[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8093]


[[Page Unknown]]

[Federal Register: April 6, 1994]


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Part X





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 110




Recordkeeping Requirements for Certified Applicators of Federally 
Restricted Use Pesticides; Proposed Rules
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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 110

[SD-94-001 PR]

RIN No. 0581-AA39

 
Recordkeeping Requirements for Certified Applicators of Federally 
Restricted Use Pesticides

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Agricultural Marketing Service, United States Department 
of Agriculture, proposes to revise its regulations in 7 CFR Part 110, 
governing recordkeeping of federally restricted use pesticides by 
certified applicators. The regulations governing recordkeeping of 
federally restricted use pesticides by certified applicators were 
published on April 9, 1993, and became effective on May 10, 1993. Since 
that time, issues have been raised regarding the regulations. A lawsuit 
was filed challenging the substance of limited portions of the 
regulations. The changes specified in the proposed rule would clarify 
certain provisions of the regulations, ensure consistency with the 
objectives of section 1491 of the Food, Agriculture, Conservation, and 
Trade Act of 1990, and provide for a more pragmatic approach to the 
implementation of the Pesticide Recordkeeping Program.

DATES: Comments must be received on or before June 6, 1994.

ADDRESSES: Written comments concerning this proposal should be sent to 
Bonnie L. Poli, Docket Manager, USDA-AMS, Science Division, 8700 
Centreville Road, suite 200, Manassas, Virginia 22110, and should refer 
to the docket title and number located in the heading of this document. 
All comments submitted in response to this proposal will be available 
for public inspection in Room 3507, South Agriculture Building, 14th & 
Independence Avenues, SW., between the hours of 9 a.m. and 4 p.m., 
Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Bonnie Poli, Chief, Pesticide Records 
Branch, Science Division, AMS, 8700 Centreville Road, suite 200, 
Manassas, VA 22110, 703-330-7826.

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been determined to be non-significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by OMB.
    This proposed rule also has been reviewed under the Regulatory 
Flexibility Act (5 U.S.C. 601 et. seq.). This proposed rule will (1) 
clarify certain definitions within the regulations; (2) clarify the 
availability of pesticide record information to facilitate medical 
treatment or first aid; (3) clarify the utilization and release of 
pesticide record information by licensed health care professionals; (4) 
modify the time period by which the information required by the 
regulations shall be officially recorded, and (5) ensure uniformity in 
recording the location of pesticide applications by removing the 
distinction between recording spot applications and other applications 
of federally restricted use pesticides. We do not anticipate that any 
of these proposed changes will result in any significant additional 
economic impact on certified (private and commercial) applicators of 
federally restricted use pesticides.
    Under these circumstances, the Administrator of the Agricultural 
Marketing Service has determined that this action will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If adopted, this proposed rule: (1) Will not 
preempt any state or local laws, regulations, or policies, unless they 
present an irreconcilable conflict with this rule; (2) will not have 
any retroactive effect; and (3) will not require administrative 
proceedings before parties may file suit challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507 of the Paperwork Reduction Act of 
1980 (44 U.S.C. 3507), the recordkeeping provisions included in this 
proposed rule have been approved by the Office of Management and Budget 
(OMB), number 0581-0164. The proposed rule does not change the data 
elements required for a record or the collection of information.

Background

    As part of the Food, Agriculture, Conservation, and Trade Act of 
1990 (Pub.L. 101-624; 7 U.S.C. 136i-1), hereinafter referred to as the 
FACT Act, Congress mandated the establishment, by the Secretary of 
Agriculture in consultation with the Administrator of the Environmental 
Protection Agency, of requirements for recordkeeping by all certified 
applicators of federally restricted use pesticides.
    Applicator certification programs are administered by EPA, other 
Federal Agencies, and States. A restricted use pesticide, as 
distinguished from a general use pesticide, is one that has been 
classified as such under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA, at 7 U.S.C. 136a(d)(1)(C)). EPA regulations 
issued under FIFRA, further provide that restricted use pesticides may 
be applied only by, or under the supervision of, a certified 
applicator. Applicator certification requirements are provided in the 
EPA regulations (40 CFR 171).
    A certified applicator may be a commercial applicator or a private 
applicator. A private applicator is one who uses or supervises the use 
of any restricted use pesticide for purposes of producing any 
agricultural commodity: (1) On property that is owned or rented by the 
applicator, or the employer of the applicator; or (2) if applied 
without compensation other than trading of personal services between 
producers of agricultural commodities, on the property of another 
person. A commercial applicator is one who uses or supervises the use 
of a restricted use pesticide for any purpose or on any property other 
than as provided under the definition of a private applicator.
    On April 9, 1993, final regulations were published in the Federal 
Register, ``Recordkeeping Requirements for Certified Applicators of 
Federally Restricted Use Pesticides.'' These regulations went into 
affect on May 10, 1993. USDA proceeded to implement a national program 
for recordkeeping of federally restricted use pesticides. One of USDA's 
first goals was to inform certified pesticide applicators of their 
responsibilities under the new regulations.
    Early in the implementation phase of the USDA recordkeeping 
program, State regulatory agencies and others raised issues involving 
specific interpretations of the regulations. A lawsuit was filed 
against the Secretary of Agriculture and the Administrator of the 
Environmental Protection Agency by the National Coalition Against the 
Misuse of Pesticides and others. The lawsuit challenged the substance 
of limited portions of the final regulations promulgated by USDA. After 
careful consideration of the issues raised by the lawsuit and a 
thorough review of the regulations, we agreed to propose changes to the 
regulations for the reasons set forth below.

Proposed Amendments to Sec. 110.2 Definitions

    Concerns were raised that the regulation's definition of ``medical 
emergency'' was too restrictive and could hinder the medical treatment 
by licensed health care professionals of an individual(s) who may have 
been exposed to a federally restricted use pesticide. It was pointed 
out that some particular pesticide exposures could require immediate 
medical treatment or first aid, but would not meet the criteria of the 
current definition. It is not the intent of USDA to limit medical 
treatment of an individual(s) who may have been exposed to a restricted 
use pesticide. Because reactions to some pesticide exposures could 
require treatment immediately and not fit the current definition of 
``medical emergency,'' USDA is proposing to amend the definition of 
``medical emergency'' to read as follows:

    Medical Emergency. A medical emergency shall be defined as a 
situation that requires immediate medical treatment or first aid.

    Questions also were raised concerning the definition of ``licensed 
health care professional.'' There was some confusion as to whether 
medically trained individuals who had been certified by a State, such 
as medical technicians on an ambulance or emergency response vehicle, 
met the definition. USDA wishes to clarify that individuals that have 
been licensed or certified by a State to provide medical treatment are 
considered to be ``licensed health care professionals.'' Therefore, 
individuals such as physicians, nurses, physician assistants, or 
emergency medical technicians, licensed or certified by a State to 
provide medical treatment, would fall into the definition of ``licensed 
health care professionals.'' However, individuals who have been 
certified only to provide first aid or cardiopulmonary resuscitation 
(CPR) through organizations such as the American Red Cross would not be 
``licensed health care professionals.''
    In order to clarify this definition, USDA is proposing to amend the 
definition of ``licensed health care professional'' to read as follows:

    Licensed health care professional. A physician, nurse, emergency 
medical technician, or other qualified individual, licensed or 
certified by a State to provide medical treatment.

Proposed Amendment to Sec. 110.3(a)(6)--Spot Applications

    The reduced requirements for recording information for spot 
applications were intended to provide private certified applicators 
with an incentive to record small spot applications on noxious weeds or 
similar type applications, without recording each location, due to the 
usually small amount of pesticide associated with a spot treatment. 
Concerns were raised that the spot application record provision does 
not require a specific location for each spot application, which could 
be important information for the purpose of providing first aid or 
medical treatment. USDA has reviewed the spot application provision and 
agrees that, in some instances, the location of spot applications could 
be valuable information when needed to determine if a pesticide 
exposure could have occurred in a field or area. Therefore, we are 
proposing to delete Sec. 110.3(a)(6). Under the proposed regulations, 
spot applications would be required to be recorded in the same manner 
as are other applications of federally restricted use pesticides. This 
would provide field or area locations which could be utilized to help 
determine if an individual could have been exposed to a federally 
restricted use pesticide.

Proposed Amendment to Sec. 110.3(b)--Time for Making an Official Record

    USDA has reevaluated the 30 day time period allowed certified 
applicators to make an official record after concerns were expressed 
regarding the accuracy of the records for both collecting information 
for a pesticide use data base and for medical treatment if application 
information was not required to be recorded for 30 days. USDA 
recognizes the importance of compiling accurate pesticide use data and 
believes that data recorded in a shorter time period would be more 
accurate. USDA also reexamined existing State requirements for making 
official records of pesticide applications for private and commercial 
certified applicators. We found that many State regulations require 
applicators to have records available ``upon request'' which, in some 
situations, could be interpreted to be immediately after an 
application. Therefore, to assure more accurate information for both 
medical treatment and accuracy of collected data on pesticide use, USDA 
proposes to change the time period from 30 days to 7 days. USDA 
considers the proposed 7 day requirement adequate to allow the private 
certified applicator time to make an accurate official record without 
causing an undue hardship in peak production periods. This proposed 
requirement also is less stringent than similar existing State 
requirements for recordkeeping in many States.
    Additionally, concerns were raised regarding the certified 
applicator's responsibility to provide federally restricted use 
pesticide information concerning a specific application prior to the 
time to make an official record for purposes of providing medical 
treatment. USDA interprets the current regulations to require certified 
applicators to provide the record information for purposes of providing 
medical treatment or first aid, in accordance with the provisions of 
Sec. 110.5(a), whether or not the time to make an official written 
record has elapsed. Nonetheless, in order to make this clear, we 
propose to add explicit language to this effect. The proposed amendment 
would read as follows:

    The information required in this section shall be recorded 
within seven (7) days following the pesticide application. However, 
whether or not the written record has been completed, the certified 
applicator shall provide the information to be recorded in 
accordance with the provisions of Sec. 110.5(a) of this part.

Proposed Amendments to Sec. 110.5(a)--Availability of Records to 
Facilitate Medical Treatment

    Questions also have been raised concerning the availability of 
records to facilitate medical treatment. Concern was expressed that the 
current regulations could hinder access to record information if a 
strict interpretation was applied to the need for the licensed health 
care professional to personally make the record information request. 
USDA never intended to prevent an individual acting under the direction 
of the attending licensed health care professional from requesting 
record information. We are aware that, in some instances, the attending 
licensed health care professional may rely on a person acting under 
his/her direction to make the contacts necessary to obtain the 
pesticide record information. However, the regulations also presume the 
request for pesticide record information is supported by indications of 
pesticide exposure and the need for medical treatment or first aid. For 
example, the attending licensed health care professional, such as a 
registered nurse, may determine that the pesticide record information 
will be necessary to treat the patient, and instruct someone under his/
her direction, to obtain the record information.
    In order to clarify the availability of pesticide record 
information to facilitate medical treatment, USDA proposes to amend 
Sec. 110.5(a) to read as follows:

    When a licensed health care professional, or an individual 
acting under the direction of the attending licensed health care 
professional, determines that any record of the application of 
restricted use pesticide required to be maintained under Sec. 110.3 
of this part is necessary to provide medical treatment or first aid 
to an individual who may have been exposed to the restricted use 
pesticide for which the record is or will be maintained, the 
certified applicator required to maintain the record shall promptly 
provide the record information and any available label information. 
If it is determined by a licensed health care professional, or an 
individual acting under the direction of the attending licensed 
health care professional, to be a medical emergency, the record 
information of the restricted use pesticide, relating to the medical 
emergency, shall be provided immediately.

Proposed Amendments to Sec. 110.5(b)--Release of Record Information by 
licensed Health Care Professionals

    Under the current regulations, licensed health care professionals 
may release record information obtained through Sec. 110.5(a) only when 
necessary to provide medical treatment or first aid to an individual 
who may have been exposed to the restricted use pesticide for which the 
record is maintained. Concerns were raised that some confusion could 
exist among licensed health care professionals as to the extent to 
which they could share or utilize pesticide record information. 
Concerns were expressed that licensed health care professionals, or an 
individual acting under the direction of the attending licensed health 
care professional, could be reluctant to release pesticide record 
information to other medical professionals, who may need to be 
consulted, to provide proper medical treatment.
    Issues also were raised concerning the release of the record 
information as it relates to pesticide poisoning incident reports, and 
the need to assure licensed health care professionals that they could 
release pesticide record information for this purpose. Some States 
require pesticide poisoning incident reporting to a designated State or 
county agency. For example, California has a law that requires 
physicians to submit a pesticide poisoning incident report to the 
California Worker Health and Safety Division. Additionally, in States 
which do not require the filing of a pesticide poisoning incident 
report, physicians or other medical professionals are encouraged to 
report incidents to the local poison control centers. These local 
poison control centers then may send data to the Toxic Exposure 
Surveillance System of the American Association of Poison Control 
Centers (AAPCC) database, which provides an annual compilation of 
poisoning statistics from around the United States. USDA believes the 
release of pesticide record information for this purpose is 
appropriate.
    USDA also recognizes that a licensed health care professional may 
deem it necessary under their responsibility to a code of medical 
ethics to utilize pesticide record information to prevent additional 
poisoning or injuries. For example, as a result of treating an 
individual who had been exposed to a federally restricted use 
pesticide, the licensed health care professional may feel it necessary 
to release the record information to the proper State or county 
authorities in order to remove workers from an area where pesticide 
exposure could be occurring.
    Therefore, in order to clarify the circumstances under which the 
federally restricted use pesticide information can be utilized and 
released, and who has authority to release this information, USDA 
proposes to amend Sec. 110.5(b) to read as follows:

    A licensed health care professional, or an individual acting 
under the direction of the attending licensed health care 
professional, may utilize and release record or record information 
obtained under paragraph (a) of this section when necessary to 
provide medical treatment or first aid to an individual or 
individuals who may have been exposed to the restricted use 
pesticide for which the record is or will be maintained. Further 
utilization and release of such record or record information is 
limited to licensed health care professionals who may use it: (1) To 
submit pesticide poisoning incident reports to appropriate State or 
Federal agencies, or (2) where consideration of medical ethics may 
necessitate such utilization and release.

Proposed Amendments to Sec. 110.7--Penalties

    Several State pesticide regulatory agencies had questions in regard 
to the penalty provision in Sec. 110.7 of the current regulations. 
These agencies interpreted this section to provide that the 
Administrator, or his designee, would have discretion to reduce the 
penalty for a second violation of the regulations to less than $1,000 
if it was determined that the certified applicator made a good faith 
effort to comply with the regulations, but, that the Administrator, or 
his designee, would not have discretion to reduce the penalty to less 
than $1,000 for other subsequent offenses.
    USDA has reexamined this issue and agrees that the current language 
could be unclear. We, therefore, propose to amend the penalty section 
to eliminate any ambiguity. We are proposing that all offenses 
subsequent to the first offense would be subject to a fine of not less 
than $1,000, except that the penalty shall be less than $1,000 if the 
Administrator, or his designee, determines that the certified 
applicator made a good faith effort to comply with the regulations. 
This proposed change follows the language of the statute and provides 
the Administrator, or his designee, flexibility in assessing penalties 
for all subsequent offenses, not just the second offense.
    Therefore, USDA proposes to amend Sec. 110.7 to read as follows:

    Section 1491(d) of the Food, Agriculture, Conservation, and 
Trade Act of 1990 provides that the Secretary shall be responsible 
for enforcement of section 1491 (a), (b), and (c) of the Food, 
Agriculture, Conservation, and Trade Act of 1990. Therefore, as 
provided in section 1491(d) of the Food, Agriculture, Conservation, 
and Trade Act of 1990, any certified applicator who violates the 
requirements of 7 U.S.C. 136i-1 (a), (b), or (c) shall be subject to 
a civil penalty of not more than $500 in the case of the first 
offense, and in the case of subsequent offenses, be subject to a 
fine of not less than $1,000 for each violation, except that the 
penalty shall be less than $1,000 if the Administrator, or his 
designee, determines that the certified applicator made a good faith 
effort to comply with this Part.

List of Subjects in 7 CFR Part 110

    Pesticide and pests, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble 7 CFR, part 110 is 
proposed to be amended as follows:

PART 110--RECORDKEEPING ON RESTRICTED USE PESTICIDES BY CERTIFIED 
APPLICATORS; SURVEYS AND REPORTS

    1. The authority citation for part 110 would continue to read as 
follows:

    Authority: 7 U.S.C. 136a(d)(1)(c); 7 U.S.C. 136i-1; 7 U.S.C. 
450; 7 CFR 2.17, 2.50.

    2. In Sec. 110.2, the definition for licensed health care 
professional is amended by adding the phrase ``or certified'' 
immediately following ``licensed.''
    3. In Sec. 110.2, the definition for medical emergency is revised 
to read as follows:


Sec. 110.2  Definitions.

* * * * *
    Medical emergency. A medical emergency shall be defined as a 
situation that requires immediate medical treatment or first aid.
* * * * *
    4. In Sec. 110.3, paragraph (a)(6) is removed and paragraph (b) is 
revised to read as follows:


Sec. 110.3  Records, retention, and access to records.

* * * * *
    (b) The information required in this section shall be recorded 
within seven (7) days following the pesticide application. However, 
whether or not the written record has been completed, the certified 
applicator shall provide the information to be recorded in accordance 
with the provisions of Sec. 110.5(a) of this part.
* * * * *
    5. Section 110.5 is revised to read as follows:


Sec. 110.5   Availability of records to facilitate medical treatment.

    (a) When a licensed health care professional, or an individual 
acting under the direction of the attending licensed health care 
professional, determines that any record of the application of 
restricted use pesticide required to be maintained under Sec. 110.3 of 
this part is necessary to provide medical treatment or first aid to an 
individual who may have been exposed to the restricted use pesticide 
for which the record is or will be maintained, the certified applicator 
required to maintain the record shall promptly provide the record 
information and any available label information. If it is determined by 
a licensed health care professional, or an individual acting under the 
direction of the attending licensed health care professional, to be a 
medical emergency, the record information of the restricted use 
pesticide, relating to the medical emergency, shall be provided 
immediately.
    (b) A licensed health care professional, or an individual acting 
under the direction of the attending licensed health care professional, 
may utilize and release record or record information obtained under 
paragraph (a) of this section when necessary to provide medical 
treatment or first aid to an individual or individuals who may have 
been exposed to the restricted use pesticide for which the record is or 
will be maintained. Further utilization and release of such record or 
record information is limited to licensed health care professionals who 
may use it:
    (1) To submit pesticide poisoning incident reports to appropriate 
State or Federal agencies; or
    (2) Where considerations of medical ethics may necessitate such 
utilization and release.
    6. Section 110.7 is revised to read as follows:


Sec. 110.7  Penalties.

    Section 1491(d) of the Food, Agriculture, Conservation, and Trade 
Act of 1990 provides that the Secretary shall be responsible for 
enforcement of section 1491 (a), (b), and (c) of the Food, Agriculture, 
Conservation, and Trade Act of 1990. Therefore, as provided in section 
1491(d) of the Food, Agriculture, Conservation, and Trade Act of 1990, 
any certified applicator who violates the requirements of 7 U.S.C. 
136i-1 (a), (b), or (c) shall be subject to a civil penalty of not more 
than $500 in the case of the first offense, and in the case of 
subsequent offenses, be subject to a fine of not less than $1,000 for 
each violation, except that the penalty shall be less than $1,000 if 
the Administrator, or his designee, determines that the certified 
applicator made a good faith effort to comply with this Part.

    Dated: March 30, 1994.
Lon Hatamiya,
Administrator.
[FR Doc. 94-8093 Filed 4-5-94; 8:45 am]
BILLING CODE 3410-02-P