirements concerning operating instructions, training and
maintenance, will enable employers, handlers and regulatory personnel
to determine whether a closed system qualifies for the exemption. The
operating standards will ensure that the closed systems are used as
intended and are adequately maintained.
EPA notes that the California Department of Pesticide Regulation
(CDPR) no longer supports use of the prescriptive-based criteria upon
which EPA modeled the proposal outlined in the NRPM. In December 2014,
CDPR published proposed regulations outlining a simplified,
performance-based criteria for closed system design. California is the
only state with specific closed system standards, and has required
their use with certain chemicals since the 1970s. CDPR developed their
revised closed systems standard and discussed the proposal with
representatives from groups that will be directly affected including
agricultural producer organizations, manufacturers, applicators, and
growers, as well as at CDPR's Pesticide Registration and Evaluation
Committee and the Agricultural Pest Control Advisory Committee and Pest
Management Advisory Committee meetings. EPA considered CDPR's proposed
rule in the development of the final closed systems standard. EPA's
final closed system requirements were developed using CDPR's proposal
as a model and do not conflict with CDPR's proposed closed system
requirements.
Section 170.607(d)(2)(i) establishes a performance standard for
closed systems. Specifically, a closed system must remove the pesticide
from its original container and transfer the pesticide product through
connecting hoses, pipes and couplings that are sufficiently tight to
prevent exposure of handlers to the pesticide product, except for the
negligible escape associated with normal operation of the
[[Page 67543]]
system. This closed system performance standard is based on the
criteria for closed systems in section 6746(f)(1) of CDPR's proposed
regulations with a few changes, partly to accommodate the different
terminology in the two sets of regulations. Also, EPA adjusted the
requirement to apply to transferring any pesticide product rather than
a pesticide concentrate so the WPS criterion would apply to
transferring liquid formulations and dry formulations whereas
California's proposed requirements would only apply to liquid
formulations. Lastly, EPA added the phrase ``except for the negligible
escape associated with normal operation of the system'' to provide the
flexibility intended in the proposed rule. The existing WPS describes a
closed system as preventing the pesticide from contacting handlers or
other persons, which is a very high standard because it does not allow
any exposure. The phrase ``except for the negligible escape associated
with normal operation of the system'' is intended to account for the
expected or predictable small release of pesticides from existing
closed systems when hoses, pipes and couplings are disconnected. EPA
recognizes that there will often be a small amount of material in the
hoses, pipes and couplings to which the handler possibly could be
exposed. EPA has not quantified the maximum amount of pesticide escape
that is acceptable, but notes that it should be consistent with the
intent of a closed system, which is to prevent contact to the handlers
or other persons.
EPA also adjusted the final regulatory text for closed systems to
address the comments about water soluble packaging. The regulatory text
in the final rule was revised to state clearly that the closed system
exception from PPE applies when intact, sealed water soluble packaging
is loaded into a mixing tank or system. The regulation also clarifies
that water soluble packaging is no longer a closed system if the
integrity of the packaging is compromised. This language in the final
rule incorporates EPA's current position about water soluble packaging
and closed systems, as established in the Interpretive Guidance on the
WPS: http://www.epa.gov/pesticides/safety/workers/wpsinterpolicy.htm.
While the final rule includes only a performance standard, EPA
recognizes that it may be helpful to have guidance on how to construct
a system to meet that standard. As part of California's proposed
rulemaking, CDPR and the University of California, Davis (UC Davis)
developed plans for building a closed system to release along with the
proposal. The ``Overview of Closed Systems Components and User
Designs'' document includes lists of component parts (and costs) for
three levels of systems (basic, medium and high). The design plans
developed by CDPR and UC Davis will provide users with examples of
representative closed systems components so they can identify or
develop acceptable closed systems.
4. Costs and benefits. EPA estimates the cost of the final closed
system requirements will be $2.1 million annually. EPA estimates that
cost per agricultural establishment will range from $5-$30 per year,
and the cost per commercial pesticide handling establishment will be
about $21 per year. EPA estimates that on family establishments, the
cost would range from $1-$30 per year. Many commenters from the
pesticide industry and grower associations stated that EPA
underestimated the costs of closed systems in the proposed rule partly
because existing closed systems would need to be upgraded to meet the
proposed standards. The changes to replace the proposed specific design
standards with a broad performance standard in the final rule address
these comments, because employers will be able to continue using most
existing closed systems with minimal adjustments. For details refer to
the Economic Analysis accompanying this rule (Ref. 1). In addition, EPA
notes that the WPS does not require use of closed systems, so
commenters who assumed many pesticide users would have to purchase
expensive closed systems were incorrect.
EPA adjusted the closed system cost estimates from the proposed
rule in several ways to reflect changes in the final rule. The cost
estimate in the proposed rule assumed that some users of closed systems
would purchase new systems while others would revert to using PPE. In
light of the revised definition, the final cost estimate assumes that
most users would simply purchase an adapter to connect their existing
closed system to the pesticide container, which is the part that most
likely needs to be added to convert existing mechanical transfer
systems to be closed systems that meet EPA's criteria. These changes
and costs are based on the CDPR and UC Davis document ``Overview of
Closed Systems Components and User Designs,'' which includes lists of
component parts and their costs for three levels of systems. In
addition, the cost of developing operating instructions was added,
assuming that most closed systems are custom-made systems that would
require the employer to develop operating instructions, while the costs
of keeping records of maintenance was deleted. EPA reduced the
estimated number of farms using closed systems based on information
from the Agricultural Handler Exposure Task Force, which showed that
the limited number of pesticide users who use closed systems are
primarily larger establishments and commercial pesticide handling
establishments. Therefore, the estimated costs of the closed system
criteria decreased from the proposed rule to the final rule.
Using closed systems is preferred to wearing PPE as an approach for
managing chemical exposure in the ``hierarchy of controls'' established
under standard industrial hygiene principles. Enclosing the chemical
and substantially reducing the potential for exposure at the source
reduces the potential for subsequent exposure to handlers, other
people, and the environment.
D. Aerial Applications--Eyewear Protection for Open Cockpits
1. Current rule and proposal. Under the existing WPS, where
labeling requires eye protection, the requirement may be satisfied by
goggles, safety glasses with front, brow and temple protection, or a
full face respirator. The existing WPS allows aerial applicators
applying pesticides from open cockpit aircraft to substitute a visor
for label-required eye protection. Because the term ``visor'' can be
used to refer to the brim of a cap that provides only shade and offers
little eye protection from pesticide sprays, EPA proposed to clarify
the requirement by removing the term. EPA proposed to allow aerial
applicators to substitute for the label-required eyewear a helmet with
the face shield lowered, because this more clearly indicates EPA's
expectation of a clear visor that covers and adequately protects the
eyes.
2. Final rule. In the final rule, EPA has removed the term
``visor.'' The final rule allows the substitution of a helmet with face
shield lowered for labeled protective eyewear for aerial applicators in
aircraft with open cockpits. The final regulatory text for this
requirement is available at 40 CFR 170.607(f)(2).
3. Comments and responses.
Comments. There were very few comments addressing this proposal.
One state suggested EPA consult with relevant aerial agencies
responsible for overseeing the use of open cockpits for making
pesticide applications to see if the proposal is feasible.
An aerial applicators association asserted that aerial applications
of pesticides using open cockpit aircraft
[[Page 67544]]
are very rare and that EPA is solving a problem that does not exist.
They objected to handlers operating open cockpit aircraft being
required to wear the same PPE as handlers operating open cab ground
equipment. They did not highlight any specific issue with the helmet
and visor being lowered when protective eyewear are required.
EPA Response. EPA acknowledges that while open cockpit aircraft may
be rare, available exposure data indicate that even pilots in enclosed
cab aircraft are exposed to the pesticides they apply. Ensuring that
the eye is protected from pesticides is required by the product
labeling. Helmets with face shields in the lowered position provide
acceptable eye protection, but many items referred to as ``visors''
offer no eye protection from pesticide sprays.
4. Costs and benefits. This provision does not represent a
substantive change to the existing rule. EPA expects the cost to aerial
applicators to be negligible.
E. Aerial Applications--Use of Gloves
1. Current rule and proposal. In the existing rule, aerial
applicators have the option of whether to wear chemical resistant
gloves to enter and exit the aircraft unless gloves are required by the
product labeling. In the proposal, EPA inadvertently inserted the
regulatory language that existed prior to the 2004 rule revision that
required pilots to wear chemical resistant gloves.
2. Final rule. The final rule retains the exception in the existing
WPS that offers aerial applicators the option of wearing chemical-
resistant gloves when entering and exiting the aircraft, except when
the product labeling requires that chemical-resistant gloves be worn
when entering and exiting the aircraft. The final regulatory text for
this requirement is available at 40 CFR 170.607(f)(1).
3. Comments and responses.
Comments. Many applicators and their associations and pesticide
manufacturers noted this error. The commenters also asserted the use of
gloves presents a hazard to pilots who may fall when entering and
exiting the aircraft when wearing gloves. They also suggested
contamination from contact with the exterior of the aircraft is
minimized due to advances in application techniques (e.g., GPS) that
help pilots avoid flying through their spray.
EPA Response. The final rule retains the exception in the existing
regulation that offers aerial applicators the option of wearing
chemical-resistant gloves when entering and exiting the aircraft,
except when the product labeling requires that chemical resistant
gloves be worn entering and exiting the aircraft.
4. Costs and benefits. There is no cost associated with including
the existing exception in the final regulation.
F. Enclosed Cabs--Changes to Exceptions to PPE Requirements When
Applying Pesticides From Inside an Enclosed Cab
1. Current rule and proposal. The existing WPS permits exceptions
to the labeling-specified PPE when handling tasks are performed from
inside an enclosed cab that meets the specifications defined in the
rule based on the dermal protection provided by the enclosed cab, which
prevents pesticides from contacting the body. The existing rule also
permits persons occupying an enclosed cab to forego certain labeling-
required respiratory protection if the cab has been certified by the
manufacturer to provide respiratory protection equivalent to the
handler respiratory protection required by the pesticide labeling.
EPA proposed to eliminate the requirement for any labeling-
specified respiratory protection PPE when applying pesticides from
inside an enclosed cab. This would have allowed handlers to substitute
a long-sleeved shirt, long pants, shoes, and socks for the labeling-
specified PPE in all cases no matter what type of respiratory
protection PPE was required by the labeling.
2. Final Rule. In the final rule, EPA requires handlers in enclosed
cabs to wear the labeling-specified respiratory protection except when
the only labeling-specified respiratory protection is a filtering
facepiece respirator (NIOSH approval number prefix TC-84A) or dust/mist
filtering respirator. In the final rule, handlers in enclosed cabs may
substitute a long-sleeved shirt, long pants, shoes and socks for the
labeling-specified PPE for skin and eye protection. If a filtering
facepiece respirator (NIOSH approval number prefix TC-84A) or dust/mist
filtering respirator is required by the pesticide product labeling for
applicators, then handlers do not need to wear the respirator inside
the enclosed cab if the enclosed cab has a properly functioning air
ventilation system that is used and maintained in accordance with the
manufacturer's written operating instructions. If any other type of
respirator is required by the pesticide labeling for applicators, then
the handler must wear the respirator inside the enclosed cab during
handling activities.
EPA has retained other exceptions to PPE requirements for handlers
using enclosed cabs. Specifically, all of the PPE required by the
pesticide product labeling for applicators must be immediately
available to handlers in an enclosed cab and be stored in a sealed
container to prevent contamination. Handlers must wear the applicator
PPE if they exit the cab within a treated area during application or
when a REI is in effect. Once PPE has been worn in a treated area,
handlers must remove it before reentering the cab to prevent
contamination of the cab.
The final regulatory text for the enclosed cab exception is
available at 40 CFR 170.607(e).
3. Comments and responses.
Comments. EPA did not receive any comments in opposition to the
proposed changes to the enclosed cab exception. One grower noted that
the enclosed cab exception is an excellent component of the proposal.
Another commenter noted that respirator use is infrequent since the
spraying operation takes place from inside an enclosed, climate-
controlled tractor cab.
EPA Response. EPA considered the comments submitted and is
convinced that the enclosed cab exception should be retained since it
provides an important option to reduce potential pesticide exposure
through engineering controls rather than PPE, and such cabs can be an
important tool for addressing heat stress issues for handlers. Although
EPA considered a more expansive exception under its proposal, after
reevaluation of the potential exposure risks for handlers and the
protections afforded by enclosed cabs, EPA determined that enclosed
cabs may not universally provide respiratory protection necessary to
mitigate inhalation risks for any pesticide product that required
respiratory protection greater than a filtering facepiece respirator
(NIOSH approval number prefix TC-84A) or dust/mist filtering
respirator. EPA determined that enclosed cabs may not provide adequate
protection from inhalation exposure hazards when the inhalation
exposure risk arises from vapors or other non-particulate inhalation
hazards. Additionally, EPA has learned that there are no longer any
enclosed cab manufacturers certifying cabs to provide respiratory
protection and the American Society of Agricultural and Biological
Engineers has withdrawn their enclosed cab standard. Based on this
information, EPA has removed provisions under the enclosed cab
exception that permit persons occupying an enclosed cab to eliminate
certain labeling-required respiratory protection PPE if the cab has
been certified by the manufacturer to provide respiratory protection
[[Page 67545]]
equivalent to the respiratory protection required by the pesticide
labeling.
4. Costs and benefits. EPA does not estimate that the change to the
exception to PPE requirements for handlers using a tractor with an
enclosed cab to apply pesticides will have a significant cost. Handlers
will benefit by using adequate respiratory protection when applying
pesticides from an enclosed cab.
XVIII. General Revisions
A. Label vs. Labeling
1. Current rule and proposal. FIFRA defines the label as ``the
written, printed, or graphic matter on, or attached to, the pesticide
or device or any of its containers or wrappers.'' 7 U.S.C. 136(p)(1)
For reasons of space and user convenience, detailed use instructions
and precautions often appear in labeling provided with the pesticide
product upon sale. As defined in FIFRA, ``labeling'' includes ``all
labels and all other written, printed, or graphic matter accompanying
the pesticide or device at any time; or to which reference is made on
the label or in literature accompanying the pesticide or device . . .''
7 U.S.C. 136(p)(2).
Labeling may include booklets distributed with the product when
such documentation is too long to be included on the label that is
securely attached to the container. For example, some products have
labeling that is 60 or more pages long. FIFRA and EPA regulations
require certain information to appear on the label--on or attached to
the pesticide container. Other information necessary to use the product
safely, such as directions for use, may be included in a booklet
distributed with, but not securely attached to, the container (40 CFR
156.10(i)(1)(ii)); this information could also be available on the
Internet if the producer has decided to provide web-distributed
labeling for the product (Ref. 21). In either format, the information
would be considered labeling. Labeling sometimes includes enforceable
references to other documents that do not physically accompany the
container, such as the WPS.
The existing rule discusses employers' responsibilities related to
pesticide labels and labeling in several places. The existing rule
requires agricultural and handler employers to ensure that pesticides
are used in a manner consistent with the labeling. When the emergency
assistance provisions of the WPS are triggered, the existing rule
requires employers to provide information from the product labeling to
affected workers, handlers, and/or treating medical personnel. Handlers
must receive training on the format and meaning of information
contained on pesticide labels and in labeling. Finally, employers must
ensure that handlers have either read or have been informed in a manner
they understand of all labeling requirements related to safe use of the
pesticide, and that the handler has access to the product labeling
during handling activities.
Although the proposal reorganized the rule, some of the
requirements for the existing rule outlined in the previous paragraph
remained essentially unchanged in the proposed rule, e.g., agricultural
and handler employers' responsibility to ensure that pesticides are
used in a manner consistent with the labeling. The proposal included a
requirement for employers to maintain copies of the pesticide labeling
for each pesticide used on the establishment for 2 years from the date
of application. The proposal also would have required the employer to
provide a copy of the label and the product's SDS when the emergency
assistance provisions are triggered, rather than to provide information
from the pesticide labeling.
2. Final rule. Where the proposed rule would have required the
employer to provide a copy of the pesticide label, or specific
information from the labeling, and the SDS under the emergency
assistance provisions, the final rule only requires the employer to
provide the SDS and specific information, which can be obtained from
the pesticide application and hazard information display, rather than
the label or labeling. See Unit XIV. for other comments, EPA's
responses and the final regulatory text related to emergency
assistance. The final rule eliminates the proposed requirement for
employers to maintain copies of the labeling, rather than the label,
for each product bearing a WPS requirement on the labeling, and
replaces it with a requirement for the employer to retain specific
information about the product used and the application, as well as the
SDS. See Unit VII. for other comments, EPA's responses and the final
regulatory text related to this requirement.
For handler training requirements, EPA has amended the language in
the final rule to delete the word ``all'' related to labeling. The
final rule requires handlers to receive training on following the
portions of the labeling applicable to the safe use of the pesticide
and on the format and meaning of information contained on pesticide
labels and in labeling applicable to the safe use of the pesticide. The
final regulatory text for these provisions is available at 40 CFR
170.501(c)(3)(iii)-(iv).
For labeling and application-specific information the employer must
provide to the handler, EPA has amended the final rule to require the
employer to provide the handler with information on all portions of the
labeling applicable to the safe use of the pesticide, rather than on
all labeling requirements. The final regulatory text for this provision
is available at 40 CFR 170.503(a).
3. Comments and responses.
Comments. Commenters raised issues with EPA's use of the term
``labeling'' in the proposed rule. Commenters raised specific concerns
with the use of the broader ``labeling'' in various requirements
instead of limiting those requirements to just the label. These
concerns arose in regard to agricultural and commercial pesticide
handler employer duties, emergency assistance, hazard communication,
and handler training and establishment-specific information.
Some commenters generally disagreed with EPA's use of ``labeling''
and requested that EPA use ``label'' instead throughout the rule. They
asserted that labeling is too broad and that labeling includes
materials not attached to the container, such as advertisements,
brochures and pamphlets. Commenters assert that the broadness of
``labeling'' applied to requirements to provide or retain this
information could result in a requirement on employers to track down
many ancillary pieces of information for a complete record, or to face
a technical violation for failure to retain all elements of the
labeling.
Under the agricultural and commercial pesticide handler employer
duties, at 40 CFR 170.9(a) and 170.13(a) of the proposal, commenters
said that EPA's use of labeling was too broad. They asserted that
employers' liability should be only to comply with the WPS rather than
with the label or all relevant labeling because making the employer
responsible for complying with all labeling exceeds the scope and
intent of the WPS. They also noted that certified applicators, those
competent to use pesticides according to the labeling instructions and
who make the actual applications, should be required to comply with the
labeling, but that the agricultural employer should not.
In regard to emergency assistance, commenters requested that EPA
delete the reference to labeling and replace it with a requirement to
provide the label and EPA registration number of the product.
Commenters note that this requirement would be sufficient to provide
appropriate information for emergencies.
[[Page 67546]]
Commenters also requested that in the section on pesticide
application and hazard information, EPA delete the requirement for the
employer to maintain copies of the labeling for all WPS-labeled
pesticides used on the establishment, and instead to require the
employer to maintain a copy of the label and EPA-registration number.
Again, commenters noted that such a requirement would likely result in
technical violations without providing benefit to workers or handlers.
In the sections on handler training and establishment-specific
information, commenters took issue with requirements to train handlers
on all labeling and to ensure that for specific applications handlers
have read the labeling or have been informed of all labeling
requirements. Commenters noted that a requirement for handlers to be
trained on all labeling requirements, rather than those pertinent to
their specific tasks, would be overly broad and unnecessary. Commenters
requested that EPA replace ``labeling'' with ``label'' in these
sections.
EPA Response. EPA disagrees with commenters' request to replace
``labeling'' with ``label'' throughout the regulation because the
broader term is appropriate in many provisions of the WPS. The FIFRA
scheme for managing the risks of pesticide products rests primarily on
mandatory use directions and precautionary statements approved by EPA
in the registration process and communicated to users through labels
and labeling. Although in the case of lower risk products intended for
general consumer use, this information typically fits on the label,
this is not the case for many agricultural and commercial-use
pesticides.
Labeling does not include advertisements, pamphlets or brochures
unless they accompany the product when sold or are referenced on the
labeling. For instance, EPA has indicated that documents such as
marketing brochures used to sell the product and to provide information
to customers and is not labeling as defined by FIFRA section 2(p).
(http://www.epa.gov/pesticides/regulating/labels/labels_faq/lr_faq_10.html) If a document of this type does not accompany the
product when sold and there is no reference to the bulletin on the
product label, it is not ``labeling.'' Note though, that non-labeling
documentation related to a product must not have claims that differ
from the product label. 7 U.S.C. 136j(a)(1)(B).
Because mandatory use directions often appear in the labeling of
agricultural pesticides, rather than the label, some provisions of the
WPS appropriately use the word ``labeling.'' Where the word
``labeling'' appears in the WPS, employers are responsible for
following or providing labeling as defined in FIFRA. This does not
require employers to find, retain, or provide advertisements, pamphlets
or marketing brochures that do not meet the definition of ``labeling.''
For example, it is appropriate that agricultural and handler
employers' duties under the final rule include ensuring compliance with
``labeling'' rather than just the label. The existing regulation has
the same requirement under general duties and prohibited actions. 40
CFR 170.7(a)(2). The labeling may include directions for use or other
information essential to the safe and effective application of the
pesticide, or specific information related to WPS protections, such as
the REI. For these reasons, EPA has decided not to replace ``labeling''
with ``label'' throughout the final rule as suggested by the
commenters.
Furthermore, the obligation of certified applicators (or any other
person legally applying a pesticide) to follow the labeling does not
negate the obligation of agricultural and handler employers to comply
with the labeling. Requirements related to the WPS are found both in
the regulation (e.g., training, application-specific information) and
on specific product labeling (e.g., directions for use, REI, PPE). In
addition, other non-WPS elements of the labeling, such as application
rates and maximum number of applications to a crop, are relevant to
protecting workers and handlers from occupational exposure to
pesticides. When employers choose to use a pesticide that references
the WPS on the labeling on their establishment (either as the
applicator or by directing another person to apply the pesticide on
their behalf), they are obligated to ensure that all requirements of
the labeling are followed, not only those related to the WPS, to ensure
that workers and handlers are adequately protected.
However, EPA agrees that certain WPS requirements could be limited
to the information on the label or specific information from the label,
and has specified ``label'' instead of ``labeling'' or specific
information from the label where appropriate. For example, EPA agrees
with commenters that employers need not provide all labeling in the
event of the emergency. In the current rule, EPA lists specific
information that must be provided to a potentially injured worker or
handler, or to treating medical personnel: Product name, EPA
registration number, active ingredients, antidote, and first aid and
medical treatment information. Since all of this information is
required on the label (40 CFR 156.10(a)(1)), the final rule allows the
employer to provide a copy of the label or this specific information
from the label, in addition to providing a copy of the SDS, when
emergency assistance is required.
EPA also agrees with commenters' request to eliminate the
requirement for employers to maintain copies of the labeling for all
pesticides with a WPS reference statement used on the establishment.
EPA agrees that if workers, handlers, or other persons need information
on a specific product that was used on the establishment, such
information can be obtained using the EPA registration number and
product name. In response to comments received, EPA has replaced the
proposal with a requirement for the employer to retain only the EPA
registration number, active ingredient(s), product name, and other
application-specific information for such products, in addition to the
SDS.
Similarly, EPA agrees that requiring handler employers to ensure
that handlers have been trained generally on, and for specific
applications have read or been informed of all labeling requirements
may be unnecessary if they are only using a product for a single type
of application. The labeling could include directions for use covering
multiple application methods and multiple crop sites, which may be of
no relevance to a particular handler. Although the final rule continues
to refer to ``labeling'' in this context, it now requires employers to
ensure that for specific applications, handlers have read the portions
of the labeling applicable to the safe use of the pesticide or have
been informed in a manner they understand of all portions of the
labeling applicable to the safe use of the pesticide. Further, EPA has
amended handler training to require that handlers are instructed on
their duty to follow the portions of the labeling applicable to the
safe use of the pesticide, and on the format and meaning of information
contained on pesticide labels and in labeling.
4. Costs and benefits. Where requirements related to labeling have
imposed a cost, e.g., the requirement for the employer to retain
product labeling, the cost is discussed in the Unit related to the
overall requirement. EPA does not estimate any additional costs with
these requirements.
B. Regulating Other Persons
1. Current rule and proposal. Some provisions in the existing WPS
provide protections to persons other than
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workers and handlers (``other persons''). For example, an existing
requirement on the label and in Sec. 170.210(a) specifies that the
applicator must apply the pesticide in a way that will not contact
workers or other persons. The existing requirement for entry-restricted
areas on nurseries in Sec. 170.110 specifies that an agricultural
employer must not allow or direct any person, other than an
appropriately trained and equipped handler, to enter or remain in the
restricted area. The existing immediate family exemption in Sec.
170.104(a)(2) states that the owner of the agricultural establishment
must provide protections to other workers and other persons who are not
part of his immediate family. The description of closed systems in
Sec. 170.240(d)(4) of the existing rule describes closed systems as
systems that enclose the pesticide to prevent it from contacting
handlers or other persons. Also, the scope and purpose in Sec. 170.1
of the existing rule explains that the WPS is intended, in part, to
reduce the risks of illness or injury resulting from the accidental
exposure of workers and other persons to pesticides.
The proposed rule included these same protections for persons other
than workers and handlers and added several additional provisions that
would affect ``other persons.'' The proposed requirement for a handler
to cease or suspend application if a worker or other person is in the
treated area or entry-restricted area was intended to supplement the
existing ``do not contact'' requirements, which already protect persons
other than workers or handlers. In addition, EPA proposed to include
``other persons involved in the use of a pesticide to which this part
applies'' in the proposed anti-retaliation provision in Sec. 170.15.
2. Final rule. The final rule includes the protections and
references to ``other persons'' that were proposed, except that EPA
removed the reference to other persons from the definition of closed
systems. The final rule's prohibition against ``other persons involved
in the use of a pesticide'' retaliating against workers or handlers in
Sec. 170.315 of the final rule is consistent with OSHA's non-
retaliation provision. The other sections that provide protections to
other persons continue existing requirements or supplement existing
requirements and are discussed in detail in Unit IX. and Unit XVII.C.
3. Comments and responses.
Comments. Some grower organizations, states and their
organizations, a retailer organization, and a commercial applicator
opposed including protections for ``other persons'' in the WPS. These
commenters argued that the proposal would extend the WPS to persons not
currently covered and would result in an unwarranted expansion of scope
beyond workers, handlers and employee/employer relationships. The
grower, retailer and applicator commenters stated that including
``other persons'' could create the potential for frivolous legal
challenges by anti-chemical activists seeking to prevent pesticide
applications.
EPA Response. EPA disagrees with the comments on including
protections for ``other persons'' in the WPS. EPA already protects
``other persons'' in addition to workers and handlers in the existing
WPS. EPA notes that anti-chemical activists are not using the current
protections to prevent pesticide applications and the final rule does
not appear significantly more likely to be used in that manner.
4. Costs and benefits. The final rule generally continues or
supplements existing protections so there are no incremental costs or
benefits to the protections for other persons.
C. Definitions
1. General
i. Current rule and proposal. The existing WPS provides definitions
for certain terms for use in the rule. In addition to the specific
definitions for the twenty terms listed in 40 CFR 170.3, the WPS
defines the terms ``closed system,'' ``enclosed cab,'' ``entry-
restricted area,'' ``personal protective equipment,'' and ``use'' in
other sections of the rule where those terms are used. EPA proposed to
revise certain existing definitions to provide greater clarity, to add
several new definitions for terms used in the rule, including
definitions for the terms that had previously been defined elsewhere,
and to eliminate two unnecessary existing definitions for
``greenhouse'' and ``forest.''
ii. Final rule. In the final rule, EPA has adopted the revisions to
the definitions as proposed except for the definitions of the terms
``agricultural establishment,'' ``agricultural plant,'' ``authorized
representative,'' ``closed system,'' ``commercial pesticide handler
employer,'' ``commercial production,'' ``employ,'' ``enclosed space
production,'' ``entry-restricted area,'' ``farm,'' ``forest
operation,'' ``hand labor,'' ``immediate family,'' ''labor contractor''
``outdoor production,'' ''nursery,'' and ``use.'' In the final rule,
EPA has deleted the definitions for the terms ``greenhouse'' and
``forest'' as proposed. EPA has also deleted the existing definitions
for the terms ``farm,'' ``forest operation,'' and ``nursery,'' as well
as the proposed definition for ``commercial production.'' Additionally,
in the final rule EPA has added a new definition for the term
``application exclusion zone.'' The discussions of the existing
definitions and proposal, final rule, comments and EPA response for
these terms are contained in Units XVIII.C.2--XVIII.C.8. The final
regulatory text for these definitions is available at 40 CFR 170.305.
iii. Comments and responses.
Comments. EPA received comments on the proposed definitions of the
terms ``authorized representative,'' ``closed system,'' ``enclosed
space production,'' ``entry-restricted area,'' ``hand labor,''
``immediate family,'' ``outdoor production,'' and ``use''. EPA did not
receive any substantive comments opposed to the other proposed
revisions related to definitions. EPA received several general comments
from state, grower and agricultural producer associations that
supported developing improved definitions because it would reduce the
likelihood of alternative interpretations, while improving compliance
and enforceability. Many farmworker advocacy organizations and public
health organizations also supported EPA's proposed revisions to improve
definitions, commenting that it is important to have clear and
understandable language in order to avoid ambiguity.
During USDA's FIFRA section 25 review of the final rule, USDA
commented that the definition for ``agricultural plant'' depends on the
definition for ``commercial production,'' and the definition for
``commercial production'' depends on the definition for ``agricultural
plant'' (Ref. 15). USDA said similar issues exist in the definitions of
``agricultural establishment'' and ``farm,'' ``forest operation,'' and
``nursery.'' USDA recommended resolving these circular dependencies.
USDA also commented that the proposed definitions of ``employ,''
``labor contractor,'' and ``commercial pesticide handler employer''
contained problematic language that could confusion as to who is
ultimately responsible for providing the handler protections in Subpart
F of the proposed rule.
EPA Response. EPA agrees that improved definitions will reduce the
likelihood of ambiguity and alternative interpretations, while
improving compliance and enforceability. EPA believes these proposed
revisions to the definitions adopt more widely used and commonly
accepted ``plain English'' language, and will add clarity and
consistency to the rule. The proposed revisions to the definitions will
also
[[Page 67548]]
help address regulatory or policy issues with the existing rule raised
by state regulatory partners and other program stakeholders.
In response to comments from USDA made during their FIFRA section
25 review of the final WPS rule, EPA agrees that the definitions for
``agricultural plant'' and ``commercial production,'' and the
definitions for ``agricultural establishment'' and ``farm,'' ``forest
operation,'' and ``nursery'' are circular (Ref. 15). While EPA is not
convinced that serious confusion would result, EPA has eliminated some
definitions and revised others to address USDA's concern. The terms
``commercial production,'' ``farm,'' ``nursery,'' and ``forest
operation'' appear only in the definition section and are not used
elsewhere in the regulation. Accordingly, EPA has deleted these
definitions and merged their substantive content into the definitions
of ``agricultural establishment'' and ``agricultural plant.'' EPA also
agrees that the current definitions of labor contractor and commercial
pesticide handler employer contain some problematic language that could
result in potential confusion and/or conflict regarding agricultural
employer and commercial pesticide handler employer duties under the
rule. In the final rule, EPA has adopted revised definitions for
``employ,'' ``labor contractor,'' and ``commercial pesticide handler
employer'' to address the potential confusion that could result from
conflicting language in the existing proposed definitions. EPA believes
the revised regulatory text clarifies that CPHEs are responsible for
the handlers they employ and agricultural employers would no longer be
considered employers of CPHE handlers for the purposes of the WPS,
without overlooking the fact that some handlers are hired by
agricultural employers through labor contractors and not CPHEs. A copy
of USDA's comments and EPA's responses is available in the docket for
this rulemaking. (Ref. 15).
iv. Costs and benefits. EPA estimates the proposed changes to the
definitions will not substantially change the cost of the final rule.
2. Authorized Representative. i. Current rule and proposal. The
existing WPS does not contain a definition for ``authorized
representative.'' EPA proposed to add the term ``authorized
representative'' to the rule and defined it as ``a person designated by
the worker or handler, orally or in writing, to request and obtain any
information that the employer is required to provide upon request to
the worker or handler.''
ii. Final rule. The rule finalizes the proposed definition with
changes. EPA has retitled the term ``authorized representative'' to
``designated representative'' to better describe the relationship
between the representative and the worker or handler, and the
definition narrows the information that is required to be provided by
the employer to the designated representative. In the final rule,
``designated representative'' means ``any persons designated in writing
by a worker or handler to exercise a right of access on behalf of the
worker or handler to request and obtain a copy of the pesticide
application and hazard information required by Sec. 170.309(h) in
accordance with Sec. 170.311(b) of this part.''
iii. Comments and responses.
Comments. EPA received many comments from states, growers,
agricultural associations and pesticide manufacturer associations
objecting to the definition of ``authorized representative.'' Most
commenters objected to the proposed requirement for employers to make
certain pesticide information available to an ``authorized
representative'' of their workers or handlers rather than the actual
definition of authorized representative. Several farm bureau commenters
and grower groups stated that oral designation of the representative
could result in abuse, and would be unenforceable. One comment from a
farmworker advocacy organization stated that EPA should keep the
definition for authorized representative and clarify the range of
representatives that could legitimately be asked to receive information
on behalf of a worker or handler (e.g., medical care provider, legal
advocate, family member, etc.).
EPA Response. EPA has been convinced by comments that designation
of the representative must be in written form to protect employers from
fraudulent claims. A written request that identifies the worker or
handler can be verified against employment records, and information
about the dates of their employ can be used to narrow the information
needed to be provided. The final rule requires employers to respond to
written requests.
EPA disagrees with the recommendation to limit the definition to
certain persons that could be asked to request the information on
behalf of the worker or handler. EPA believes that specifying classes
of persons permitted to serve as designated representative would
unnecessarily limit worker and handler access to needed information.
The final rule requires employers to respond to such requests within 15
days. However, to ensure that medical personnel treating a worker or
handler have timely access to information necessary for purposes of
diagnosis or treatment, EPA has included a separate requirement for
employers to promptly provide the information to treating medical
personnel or those working under their direction, at 170.311(b)(8).
iv. Costs and benefits. EPA estimates that including the definition
of authorized representative will not change the cost of the final
rule. Costs associated with the requirement for employers to respond to
written requests for pesticide application and hazard information are
included in the discussion in Unit VII.A.
3. Closed System. i. Current rule and proposal. The existing WPS
defines the term ``closed system'' as ``a system that encloses the
pesticide to prevent it from contacting handlers or other persons.''
EPA proposed to move the definition of closed system to the definition
section of the rule and to redefine a closed system as ``a system for
mixing or loading pesticides that encloses the pesticide during removal
of the pesticide from its original container and transfer, mixing, or
loading of the pesticide product, mixtures or dilutions, and any rinse
solution, if applicable, into a new container or application equipment,
in such a manner that prevents the pesticide and any pesticide mixture
or use dilution from contacting handlers or other persons before,
during and after the transfer, except for negligible release associated
with normal operation of the system.''
ii. Final rule. In the final rule, EPA has defined ``closed
system'' as ``an engineering control used to protect handlers from
pesticide exposure hazards when mixing and loading pesticides.'' The
final regulatory text for this definition is available at 40 CFR
170.305.
iii. Comments and responses.
Comments. EPA did not receive any specific comments on the
definition of closed system. However, EPA received a number of comments
related to EPA's proposal on closed systems that indicated the proposed
requirements may be too prescriptive or limiting, could eliminate
desired flexibility for growers, and could discourage innovation and
the adoption of closed systems.
EPA Response. EPA agreed with the comments that the proposed
requirements related to closed systems may be too prescriptive or
limiting, could eliminate desired flexibility for growers, and could
discourage
[[Page 67549]]
innovation and the adoption of closed systems. Although the comments
did not specifically mention the closed system definition, EPA
reconsidered the proposed definition of closed system in light of the
overall comments on closed system requirements. EPA believes that a
broader definition of ``closed system'' will encourage industry
innovation better than the proposed prescriptive definition, and will
retain flexibility for handler employers to design systems specific to
their needs. In the final rule, EPA has adopted a new definition of
closed system that more accurately defines the nature and intent of a
closed system without inadvertently prescribing specific requirements
and operational components for such closed systems.
iv. Costs and benefits. EPA estimates that revising the definition
of closed system will not change the cost of the final rule.
4. Enclosed space production and outdoor production. i. Current
rule and proposal. The existing WPS does not contain definitions for
the terms ``enclosed space production'' or ``outdoor production.''
Instead, the existing WPS defines the term ``greenhouse'' to describe
the type of WPS-covered agricultural establishments that produce
agricultural plants inside enclosed structures. The existing rule uses
the terms ``farm,'' ``forest'' and ``nursery'' for WPS-covered
agricultural establishments that produce agricultural plants outdoors.
Greenhouse is defined in the existing WPS as ``any operation engaged in
the production of agricultural plants inside any structure or space
that is enclosed with nonporous covering and that is of sufficient size
to permit worker entry. This term includes, but is not limited to,
polyhouses, mushroom houses, rhubarb houses, and similar structures. It
does not include such structures as malls, atriums, conservatories,
arboretums, or office buildings where agricultural plants are present
primarily for aesthetic or climatic modification.'' EPA proposed to
delete the definition of ``greenhouse'' because it would no longer be
necessary as a result of the proposed addition of a new definition for
``enclosed space production.'' EPA proposed to define enclosed space
production as ``production of an agricultural plant in a structure or
space that is covered in whole or in part and that is large enough to
permit a person to enter.'' EPA also proposed to add a new definition
for the term ``outdoor production'' and defined it as ``production of
an agricultural plant in an outside open space or area that is not
enclosed or covered in any way.''
ii. Final rule. In the final rule, EPA has deleted the definition
of the term ``greenhouse'' as proposed, and has adopted the definitions
for ``enclosed space production'' and ``outdoor production'' with
modifications. The final rule defines ``enclosed space production'' as
``production of an agricultural plant indoors or in a structure or
space that is covered in whole or in part by any nonporous covering and
that is large enough to permit a person to enter,'' and defines
``outdoor production'' as ``production of an agricultural plant in an
outside area that is not enclosed or covered in any way that would
obstruct the natural air flow.'' The final regulatory text for these
definitions is available at 40 CFR 170.305.
iii. Comments and responses.
Comments. EPA received several comments from states and their
organizations opposing the definition of ``enclosed space production''
as written. A few other commenters also expressed concerns with the
definition of ``outdoor production.'' A state association noted that
the proposed definition could greatly expand areas covered under
certain entry restrictions to include any covered area such as fields
or groves with shade covers and/or screen houses. The commenter
expressed concerns that entry restrictions currently applicable to
greenhouses would be extended to these establishments, and is not aware
of any need for such an extension of these restrictions. States
generally echoed these comments. One state requested clarification of
whether the term ``spaces covered in part'' includes structures such as
``hoop houses,'' and another state noted that the proposed rule did not
define or reference high tunnels and requested clarification of whether
``high tunnels'' are considered a greenhouse for the purposes of WPS
(i.e., would ``high tunnels'' be considered a type of enclosed space
production?). One state commented that the proposed definition expands
areas covered under certain entry restrictions to include shade houses
and screen houses and this would have a major impact in on the state's
nursery industry. Another state also expressed concerns that the
proposed definition of enclosed space production would expand
restrictions beyond greenhouses, and suggested that EPA add the phase
``where the production of agricultural plants for research or
commercial purposes occurs'' to the definitions of enclosed space
production and outdoor production so that only those operations engaged
in the production of agricultural plants for commercial purposes would
be covered by the WPS. Another state commented that the term ``outdoor
production'' is too broad and by misinterpretation, could encompass a
number of non-farm activities.
During USDA's FIFRA section 25 review of the final rule, USDA
commented that the inclusion of the term ``natural forest'' in the
definition of ``outdoor production'' creates confusion since there is
no explanation of what the term ``natural forest'' means and therefore
the term is not needed (Ref. 15).
EPA Response. EPA considered the comments submitted and agrees with
the comments that said the proposed definition of ``enclosed space
production'' could expand areas covered under certain entry
restrictions to include any covered area such as fields or groves with
porous shade covers and/or screen houses where such restrictions are
not necessary. EPA noted the potential impact of the proposed
definition on the nursery industry as raised by commenters. EPA also
agrees that the proposed definition of ``outdoor production'' could
lead to some outdoor production being considered enclosed space
production because of the phrase ``that is not enclosed or covered in
any way.'' EPA is convinced that the definition of enclosed space
production and outdoor production should be revised so that operations
that use non-porous coverings in their plant production operations,
such as screen houses and shade houses, are not covered by the entry
restrictions deemed necessary for the protection of workers and
handlers that are working with pesticides or in pesticide treated areas
in enclosed space production operations. Therefore, EPA revised the
definitions of enclosed space production and outdoor production to
clarify that enclosed space production only includes areas covered in
whole or in part ``by any nonporous covering,'' rather than ``any
covering'' as in the proposed definition; and that outdoor production
will include areas that are covered only with coverings that are
sufficiently porous that they do not obstruct the natural air flow
typical of open fields or forests. It is intended that these
definitions of enclosed space production and outdoor production be
complementary, such that all production agriculture is either enclosed
space production or outdoor production.
EPA does not agree with the request to add the phrase ``where the
production of agricultural plants for research or commercial purposes
occurs'' to the definitions of enclosed space production and outdoor
[[Page 67550]]
production so that only those operations engaged in the production of
agricultural plants for commercial purposes would be covered by the
WPS. EPA believes other definitions and language in the rule already
clearly limit the scope of the WPS to establishments where the
production of agricultural plants for research or commercial purposes
occurs, so the addition of such language to these definitions would be
redundant and would not serve to further limit the scope of the rule in
any way not already accomplished through other means.
Some commenters requested clarification of whether structures such
as ``hoop houses,'' and ``high tunnels'' are considered a type of
enclosed space production. The term ``greenhouse'' in the WPS has
resulted in enforcement problems, because of the extreme variability in
the types of structures that might be considered greenhouses. This
problem is compounded when considering the many greenhouse-type
structures (e.g., polyhouses, mushroom houses, hoop houses, high
tunnels and similar structures) that have come into use. This is why
EPA has replaced the term greenhouse with enclosed space production.
EPA believes the new terms correspond more accurately to the nature of
the risk that EPA is concerned about mitigating (i.e., use of
pesticides in enclosed spaces that could affect pesticide inhalation
exposure potential). Therefore, if a structure or space is covered in
whole or in part by any nonporous covering and is large enough to
permit a person to enter, then the structure or space would fall under
the definition of enclosed space production in the final rule. EPA
anticipates that most greenhouses, hoop houses, high tunnels and
similar structures will fall within the definition of enclosed space
production, but a final determination will be made on a case-by-case
basis applying the parameters of the definition to each situation.
EPA agrees with USDA that the inclusion of the term ``natural
forest'' in the definition of ``outdoor production'' creates confusion
and is not needed. In response, EPA has revised the final definition of
outdoor production accordingly (Ref. 15).
iv. Costs and benefits. EPA estimates adding and changing the
definition of enclosed space production and outdoor production will not
substantially change the cost of the final rule.
5. Entry-restricted area and application exclusion zone. i. Current
rule and proposal. The existing WPS does not contain a definition for
the terms ``entry-restricted area'' or ``application exclusion zone.''
Under the existing rule, the term ``entry-restricted area'' is used to
refer to areas on an establishment from which workers and other persons
must be excluded during, and/or immediately after, an ongoing pesticide
application to protect the workers or other persons from being
contacted by the pesticide (either directly or through drift). EPA
proposed to define the term ``entry-restricted area'' as ``the area
from which workers or other persons must be excluded during and after
the pesticide application.''
ii. Final rule. In the final rule, EPA has added the term
``application exclusion zone'' instead of the proposed term ``entry-
restricted area.'' EPA has defined the term ``application exclusion
zone'' as ``the area surrounding the application equipment which must
be free of all persons, other than appropriately trained and equipped
handlers, during pesticide applications.'' The final regulatory text
for this definition is available at 40 CFR 170.305.
iii. Comments and responses.
Comments. EPA received several comments from states regarding the
term ``entry-restricted area.'' One commenter said the term was
linguistically awkward and said EPA should instead use the term
``restricted area buffer.''
EPA Response. EPA considered the comments submitted and agrees with
the comments that the term ``entry-restricted area'' was not clear and
would be likely to cause confusion. In the final rule, EPA has
eliminated the use of that term and has therefore deleted the proposed
definition. The final rule adopts the term ``application exclusion
zone'' to refer to the area from which persons must be excluded during
applications. See Unit IX. for EPA's response to the comments on the
WPS requirements related to entry-restricted areas.
iv. Costs and benefits. EPA estimates that not including the
proposed definition of the term ``entry-restricted area'' in the final
rule and adding the new definition for ``application exclusion zone''
will not substantially change the cost of the final rule.
6. Hand labor. i. Current rule and proposal. The existing WPS
defines hand labor as ``any agricultural activity performed by hand or
with hand tools that causes a worker to have substantial contact with
surfaces (such as plants, plant parts, or soil) that may contain
pesticide residues. These activities include, but are not limited to,
harvesting, detasseling, thinning, weeding, topping, planting, sucker
removal, pruning, disbudding, roguing, and packing produce into
containers in the field. Hand labor does not include operating, moving,
or repairing irrigation or watering equipment or performing the tasks
of crop advisors.'' In the proposal, EPA intended to revise the
definition by deleting the following sentence from the existing
definition, ``These activities include, but are not limited to,
harvesting, detasseling, thinning, weeding, topping, planting, sucker
removal, pruning, disbudding, roguing, and packing produce into
containers in the field.'' In the proposed regulatory text for the
definition of term ``hand labor,'' EPA inadvertently deleted the phrase
``except that hand labor does not include operating, moving, or
repairing irrigation or watering equipment or performing crop advisor
tasks'' from the end of the definition. The erroneously proposed
definition for the term ``hand labor'' was ``any agricultural activity
performed by hand or with hand tools that cause a worker to have
substantial contact with plants, plant parts, or soil and other
surfaces that may contain pesticide residues.''
ii. Final rule. EPA has corrected the unintentional omission from
the proposed definition of ``hand labor.'' The final rule defines
``hand labor'' as ``any agricultural activity performed by hand or with
hand tools that cause a worker to have substantial contact with plants,
plant parts, or soil and other surfaces that may contain pesticide
residues, except that hand labor does not include operating, moving, or
repairing irrigation or watering equipment or performing crop advisor
tasks.'' The final regulatory text for this definition is available at
40 CFR 170.305 for the final regulatory language for definitions.
iii. Comments and responses.
Comments. One commenter objected to the proposed change to the
definition of hand labor that deleted the phrase ``except that hand
labor does not include operating, moving, or repairing irrigation or
watering equipment or performing crop advisor tasks'' from the end of
the definition. The commenter indicated that removing this exception
from the definition of hand labor would make the irrigation exception
for early entry unworkable and would disrupt irrigation operations.
EPA Response. EPA agrees with the comment on the definition of
``hand labor.'' In the final, rule EPA has deleted the sentence listing
hand labor activities as proposed, but has retained the clause
excluding ``operating, moving, or repairing irrigation or watering
equipment or performing crop advisor
[[Page 67551]]
tasks'' from being considered hand labor tasks.
iv. Costs and benefits. EPA estimates that revising the definition
of hand labor will not change the cost of the final rule.
7. Immediate Family. See Unit XVII.A. for a complete discussion of
EPA's consideration of the definition of ``immediate family'' in
conjunction with the exemption from certain provisions of the WPS for
owners and members of their immediate families.
8. Use. i. Existing definitions and proposal. The existing WPS
provides a definition of the term ``use'' (as in ``to use any
registered pesticide in a manner inconsistent with its labeling'') for
the purposes of the rule at 40 CFR 170.9, ``Violations of this part.''
For the purposes of the WPS, EPA has interpreted the term ``use'' to
cover a broad range of pesticide-related activities that are listed at
40 CFR 170.9. EPA proposed to move the existing definition for ``use''
found at 40 CFR 170.9 into the definitions section of the rule.
ii. Final rule. In the final rule, EPA has adopted the definition
for ``use'' as proposed. The final regulatory text for this definition
is available at 40 CFR 170.305.
iii. Comments and responses.
Comments. EPA received several comments from states, growers,
agricultural associations and pesticide manufacturer associations
objecting to the proposed definition of ``use.'' Most commenters
objected to the definition of use because they did not support
inclusion of ``arranging for application of the pesticide'' as part of
the definition of ``use.'' Some commenters said they believed that this
language would greatly expand the scope of the WPS and would be
unreasonable and unnecessary. Some commenters noted that they could not
see how ``arranging for application of the pesticide'' could be
considered use. During its review of the draft final rule under FIFRA
section 25(a), USDA noted that the term ``arranging for the application
of the pesticide'' as part of the definition of the term ``use'' could
lead to persons that call on or answer the telephone and ``arrange''
for pest management by scheduling the appointment on behalf of another
to be covered by the rule and possibly have WPS responsibilities.
EPA Response. EPA disagrees with comments that say the proposed
definition for the term ``use'' could or will expand the scope of the
WPS because this interpretation has been in the WPS since the rule
first became effective. Moreover, EPA has not been made aware of any
instances where this interpretation of ``use'' has resulted in an
unreasonable or inappropriate outcome. EPA believes that ``arranging
for application of the pesticide'' is appropriately part of the
definition of ``use'' for the purposes of the WPS because in production
agriculture, the individual who physically ``uses'' a pesticide almost
always does so at the direction of another person who has substantially
greater control over the circumstances of the use. Thus the WPS is
designed so that when an agricultural or handler employer arranges for
the application of a pesticide by a handler employee, it triggers
certain WPS duties that are properly the responsibility of the
agricultural or handler employer. For instance, once the agricultural
employer arranges for a pesticide application by a commercial pesticide
handling establishment, the commercial pesticide handler employer must
provide the agricultural employer with certain information about the
intended application before the application takes place (so the
employer will be able to fulfill WPS notification requirements and
protect workers during application, etc.). In such circumstances, it is
reasonable and appropriate that the handler employer should be held
responsible for the pre-application information exchange even though
the application has not commenced and even though the handler employer
personally never physically ``uses'' the pesticide.
EPA interprets ``arranging for application of the pesticide'' as
used in Sec. 170.9(a) and Sec. 170.305 as a means of assuring that
the entities (generally the agricultural employer or handler employer)
with the most authority and control over WPS compliance would be
legally responsible for WPS compliance. EPA does not interpret
``arranging for application of the pesticide'' as making subordinate
persons who merely perform the clerical functions of arranging for
application of the pesticide liable for WPS compliance. Therefore,
since EPA has not been made aware of any instances where the existing
interpretation of the term use has resulted in any problems for
growers, states or the agricultural industry, EPA has moved the
definition for the term ``use'' into the definitions section of the
rule without any change from the proposal.
iv. Costs and benefits. Moving the definition of use will not
change the cost of the final rule.
D. Restructuring 40 CFR Part 170
1. Current rule and proposal. The existing WPS is organized into
three subparts: ``General Provisions,'' ``Standard for Workers,'' and
``Standard for Handlers.'' Content that applies to both workers and
handlers is repeated creating redundancy throughout the rule.
EPA discussed renaming the regulation ``Requirements for Protection
of Agricultural Workers and Pesticide Handlers'' in the preamble of the
proposal and proposed reorganizing the rule into four subparts:
``General Provisions,'' ``Requirements for Protection of Agricultural
Workers,'' ``Requirements for Protection of Pesticide Handlers,'' and
``Exemptions and Exceptions.'' EPA proposed creating the ``General
Provisions'' subpart to describe certain obligations for agricultural
employers, handler employers, and those requirements that apply to
both. The proposal included subparts ``Requirements for Protection of
Agricultural Workers'' and ``Requirements for Protection of Pesticide
Handlers'' to provide information that supplements the general duties
and obligations for employers and to outline the content of the
training and decontamination supplies that the employer must provide
for workers and handlers respectively. EPA proposed to consolidate most
of the exceptions and exemptions into a separate subpart titled
``Exemptions and Exceptions'' to make them easier to find and
reference.
2. Final Rule. In the final rule, EPA has retained the existing
name of the regulation, ``Worker Protection Standard,'' and has adopted
the proposed restructuring of the rule with minor modifications.
EPA has determined that it is appropriate to allow one year for
employers, trainers, and state and tribal regulators to prepare for the
changes to the WPS. See Unit XIX. In order to allow the existing WPS to
remain in effect for one year and to make available the revised
regulatory language in advance of the implementation date, both the
existing WPS and the revised WPS must appear in the Code of Federal
Regulations. Thus the final rule provides that Subparts A, B and C of
part 170 will remain in effect until one year after the effective date
of this final rule. Subparts D, E, F and G of part 170 contain the full
text of the revised WPS; however, these subparts will not be
implemented until one year after the effective date of this final rule.
Some provisions of subparts D, E, F and G, such as pesticide safety
training and the pesticide information display, will not be implemented
until two years after the effective date of this final rule. One year
after the effective date of this final rule, subparts A, B and C will
no longer be effective. At that time, EPA intends to
[[Page 67552]]
delete subparts A, B and C from part 170.
In addition to finalizing the proposed structuring of the rule, EPA
has added a new section providing a process for allowing states and
tribes to request equivalency determinations from EPA for existing
state or tribal laws or regulations that may provide protections
equivalent to the WPS. EPA has added this to a retitled subpart:
``Exemptions, Exceptions and Equivalency.''
3. Comments and responses.
Comments. EPA did not receive any comments opposed to the proposal
to restructure the WPS. One commenter noted that the proposed
restructuring of the rule increased the clarity of the rule and the
relationship among the components. Another commenter asserted that
there was no need to change the name of the regulation, and noted that
if EPA was going to change the name of the rule, it should more
accurately represent the full scope of the rule and the impacted
establishments.
EPA Response. EPA agrees with the comment that it is unnecessary to
change the name of the rule. ``Worker Protection Standard'' and the
abbreviation WPS are commonly used and associated with the rule. Upon
further consideration, EPA agrees that the existing name of the rule is
very widely recognized and that it will facilitate more effective
communications on the rule to retain the current name of the rule.
EPA also agrees with the commenter that the proposed restructuring
of the rule increases the clarity of the rule and the relationship
among the components. EPA is adopting the proposed restructuring of the
WPS in the final rule with the minor modifications noted. EPA expects
the revised part 170 will be easier to read and understand, thereby
improving compliance by worker and handler employers.
4. Costs and benefits. EPA does not estimate any costs associated
with the restructuring of the rule. The benefits of the restructuring
will be increased clarity and understanding of the rule which should
result in improved compliance and more consistent enforcement.
E. Equivalency Provisions
1. Current rule and proposal. The current WPS does not contain
equivalency provisions that would permit EPA to potentially recognize,
through a WPS-established regulatory mechanism, state or tribal worker
protection laws and/or regulations that may provide equivalent or
significantly greater protection in comparison to the provisions of the
existing WPS, or provide equivalent protection at a significantly lower
cost. EPA did not propose to add equivalency provisions to the rule
because it did not receive information from states or tribes that such
provisions were necessary, and had not been informed by growers that
WPS requirements conflicted with existing state or tribal worker
protection laws or regulations.
2. Final rule. In the final rule, EPA has included a section on
equivalency because of comments received that indicate provisions may
be needed to address certain issues with the WPS potentially
conflicting with existing state and tribal worker protection laws or
regulations. EPA recognizes that some states and tribes have existing
worker protection provisions in their own laws and regulations that may
be equivalent to the provisions of the existing WPS, that may provide
significantly greater protection, or may provide equivalent protection
at a significantly lower cost, and decided it would be more practical
and efficient to establish a mechanism to evaluate specific state or
tribal requirements and to make equivalency determinations rather than
relying on other EPA enforcement mechanisms or policies to be able to
allow such determinations. The final regulatory text for this
requirement is available at 40 CFR 170.609.
3. Comments and responses.
Comments. Although EPA did not propose equivalency provisions, EPA
received comments from the California Department of Pesticide
Regulation (CDPR) that indicated it would be beneficial if states could
be granted `equivalency' as was done for the current WPS. The CDPR
comment refers to an independent enforcement discretion decision that
was granted under the current WPS to recognize CDPR's requirement for
the content of their field posting sign to be equivalent to the
existing requirement at 40 CFR 170.120. Comments from some other state
pesticide regulatory agencies indicate there may be issues of
equivalency between their regulations and the final WPS requirements.
Although these commenters did not specifically raise the need for
equivalency provision, they indicated a need for EPA to be aware of the
issue and potentially identify solutions.
EPA Response. Based on the comments received and EPA's experience
with the current WPS and requests from CDPR for equivalency on certain
regulatory requirements, EPA agrees that there are potential situations
where states or tribes may request EPA to consider equivalency under
the WPS for their laws or regulations. Therefore, EPA believes it is
prudent to consider an equivalency process under the WPS, and feels
strongly that it is more efficient and advantageous to establish a
mechanism for considering equivalency in the WPS rule rather than
relying on other mechanisms. EPA has provided a general equivalency
process in the rule that is modeled on the provisions that were
developed and implemented for substantially the same reason and purpose
under the pesticide containment regulations in 40 CFR 165.97. (71 FR
47330, August 16, 2006).
4. Costs and benefits. EPA does not estimate any costs associated
with adding the equivalency provisions to the rule. The benefits of
allowing equivalency under the provisions being included in the final
rule will be that EPA will be able to more easily consider and permit
equivalency for some states that have provisions in their own laws and
regulations equivalent to the provisions of the WPS or that may provide
significantly greater protections or equivalent protection at a lower
cost.
F. Clarifications
1. Scope and Purpose. In the final rule, EPA has clarified who the
rule protects and that agricultural and commercial pesticide handler
employers are responsible for carrying out the requirements of the
rule. EPA has also clarified that handlers have responsibilities under
the rule to protect workers and other persons during pesticide
applications. Refer to 40 CFR 170.301 for the revised language.
2. Applicability. In the final rule, EPA has clarified in 40 CFR
170.303(c) that users must comply with product labeling requirements
where the labeling requirements differ from the rule, except as
provided in 40 CFR 170.601, 170.603, and 170.607, where the WPS
provides exceptions to label-required PPE and REIs.
3. Prohibited Actions. In the proposed rule EPA proposed
modifications to the retaliation provisions of the rule to clarify the
actions that are prohibited under the rule. In the final rule EPA has
further modified the retaliation provisions based on comments provided
from DOL on how EPA could improve its retaliation provisions by
modeling it after language used in similar provisions in DOL
regulations. Moreover, we note that this rule does not preempt the
general anti-retaliation provision in the DOL-administered Occupational
Safety and Health Act, 29 U.S.C. 660(c). Refer to 40 CFR 170.315 for
the regulatory text.
[[Page 67553]]
XIX. Implementation
A. Proposal
EPA proposed to make the final rule effective 60 days after the
date of publication in the Federal Register; however, compliance with
certain provisions, including the additional content of pesticide
safety training and pesticide safety information, and new signs for
posting, would not be required until 2 years after the effective date
of the final rule. EPA proposed the 2-year delay between effective date
of the final rule and the implementation date to allow time for new
training materials to be developed and made available, and to give
employers, trainers, and other affected stakeholders time to make the
necessary changes to their practices and operations to comply with the
new training and pesticide safety information requirements. EPA also
linked the implementation date for the revised pesticide safety
training requirements for workers and handlers to the availability of
new revised training materials that satisfy the new rule requirements.
Under the proposal, if EPA announced the availability of such materials
sooner than 18 months after the effective date of the final rule, then
the new training requirements would go into effect 2 years after the
effective date of the final rule. If EPA announced the availability of
materials that comply with the requirements more than 18 months after
the effective date of the final rule, then the new training
requirements would not take effect until 180 days after the
announcement of availability of complying training materials published
in the Federal Register.
B. Final Rule
EPA has included in the final rule a one-year delay from the
effective date of the final rule before employers must comply with any
of the new WPS requirements. Thus, on January 2, 2017, employers will
be required to comply with almost all of the new and revised WPS
requirements. However, employers will not be required to comply with
certain new WPS provisions until two years after the effective date of
the final rule. This two year delay applies to the new requirements for
pesticide safety training for workers and handlers, pesticide safety
information and handlers to suspend applications when workers or other
persons are in the application exclusion zone. As proposed, the final
rule provides that compliance with certain new training requirements
will not be required until the later of two years after the effective
date of the final rule, or 180 days after EPA publishes in the Federal
Register a notice of availability of new revised training materials
that satisfy the new rule requirements.
The final regulatory text for these provisions is available at 40
CFR 170.2, 170.311(a)(3), 170.401(c)(3), 170.501(c)(3) and 170.505(b).
C. Comments and Responses
Comments. Most comments that addressed implementation focused on
three main areas: (1) The need for better and more effective
enforcement of the revised rule once the new requirements are
effective; (2) the need for appropriate supporting communication,
education, training and compliance assistance materials to facilitate
effective implementation; and (3) the need for additional time before
the final rule becomes effective to give regulators and the regulated
community time to prepare for compliance with new requirements.
Many comments from states, pesticide safety educators, trainers,
grower associations and pesticide manufacturer associations pointed out
a need for appropriate training and compliance assistance materials to
support effective implementation. Commenters indicated that it was
essential for EPA to have updated communications and compliance
assistance materials, such as fact sheets and the ``WPS How to Comply''
manual, developed and available to all affected parties in order for
the regulated community to be able to learn and understand new
requirements. Several states, grower associations and pesticide
manufacturer associations commented that EPA should provide more time
before the new rule requirements become effective so that regulators
and the regulated community can more adequately prepare for compliance
with new requirements. However, several farmworker advocacy
organizations urged EPA to implement the proposed training requirements
for workers and handlers sooner than the proposal of 2 years from the
effective date of the final rule.
EPA Response. EPA considered the comments submitted and agrees that
after publication of the final rule, some time is needed before the new
WPS requirements are implemented. EPA understands that State, tribal
and federal regulators need time to become familiar with the new
regulation, provide training to pesticide inspectors, develop the
capacity for enforcing the new rule requirements, establish appropriate
WPS inspection and enforcement policies, and conduct outreach to the
regulated and protected communities. In addition, agricultural
employers will need time to become familiar with the new requirements
and implement any necessary changes. In the final rule, EPA has delayed
the implementation of the new WPS requirements for one year so that EPA
can work with state and tribal pesticide regulators and the regulated
community to better prepare for compliance with new rule requirements.
The existing rule will remain in effect and be enforced during this
time, as provided in 40 CFR 170.2.
EPA disagrees with comments that the compliance dates for the new
worker and handler training requirements should be implemented sooner
than 2 years from the effective date of the final rule as outlined in
the proposal. EPA believes that up to 18 months could be needed in
order to develop and disseminate new, high quality, multi-lingual
worker and handler training materials in multimedia formats that comply
with the new requirements. Additionally trainers will have to obtain
the new training materials, become familiar with the new training
content and ensure that they continue to meet any eligibility
requirements to train. Therefore, EPA has decided to retain the
proposed requirement to delay the new training requirements for 2 years
from the effective date of the final rule (or 180 days after the
announcement that training materials are available, whichever is later)
to allow adequate time for development and widespread distribution of
the materials to trainers and employers. While EPA agrees that it is
important for workers and handlers to have the new safety training
information as soon as possible, time will be needed to create and
distribute new training materials and to allow existing trainers to
familiarize themselves with those new materials. In order to maximize
compliance with the final rule, and in the interests of consistency and
efficiency, EPA intends to develop and make available suitable training
materials. EPA intends to have new training materials developed and
disseminated as soon as practical and will encourage employers to begin
using the new materials as soon as they become available so that many
workers and handlers will begin receiving the benefits of the new
training before the required date.
EPA is committed to a robust outreach, communications and training
effort to communicate the new rule requirements to affected WPS
stakeholders. To facilitate implementation, EPA plans to issue plain
language ``how to comply'' fact sheets and guidance materials once the
[[Page 67554]]
final rule is published. EPA plans to develop compliance assistance
materials that are targeted to specific agricultural sectors and rule
requirements such as respirator requirements or the WPS exemptions and
exceptions. EPA also intends to develop and disseminate new worker and
handler training materials, conduct outreach to potentially affected
parties, and provide assistance and resources to States and Tribes for
WPS implementation. EPA plans to hold Pesticide Regulatory Education
Program courses for State and Tribal pesticide program staff that will
focus on WPS implementation, and Pesticide Inspector Residential
Training courses for State and Tribal pesticide inspectors that will
focus on WPS inspection requirements.
D. Costs and Benefits
The discussion of the overall expected costs and benefits for
implementation are discussed in Unit II.C. EPA believes that delaying
the dates for compliance with the final rule for one year after the
effective date will allow regulators and the regulated community to
better prepare for compliance with the rule while delaying immediate
costs and allowing time for employers to explore ways to minimize
implementation costs.
XX. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the person
listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Economic Analysis of the Agricultural Worker Protection
Standard Revisions. Washington, DC 2015.
2. EPA. Pesticides; Agricultural Worker Protection Standard
Revisions; Proposed Rule. Federal Register (79 FR 15444, March 19,
2014) (FRL-9395-8).
3. EPA. Final Report: Small Business Advocacy Review Panel on EPA
Planned Revisions to Two Related Rules: Worker Protection Standard
for Agricultural Pesticides (RIN 2070-AJ22); and Certification of
Pesticide Applicators (RIN 2070-AJ20). November 3, 2008.
4. EPA. Response to Comments on Proposed Changes to the Worker
Protection Standard. 2015.
5. U.S. Senate. S. Rep. No. 92-883 (Part II), 92nd Congress, 2nd
Session at 43-46 (1972). U.S. Code Congressional and Administrative
News 1972, p. 4063.
6. DOL. 2011-2012 NAWS data--public set. http://www.doleta.gov/agworker/naws.cfm#d-files. Retrieved April 24 2015.
7. USDA Economic Research Service. Kandel, W. Profile of Hired
Farmworkers, A 2008 Update. Economic Research Report No. 60. U.S.
Department of Agriculture. Economic Research Service. 2008.
8. EPA. Worker Protection Standard: A Summary of the Public's
Comments and the Agency's Response. 1992.
9. Burke, L., Hutchins, H. ``A Study of Best Practices in Training
Transfer and Proposed Model of Transfer.'' Human Resource
Development Quarterly. Vol. 19 no. 2, Summer 2008.
10. Calvert, et al, 2008. ``Acute pesticide poisoning among
agricultural workers in the United States, 1998-2005.''American J
Ind Med 51, no. 12: 883-898. December 2008.
11. Kasner, et al. ``Gender differences in acute pesticide-related
illnesses and injuries among farmworkers in the United States, 1998-
2007. American J Ind Med 55, no. 7: 571-583. July 2012. http://onlinelibrary.wiley.com/doi/10.1002/ajim.22052/full. Retrieved April
24, 2015.
12. Lee, S-J, Mehler, L, Beckman, J, Diebolt-Brown, B, Prado, J,
Lackovic, M, et al. ``Acute Pesticide Illnesses Associated with Off-
Target Pesticide Drift from Agricultural Applications.'' Environ
Health Perspect 119:1162-1169. 2011.
13. EPA. Response to ``Pesticides in the Air--Kids at Risk: Petition
to Protect Children from Pesticide Drift (2009).'' 2014.
14. EPA. Economic Analysis of the Proposed Agricultural Worker
Protection Standard Revisions. Washington, DC 2014.
15. EPA. USDA Comments on the Draft Final Agricultural Worker
Protection Standard Revision Rule and EPA Responses. 2015.
16. EPA. Pesticides; Procedural Regulations for Registration Review;
Final Rule. Federal Register (71 FR 45720, August 9, 2006) (FRL-
8080-4).
17. OSHA. Hazard Communication; Final Rule. Federal Register (77 FR
17574, March 26, 2012).
18. EPA. Worker Protection Standards for Agricultural Pesticides;
Proposed Rule. Federal Register (53 FR 25970, July 8, 1988) (FRL
3314-4).
19. OSHA. Hazard Communications Standard; Proposed Rule. Federal
Register (53 FR 29822, August 8, 1988).
20. EPA. Worker Protection Standard; Hazard Information; Proposed
Rule. Federal Register (57 FR 38167, August 21, 1992) (FRL-3793-1).
21. EPA. Pesticides; Final Guidance for Pesticide Registrants on
Web-Distributed Labeling; Notice of Availability. Federal Register
(79 FR 18908, April 4, 2014) (FRL-9905-60).
22. EPA. Pesticide Management and Disposal; Standards for Pesticide
Containers and Containment; Final Rule. Federal Register (71 FR
47330, August 16, 2006) (FRL-8076-2).
23. EPA. Information Collection Request Supporting Statement:
Agricultural Worker Protection Standard Training and Notification
(Final Rule). EPA ICR No. 2491.02 and OMB Control No. 2070-0190.
2015.
XXI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review; and,
Executive Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action because it may raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866 (58 FR 51735, October 4, 1993). Accordingly, EPA submitted the
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the docket. EPA prepared an economic analysis of the
potential costs and benefits associated with this action, which is
available in the docket and summarized in Unit II.C. (Ref. 1).
B. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been
submitted to OMB for approval under the PRA, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document that the EPA prepared has
been assigned EPA ICR number 2491.02 and OMB Control No. 2070-0190
(Ref. 23). You can find a copy of the ICR in the docket for this rule,
and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
The information collection activities related to the existing
Worker Protection Standard are already approved by OMB in an ICR titled
``Worker Protection Standard Training and Notification'' (EPA ICR No.
1759; OMB Control No. 2070-0148). The final rule ICR addresses
adjustments to the estimated number of respondents, time for
activities, and wage rates related to the current regulatory
requirements as approved under OMB Control No. 2070-0148. In addition,
the final rule ICR addresses program changes related to the amendments,
including modifications to restrictions in field entry activities
during REIs; increased hazard communications; increased training (for
both workers and handlers); provisions for information during emergency
assistance; and recordkeeping for respirator and training requirements.
Respondents/affected entities: Agricultural establishments. The
number of agricultural establishments is based on the 2012 Census of
Agriculture data, special tabulation, by the USDA
[[Page 67555]]
National Agricultural Statistics Service (NASS). Based on that
information, there are about 870,000 crop producing establishments
covered by the rule.
Commercial pesticide handling establishments. Based on information
from Hoover's Dun and Bradstreet, EPA estimates there are about 2,000
commercial pesticide handling establishments. Based on EPA's data on
certified applicators, there are more than 40,000 commercial
applicators in plant agriculture.
Agricultural workers and handlers. EPA estimates that there are
about 1.9 million workers, based on the 2012 Census of Agriculture
data, special tabulation, by USDA's NASS.
Respondent's obligation to respond: Mandatory (7 U.S.C. 136-136y,
particularly section 136w(a)).
Estimated number of respondents: 985,000.
Frequency of response: Rule familiarization will occur annually for
the first 3 years. Training of workers and handlers will occur
annually. Posting of the hazard communications information will occur,
on average, 20 times a year. Recordkeeping of training will occur 1.5
times per year.
Total estimated burden: 10,448,160 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: $ 424,166,295 annualized capital or operation
and maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9, and on
applicable collection instruments. When OMB approves this ICR, the
Agency will announce that approval in the Federal Register and publish
a technical amendment to 40 CFR part 9 to display the OMB control
number for the approved information collection activities contained in
this final rule
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under RFA, 5 U.S.C.
601 et seq. The small entities subject to the requirements of this
action are agricultural and handler employers, and commercial pesticide
handler employers. EPA expects the impacts to be less than 0.1% of the
annual value of sales or revenues for the average small entity. EPA
calculates the impact of the rule as the percent of sales revenue. Only
the very smallest farms, with average sales of less than $10,000 per
year, may face impacts above one percent of sales. The number of
entities that may be impacted in excess of one percent of sales could
be about 12,000 farms, nurseries, and greenhouses or about 6% of all
small farms impacted by the WPS with revenues less than $10,000 per
year. However, this is likely an overestimate of the number of farms
impacted as it does not account for the nearly 2,000 such farms in
California that would face impacts well below the national average.
Additionally, there are nearly 23,000 such farms that produce only oil
crops or forage whose employees are not likely to engage in hand labor
activities and would not be covered by worker requirements. Please
refer to the Economic Assessment, Table 5.4-3. ``Small Business
Impacts, WPS Farms making pesticide applications'' for further details
of the assessment.
Although EPA was not required by the RFA to convene a Small
Business Advocacy Review (SBAR) Panel because this rule would not have
a significant economic impact on a substantial number of small
entities, EPA nevertheless convened a panel to obtain advice and
recommendations from small entity representatives potentially subject
to this rule's requirements. A copy of the SBAR Panel Report is
included in the docket for this rulemaking (Ref. 3).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The rule
requirements would primarily affect agricultural employers and handler
employers. The total estimated annualized cost of the final rule is
$60.2--66.9 million.
E. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. However,
this action may be of significant interest to state governments,
because states provide enforcement for pesticide laws. EPA solicited
and received comments from state partners on the proposed revisions,
which are addressed in this final rule preamble and the response to
comments document.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The proposed
rule would not regulate tribal governments directly; agricultural
employers and pesticide handler employers are the directly affected
entities. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This final rule is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997) because it is not an economically significant
regulatory action as defined by Executive Order 12866. However, it is
reasonable to expect that the environmental health or safety risks
addressed in this rule may have a disproportionate effect on children.
As such, EPA considered the best available science in order to protect
children against environmental health risks and this final rule is
consistent with EPA's 1995 Policy on Evaluating Health Risks to
Children (http://www2.epa.gov/sites/production/files/2014-/documents/1995_childrens_health_policy_statement.pdf), reaffirmed in 2013 (http://www2.epa.gov/sites/production/files/2014-05/documents/reaffirmation_memorandum.pdf).
Protections include improved training on reducing pesticide
residues brought from treated areas to the home on workers and
handlers' clothing and bodies and establishing a minimum age of 18 for
handlers and early entry workers. With regard to establishing an age
restriction, while studies have not demonstrated a clear cut off point
at which adolescents are fully developed, literature indicates that
their development may continue until they reach their early to mid-20s.
Additionally, research has shown that adolescents may take more risks,
be less aware of the potential consequences of their actions on
themselves and others, and be less likely to protect themselves from
known risks. All of this information supports establishing a minimum
age to allow those handling pesticides to develop more fully before
putting themselves, others, and the environment at risk, and to allow
those performing early-entry activities to develop more fully in order
to adequately protect themselves from the risks of entering a treated
area while an REI is in effect. The final rule will reduce the
potential for misuse by
[[Page 67556]]
adolescent handlers who may less consistently exercise good judgment
when handling agricultural pesticides.
Children face the risk of pesticide exposure from work in
pesticide-treated areas, from the use of pesticides near their homes,
and from residues of pesticides brought home by family members after a
day of working with pesticides or in pesticide-treated areas. The final
rule is expected to reduce these exposures and risks. By establishing a
minimum age for certain pesticide-related activities in agriculture,
children would receive less exposure to pesticides that may lead to
chronic or acute pesticide-related illness. Another requirement to
reduce risk to children is training for workers and handlers on the
risks presented by take-home pesticide exposure and how best to reduce
it.
Like DOL's regulations that implement the FLSA, the rule regulates
the ages at which children can work in certain agricultural activities.
The rule establishes a minimum age of 18 for pesticide handlers and for
early-entry workers, except those working on an establishment owned by
an immediate family member. Since children in agriculture may face
elevated risks of pesticide exposure due to their immaturity, failure
to exercise good judgment, and developing bodies, EPA feels that they
warrant special consideration in light of the Executive Order on
children's health. EPA expects that the final rule will mitigate or
eliminate many agricultural pesticide risks faced by youths.
Additional information on EPA's consideration of the risks to
children in development of this action can be found in the Economic
Analysis for this action (Ref. 1).
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' under Executive
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to
have a significant adverse effect on the supply, distribution or use of
energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards that would
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this rule would not have disproportionately high
and adverse human health or environmental effects on minority, low-
income, or indigenous populations, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994), because it increases the level
of environmental protection for all affected populations without having
any disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. In fact, the population of agricultural workers and
handlers that the rule seeks to protect is comprised primarily of
minority and low-income individuals. As reviewed in Unit IV.B.3., the
farmworker community, due to occupation, economic status, health,
language and other sociodemographic characteristics, faces an increased
risk of pesticide exposure which this rulemaking seeks to reduce
through improving communication and protections.
EPA engaged with stakeholders from affected communities extensively
in the development of this rulemaking, in order to obtain meaningful
involvement of all parties. EPA believes that the rule would improve
the health of agricultural workers and handlers by, among other things,
increasing the frequency of training, enhancing training content to
include ways to minimize pesticide exposure to children and in the
home, adding posting of treated areas near worker and handler housing
to prevent accidental entry, and establishing a minimum age for
pesticide handlers and early-entry workers.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
submitted a report containing this rule and other required information
to the U.S. Senate, the U.S. House of Representatives, and the
Comptroller General of the United States prior to publication of the
rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 170
Environmental protection, Agricultural worker, Employer, Farms,
Forests, Greenhouses, Nurseries, Pesticide handler, Pesticides, Worker
protection standard.
Dated: September 28, 2015.
Gina McCarthy,
Administrator.
Therefore, 40 CFR Chapter I is amended as follows:
PART 170--[AMENDED]
0
1. The authority citation for part 170 continues to read as follows:
Authority: 7 U.S.C. 136w.
0
2. Section 170.2 is added to subpart A to read as follows:
Sec. 170.2 Implementation and expiration dates.
(a) Implementation date. Beginning January 2, 2017, the
requirements of Sec. 170.301 through Sec. 170.609 of this part shall
apply to any pesticide product that bears the statement ``Use this
product only in accordance with its labeling and with the Worker
Protection Standard, 40 CFR part 170''.
(b) Expiration date. Sections 170.1 through 170.260 of this part
shall expire on, and will no longer be effective after January 2, 2017.
0
3. In Sec. 170.135, revise paragraphs (b) and (c)(1) to read as
follows:
Sec. 170.135 Posted pesticide safety information.
* * * * *
(b) Pesticide safety poster. A safety poster must be displayed that
conveys, at a minimum, the pesticide safety concepts listed in
paragraphs (b)(1)(i) through (vii) and (b)(2) of this section. Displays
conforming to Sec. 170.311(a)(3) meet the requirements of this
paragraph.
(c) * * *
(1) The name, address, and telephone number of the nearest
emergency medical care facility shall be on the safety poster or
displayed close to the safety poster. Displays conforming to Sec.
170.311(a)(3)(ix) meet the requirements of this paragraph.
* * * * *
0
4. In Sec. 170.235, revise paragraphs (b) and (c)(1) to read as
follows:
Sec. 170.235 Posted pesticide safety information.
* * * * *
(b) Pesticide safety poster. A safety poster must be displayed that
conveys, at a minimum, the pesticide safety concepts listed in
paragraphs (b)(1)(i) through (vii) and (b)(2) of this section. Displays
conforming to Sec. 170.311(a)(3) meet the requirements of this
paragraph.
(c) * * *
(1) The name, address, and telephone number of the nearest
emergency medical care facility shall be on the safety poster or
displayed close to the
[[Page 67557]]
safety poster. Displays conforming to Sec. 170.311(a)(3)(ix) meet the
requirements of this paragraph.
* * * * *
0
5. Subpart D is added to part 170 to read as follows:
Subpart D--General Provisions
Sec.
Sec. 170.301 Scope and purpose.
Sec. 170.303 Applicability of this part.
Sec. 170.305 Definitions.
Sec. 170.309 Agricultural employer duties.
Sec. 170.311 Display requirements for pesticide safety information
and pesticide application and hazard information.
Sec. 170.313 Commercial pesticide handler employer duties.
Sec. 170.315 Prohibited actions.
Sec. 170.317 Violations of this part.
Sec. 170.301 Scope and purpose.
This regulation is primarily intended to reduce the risks of
illness or injury to workers and handlers resulting from occupational
exposures to pesticides used in the production of agricultural plants
on agricultural establishments. It requires agricultural employers and
commercial pesticide handler employers to provide specific information
and protections to workers, handlers and other persons when pesticides
are used on agricultural establishments in the production of
agricultural plants. It also requires handlers to wear the labeling-
specified clothing and personal protective equipment when performing
handler activities, and to take measures to protect workers and other
persons during pesticide applications.
Sec. 170.303 Applicability of this part.
(a) This regulation applies whenever a pesticide product bearing a
label requiring compliance with this part is used in the production of
agricultural plants on an agricultural establishment, except as
provided in paragraphs (b) and (c) of this section.
(b) This regulation does not apply when a pesticide product bearing
a label requiring compliance with this part is used on an agricultural
establishment in any of the following circumstances:
(1) As part of government-sponsored public pest control programs
over which the owner, agricultural employer and handler employer have
no control, such as mosquito abatement and Mediterranean fruit fly
eradication programs.
(2) On plants other than agricultural plants, which may include
plants in home fruit and vegetable gardens and home greenhouses, and
permanent plantings for ornamental purposes, such as plants that are in
ornamental gardens, parks, public or private landscaping, lawns or
other grounds that are intended only for aesthetic purposes or climatic
modification.
(3) For control of vertebrate pests, unless directly related to the
production of an agricultural plant.
(4) As attractants or repellents in traps.
(5) On the harvested portions of agricultural plants or on
harvested timber.
(6) For research uses of unregistered pesticides.
(7) On pasture and rangeland where the forage will not be harvested
for hay.
(8) In a manner not directly related to the production of
agricultural plants, including, but not limited to structural pest
control and control of vegetation in non-crop areas.
(c) Where a pesticide product's labeling-specific directions for
use or other labeling requirements are inconsistent with requirements
of this part, users must comply with the pesticide product labeling,
except as provided for in Sec. Sec. 170.601, 170.603 and 170.607.
Sec. 170.305 Definitions.
Terms used in this part have the same meanings they have in the
Federal Insecticide, Fungicide, and Rodenticide Act, as amended. In
addition, the following terms, when used in this part, shall have the
following meanings:
Agricultural employer means any person who is an owner of, or is
responsible for the management or condition of, an agricultural
establishment, and who employs any worker or handler.
Agricultural establishment means any farm, forest operation, or
nursery engaged in the outdoor or enclosed space production of
agricultural plants. An establishment that is not primarily
agricultural is an agricultural establishment if it produces
agricultural plants for transplant or use (in part or their entirety)
in another location instead of purchasing the agricultural plants.
Agricultural plant means any plant, or part thereof, grown,
maintained, or otherwise produced for commercial purposes, including
growing, maintaining or otherwise producing plants for sale or trade,
for research or experimental purposes, or for use in part or their
entirety in another location. Agricultural plant includes, but is not
limited to, grains, fruits and vegetables; wood fiber or timber
products; flowering and foliage plants and trees; seedlings and
transplants; and turf grass produced for sod. Agricultural plant does
not include pasture or rangeland used for grazing.
Application exclusion zone means the area surrounding the
application equipment that must be free of all persons other than
appropriately trained and equipped handlers during pesticide
applications.
Chemigation means the application of pesticides through irrigation
systems.
Closed system means an engineering control used to protect handlers
from pesticide exposure hazards when mixing and loading pesticides.
Commercial pesticide handler employer means any person, other than
an agricultural employer, who employs any handler to perform handler
activities on an agricultural establishment. A labor contractor who
does not provide pesticide application services or supervise the
performance of handler activities, but merely employs laborers who
perform handler activities at the direction of an agricultural or
handler employer, is not a commercial pesticide handler employer.
Commercial pesticide handling establishment means any enterprise,
other than an agricultural establishment, that provides pesticide
handler or crop advising services to agricultural establishments.
Crop advisor means any person who is assessing pest numbers,
damage, pesticide distribution, or the status or requirements of
agricultural plants.
Designated representative means any persons designated in writing
by a worker or handler to exercise a right of access on behalf of the
worker or handler to request and obtain a copy of the pesticide
application and hazard information required by Sec. 170.309(h) in
accordance with Sec. 170.311(b) of this part.
Early entry means entry by a worker into a treated area on the
agricultural establishment after a pesticide application is complete,
but before any restricted-entry interval for the pesticide has expired.
Employ means to obtain, directly or through a labor contractor, the
services of a person in exchange for a salary or wages, including
piece-rate wages, without regard to who may pay or who may receive the
salary or wages. It includes obtaining the services of a self-employed
person, an independent contractor, or a person compensated by a third
party, except that it does not include an agricultural employer
obtaining the services of a handler through a commercial pesticide
handler employer or a commercial pesticide handling establishment.
Enclosed cab means a cab with a nonporous barrier that totally
surrounds
[[Page 67558]]
the occupant(s) of the cab and prevents dermal contact with pesticides
that are being applied outside of the cab.
Enclosed space production means production of an agricultural plant
indoors or in a structure or space that is covered in whole or in part
by any nonporous covering and that is large enough to permit a person
to enter.
Fumigant means any pesticide product that is a vapor or gas, or
forms a vapor or gas upon application, and whose pesticidal action is
achieved through the gaseous or vapor state.
Hand labor means any agricultural activity performed by hand or
with hand tools that causes a worker to have substantial contact with
plants, plant parts, or soil and other surfaces that may contain
pesticide residues, except that hand labor does not include operating,
moving, or repairing irrigation or watering equipment or performing
crop advisor tasks.
Handler means any person, including a self-employed person, who is
employed by an agricultural employer or commercial pesticide handler
employer and performs any of the following activities:
(1) Mixing, loading, or applying pesticides.
(2) Disposing of pesticides.
(3) Handling opened containers of pesticides, emptying, triple-
rinsing, or cleaning pesticide containers according to pesticide
product labeling instructions, or disposing of pesticide containers
that have not been cleaned. The term does not include any person who is
only handling unopened pesticide containers or pesticide containers
that have been emptied or cleaned according to pesticide product
labeling instructions.
(4) Acting as a flagger.
(5) Cleaning, adjusting, handling, or repairing the parts of
mixing, loading, or application equipment that may contain pesticide
residues.
(6) Assisting with the application of pesticides.
(7) Entering an enclosed space after the application of a pesticide
and before the inhalation exposure level listed in the labeling has
been reached or one of the ventilation criteria established by Sec.
170.405(b)(3) or the labeling has been met to operate ventilation
equipment, monitor air levels, or adjust or remove coverings used in
fumigation.
(8) Entering a treated area outdoors after application of any soil
fumigant during the labeling-specified entry-restricted period to
adjust or remove coverings used in fumigation.
(9) Performing tasks as a crop advisor during any pesticide
application or restricted-entry interval, or before the inhalation
exposure level listed in the pesticide product labeling has been
reached or one of the ventilation criteria established by Sec.
170.405(b)(3) or the pesticide product labeling has been met.
Handler employer means any person who is self-employed as a handler
or who employs any handler.
Immediate family is limited to the spouse, parents, stepparents,
foster parents, father-in-law, mother-in-law, children, stepchildren,
foster children, sons-in-law, daughters-in-law, grandparents,
grandchildren, brothers, sisters, brothers-in-law, sisters-in-law,
aunts, uncles, nieces, nephews, and first cousins. ``First cousin''
means the child of a parent's sibling, i.e., the child of an aunt or
uncle.
Labor contractor means a person, other than a commercial pesticide
handler employer, who employs workers or handlers to perform tasks on
an agricultural establishment for an agricultural employer or a
commercial pesticide handler employer.
Outdoor production means production of an agricultural plant in an
outside area that is not enclosed or covered in any way that would
obstruct the natural air flow.
Owner means any person who has a present possessory interest (e.g.,
fee, leasehold, rental, or other) in an agricultural establishment. A
person who has both leased such agricultural establishment to another
person and granted that same person the right and full authority to
manage and govern the use of such agricultural establishment is not an
owner for purposes of this part.
Personal protective equipment means devices and apparel that are
worn to protect the body from contact with pesticides or pesticide
residues, including, but not limited to, coveralls, chemical-resistant
suits, chemical-resistant gloves, chemical-resistant footwear,
respirators, chemical-resistant aprons, chemical-resistant headgear,
and protective eyewear.
Restricted-entry interval means the time after the end of a
pesticide application during which entry into the treated area is
restricted.
Safety data sheet has the same meaning as the definition at 29 CFR
1900.1200(c).
Treated area means any area to which a pesticide is being directed
or has been directed.
Use, as in ``to use a pesticide'' means any of the following:
(1) Pre-application activities, including, but not limited to:
(i) Arranging for the application of the pesticide.
(ii) Mixing and loading the pesticide.
(iii) Making necessary preparations for the application of the
pesticide, including responsibilities related to worker notification,
training of workers or handlers, providing decontamination supplies,
providing pesticide safety information and pesticide application and
hazard information, use and care of personal protective equipment,
providing emergency assistance, and heat stress management.
(2) Application of the pesticide.
(3) Post-application activities intended to reduce the risks of
illness and injury resulting from handlers' and workers' occupational
exposures to pesticide residues during and after the restricted-entry
interval, including responsibilities related to worker notification,
training of workers or early-entry workers, providing decontamination
supplies, providing pesticide safety information and pesticide
application and hazard information, use and care of personal protective
equipment, providing emergency assistance, and heat stress management.
(4) Other pesticide-related activities, including, but not limited
to, transporting or storing pesticides that have been opened, cleaning
equipment, and disposing of excess pesticides, spray mix, equipment
wash waters, pesticide containers, and other pesticide-containing
materials.
Worker means any person, including a self-employed person, who is
employed and performs activities directly relating to the production of
agricultural plants on an agricultural establishment.
Worker housing area means any place or area of land on or near an
agricultural establishment where housing or space for housing is
provided for workers or handlers by an agricultural employer, owner,
labor contractor, or any other person responsible for the recruitment
or employment of agricultural workers.
Sec. 170.309 Agricultural employer duties.
Agricultural employers must:
(a) Ensure that any pesticide is used in a manner consistent with
the pesticide product labeling, including the requirements of this
part, when applied on the agricultural establishment.
(b) Ensure that each worker and handler subject to this part
receives the protections required by this part.
(c) Ensure that any handler and any early entry worker is at least
18 years old.
(d) Provide to each person, including labor contractors, who
supervises any workers or handlers information and directions
sufficient to ensure that each
[[Page 67559]]
worker and handler receives the protections required by this part. Such
information and directions must specify the tasks for which the
supervisor is responsible in order to comply with the provisions of
this part.
(e) Require each person, including labor contractors, who
supervises any workers or handlers to provide sufficient information
and directions to each worker and handler to ensure that they can
comply with the provisions of this part.
(f) Provide emergency assistance in accordance with this paragraph.
If there is reason to believe that a worker or handler has experienced
a potential pesticide exposure during his or her employment on the
agricultural establishment or shows symptoms similar to those
associated with acute exposure to pesticides during or within 72 hours
after his or her employment on the agricultural establishment, and
needs emergency medical treatment, the agricultural employer must do
all of the following promptly after learning of the possible poisoning
or injury:
(1) Make available to that person transportation from the
agricultural establishment, including any worker housing area on the
establishment, to an operating medical care facility capable of
providing emergency medical treatment to a person exposed to
pesticides.
(2) Provide all of the following information to the treating
medical personnel:
(i) Copies of the applicable safety data sheet(s) and the product
name(s), EPA registration number(s) and active ingredient(s) for each
pesticide product to which the person may have been exposed.
(ii) The circumstances of application or use of the pesticide on
the agricultural establishment.
(iii) The circumstances that could have resulted in exposure to the
pesticide.
(g) Ensure that workers or other persons employed by the
agricultural establishment do not clean, repair, or adjust pesticide
application equipment, unless trained as a handler under Sec. 170.501.
Before allowing any person not directly employed by the agricultural
establishment to clean, repair, or adjust equipment that has been used
to mix, load, transfer, or apply pesticides, the agricultural employer
must provide all of the following information to such person:
(1) Pesticide application equipment may be contaminated with
pesticides.
(2) The potentially harmful effects of exposure to pesticides.
(3) Procedures for handling pesticide application equipment and for
limiting exposure to pesticide residues.
(4) Personal hygiene practices and decontamination procedures for
preventing pesticide exposures and removing pesticide residues.
(h) Display, maintain, and provide access to pesticide safety
information and pesticide application and hazard information in
accordance with Sec. 170.311 if workers or handlers are on the
establishment and within the last 30 days a pesticide product has been
used or a restricted-entry interval for such pesticide has been in
effect on the establishment.
(i) Ensure that before a handler uses any equipment for mixing,
loading, transferring, or applying pesticides, the handler is
instructed in the safe operation of such equipment.
(j) Ensure that before each day of use, equipment used for mixing,
loading, transferring, or applying pesticides is inspected for leaks,
clogging, and worn or damaged parts, and any damaged equipment is
repaired or replaced.
(k) Ensure that whenever handlers employed by a commercial
pesticide handling establishment will be on an agricultural
establishment, the handler employer is provided information about, or
is aware of, the specific location and description of any treated areas
on the agricultural establishment where a restricted-entry interval is
in effect that the handler may be in (or may walk within \1/4\ mile
of), and any restrictions on entering those areas.
(l) Ensure that workers do not enter any area on the agricultural
establishment where a pesticide has been applied until the applicable
pesticide application and hazard information for each pesticide product
applied to that area is displayed in accordance with Sec. 170.311(b),
and until after the restricted-entry interval has expired and all
treated area warning signs have been removed or covered, except for
entry permitted by Sec. 170.603 of this part.
(m) Provide any records or other information required by this part
for inspection and copying upon request by an employee of EPA or any
duly authorized representative of a Federal, State or Tribal government
agency responsible for pesticide enforcement.
Sec. 170.311 Display requirements for pesticide safety information
and pesticide application and hazard information.
(a) Display of Pesticide Safety Information. Whenever pesticide
safety information and pesticide application and hazard information are
required to be provided under Sec. 170.309(h), pesticide safety
information must be displayed in accordance with this paragraph.
(1) General. The pesticide safety information must be conveyed in a
manner that workers and handlers can understand.
(2) Content prior to January 1, 2018. Prior to January 1, 2018, the
safety information must include all of the following points:
(i) Help keep pesticides from entering your body. Avoid getting on
your skin or into your body any pesticides that may be on plants and
soil, in irrigation water, or drifting from nearby applications.
(ii) Wash before eating, drinking, using chewing gum or tobacco, or
using the toilet.
(iii) Wear work clothing that protects the body from pesticide
residues (long-sleeved shirts, long pants, shoes and socks, and a hat
or scarf).
(iv) Wash or shower with soap and water, shampoo hair, and put on
clean clothes after work.
(v) Wash work clothes separately from other clothes before wearing
them again.
(vi) Wash immediately in the nearest clean water if pesticides are
spilled or sprayed on the body. As soon as possible, shower, shampoo,
and change into clean clothes.
(vii) Follow directions about keeping out of treated or restricted
areas.
(viii) The name, address, and telephone number of a nearby
operating medical care facility capable of providing emergency medical
treatment. This information must be clearly identified as emergency
medical contact information on the display.
(ix) There are Federal rules to protect workers and handlers,
including a requirement for safety training.
(3) Content after January 1, 2018. After January 1, 2018, the
pesticide safety information must include all of the points in Sec.
170.311(a)(3)(i)-(x) instead of the points listed in Sec.
170.311(a)(2)(i)-(ix).
(i) Avoid getting on the skin or into the body any pesticides that
may be on or in plants, soil, irrigation water, tractors, and other
equipment, on used personal protective equipment, or drifting from
nearby applications.
(ii) Wash before eating, drinking, using chewing gum or tobacco, or
using the toilet.
(iii) Wear work clothing that protects the body from pesticide
residues (long-sleeved shirts, long pants, shoes and socks, and a hat
or scarf).
(iv) Wash or shower with soap and water, shampoo hair, and put on
clean clothes after work.
(v) Wash work clothes separately from other clothes before wearing
them again.
[[Page 67560]]
(vi) If pesticides are spilled or sprayed on the body use
decontamination supplies to wash immediately, or rinse off in the
nearest clean water, including springs, streams, lakes or other sources
if more readily available than decontamination supplies, and as soon as
possible, wash or shower with soap and water, shampoo hair, and change
into clean clothes.
(vii) Follow directions about keeping out of treated areas and
application exclusion zones.
(viii) Instructions to employees to seek medical attention as soon
as possible if they believe they have been poisoned, injured or made
ill by pesticides.
(ix) The name, address, and telephone number of a nearby operating
medical care facility capable of providing emergency medical treatment.
This information must be clearly identified as emergency medical
contact information on the display.
(x) The name, address and telephone number of the State or Tribal
pesticide regulatory agency.
(4) Changes to pesticide safety information. The agricultural
employer must update the pesticide safety information display within 24
hours of notice of any changes to the information required in
Sec. Sec. 170.311(a)(2)(viii) or 170.311(a)(3)(ix).
(5) Location. The pesticide safety information must be displayed at
each of the following sites on the agricultural establishment:
(i) The site selected pursuant to Sec. 170.311(b)(2) for display
of pesticide application and hazard information.
(ii) Anywhere that decontamination supplies must be provided on the
agricultural establishment pursuant to Sec. Sec. 170.411, 170.509 or
170.605, but only when the decontamination supplies are located at
permanent sites or being provided at locations and in quantities to
meet the requirements for 11 or more workers or handlers.
(6) Accessibility. When pesticide safety information is required to
be displayed, workers and handlers must be allowed access to the
pesticide safety information at all times during normal work hours.
(7) Legibility. The pesticide safety information must remain
legible at all times when the information is required to be displayed.
(b) Keeping and displaying pesticide application and hazard
information. Whenever pesticide safety information and pesticide
application and hazard information is required to be provided under
Sec. 170.309(h), pesticide application and hazard information for any
pesticides that are used on the agricultural establishment must be
displayed, retained, and made accessible in accordance with this
paragraph.
(1) Content. The pesticide application and hazard information must
include all of the following information for each pesticide product
applied:
(i) A copy of the safety data sheet.
(ii) The name, EPA registration number, and active ingredient(s) of
the pesticide product.
(iii) The crop or site treated and the location and description of
the treated area.
(iv) The date(s) and times the application started and ended.
(v) The duration of the applicable labeling-specified restricted-
entry interval for that application.
(2) Location. The pesticide application and hazard information must
be displayed at a place on the agricultural establishment where workers
and handlers are likely to pass by or congregate and where it can be
readily seen and read.
(3) Accessibility. When the pesticide application and hazard
information is required to be displayed, workers and handlers must be
allowed access to the location of the information at all times during
normal work hours.
(4) Legibility. The pesticide application and hazard information
must remain legible at all times when the information is required to be
displayed.
(5) Timing. The pesticide application and hazard information for
each pesticide product applied must be displayed no later than 24 hours
after the end of the application of the pesticide. The pesticide
application and hazard information must be displayed continuously from
the beginning of the display period until at least 30 days after the
end of the last applicable restricted-entry interval, or until workers
or handlers are no longer on the establishment, whichever is earlier.
(6) Record retention. Whenever pesticide safety information and
pesticide application and hazard information is required to be
displayed in accordance with this paragraph (b), the agricultural
employer must retain the pesticide application and hazard information
described in Sec. 170.311(b)(1) on the agricultural establishment for
two years after the date of expiration of the restricted-entry interval
applicable to the pesticide application conducted.
(7) Access to pesticide application and hazard information by a
worker or handler.
(i) If a person is or was employed as a worker or handler by an
establishment during the period that particular pesticide application
and hazard information was required to be displayed and retained for
two years in accordance with Sec. Sec. 170.311(b)(5) and
170.311(b)(6), and the person requests a copy of such application and/
or hazard information, or requests access to such application and/or
hazard information after it is no longer required to be displayed, the
agricultural employer must provide the worker or handler with a copy of
or access to all of the requested information within 15 days of the
receipt of any such request. The worker or handler may make the request
orally or in writing.
(ii) Whenever a record has been previously provided without cost to
a worker or handler or their designated representative, the
agricultural employer may charge reasonable, non-discriminatory
administrative costs (i.e., search and copying expenses but not
including overhead expenses) for a request by the worker or handler for
additional copies of the record.
(8) Access to pesticide application and hazard information by
treating medical personnel. Any treating medical personnel, or any
person acting under the supervision of treating medical personnel, may
request, orally or in writing, access to or a copy of any information
required to be retained for two years by Sec. 170.311(b)(6) in order
to inform diagnosis or treatment of a worker or handler who was
employed on the establishment during the period that the information
was required to be displayed. The agricultural employer must promptly
provide a copy of or access to all of the requested information
applicable to the worker's or handler's time of employment on the
establishment after receipt of the request.
(9) Access to pesticide application and hazard information by a
designated representative.
(i) Any worker's or handler's designated representative may request
access to or a copy of any information required to be retained for two
years by Sec. 170.311(b)(6) on behalf of a worker or handler employed
on the establishment during the period that the information was
required to be displayed. The agricultural employer must provide access
to or a copy of the requested information applicable to the worker's or
handler's time of employment on the establishment within 15 days after
receiving any such request, provided the request meets the requirements
specified in Sec. 170.311(b)(9)(ii).
(ii) A request by a designated representative for access to or a
copy of any pesticide application and/or hazard
[[Page 67561]]
information must be in writing and must contain all of the following:
(A) The name of the worker or handler being represented.
(B) A description of the specific information being requested. The
description should include the dates of employment of the worker or
handler, the date or dates for which the records are requested, type of
work conducted by the worker or handler (e.g., planting, harvesting,
applying pesticides, mixing or loading pesticides) during the period
for which the records are requested, and the specific application and/
or hazard information requested.
(C) A written statement clearly designating the representative to
request pesticide application and hazard information on the worker's or
handler's behalf, bearing the worker's or handler's printed name and
signature, the date of the designation, and the printed name and
contact information for the designated representative.
(D) If the worker or handler requests that the pesticide
application and/or the hazard information be sent, direction for where
to send the information (e.g., mailing address or email address).
(iii) If the written request from a designated representative
contains all of the necessary information specified in Sec.
170.313(b)(9)(ii), the employer must provide a copy of or access to all
of the requested information applicable to the worker's or handler's
time of employment on the establishment to the designated
representative within 15 days of receiving the request.
(iv) Whenever a record has been previously provided without cost to
a worker or handler or their designated representative, the
agricultural employer may charge reasonable, non-discriminatory
administrative costs (i.e., search and copying expenses but not
including overhead expenses) for a request by the designated
representative for additional copies of the record.
Sec. 170.313 Commercial pesticide handler employer duties.
Commercial pesticide handler employers must:
(a) Ensure that any pesticide is used in a manner consistent with
the pesticide product labeling, including the requirements of this
part, when applied on an agricultural establishment by a handler
employed by the commercial pesticide handling establishment.
(b) Ensure each handler employed by the commercial pesticide
handling establishment and subject to this part receives the
protections required by this part.
(c) Ensure that any handler employed by the commercial pesticide
handling establishment is at least 18 years old.
(d) Provide to each person, including labor contractors, who
supervises any handlers employed by the commercial pesticide handling
establishment, information and directions sufficient to ensure that
each handler receives the protections required by this part. Such
information and directions must specify the tasks for which the
supervisor is responsible in order to comply with the provisions of
this part.
(e) Require each person, including labor contractors, who
supervises any handlers employed by the commercial pesticide handling
establishment, to provide sufficient information and directions to each
handler to ensure that the handler can comply with the provisions of
this part.
(f) Ensure that before any handler employed by the commercial
pesticide handling establishment uses any equipment for mixing,
loading, transferring, or applying pesticides, the handler is
instructed in the safe operation of such equipment.
(g) Ensure that, before each day of use, equipment used by their
employees for mixing, loading, transferring, or applying pesticides is
inspected for leaks, obstructions, and worn or damaged parts, and any
damaged equipment is repaired or is replaced.
(h) Ensure that whenever a handler who is employed by a commercial
pesticide handling establishment will be on an agricultural
establishment, the handler is provided information about, or is aware
of, the specific location and description of any treated areas where a
restricted-entry interval is in effect, and the restrictions on
entering those areas.
(i) Provide the agricultural employer all of the following
information before the application of any pesticide on an agricultural
establishment:
(1) Specific location(s) and description of the area(s) to be
treated.
(2) The date(s) and start and estimated end times of application.
(3) Product name, EPA registration number, and active
ingredient(s).
(4) The labeling-specified restricted-entry interval applicable for
the application.
(5) Whether posting, oral notification or both are required under
Sec. 170.409.
(6) Any restrictions or use directions on the pesticide product
labeling that must be followed for protection of workers, handlers, or
other persons during or after application.
(j) If there are any changes to the information provided in Sec.
170.313(i)(1), Sec. 170.313(i)(4), Sec. 170.313(i)(5), Sec.
170.313(i)(6) or if the start time for the application will be earlier
than originally forecasted or scheduled, ensure that the agricultural
employer is provided updated information prior to the application. If
there are any changes to any other information provided pursuant to
Sec. 170.313(i), the commercial pesticide handler employer must
provide updated information to the agricultural employer within two
hours after completing the application. Changes to the estimated
application end time of less than one hour need not be reported to the
agricultural employer.
(k) Provide emergency assistance in accordance with this paragraph.
If there is reason to believe that a handler employed by the commercial
pesticide handling establishment has experienced a potential pesticide
exposure during his or her employment by the commercial pesticide
handling establishment or shows symptoms similar to those associated
with acute exposure to pesticides during or within 72 hours after his
or her employment by the commercial pesticide handling establishment,
and needs emergency medical treatment, the commercial pesticide handler
employer must do all of the following promptly after learning of the
possible poisoning or injury:
(1) Make available to that person transportation from the
commercial pesticide handling establishment, or any agricultural
establishment on which that handler may be working on behalf of the
commercial pesticide handling establishment, to an operating medical
care facility capable of providing emergency medical treatment to a
person exposed to pesticides.
(2) Provide all of the following information to the treating
medical personnel:
(i) Copies of the applicable safety data sheet(s) and the product
name(s), EPA registration number(s) and active ingredient(s) for each
pesticide product to which the person may have been exposed.
(ii) The circumstances of application or use of the pesticide.
(iii) The circumstances that could have resulted in exposure to the
pesticide.
(l) Ensure that persons directly employed by the commercial
pesticide handling establishment do not clean, repair, or adjust
pesticide application equipment, unless trained as a handler under
Sec. 170.501. Before allowing any person not directly employed by the
commercial pesticide handling establishment to clean, repair, or adjust
equipment that has been used to mix, load, transfer, or apply
pesticides, the commercial pesticide handler employer
[[Page 67562]]
must provide all of the following information to such persons:
(1) Notice that the pesticide application equipment may be
contaminated with pesticides.
(2) The potentially harmful effects of exposure to pesticides.
(3) Procedures for handling pesticide application equipment and for
limiting exposure to pesticide residues.
(4) Personal hygiene practices and decontamination procedures for
preventing pesticide exposures and removing pesticide residues.
(m) Provide any records or other information required by this part
for inspection and copying upon request by an employee of EPA or any
duly authorized representative of a Federal, State or Tribal government
agency responsible for pesticide enforcement.
Sec. 170.315 Prohibited actions.
No agricultural employer, commercial pesticide handler employer, or
other person involved in the use of a pesticide to which this part
applies, shall intimidate, threaten, coerce, or discriminate against
any worker or handler for complying with or attempting to comply with
this part, or because the worker or handler provided, caused to be
provided or is about to provide information to the employer or the EPA
or any duly authorized representative of a Federal, State or Tribal
government regarding conduct that the worker or handler reasonably
believes violates this part, has made a complaint, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing concerning compliance with this part, or has objected to, or
refused to participate in, any activity, policy, practice, or assigned
task that the worker or handler reasonably believed to be in violation
of this part. Any such intimidation, threat, coercion, or
discrimination violates FIFRA section 12(a)(2)(G), 7 U.S.C.
136j(a)(2)(G).
Sec. 170.317 Violations of this part.
(a) Under FIFRA section 12(a)(2)(G), it is unlawful for any person
``to use any registered pesticide in a manner inconsistent with its
labeling.'' When this part is referenced on a label, users must comply
with all of its requirements, except those that are inconsistent with
product-specific instructions on the pesticide product labeling, except
as provided for in Sec. Sec. 170.601, 170.603 and 170.607.
(b) A person who has a duty under this part, as referenced on the
pesticide product labeling, and who fails to perform that duty,
violates FIFRA section 12(a)(2)(G) and is subject to a civil penalty
under section 14. A person who knowingly violates section 12(a)(2)(G)
is subject to section 14 criminal sanctions.
(c) FIFRA section 14(b)(4) provides that a person is liable for a
penalty under FIFRA if another person employed by or acting for that
person violates any provision of FIFRA. The term ``acting for''
includes both employment and contractual relationships, including, but
not limited to, labor contractors.
(d) The requirements of this part, including the decontamination
requirements, must not, for the purposes of section 653(b)(1) of Title
29 of the U.S. Code, be deemed to be the exercise of statutory
authority to prescribe or enforce standards or regulations affecting
the general sanitary hazards addressed by the OSHA Field Sanitation
Standard, 29 CFR 1928.110, or other agricultural non-pesticide hazards.
0
6. Subpart E is added to part 170 to read as follows:
Subpart E--Requirements for Protection of Agricultural Workers
Sec.
Sec. 170.401 Training requirements for workers.
Sec. 170.403 Establishment-specific information for workers.
Sec. 170.405 Entry restrictions associated with pesticide
applications.
Sec. 170.407 Worker entry restrictions after pesticide
applications.
Sec. 170.409 Oral and posted notification of worker entry
restrictions.
Sec. 170.411 Decontamination supplies for workers.
Sec. 170.401 Training requirements for workers.
(a) General requirement. Before any worker performs any task in a
treated area on an agricultural establishment where within the last 30
days a pesticide product has been used or a restricted-entry interval
for such pesticide has been in effect, the agricultural employer must
ensure that each worker has been trained in accordance with this
section within the last 12 months, except as provided in paragraph (b)
of this section.
(b) Exceptions. The following workers need not be trained under
this section:
(1) A worker who is currently certified as an applicator of
restricted use pesticides under part 171 of this chapter.
(2) A worker who has satisfied the handler training requirements in
Sec. 170.501.
(3) A worker who is certified or licensed as a crop advisor by a
program acknowledged as appropriate in writing by EPA or the State or
Tribal agency responsible for pesticide enforcement, provided that such
certification or licensing requires pesticide safety training that
includes all the topics in Sec. 170.501(c)(2) or Sec. 170.501(c)(3)
as applicable depending on the date of training.
(c) Training programs. (1) Pesticide safety training must be
presented to workers either orally from written materials or audio-
visually, at a location that is reasonably free from distraction and
conducive to training. All training materials must be EPA-approved. The
training must be presented in a manner that the workers can understand,
such as through a translator. The training must be conducted by a
person who meets the worker trainer requirements of paragraph (c)(4) of
this section, and who must be present during the entire training
program and must respond to workers' questions.
(2) The training must include, at a minimum, all of the following
topics:
(i) Where and in what form pesticides may be encountered during
work activities.
(ii) Hazards of pesticides resulting from toxicity and exposure,
including acute and chronic effects, delayed effects, and
sensitization.
(iii) Routes through which pesticides can enter the body.
(iv) Signs and symptoms of common types of pesticide poisoning.
(v) Emergency first aid for pesticide injuries or poisonings.
(vi) How to obtain emergency medical care.
(vii) Routine and emergency decontamination procedures, including
emergency eye flushing techniques.
(viii) Hazards from chemigation and drift.
(ix) Hazards from pesticide residues on clothing.
(x) Warnings about taking pesticides or pesticide containers home.
(xi) Requirements of this subpart designed to reduce the risks of
illness or injury resulting from workers' occupational exposure to
pesticides, including application and entry restrictions, the design of
the warning sign, posting of warning signs, oral warnings, the
availability of specific information about applications, and the
protection against retaliatory acts.
(3) EPA intends to make available to the public training materials
that may be used to conduct training conforming to the requirements of
this section. Within 180 days after a notice of availability of such
training materials appears in the Federal Register, but no earlier than
January 1, 2018, training programs required under this section must
include, at a minimum, all of the topics
[[Page 67563]]
listed in Sec. 170.401(c)(3)(i)-(xxiii) instead of the topics listed
in Sec. 170.401(c)(2)(i)-(xi).
(i) The responsibility of agricultural employers to provide workers
and handlers with information and protections designed to reduce work-
related pesticide exposures and illnesses. This includes ensuring
workers and handlers have been trained on pesticide safety, providing
pesticide safety and application and hazard information,
decontamination supplies and emergency medical assistance, and
notifying workers of restrictions during applications and on entering
pesticide treated areas. A worker or handler may designate in writing a
representative to request access to pesticide application and hazard
information.
(ii) How to recognize and understand the meaning of the posted
warning signs used for notifying workers of restrictions on entering
pesticide treated areas on the establishment.
(iii) How to follow directions and/or signs about keeping out of
pesticide treated areas subject to a restricted-entry interval and
application exclusion zones.
(iv) Where and in what forms pesticides may be encountered during
work activities, and potential sources of pesticide exposure on the
agricultural establishment. This includes exposure to pesticide
residues that may be on or in plants, soil, tractors, application and
chemigation equipment, or used personal protective equipment, and that
pesticides may drift through the air from nearby applications or be in
irrigation water.
(v) Potential hazards from toxicity and exposure that pesticides
present to workers and their families, including acute and chronic
effects, delayed effects, and sensitization.
(vi) Routes through which pesticides can enter the body.
(vii) Signs and symptoms of common types of pesticide poisoning.
(viii) Emergency first aid for pesticide injuries or poisonings.
(ix) Routine and emergency decontamination procedures, including
emergency eye flushing techniques, and if pesticides are spilled or
sprayed on the body to use decontamination supplies to wash immediately
or rinse off in the nearest clean water, including springs, streams,
lakes or other sources if more readily available than decontamination
supplies, and as soon as possible, wash or shower with soap and water,
shampoo hair, and change into clean clothes.
(x) How and when to obtain emergency medical care.
(xi) When working in pesticide treated areas, wear work clothing
that protects the body from pesticide residues and wash hands before
eating, drinking, using chewing gum or tobacco, or using the toilet.
(xii) Wash or shower with soap and water, shampoo hair, and change
into clean clothes as soon as possible after working in pesticide
treated areas.
(xiii) Potential hazards from pesticide residues on clothing.
(xiv) Wash work clothes before wearing them again and wash them
separately from other clothes.
(xv) Do not take pesticides or pesticide containers used at work to
your home.
(xvi) Safety data sheets provide hazard, emergency medical
treatment and other information about the pesticides used on the
establishment they may come in contact with. The responsibility of
agricultural employers to do all of the following:
(A) Display safety data sheets for all pesticides used on the
establishment.
(B) Provide workers and handlers information about the location of
the safety data sheets on the establishment.
(C) Provide workers and handlers unimpeded access to safety data
sheets during normal work hours.
(xvii) The rule prohibits agricultural employers from allowing or
directing any worker to mix, load or apply pesticides or assist in the
application of pesticides unless the worker has been trained as a
handler.
(xviii) The responsibility of agricultural employers to provide
specific information to workers before directing them to perform early-
entry activities. Workers must be 18 years old to perform early-entry
activities.
(xix) Potential hazards to children and pregnant women from
pesticide exposure.
(xx) Keep children and nonworking family members away from
pesticide treated areas.
(xxi) After working in pesticide treated areas, remove work boots
or shoes before entering your home, and remove work clothes and wash or
shower before physical contact with children or family members.
(xxii) How to report suspected pesticide use violations to the
State or Tribal agency responsible for pesticide enforcement.
(xxiii) The rule prohibits agricultural employers from
intimidating, threatening, coercing, or discriminating against any
worker or handler for complying with or attempting to comply with the
requirements of this rule, or because the worker or handler provided,
caused to be provided or is about to provide information to the
employer or the EPA or its agents regarding conduct that the employee
reasonably believes violates this part, and/or made a complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing concerning compliance with this rule.
(4) The person who conducts the training must meet one of the
following criteria:
(i) Be designated as a trainer of certified applicators, handlers
or workers by EPA or the State or Tribal agency responsible for
pesticide enforcement.
(ii) Have completed an EPA-approved pesticide safety train-the-
trainer program for trainers of workers.
(iii) Be currently certified as an applicator of restricted use
pesticides under part 171 of this chapter.
(d) Recordkeeping. (1) For each worker required to be trained under
paragraph (a), the agricultural employer must maintain on the
agricultural establishment, for two years from the date of the
training, a record documenting each worker's training including all of
the following:
(i) The trained worker's printed name and signature.
(ii) The date of the training.
(iii) Information identifying which EPA-approved training materials
were used.
(iv) The trainer's name and documentation showing that the trainer
met the requirements of Sec. 170.401(c)(4) at the time of training.
(v) The agricultural employer's name.
(2) An agricultural employer who provides, directly or indirectly,
training required under paragraph (a) must provide to the worker upon
request a copy of the record of the training that contains the
information required under Sec. 170.401(d)(1).
Sec. 170.403 Establishment-specific information for workers.
Before any worker performs any activity in a treated area on an
agricultural establishment where within the last 30 days a pesticide
product has been used, or a restricted-entry interval for such
pesticide has been in effect, the agricultural employer must ensure
that the worker has been informed of, in a manner the worker can
understand, all of the following establishment-specific information:
(a) The location of pesticide safety information required by Sec.
170.311(a).
(b) The location of pesticide application and hazard information
required by Sec. 170.311(b).
(c) The location of decontamination supplies required by Sec.
170.411.
[[Page 67564]]
Sec. 170.405 Entry restrictions associated with pesticide
applications.
(a) Outdoor production pesticide applications. (1) The application
exclusion zone is defined as follows:
(i) The application exclusion zone is the area that extends 100
feet horizontally from the application equipment in all directions
during application when the pesticide is applied by any of the
following methods:
(A) Aerially.
(B) Air blast application.
(C) As a spray using a spray quality (droplet spectrum) of smaller
than medium (volume median diameter of less than 294 microns).
(D) As a fumigant, smoke, mist, or fog.
(ii) The application exclusion zone is the area that extends 25
feet horizontally from the application equipment in all directions
during application when the pesticide is applied not as in Sec.
170.405(a)(1)(i)(A)-(D) and is sprayed from a height of greater than 12
inches from the planting medium using a spray quality (droplet
spectrum) of medium or larger (volume median diameter of 294 microns or
greater).
(iii) There is no application exclusion zone when the pesticide is
applied in a manner other than those covered in paragraphs (a)(1)(i)
and (a)(1)(ii) of this section.
(2) During any outdoor production pesticide application, the
agricultural employer must not allow or direct any worker or other
person, other than an appropriately trained and equipped handler
involved in the application, to enter or to remain in the treated area
or an application exclusion zone that is within the boundaries of the
establishment until the application is complete.
(3) After the application is complete, the area subject to the
labeling-specified restricted-entry interval and the post-application
entry restrictions specified in Sec. 170.407 is the treated area.
(b) Enclosed space production pesticide applications. (1) During
any enclosed space production pesticide application described in column
A of the Table under paragraph (b)(4) of this section, the agricultural
employer must not allow or direct any worker or other person, other
than an appropriately trained and equipped handler involved in the
application, to enter or to remain in the area specified in column B of
the Table under paragraph (b)(4) of this section during the application
and until the time specified in column C of the Table under paragraph
(b)(4) of this section has expired.
(2) After the time specified in column C of the Table under
paragraph (b)(4) of this section has expired, the area subject to the
labeling-specified restricted-entry interval and the post-application
entry restrictions specified in Sec. 170.407 is the area specified in
column D of the Table under paragraph (b)(4) of this section.
(3) When column C of the Table under paragraph (b)(4) of this
section specifies that ventilation criteria must be met, ventilation
must continue until the air concentration is measured to be equal to or
less than the inhalation exposure level required by the labeling. If no
inhalation exposure level is listed on the labeling, ventilation must
continue until after one of the following conditions is met:
(i) Ten air exchanges are completed.
(ii) Two hours of ventilation using fans or other mechanical
ventilating systems.
(iii) Four hours of ventilation using vents, windows, or other
passive ventilation.
(iv) Eleven hours with no ventilation followed by one hour of
mechanical ventilation.
(v) Eleven hours with no ventilation followed by two hours of
passive ventilation.
(vi) Twenty-four hours with no ventilation.
(4) The following Table applies to paragraphs (b)(1), (2), and (3)
of this section.
Table--Entry Restrictions During Enclosed Space Production Pesticide Applications
----------------------------------------------------------------------------------------------------------------
D. After the expiration
B. Workers and other of time specified in
persons, other than column C, the area
A. When a pesticide is applied: appropriately trained C. Until: subject to the
and equipped handlers, restricted-entry
are prohibited in: interval is:
----------------------------------------------------------------------------------------------------------------
(1) As a fumigant.................... Entire enclosed space The ventilation No post-application
plus any adjacent criteria of paragraph entry restrictions
structure or area that (b)(3) of this section required by Sec.
cannot be sealed off are met. 170.407 after criteria
from the treated area. in column C are met.
(2) As a............................. Entire enclosed space.. The ventilation Entire enclosed space.
(i) Smoke, or........................ criteria of paragraph
(ii) Mist, or........................ (b)(3) of this section
(iii) Fog, or........................ are met.
(iv) As a spray using a spray quality
(droplet spectrum) of smaller than
medium (volume median diameter of
less than 294 microns).
(3) Not as in (1) or (2), and for Entire enclosed space.. The ventilation Treated area.
which a respiratory protection criteria of paragraph
device is required for application (b)(3) of this section
by the pesticide product labeling. are met.
(4) Not as in (1), (2) or (3), and:.. Treated area plus 25 Application is complete Treated area.
(i) From a height of greater than 12 feet in all directions
inches from the planting medium, or. of the treated area,
(ii) As a spray using a spray quality but not outside the
(droplet spectrum) of medium or enclosed space.
larger (volume median diameter of
294 microns or greater).
(5) Otherwise........................ Treated area........... Application is complete Treated area.
----------------------------------------------------------------------------------------------------------------
[[Page 67565]]
Sec. 170.407 Worker entry restrictions after pesticide applications.
(a) After the application of any pesticide to an area of outdoor
production, the agricultural employer must not allow or direct any
worker to enter or to remain in the treated area before the restricted-
entry interval specified on the pesticide product labeling has expired
and all treated area warning signs have been removed or covered, except
for early-entry activities permitted by Sec. 170.603.
(b) After the application of any pesticide to an area of enclosed
space production, the agricultural employer must not allow or direct
any worker to enter or to remain in the areas specified in column D of
the Table in Sec. 170.405(b)(4), before the restricted-entry interval
specified on the pesticide product labeling has expired and all treated
area warning signs have been removed or covered, except for early-entry
activities permitted by Sec. 170.603.
(c) When two or more pesticides are applied to a treated area at
the same time, the applicable restricted-entry interval is the longest
of all applicable restricted-entry intervals.
Sec. 170.409 Oral and posted notification of worker entry
restrictions.
(a) General Requirement. The agricultural employer must notify
workers of all entry restrictions required by Sec. Sec. 170.405 and
170.407 in accordance with this section.
(1) Type of notification required--(i) Double notification. If the
pesticide product labeling has a statement requiring both the posting
of treated areas and oral notification to workers, the agricultural
employer must post signs in accordance with paragraph (b) of this
section and must also provide oral notification of the application to
workers in accordance with paragraph (c) of this section.
(ii) Outdoor production areas subject to restricted-entry intervals
greater than 48 hours. If a pesticide with product labeling that
requires a restricted-entry interval greater than 48 hours is applied
to an outdoor production area, the agricultural employer must notify
workers of the application by posting warning signs in accordance with
paragraph (b) of this section.
(iii) Outdoor production areas subject to restricted-entry
intervals equal to or less than 48 hours. If a pesticide with product
labeling that requires a restricted-entry interval equal to or less
than 48 hours is applied to an outdoor production area, the
agricultural employer must notify workers of the application either by
posting warning signs in accordance with paragraph (b) of this section
or by providing workers with an oral warning in accordance with
paragraph (c) of this section.
(iv) Enclosed space production areas subject to restricted-entry
intervals greater than four hours. If a pesticide with product labeling
that requires a restricted-entry interval greater than four hours is
applied to an enclosed space production area, the agricultural employer
must notify workers of the application by posting warning signs in
accordance with paragraph (b) of this section.
(v) Enclosed space production areas subject to restricted-entry
intervals equal to or less than four hours. If a pesticide with product
labeling that requires a restricted-entry interval equal to or less
than four hours is applied to an enclosed space production area, the
agricultural employer must notify workers of the application either by
posting warning signs in accordance with paragraph (b) of this section
or by providing workers with an oral warning in accordance with
paragraph (c) of this section.
(2) Exceptions. Notification does not need to be given to a worker
if the agricultural employer can ensure that one of the following is
met:
(i) From the start of the application in an enclosed space
production area until the end of any restricted-entry interval, the
worker will not enter any part of the entire enclosed structure or
space.
(ii) From the start of the application to an outdoor production
area until the end of any restricted-entry interval, the worker will
not enter, work in, remain in, or pass on foot through the treated area
or any area within \1/4\ mile of the treated area on the agricultural
establishment.
(iii) The worker was involved in the application of the pesticide
as a handler, and is aware of all information required by paragraph
(c)(1) of this section.
(b) Requirements for posted warning signs. If notification by
posted warning signs is required pursuant to paragraph (a) of this
section, the agricultural employer must, unless otherwise prescribed by
the label, ensure that all warning signs meet the requirements of this
paragraph. When several contiguous areas are to be treated with
pesticides on a rotating or sequential basis, the entire area may be
posted. Worker entry is prohibited for the entire area while the signs
are posted, except for entry permitted by Sec. 170.603 of this part.
(1) General. The warning signs must meet all of the following
requirements:
(i) Be one of the three sizes specified in paragraph (b)(3) of this
section and comply with the posting placement and spacing requirements
applicable to that sign size.
(ii) Be posted prior to but no earlier than 24 hours before the
scheduled application of the pesticide.
(iii) Remain posted throughout the application and any restricted-
entry interval.
(iv) Be removed or covered within three days after the end of the
application or any restricted-entry interval, whichever is later,
except that signs may remain posted after the restricted-entry interval
has expired as long as all of the following conditions are met:
(A) The agricultural employer instructs any workers on the
establishment that may come within \1/4\ mile of the treated area not
to enter that treated area while the signs are posted.
(B) The agricultural employer ensures that workers do not enter the
treated area while the signs remain posted, other than entry permitted
by Sec. 170.603 of this part.
(v) Remain visible and legible during the time they are required to
be posted.
(2) Content. (i) The warning sign must have a white background. The
words ``DANGER'' and ``PELIGRO,'' plus ``PESTICIDES'' and
``PESTICIDAS,'' must be at the top of the sign, and the words ``KEEP
OUT'' and ``NO ENTRE'' must be at the bottom of the sign. Letters for
all words must be clearly legible. A circle containing an upraised hand
on the left and a stern face on the right must be near the center of
the sign. The inside of the circle must be red, except that the hand
and a large portion of the face must be in white. The length of the
hand must be at least twice the height of the smallest letters. The
length of the face must be only slightly smaller than the hand.
Additional information such as the name of the pesticide and the date
of application may appear on the warning sign if it does not detract
from the size and appearance of the sign or change the meaning of the
required information. An example of a warning sign meeting these
requirements, other than the size and color requirements, follows:
[[Page 67566]]
[GRAPHIC] [TIFF OMITTED] TR02NO15.000
(ii) The agricultural employer may replace the Spanish language
portion of the warning sign with equivalent terms in an alternative
non-English language if that alternative language is the language read
by the largest group of workers at that agricultural establishment who
do not read English. The alternative language sign must be in the same
format as the original sign and conform to all other requirements of
paragraph (b)(2)(i) of this section.
(3) Size and posting. (i) The standard sign must be at least 14
inches by 16 inches with letters at least one inch in height.
(ii) When posting an outdoor production area using the standard
sign, the signs must be visible from all reasonably expected points of
worker entry to the treated area, including at least each access road,
each border with any worker housing area within 100 feet of the treated
area and each footpath and other walking route that enters the treated
area. Where there are no reasonably expected points of worker entry,
signs must be posted in the corners of the treated area or in any other
location affording maximum visibility.
(iii) When posting an enclosed space production area using the
standard sign and the entire structure or space is subject to the
labeling-specified restricted-entry interval and the post-application
entry restrictions specified in Sec. 170.407, the signs must be posted
so they are visible from all reasonably expected points of worker entry
to the structure or space. When posting treated areas in enclosed space
production using the standard sign and the treated area only comprises
a subsection of the structure or space, the signs must be posted so
they are visible from all reasonably expected points of worker entry to
the treated area including each aisle or other walking route that
enters the treated area. Where there are no reasonably expected points
of worker entry to the treated area, signs must be posted in the
corners of the treated area or in any other location affording maximum
visibility.
(iv) If a smaller warning sign is used with ``DANGER'' and
``PELIGRO'' in letters at least 7/8 inch in height and the remaining
letters at least 1/2 inch in height and a red circle at least three
inches in diameter containing an upraised hand and a stern face, the
signs must be posted no farther than 50 feet apart around the perimeter
of the treated area in addition to the locations specified in
paragraphs (b)(3)(ii) or (b)(3)(iii) of this section.
(v) If a smaller sign is used with ``DANGER'' and ``PELIGRO'' in
letters at least 7/16 inch in height and the remaining letters at least
1/4 inch in height and a red circle at least one and a half inches in
diameter containing an upraised hand and a stern face, the signs must
be posted no farther than 25 feet apart around the perimeter of the
treated area in addition to the locations specified in paragraphs
(b)(3)(ii) or (b)(3)(iii) of this section.
(vi) A sign with ``DANGER'' and ``PELIGRO'' in letters less than 7/
16 inch in height or with any words in letters less than 1/4 inch in
height or a red circle smaller than one and a half inches in diameter
containing an upraised hand and a stern face will not satisfy the
requirements of the rule.
(c) Oral warnings--Requirement. If oral notification is required
pursuant to paragraph (a) of this section, the agricultural employer
must provide oral warnings to workers in a manner that the workers can
understand. If a worker will be on the establishment when an
application begins, the warning must be given before the application
begins. If a worker arrives on the establishment while an application
is taking place or a restricted-entry interval for a pesticide
application is in effect, the warning must be given at the beginning of
the worker's work period. The warning must include all of the
following:
(1) The location(s) and description of any treated area(s) subject
to the entry restrictions during and after application specified in
Sec. Sec. 170.405 and 170.407.
(2) The dates and times during which entry is restricted in any
treated area(s) subject to the entry restrictions during and after
application specified in Sec. Sec. 170.405 and 170.407.
(3) Instructions not to enter the treated area or an application
exclusion zone during application, and that entry to the treated area
is not allowed until the restricted-entry interval has expired and all
treated area warning signs have been removed or covered, except for
entry permitted by Sec. 170.603 of this part.
Sec. 170.411 Decontamination supplies for workers.
(a) Requirement. The agricultural employer must provide
[[Page 67567]]
decontamination supplies for routine washing and emergency
decontamination in accordance with this section for any worker on an
agricultural establishment who is performing an activity in an area
where a pesticide was applied and who contacts anything that has been
treated with the pesticide, including, but not limited to, soil, water,
and plants.
(b) Materials and quantities. The decontamination supplies required
in paragraph (a) of this section must include at least 1 gallon of
water per worker at the beginning of each worker's work period for
routine washing and emergency decontamination, soap, and single-use
towels. The supplies must meet all of the following requirements:
(1) Water. At all times when this part requires agricultural
employers to make water available to workers, the agricultural employer
must ensure that it is of a quality and temperature that will not cause
illness or injury when it contacts the skin or eyes or if it is
swallowed. If a water source is used for mixing pesticides, it must not
be used for decontamination, unless equipped with properly functioning
valves or other mechanisms that prevent contamination of the water with
pesticides, such as anti-backflow siphons, one-way or check valves, or
an air gap sufficient to prevent contamination.
(2) Soap and single-use towels. The agricultural employer must
provide soap and single-use towels for drying in quantities sufficient
to meet the workers' reasonable needs. Hand sanitizing gels and liquids
or wet towelettes do not meet the requirement for soap. Wet towelettes
do not meet the requirement for single-use towels.
(c) Timing. (1) If any pesticide with a restricted-entry interval
greater than four hours was applied, the decontamination supplies must
be provided from the time workers first enter the treated area until at
least 30 days after the restricted-entry interval expires.
(2) If the only pesticides applied in the treated area are products
with restricted-entry intervals of four hours or less, the
decontamination supplies must be provided from the time workers first
enter the treated area until at least seven days after the restricted-
entry interval expires.
(d) Location. The decontamination supplies must be located together
outside any treated area or area subject to a restricted-entry
interval, and must be reasonably accessible to the workers. The
decontamination supplies must not be more than 1/4 mile from where
workers are working, except that where workers are working more than 1/
4 mile from the nearest place of vehicular access or more than 1/4 mile
from any non-treated area, the decontamination supplies may be at the
nearest place of vehicular access outside any treated area or area
subject to a restricted-entry interval.
0
7. Subpart F is added to part 170 to read as follows:
Subpart F--Requirements for Protection of Agricultural Pesticide
Handlers
Sec.
Sec. 170.501 Training requirements for handlers.
Sec. 170.503 Knowledge of labeling, application-specific, and
establishment-specific information for handlers.
Sec. 170.505 Requirements during applications to protect handlers,
workers, and other persons.
Sec. 170.507 Personal protective equipment.
Sec. 170.509 Decontamination and eye flushing supplies for
handlers.
Sec. 170.501 Training requirements for handlers.
(a) General requirement. Before any handler performs any handler
activity involving a pesticide product, the handler employer must
ensure that the handler has been trained in accordance with this
section within the last 12 months, except as provided in paragraph (b)
of this section.
(b) Exceptions. The following handlers need not be trained under
this section:
(1) A handler who is currently certified as an applicator of
restricted use pesticides under part 171 of this chapter.
(2) A handler who is certified or licensed as a crop advisor by a
program acknowledged as appropriate in writing by EPA or the State or
Tribal agency responsible for pesticide enforcement, provided that a
requirement for such certification or licensing is pesticide safety
training that includes all the topics set out in Sec. 170.501(c)(2) or
Sec. 170.501(c)(3) as applicable depending on the date of training.
(c) Training programs. (1) Pesticide safety training must be
presented to handlers either orally from written materials or audio-
visually, at a location that is reasonably free from distraction and
conducive to training. All training materials must be EPA-approved. The
training must be presented in a manner that the handlers can
understand, such as through a translator. The training must be
conducted by a person who meets the handler trainer requirements of
paragraph (c)(4) of this section, and who must be present during the
entire training program and must respond to handlers' questions.
(2) The pesticide safety training materials must include, at a
minimum, all of the following topics:
(i) Format and meaning of information contained on pesticide labels
and in labeling, including safety information such as precautionary
statements about human health hazards.
(ii) Hazards of pesticides resulting from toxicity and exposure,
including acute and chronic effects, delayed effects, and
sensitization.
(iii) Routes by which pesticides can enter the body.
(iv) Signs and symptoms of common types of pesticide poisoning.
(v) Emergency first aid for pesticide injuries or poisonings.
(vi) How to obtain emergency medical care.
(vii) Routine and emergency decontamination procedures.
(viii) Need for and appropriate use of personal protective
equipment.
(ix) Prevention, recognition, and first aid treatment of heat-
related illness.
(x) Safety requirements for handling, transporting, storing, and
disposing of pesticides, including general procedures for spill
cleanup.
(xi) Environmental concerns such as drift, runoff, and wildlife
hazards.
(xii) Warnings about taking pesticides or pesticide containers
home.
(xiii) Requirements of this subpart that must be followed by
handler employers for the protection of handlers and other persons,
including the prohibition against applying pesticides in a manner that
will cause contact with workers or other persons, the requirement to
use personal protective equipment, the provisions for training and
decontamination, and the protection against retaliatory acts.
(3) EPA intends to make available to the public training materials
that may be used to conduct training conforming to the requirements of
this section. Within 180 days after a notice of availability of such
training materials appears in the Federal Register, but no earlier than
January 1, 2018, training programs required under this section must
include, at a minimum, all of the topics listed in Sec.
170.501(c)(3)(i)-(xiv) instead of the points listed in Sec.
170.501(c)(2)(i)-(xiii).
(i) All the topics required by Sec. 170.401(c)(3).
(ii) Information on proper application and use of pesticides.
(iii) Handlers must follow the portions of the labeling applicable
to the safe use of the pesticide.
(iv) Format and meaning of information contained on pesticide
labels and in labeling applicable to the safe use of the pesticide.
[[Page 67568]]
(v) Need for and appropriate use and removal of all personal
protective equipment.
(vi) How to recognize, prevent, and provide first aid treatment for
heat-related illness.
(vii) Safety requirements for handling, transporting, storing, and
disposing of pesticides, including general procedures for spill
cleanup.
(viii) Environmental concerns, such as drift, runoff, and wildlife
hazards.
(ix) Handlers must not apply pesticides in a manner that results in
contact with workers or other persons.
(x) The responsibility of handler employers to provide handlers
with information and protections designed to reduce work-related
pesticide exposures and illnesses. This includes providing, cleaning,
maintaining, storing, and ensuring proper use of all required personal
protective equipment; providing decontamination supplies; and providing
specific information about pesticide use and labeling information.
(xi) Handlers must suspend a pesticide application if workers or
other persons are in the application exclusion zone.
(xii) Handlers must be at least 18 years old.
(xiii) The responsibility of handler employers to ensure handlers
have received respirator fit-testing, training and medical evaluation
if they are required to wear a respirator by the product labeling.
(xiv) The responsibility of agricultural employers to post treated
areas as required by this rule.
(4) The person who conducts the training must have one of the
following qualifications:
(i) Be designated as a trainer of certified applicators or
pesticide handlers by EPA or the State or Tribal agency responsible for
pesticide enforcement.
(ii) Have completed an EPA-approved pesticide safety train-the-
trainer program for trainers of handlers.
(iii) Be currently certified as an applicator of restricted use
pesticides under part 171 of this chapter.
(d) Recordkeeping. (1) Handler employers must maintain records of
training for handlers employed by their establishment for two years
after the date of the training. The records must be maintained on the
establishment and must include all of the following information:
(i) The trained handler's printed name and signature.
(ii) The date of the training.
(iii) Information identifying which EPA-approved training materials
were used.
(iv) The trainer's name and documentation showing that the trainer
met the requirements of Sec. 170.501(c)(4) at the time of training.
(v) The handler employer's name.
(2) The handler employer must, upon request by a handler trained on
the establishment, provide to the handler a copy of the record of the
training that contains the information required under Sec.
170.501(d)(1).
Sec. 170.503 Knowledge of labeling, application-specific, and
establishment-specific information for handlers.
(a) Knowledge of labeling and application-specific information. (1)
The handler employer must ensure that before any handler performs any
handler activity involving a pesticide product, the handler either has
read the portions of the labeling applicable to the safe use of the
pesticide or has been informed in a manner the handler can understand
of all labeling requirements and use directions applicable to the safe
use of the pesticide.
(2) The handler employer must ensure that the handler has access to
the applicable product labeling at all times during handler activities.
(3) The handler employer must ensure that the handler is aware of
requirements for any entry restrictions, application exclusion zones
and restricted-entry intervals as described in Sec. Sec. 170.405 and
170.407 that may apply based on the handler's activity.
(b) Knowledge of establishment-specific information. Before any
handler performs any handler activity on an agricultural establishment
where within the last 30 days a pesticide product has been used, or a
restricted-entry interval for such pesticide has been in effect, the
handler employer must ensure that the handler has been informed, in a
manner the handler can understand, all of the following establishment-
specific information:
(1) The location of pesticide safety information required by Sec.
170.311(a).
(2) The location of pesticide application and hazard information
required by Sec. 170.311(b).
(3) The location of decontamination supplies required by Sec.
170.509.
Sec. 170.505 Requirements during applications to protect handlers,
workers, and other persons.
(a) Prohibition from contacting workers and other persons with
pesticides during application. The handler employer and the handler
must ensure that no pesticide is applied so as to contact, directly or
through drift, any worker or other person, other than an appropriately
trained and equipped handler involved in the application.
(b) Suspending applications. After January 1, 2018, the handler
performing the application must immediately suspend a pesticide
application if any worker or other person, other than an appropriately
trained and equipped handler involved in the application, is in the
application exclusion zone described in Sec. 170.405(a)(1) or the area
specified in column B of the Table in Sec. 170.405(b)(4).
(c) Handlers using highly toxic pesticides. The handler employer
must ensure that any handler who is performing any handler activity
with a pesticide product that has the skull-and-crossbones symbol on
the front panel of the pesticide product label is monitored visually or
by voice communication at least every two hours.
(d) Fumigant applications in enclosed space production. The handler
employer must ensure all of the following:
(1) Any handler in an enclosed space production area during a
fumigant application maintains continuous visual or voice contact with
another handler stationed immediately outside of the enclosed space.
(2) The handler stationed outside the enclosed space has immediate
access to and uses the personal protective equipment required by the
fumigant labeling for applicators in the event that entry becomes
necessary for rescue.
Sec. 170.507 Personal protective equipment.
(a) Handler responsibilities. Any person who performs handler
activities involving a pesticide product must use the clothing and
personal protective equipment specified on the pesticide product
labeling for use of the product, except as provided in Sec. 170.607 of
this part.
(b) Employer responsibilities for providing personal protective
equipment. The handler employer must provide to the handler the
personal protective equipment required by the pesticide product
labeling in accordance with this section. The handler employer must
ensure that the personal protective equipment is clean and in proper
operating condition. For the purposes of this section, long-sleeved
shirts, short-sleeved shirts, long pants, short pants, shoes, and socks
are not considered personal protective equipment, although such work
clothing must be worn if required by the pesticide product labeling.
(1) If the pesticide product labeling requires that ``chemical-
resistant'' personal protective equipment be worn, it must be made of
material that allows no measurable movement of the
[[Page 67569]]
pesticide being used through the material during use.
(2) If the pesticide product labeling requires that ``waterproof''
personal protective equipment be worn, it must be made of material that
allows no measurable movement of water or aqueous solutions through the
material during use.
(3) If the pesticide product labeling requires that a ``chemical-
resistant suit'' be worn, it must be a loose-fitting, one- or two-piece
chemical-resistant garment that covers, at a minimum, the entire body
except head, hands, and feet.
(4) If the pesticide product labeling requires that ``coveralls''
be worn, they must be loose-fitting, one- or two-piece garments that
cover, at a minimum, the entire body except head, hands, and feet.
(5) Gloves must be the type specified on the pesticide product
labeling.
(i) Gloves made of leather, cotton, or other absorbent materials
may not be worn while performing handler activities unless gloves made
of these materials are listed as acceptable for such use on the
pesticide product labeling.
(ii) Separable glove liners may be worn beneath chemical-resistant
gloves, unless the pesticide product labeling specifically prohibits
their use. Separable glove liners are defined as separate glove-like
hand coverings, made of lightweight material, with or without fingers.
Work gloves made from lightweight cotton or poly-type material are
considered to be glove liners if worn beneath chemical-resistant
gloves. Separable glove liners may not extend outside the chemical-
resistant gloves under which they are worn. Chemical-resistant gloves
with non-separable absorbent lining materials are prohibited.
(iii) If used, separable glove liners must be discarded immediately
after a total of no more than 10 hours of use or within 24 hours of
when first put on, whichever comes first. The liners must be replaced
immediately if directly contacted by pesticide. Used glove liners must
not be reused. Contaminated liners must be disposed of in accordance
with any Federal, State, or local regulations.
(6) If the pesticide product labeling requires that ``chemical-
resistant footwear'' be worn, one of the following types of footwear
must be worn:
(i) Chemical-resistant shoes.
(ii) Chemical-resistant boots.
(iii) Chemical-resistant shoe coverings worn over shoes or boots.
(7) If the pesticide product labeling requires that ``protective
eyewear'' be worn, one of the following types of eyewear must be worn:
(i) Goggles.
(ii) Face shield.
(iii) Safety glasses with front, brow, and temple protection.
(iv) Full-face respirator.
(8) If the pesticide product labeling requires that a ``chemical-
resistant apron'' be worn, a chemical-resistant apron that covers the
front of the body from mid-chest to the knees must be worn.
(9) If the pesticide product labeling requires that ``chemical-
resistant headgear'' be worn, it must be either a chemical-resistant
hood or a chemical-resistant hat with a wide brim.
(10) The respirator specified by the pesticide product labeling
must be used. Whenever a respirator is required by the pesticide
product labeling, the handler employer must ensure that the
requirements of paragraphs (b)(10)(i) through (iii) of this section are
met before the handler performs any handler activity where the
respirator is required to be worn. The handler employer must maintain
for two years, on the establishment, records documenting the completion
of the requirements of paragraphs (b)(10)(i) through (iii) of this
section.
(i) Handler employers must provide handlers with fit testing using
the respirator specified on the pesticide product labeling in a manner
that conforms to the provisions of 29 CFR 1910.134.
(ii) Handler employers must provide handlers with training in the
use of the respirator specified on the pesticide product labeling in a
manner that conforms to the provisions of 29 CFR 1910.134(k)(1)(i)
through(vi).
(iii) Handler employers must provide handlers with a medical
evaluation by a physician or other licensed health care professional
that conforms to the provisions of 29 CFR 1910.134 to ensure the
handler's physical ability to safely wear the respirator specified on
the pesticide product labeling.
(c) Use of personal protective equipment. (1) The handler employer
must ensure that personal protective equipment is used correctly for
its intended purpose and is used according to the manufacturer's
instructions.
(2) The handler employer must ensure that, before each day of use,
all personal protective equipment is inspected for leaks, holes, tears,
or worn places, and any damaged equipment is repaired or discarded.
(d) Cleaning and maintenance. (1) The handler employer must ensure
that all personal protective equipment is cleaned according to the
manufacturer's instructions or pesticide product labeling instructions
before each day of reuse. In the absence of any such instructions, it
must be washed thoroughly in detergent and hot water.
(2) If any personal protective equipment cannot or will not be
cleaned properly, the handler employer must ensure the contaminated
personal protective equipment is made unusable as apparel or is made
unavailable for further use by employees or third parties. The
contaminated personal protective equipment must be disposed of in
accordance with any applicable laws or regulations. Coveralls or other
absorbent materials that have been drenched or heavily contaminated
with a pesticide that has the signal word ``DANGER'' or ``WARNING'' on
the label must not be reused and must be disposed of as specified in
this paragraph. Handler employers must ensure that any person who
handles contaminated personal protective equipment described in this
paragraph wears the gloves specified on the pesticide product labeling
for mixing and loading the product(s) comprising the contaminant(s) on
the equipment. If two or more pesticides are included in the
contaminants, the gloves worn must meet the requirements for mixing and
loading all of the pesticide products.
(3) The handler employer must ensure that contaminated personal
protective equipment is kept separate from non-contaminated personal
protective equipment, other clothing or laundry and washed separately
from any other clothing or laundry.
(4) The handler employer must ensure that all washed personal
protective equipment is dried thoroughly before being stored or reused.
(5) The handler employer must ensure that all clean personal
protective equipment is stored separately from personal clothing and
apart from pesticide-contaminated areas.
(6) The handler employer must ensure that when filtering facepiece
respirators are used, they are replaced when one of the following
conditions is met:
(i) When breathing resistance becomes excessive.
(ii) When the filter element has physical damage or tears.
(iii) According to manufacturer's recommendations or pesticide
product labeling, whichever is more frequent.
(iv) In the absence of any other instructions or indications of
service life, at the end of eight hours of cumulative use.
(7) The handler employer must ensure that when gas- or vapor-
removing respirators are used, the gas- or vapor-removing canisters or
cartridges are
[[Page 67570]]
replaced before further respirator use when one of the following
conditions is met:
(i) At the first indication of odor, taste, or irritation.
(ii) When the maximum use time is reached as determined by a change
schedule conforming to the provisions of 29 CFR
1910.134(d)(3)(iii)(B)(2).
(iii) When breathing resistance becomes excessive.
(iv) When required according to manufacturer's recommendations or
pesticide product labeling instructions, whichever is more frequent.
(v) In the absence of any other instructions or indications of
service life, at the end of eight hours of cumulative use.
(8) The handler employer must inform any person who cleans or
launders personal protective equipment of all the following:
(i) That such equipment may be contaminated with pesticides and
there are potentially harmful effects from exposure to pesticides.
(ii) The correct way(s) to clean personal protective equipment and
how to protect themselves when handling such equipment.
(iii) Proper decontamination procedures that should be followed
after handling contaminated personal protective equipment.
(9) The handler employer must ensure that handlers have a place(s)
away from pesticide storage and pesticide use areas where they may do
all of the following:
(i) Store personal clothing not worn during handling activities.
(ii) Put on personal protective equipment at the start of any
exposure period.
(iii) Remove personal protective equipment at the end of any
exposure period.
(10) The handler employer must not allow or direct any handler to
wear home or to take home employer-provided personal protective
equipment contaminated with pesticides.
(e) Heat-related illness. Where a pesticide's labeling requires the
use of personal protective equipment for a handler activity, the
handler employer must take appropriate measures to prevent heat-related
illness.
Sec. 170.509 Decontamination and eye flushing supplies for handlers.
(a) Requirement. The handler employer must provide decontamination
and eye flushing supplies in accordance with this section for any
handler that is performing any handler activity or removing personal
protective equipment at the place for changing required by Sec.
170.507(d)(9).
(b) General conditions. The decontamination supplies required in
paragraph (a) of this section must include: at least three gallons of
water per handler at the beginning of each handler's work period for
routine washing and potential emergency decontamination; soap; single-
use towels; and clean clothing for use in an emergency. The
decontamination and eye flushing supplies required in paragraph (a) of
this section must meet all of the following requirements:
(1) Water. At all times when this section requires handler
employers to make water available to handlers for routine washing,
emergency decontamination or eye flushing, the handler employer must
ensure that it is of a quality and temperature that will not cause
illness or injury when it contacts the skin or eyes or if it is
swallowed. If a water source is used for mixing pesticides, it must not
be used for decontamination or eye flushing supplies, unless equipped
with properly functioning valves or other mechanisms that prevent
contamination of the water with pesticides, such as anti-backflow
siphons, one-way or check valves, or an air gap sufficient to prevent
contamination.
(2) Soap and single-use towels. The handler employer must provide
soap and single-use towels for drying in quantities sufficient to meet
the handlers' needs. Hand sanitizing gels and liquids or wet towelettes
do not meet the requirement for soap. Wet towelettes do not meet the
requirement for single-use towels.
(3) Clean change of clothing. The handler employer must provide one
clean change of clothing, such as coveralls, for use in an emergency.
(c) Location. The decontamination supplies must be located together
outside any treated area or area subject to a restricted-entry
interval, and must be reasonably accessible to each handler during the
handler activity. The decontamination supplies must not be more than 1/
4 mile from the handler, except that where the handler activity is more
than 1/4 mile from the nearest place of vehicular access or more than
1/4 mile from any non-treated area, the decontamination supplies may be
at the nearest place of vehicular access outside any treated area or
area subject to a restricted-entry interval.
(1) Mixing sites. Decontamination supplies must be provided at any
mixing site.
(2) Exception for pilots. Decontamination supplies for a pilot who
is applying pesticides aerially must be in the aircraft or at the
aircraft loading site.
(3) Exception for treated areas. The decontamination supplies must
be outside any treated area or area subject to a restricted-entry
interval, unless the soap, single-use towels, water and clean change of
clothing are protected from pesticide contamination in closed
containers.
(d) Emergency eye-flushing. (1) Whenever a handler is mixing or
loading a pesticide product whose labeling requires protective eyewear
for handlers, or is mixing or loading any pesticide using a closed
system operating under pressure, the handler employer must provide at
each mixing/loading site immediately available to the handler, at least
one system that is capable of delivering gently running water at a rate
of least 0.4 gallons per minute for at least 15 minutes, or at least
six gallons of water in containers suitable for providing a gentle eye-
flush for about 15 minutes.
(2) Whenever a handler is applying a pesticide product whose
labeling requires protective eyewear for handlers, the handler employer
must provide at least one pint of water per handler in portable
containers that are immediately available to each handler.
0
8. Subpart G is added to part 170 to read as follows:
Subpart G--Exemptions, Exceptions and Equivalency
Sec.
Sec. 170.601 Exemptions.
Sec. 170.603 Exceptions for entry by workers during restricted-
entry intervals.
Sec. 170.605 Agricultural employer responsibilities to protect
workers entering treated areas during a restricted-entry interval.
Sec. 170.607 Exceptions to personal protective equipment
requirements specified on pesticide product labeling.
Sec. 170.609 Equivalency requests.
Sec. 170.601 Exemptions.
(a) Exemption for owners of agricultural establishments and their
immediate families. (1) On any agricultural establishment where a
majority of the establishment is owned by one or more members of the
same immediate family, the owner(s) of the establishment are not
required to provide the protections of the following provisions to
themselves or members of their immediate family when they are
performing handling activities or tasks related to the production of
agricultural plants that would otherwise be covered by this part on
their own agricultural establishment.
(i) Section 170.309(c).
(ii) Section 170.309(f) through (j).
(iii) Section 170.311.
[[Page 67571]]
(iv) Section 170.401.
(v) Section 170.403.
(vi) Section 170.409.
(vii) Sections 170.411 and 170.509.
(viii) Section 170.501.
(ix) Section 170.503.
(x) Section 170.505(c) and (d).
(xi) Section 170.507(c) through (e).
(xii) Section 170.605(a) through (c) and (e) through (j).
(2) The owners of agricultural establishments must provide all of
the applicable protections required by this part for any employees or
other persons on the establishment that are not members of their
immediate family.
(b) Exemption for certified crop advisors. Certified crop advisors
may make their own determination for the appropriate personal
protective equipment for entry into a treated area during a restricted-
entry interval and substitute their self-determined set of personal
protective equipment for the labeling-required personal protective
equipment, and the requirements of Sec. Sec. 170.309(e), 170.309(f),
170.313(k), 170.503(a), 170.507 and 170.509 of this part do not apply
to certified crop advisors provided the application is complete and all
of the following conditions are met:
(1) The crop advisor is certified or licensed as a crop advisor by
a program acknowledged as appropriate in writing by EPA or a State or
Tribal agency responsible for pesticide enforcement.
(2) The certification or licensing program requires pesticide
safety training that includes all the information in Sec.
170.501(c)(2) or Sec. 170.501(c)(3) as applicable depending on the
date of training.
(3) The crop advisor who enters a treated area during a restricted-
entry interval only performs crop advising tasks while in the treated
area.
Sec. 170.603 Exceptions for entry by workers during restricted-entry
intervals.
An agricultural employer may direct workers to enter treated areas
where a restricted-entry interval is in effect to perform certain
activities as provided in this section, provided that the agricultural
employer ensures all of the applicable conditions of this section and
Sec. 170.605 of this part are met.
(a) Exception for activities with no contact. A worker may enter a
treated area during a restricted-entry interval if the agricultural
employer ensures that all of the following conditions are met:
(1) The worker will have no contact with anything that has been
treated with the pesticide to which the restricted-entry interval
applies, including, but not limited to, soil, water, air, or surfaces
of plants. This exception does not allow workers to perform any
activities that involve contact with treated surfaces even if workers
are wearing personal protective equipment.
(2) No such entry is allowed until any inhalation exposure level
listed in the pesticide product labeling has been reached or any
ventilation criteria required by Sec. 170.405(b)(3) or the pesticide
product labeling have been met.
(b) Exception for short-term activities. A worker may enter a
treated area during a restricted-entry interval for short-term
activities, if the agricultural employer ensures that all of the
following requirements are met:
(1) No hand labor activity is performed.
(2) The time in treated areas where a restricted-entry interval is
in effect does not exceed one hour in any 24-hour period for any
worker.
(3) No such entry is allowed during the first 4 hours after the
application ends.
(4) No such entry is allowed until any inhalation exposure level
listed in the pesticide product labeling has been reached or any
ventilation criteria required by Sec. 170.405(b)(3) or the pesticide
product labeling have been met.
(c) Exception for an agricultural emergency. (1) An agricultural
emergency means a sudden occurrence or set of circumstances that the
agricultural employer could not have anticipated and over which the
agricultural employer has no control, that requires entry into a
treated area during a restricted-entry interval, and when no
alternative practices would prevent or mitigate a substantial economic
loss. A substantial economic loss means a loss in profitability greater
than that which would be expected based on the experience and
fluctuations of crop yields in previous years. Only losses caused by
the agricultural emergency specific to the affected site and geographic
area are considered. Losses resulting from mismanagement cannot be
included when determining whether a loss is substantial.
(2) A worker may enter a treated area where a restricted-entry
interval is in effect in an agricultural emergency to perform tasks
necessary to mitigate the effects of the agricultural emergency,
including hand labor tasks, if the agricultural employer ensures that
all the following criteria are met:
(i) The State department of agriculture, or the State or Tribal
agency responsible for pesticide enforcement declares an agricultural
emergency that applies to the treated area, or agricultural employer
has determined that the circumstances within the treated area are the
same as circumstances the State department of agriculture, or the State
or Tribal agency responsible for pesticide enforcement has previously
determined would constitute an agricultural emergency.
(ii) The agricultural employer determines that the agricultural
establishment is subject to the circumstances that result in an
agricultural emergency meeting the criteria of paragraph (c)(1) of this
section.
(iii) If the labeling of any pesticide product applied to the
treated area requires workers to be notified of the location of treated
areas by both posting and oral notification, then the agricultural
employer must ensure that no individual worker spends more than four
hours out of any 24-hour period in treated areas where such a
restricted-entry interval is in effect.
(iv) No such entry is allowed during the first 4 hours after the
application ends.
(v) No such entry is allowed until any inhalation exposure level
listed in the pesticide product labeling has been reached or any
ventilation criteria required by Sec. 170.405(b)(3) or the pesticide
product labeling have been met.
(d) Exceptions for limited contact and irrigation activities. A
worker may enter a treated area during a restricted-entry interval for
limited contact or irrigation activities, if the agricultural employer
ensures that all of the following requirements are met:
(1) No hand labor activity is performed.
(2) No worker is allowed in the treated area for more than eight
hours in a 24-hour period.
(3) No such entry is allowed during the first 4 hours after the
application ends.
(4) No such entry is allowed until any inhalation exposure level
listed in the pesticide product labeling has been reached or any
ventilation criteria required by Sec. 170.405(b)(3) or the pesticide
product labeling have been met.
(5) The task is one that, if not performed before the restricted-
entry interval expires, would cause substantial economic loss, and
there are no alternative tasks that would prevent substantial loss.
(6) With the exception of irrigation tasks, the need for the task
could not have been foreseen.
(7) The worker has no contact with pesticide-treated surfaces other
than
[[Page 67572]]
minimal contact with feet, lower legs, hands, and forearms.
(8) The labeling of the pesticide product that was applied does not
require that workers be notified of the location of treated areas by
both posting and oral notification.
Sec. 170.605 Agricultural employer responsibilities to protect
workers entering treated areas during a restricted-entry interval.
If an agricultural employer directs a worker to perform activities
in a treated area where a restricted-entry interval is in effect, all
of the following requirements must be met:
(a) The agricultural employer must ensure that the worker is at
least 18 years old.
(b) Prior to early entry, the agricultural employer must provide to
each early-entry worker the information described in paragraphs (b)(1)
through (8) of this section. The information must be provided orally in
a manner that the worker can understand.
(1) Location of early-entry area where work activities are to be
performed.
(2) Pesticide(s) applied.
(3) Dates and times that the restricted-entry interval begins and
ends.
(4) Which exception in Sec. 170.603 is the basis for the early
entry, and a description of tasks that may be performed under the
exception.
(5) Whether contact with treated surfaces is permitted under the
exception.
(6) Amount of time the worker is allowed to remain in the treated
area.
(7) Personal protective equipment required by the pesticide product
labeling for early entry.
(8) Location of the pesticide safety information required by Sec.
170.311(a) and the location of the decontamination supplies required by
Sec. 170.605(h).
(c) Prior to early entry, the agricultural employer must ensure
that each worker either has read the applicable pesticide product
labeling or has been informed, in a manner that the worker can
understand, of all labeling requirements and statements related to
human hazards or precautions, first aid, and user safety.
(d) The agricultural employer must ensure that each worker who
enters a treated area during a restricted-entry interval is provided
the personal protective equipment specified in the pesticide product
labeling for early entry. The agricultural employer must ensure that
the worker uses the personal protective equipment as intended according
to manufacturer's instructions and follows any other applicable
requirements on the pesticide product labeling. Personal protective
equipment must conform to the standards in Sec. 170.507(b)(1) through
(9).
(e) The agricultural employer must maintain the personal protective
equipment in accordance with Sec. 170.507(c) and (d).
(f) The agricultural employer must ensure that no worker is allowed
or directed to wear personal protective equipment without implementing
measures sufficient to prevent heat-related illness and that each
worker is instructed in the prevention, recognition, and first aid
treatment of heat-related illness.
(g) The agricultural employer must instruct each worker on the
proper use and removal of the personal protective equipment, and as
appropriate, on its cleaning, maintenance and disposal. The
agricultural employer must not allow or direct any worker to wear home
or to take home employer-provided personal protective equipment
contaminated with pesticides.
(h) During any early-entry activity, the agricultural employer must
provide decontamination supplies in accordance with Sec. 170.509,
except the decontamination supplies must be outside any area being
treated with pesticides or subject to a restricted-entry interval,
unless the decontamination supplies would otherwise not be reasonably
accessible to workers performing early-entry tasks.
(i) If the pesticide product labeling of the product applied
requires protective eyewear, the agricultural employer must provide at
least one pint of water per worker in portable containers for
eyeflushing that is immediately available to each worker who is
performing early-entry activities.
(j) At the end of any early-entry activities the agricultural
employer must provide, at the site where the workers remove personal
protective equipment, soap, single-use towels and at least three
gallons of water per worker so that the workers may wash thoroughly.
Sec. 170.607 Exceptions to personal protective equipment requirements
specified on pesticide product labeling.
(a) Body protection. (1) A chemical-resistant suit may be
substituted for coveralls. If a chemical-resistant suit is substituted
for coveralls, any labeling requirement for an additional layer of
clothing beneath the coveralls is waived.
(2) A chemical-resistant suit may be substituted for coveralls and
a chemical-resistant apron.
(b) Boots. If chemical-resistant footwear with sufficient
durability and a tread appropriate for wear in rough terrain is not
obtainable, then leather boots may be worn in such terrain.
(c) Gloves. If chemical-resistant gloves with sufficient durability
and suppleness are not obtainable, then during activities with plants
with sharp thorns, leather gloves may be worn over chemical-resistant
glove liners. However, once leather gloves are worn for this use,
thereafter they must be worn only with chemical-resistant liners and
they must not be worn for any other use.
(d) Closed systems.(1) When pesticides are being mixed or loaded
using a closed system that meets all of the requirements in paragraph
(d)(2) of this section, and the handler employer meets the requirements
of paragraph (d)(3) of this section, the following exceptions to
labeling-specified personal protective equipment are permitted:
(i) Handlers using a closed system to mix or load pesticides with a
signal word of ``DANGER'' or ``WARNING'' may substitute a long-sleeved
shirt, long pants, shoes and socks, chemical-resistant apron,
protective eyewear, and any protective gloves specified on the labeling
for handlers for the labeling-specified personal protective equipment.
(ii) Handlers using a closed system to mix or load pesticides other
than those specified in paragraph (d)(1)(i) of this section may
substitute protective eyewear, long-sleeved shirt, long pants, and
shoes and socks for the labeling-specified personal protective
equipment.
(2) The exceptions of paragraph (d)(1) of this section apply only
in the following situations:
(i) Where the closed system removes the pesticide from its original
container and transfers the pesticide product through connecting hoses,
pipes and couplings that are sufficiently tight to prevent exposure of
handlers to the pesticide product, except for the negligible escape
associated with normal operation of the system.
(ii) When loading intact, sealed, water soluble packaging into a
mixing tank or system. If the integrity of a water soluble packaging is
compromised (for example, if the packaging is dissolved, broken,
punctured, torn, or in any way allows its contents to escape), it is no
longer a closed system and the labeling-specified personal protective
equipment must be worn.
(3) The exceptions of paragraph (d)(1) of this section apply only
where the handler employer has satisfied the requirements of Sec.
170.313 and all of the following conditions:
[[Page 67573]]
(i) Each closed system must have written operating instructions
that are clearly legible and include: Operating procedures for use,
including the safe removal of a probe; maintenance, cleaning and
repair; known restrictions or limitations relating to the system, such
as incompatible pesticides, sizes (or types) of containers or closures
that cannot be handled by the system; any limits on the ability to
measure a pesticide; and special procedures or limitations regarding
partially-filled containers.
(ii) The written operating instructions for the closed system must
be available at the mixing or loading site and must be made available
to any handlers who use the system.
(iii) Any handler operating the closed system must be trained in
its use and operate the closed system in accordance with its written
operating instructions.
(iv) The closed system must be cleaned and maintained as specified
in the written operating instructions and as needed to make sure the
system functions properly.
(v) All personal protective equipment specified in the pesticide
product labeling is immediately available to the handler for use in an
emergency.
(vi) Protective eyewear must be worn when using closed systems
operating under pressure.
(e) Enclosed cabs. (1) If a handler applies a pesticide from inside
a vehicle's enclosed cab, and if the conditions listed in paragraph
(e)(2) of this section are met, exceptions to the personal protective
equipment requirements specified on the product labeling for
applicators are permitted as provided in paragraph (e)(3) of this
section.
(2) All of the personal protective equipment required by the
pesticide product labeling for applicators must be immediately
available and stored in a sealed container to prevent contamination.
Handlers must wear the applicator personal protective equipment
required by the pesticide product labeling if they exit the cab within
a treated area during application or when a restricted-entry interval
is in effect. Once personal protective equipment is worn in a treated
area, it must be removed before reentering the cab to prevent
contamination of the cab.
(3) Handlers may substitute a long-sleeved shirt, long pants, shoes
and socks for the labeling-specified personal protective equipment for
skin and eye protection. If a filtering facepiece respirator (NIOSH
approval number prefix TC-84A) or dust/mist filtering respirator is
required by the pesticide product labeling for applicators, then that
respirator need not be worn inside the enclosed cab if the enclosed cab
has a properly functioning air ventilation system which is used and
maintained in accordance with the manufacture's written operating
instructions. If any other type of respirator is required by the
pesticide labeling for applicators, then that respirator must be worn.
(f) Aerial applications--(1) Use of gloves. The wearing of
chemical-resistant gloves when entering or leaving an aircraft used to
apply pesticides is optional, unless such gloves are required on the
pesticide product labeling. If gloves are brought into the cockpit of
an aircraft that has been used to apply pesticides, the gloves shall be
kept in an enclosed container to prevent contamination of the inside of
the cockpit.
(2) Open cockpit. Handlers applying pesticides from an open cockpit
aircraft must use the personal protective equipment specified in the
pesticide product labeling for use during application, except that
chemical-resistant footwear need not be worn. A helmet may be
substituted for chemical-resistant headgear. A helmet with a face
shield lowered to cover the face may be substituted for protective
eyewear.
(3) Enclosed cockpit. Persons occupying an enclosed cockpit may
substitute a long-sleeved shirt, long pants, shoes, and socks for
labeling-specified personal protective equipment.
(g) Crop advisors. (1) Provided the conditions of paragraphs (g)(2)
through (g)(4) of this section are met, crop advisors and their
employees entering treated areas to perform crop advising tasks while a
restricted-entry interval is in effect may substitute either of the
following sets of personal protective equipment for the personal
protective equipment specified on the pesticide labeling for handler
activities:
(i) The personal protective equipment specified on the pesticide
product labeling for early entry.
(ii) Coveralls, shoes plus socks and chemical-resistant gloves made
of any waterproof material, and eye protection if the pesticide product
labeling applied requires protective eyewear for handlers.
(2) The application has been complete for at least four hours.
(3) No such entry is allowed until any inhalation exposure level
listed in the pesticide product labeling has been reached or any
ventilation criteria required by Sec. 170.405(b)(3) or the pesticide
product labeling have been met.
(4) The crop advisor or crop advisor employee who enters a treated
area during a restricted-entry interval only performs crop advising
tasks while in the treated area.
Sec. 170.609 Equivalency requests.
(a) States and Tribes that have promulgated worker protection
regulations to protect agricultural workers and pesticide handlers from
occupational pesticide exposure effective prior to January 1, 2016,
have the option of requesting authority to continue implementing any
provision(s) of the State's or Tribe's existing regulations that
provides equivalent or greater protection in lieu of implementing any
similar provision(s) in this part.
(b) States or Tribes must submit requests for the authority to
continue implementing State or Tribal regulation provision(s) in lieu
of any similar provision(s) in this part by June 29, 2016. The request
must be in the form of a letter from the State or Tribe to EPA that
includes all of the following:
(1) Identification of the provision(s) of this part for which the
State or Tribe is requesting regulatory equivalency.
(2) Appropriate documentation establishing that the pertinent State
or Tribal worker protection provision(s) provides environmental and
human health protection that meets or exceeds the protections provided
by the identified provision(s) in this part.
(3) Identification of any additional modifications to existing
State or Tribal regulations that would be necessary in order to provide
environmental and human health protection that meets or exceeds the
similar provisions of this part, and an estimated timetable for the
State or Tribe to effect these changes.
(4) The expected economic impact of requiring compliance with the
requirement(s) of this part in comparison with compliance with the
State or Tribal requirement(s), and an explanation of why it is
important that employers subject to the State or Tribal authority
comply with the State or Tribal requirement(s) in lieu of similar
provision(s) in this part.
(5) The signature of the designated representative of the State or
Tribal agency responsible for pesticide enforcement.
(c) EPA's Office of Pesticide Programs will review the State's or
Tribe's letter and supporting materials and determine whether the State
or Tribal provision(s) provide environmental and human health
protection that meets or exceeds the comparable provision(s) of this
part.
(d) EPA's Office of Pesticide Programs will inform the State or
Tribe of its determination through a letter. The letter will either:
[[Page 67574]]
(1) Authorize the State or Tribe to continue implementing its
worker protection regulatory provision(s) in lieu of the comparable
provision(s) of this part; or
(2) Deny the State or Tribe authorization to continue implementing
its worker protection regulatory provision(s) in lieu of the comparable
provision(s) of this part and detail any reasons for declining
authorization.
(e) Subsequent revisions. Any State or Tribe that has received
authorization from EPA through the process outlined in this section to
continue implementing its State or Tribal worker protection regulatory
provision(s) must inform EPA by letter within six months of any
revision to the State or Tribal worker protection laws or regulations.
The letter must contain the same information outlined in paragraph (b)
of this section. The State or Tribe may continue implementing
provisions of its worker protection regulations identified under
paragraph (b) of this section unless and until EPA informs the State or
Tribe through a letter that EPA has determined that the State's or
Tribe's worker protection regulations no longer provide environmental
and human health protection that meets or exceeds the comparable
provision(s) of this part based on the revisions.
[FR Doc. 2015-25970 Filed 10-30-15; 8:45 am]
BILLING CODE 6560-50-P