[Federal Register Volume 60, Number 7 (Wednesday, January 11, 1995)]
[Proposed Rules]
[Pages 2820-2826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-583]



[[Page 2819]]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 156 and 170



Worker Protection Standards; Grace Period and Retraining Activities, 
Exemption of Certified and Licensed Crop Advisors, Exceptions to the 
Early Entry Restrictions for Irrigation Activities, Limited Contact 
Activities, and Reduced Entry Intervals for Certain Low Risk 
Pesticides; Proposed Rules

  Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / 
Proposed Rules  
=======================================================================
-----------------------------------------------------------------------

[[Page 2820]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[OPP-250097; FRL-4901-4]
RIN No. 2070-AC69


Pesticide Safety Training for Workers and Handlers; Grace Period 
and Retraining Interval

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to revise the Worker Protection Standard 
(WPS) for agricultural pesticides by providing three options for a 
training grace period (number of days of employment before workers must 
be trained) and a phase-in period associated with the grace period. EPA 
is also proposing options for the retraining interval (number of years 
before workers or handlers must be retrained). The objective of the 
proposed changes to the Standard is to help meet the goal of providing 
a trained workforce capable of better protecting itself against 
pesticide illness and injury without imposing unreasonable costs on 
agricultural employers.
DATES: Written comments, identified by the document control number OPP-
250097, must be received on or before February 10, 1995. EPA does not 
intend to extend this comment period.
ADDRESSES: By mail, submit written comments to: Public Response 
Section, Field Operations Division (7506C), Office of Pesticide 
Programs, Environmental Protection Agency, 401 M St., SW., Washington, 
DC 20460. In person, bring comments to: Rm. 1132, CM #2, 1921 Jefferson 
Davis Highway, Arlington, VA. Information submitted as comment 
concerning this document may be claimed confidential by marking any 
part or all of that information as ``Confidential Business 
Information'' (CBI). Information so marked will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2. A copy of the 
comment that does not contain CBI must be submitted for inclusion in 
the public record. Information not marked confidential may be disclosed 
publicly by EPA without prior notice. All written comments will be 
available for public inspection in Rm. 1132 at the Virginia address 
given above, from 8 a.m. to 4 p.m., Monday through Friday, excluding 
legal holidays.
    Comments and data may also be submitted electronically by any of 
three different mechanisms: by sending electronic mail (e-mail) to: 
[email protected]; by sending a ``Subscribe'' message to 
[email protected] and once subscribed, send your 
comments to RIN-2070-AC69; or through the EPA Electronic Bulletin Board 
by dialing 202-488-3671, enter selection ``DMAIL,'' user name ``BB--
USER'' or 919-541-4642, enter selection ``MAIL,'' user name ``BB--
USER.'' Electronic comments must be submitted as an ASCII file avoiding 
the use of special characters and any form of encryption. Comments and 
data will also be accepted on disks in WordPerfect in 5.1 file format 
or ASCII file format. All comments and data in electronic form must be 
identified by the docket number OPP-250097 since all five documents in 
this separate part provide the same electronic address. No CBI should 
be submitted through e-mail. Electronic comments on this proposed rule, 
but not the record, may be viewed or new comments filed online at many 
Federal Depository Libraries. Additional information on electronic 
submissions can be found in unit VII. of this document.
FOR FURTHER INFORMATION CONTACT: Jeanne Heying, Certification and 
Training, and Occupational Safety Branch (7506C), Office of Pesticide 
Programs, Environmental Protection Agency, 401 M St., SW., Washington, 
DC 20460. Office location and telephone number: Rm. 1109D, CM #2, 1921 
Jefferson Davis Highway, Arlington VA, Telephone: 703-305-7371.
SUPPLEMENTARY INFORMATION:

I. Statutory Authority

    This proposal is issued under the authority of section 25(a) of the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 
136w(a).

II. Background

    This proposed WPS rule amendment is one of a series of Agency 
actions in response to concerns raised since publication of the final 
rule in August 1992 by those interested in and affected by the rule. In 
addition to this proposed amendment, EPA is publishing four other 
notices soliciting public comment on concerns raised by various 
affected parties. Other actions EPA is considering include: (1) 
Modifications to the requirements for those performing crop advisor 
tasks, (2) An exception to early entry restrictions for irrigation 
activities; (3) Reduced restricted entry intervals (REIs) for low risk 
pesticides; and (4) Reduced early entry restrictions for activities 
involving limited contact with treated surfaces.
    FIFRA authorizes the EPA to regulate the sale, distribution, and 
use of pesticides in the United States. The Act requires generally that 
EPA license by registration each pesticide product sold or distributed 
in the United States, if use of the pesticide products will not cause 
``unreasonable adverse effects on the environment,'' a determination 
that takes into account the economic, social, and environmental costs 
and benefits of the use of any pesticide.
    In 1992 EPA revised the Worker Protection Standard (40 CFR part 
170) (57 FR 38102, August 21, 1992) which is intended to protect 
agricultural workers and handlers from risks associated with 
agricultural pesticides. The 1992 WPS superseded the original WPS 
promulgated in 1974. The 1992 WPS expanded the scope of the original 
WPS to include not only workers performing hand labor operations in 
fields treated with pesticides, but also workers in or on farms, 
forests, nurseries, and greenhouses, as well as handlers who mix, load, 
apply, or otherwise handle pesticides for use at these locations in the 
production of agricultural commodities. The WPS contains requirements 
for training, notification of pesticide applications, use of personal 
protective equipment, restricted entry intervals, decontamination, and 
emergency medical assistance.
    In Sec. 170.130(c)(4), the WPS sets out required training elements 
for workers, including information on pesticide hazards and exposures, 
signs and symptoms of pesticide poisoning, how to obtain emergency 
medical care, decontamination measures in case of exposure and other 
pesticide hazards that may arise in the course of their work.
    Section 170.230(c)(4) of the WPS establishes the required training 
elements for handlers. These include generally the same information as 
for workers. However, handlers are provided additional information 
related to their handling activities: the meaning and format of 
pesticide labels; information on personal protective equipment; signs, 
symptoms and treatment for heat-related illness; handling pesticides 
and pesticide containers; environmental contamination and hazards to 
non-target species; and other information on their responsibilities as 
handlers. Training for handlers is more detailed than for workers, and 
is targeted specifically toward handling needs and responsibilities.
    Training for workers or handlers may be conducted by certified 
applicators or other trainers who meet State, Federal,

[[Page 2821]]

or Tribal requirements. The agricultural employer, however, is 
responsible for assuring that workers receive required training and the 
handler employer is responsible for assuring that handlers receive the 
required training.
    To assist agricultural employers in fulfilling their 
responsibilities to ensure training and to provide a uniform national 
standard for the conduct of worker training, EPA and the U.S. 
Department of Agriculture have established a joint training 
verification program. Under this program, which would be administered 
on a voluntary basis by States through agreements with EPA, workers who 
have been trained may be issued a training verification card. The card 
could be shown to each agricultural employer who hires the worker. 
Under Sec. 170.130(d) possession of a valid card serves as proof of 
training, thus relieving the employer of having to provide training or 
to determine whether and when training is required.
    The training verification program is beneficial to the agricultural 
employer and workers alike in that it provides a common basis for 
agreement that training provided to the worker meets the requirements 
of the WPS. EPA expects the training verification card program to 
benefit agricultural employers because it obviates the need to train a 
worker, thus minimizing the costs of the WPS training requirement. 
Without such a card system, the employer might have to provide training 
more frequently and to more workers to assure that all had received 
training.
    For workers, possession of a card assures that they will be able to 
work immediately without unnecessary delay for training.

III. Current WPS Training Provisions at Issue

    This proposal addresses three elements of the worker training 
requirements. The three elements are: the grace period before training 
must be provided; the phase-in period for the grace period for workers; 
and the retraining requirement for workers and handlers.
    1. The grace period before training must be provided. Section 
170.130(a)(3)(i) requires agricultural employers to assure that workers 
have been trained in pesticide safety before their 6th day of entry 
into areas on the agricultural establishment that have been treated 
with a pesticide or that have been under a restricted entry interval 
(REI) within the previous 30 days.
    EPA emphasizes that the grace period applies only to routine worker 
training, not early-entry training or handler training. No changes are 
being proposed or considered for early entry or handler training.
    2. The interim grace period for workers. The current WPS requires 
that the agricultural employer assure that a worker receives pesticide 
safety training before the 6th day of entry into any treated area on 
the agricultural establishment. Section 170.130(a)(3)(ii) provides for 
an exception for a 5-year period until October 20, 1997, during which 
time workers would be allowed to enter treated areas at the 
establishment for 15 days before the employer must assure that they 
have been trained. After October 20, 1997, the 15-day grace period is 
no longer in effect.
    3.  The retraining requirement for workers and handlers. Section 
170.130(a)(1) requires that agricultural employers assure that each 
worker has been trained within the previous 5 years. Section 
170.230(a)(1) requires that handler employers assure that each handler 
has been trained within the previous 5 years.

IV. Reasons for this Proposal

    The WPS is intended to reduce the risk of pesticide poisonings and 
injuries among agricultural workers and pesticide handlers through 
implementation of appropriate measures. Pesticide safety training is a 
key component of the Standard - trained, informed workers and handlers 
can take steps to avoid exposure or mitigate harmful pesticide effects, 
thereby reducing the number and severity of pesticide poisonings and 
other adverse effects.
    Subsequent to promulgation of the final rule in 1992, the Agency 
received comments from farm worker groups suggesting changes in the 
grace period and the retraining interval. Additionally, the Agency was 
petitioned by the National Association of State Departments of 
Agriculture (NASDA) to eliminate the interim grace period. The Agency 
also met a number of times with farm worker groups to hear their 
concerns on the worker training provisions. Following is a summary of 
their concerns on the training grace period and 5-year retraining 
interval.

A. Training Grace Period

    Farm worker groups are concerned that the current grace period 
would result in untrained workers being harmed on the job. They 
contrasted the WPS grace period with the Occupational Safety and Health 
Administration's (OSHA) Hazard Communication Standard training 
requirement (29 CFR 1910.1200), under which workers must be trained 
about hazardous chemicals in their work area before first exposure.
    States and farm worker groups asserted that the grace period would 
be difficult to enforce. Subsequent to publication of the WPS, the 
California Department of Pesticide Regulation (CDPR) raised concern 
about the anticipated difficulties in enforcing the training 
requirement. They asserted that it may not be feasible to track 
accumulated days in treated areas in anticipation of the required 
training and that employers cannot track the activities of every worker 
in their employ.
    Additionally, farm worker groups were concerned that the grace 
period could encourage employers to avoid providing the required 
training. They were particularly concerned that, because of the 
transient nature of the agricultural workforce, workers who move 
frequently might never be trained if training were required only after 
a 5-day grace period per establishment. They noted that some workers 
might not spend 5 days on any particular establishment.
    Finally, the farm worker groups argued that all workers should be 
entitled to know how to protect themselves from pesticide residues 
before entering treated areas; for training to be effective in reducing 
risk, they argued, training must take place before possible exposure to 
pesticides.

B. Five-Year Retraining

    Farm worker groups are concerned that the 5-year retraining 
interval is too long to be effective. They assert that large numbers of 
workers and handlers, particularly field labor contractor employees, 
might not have regular access to the safety poster displayed on the 
agricultural establishment because they are hired off the farm and 
taken directly to the field. EPA's confidence in the safety poster as a 
means of reinforcing training, they claim, is misplaced. Also, many 
workers and handlers may not read well (or not be literate in the 
poster language), so the impact of poster messages might be limited. 
Qualified trainers assert that repeat training enhances the retention 
of safety training information.
    The farm worker groups also requested a shorter retraining 
interval. They pointed to other regulatory programs under OSHA, EPA, 
and State initiatives that require annual retraining. They also noted 
that agricultural employment is seasonal in nature, and farm workers 
realistically cannot be expected to remember

[[Page 2822]]

training information for such a long period of time. The groups 
asserted that more frequent retraining is needed for farm workers who 
are illiterate or have poor reading skills, and cannot rely on written 
materials to refresh their training.
    In response to these concerns, EPA proposes to revise the Worker 
Protection Standard as described in units V. and VI. of this document.

V. The Grace Period and Interim Grace Period

    EPA is proposing three options for consideration and comment: the 
first option involves eliminating the 15-day grace period so that 
employers would have to train workers before they enter a treated area, 
and providing a 1-year interim period before the 0- day grace period 
would go into effect, the second option involves shortening the 15-day 
grace period so that employers would be required to train workers 
between 1 and 5 days after the worker has been hired and the third 
option involves requiring a weekly training program. The Agency is 
interested in receiving comments on all options presented.
    (1) Shortening the grace period from 15 to 0 days after a 1 year 
interim grace period. The Agency is considering eliminating the 
training grace period If the grace period were eliminated entirely, all 
new workers would have to be trained before entering a treated area. An 
interim grace period of 1 year is being proposed to allow employers to 
prepare for the elimination of the grace period.
    Training new workers before any possible exposure may be the most 
protective option. No worker would lack training because he or she had 
not worked enough days with a single employer. By eliminating the grace 
period, it is expected that compliance would be easier for the employer 
and state enforcement officer, because there would be no need to 
determine whether the worker had accumulated the requisite number of 
workdays on the establishment.
    A 0-day grace period could result in the need for more frequent, 
possibly daily, training sessions. More frequent training sessions 
could result in increased training costs. Also, workers may have to be 
trained more than once if the employer could not assure that the worker 
had already received training.
    (2) Shortening the grace period from 15 days to between 1 and 5 
days. The Agency is considering shortening the grace period from 15 
days to between 1 and 5 days. Workers would be trained earlier and 
perhaps better able to avoid or mitigate pesticide exposures. By 
shortening the grace period, the possibility that workers would remain 
untrained because they moved frequently from employer to employer 
without accumulating the requisite number of days at any given 
establishment to require training would decrease.
    Shortening the grace period is likely to increase the costs of 
training, since employers with higher rates of turnover in the 
workforce would have to schedule more frequent training sessions. Any 
grace period at all could mean that agricultural employers would need 
to track the number of days of entry each worker has accumulated in 
order to determine whether training must be provided. This could 
present a burden which could be substantial depending on the number of 
workers hired at the establishment, and the number who possess training 
verification cards.
    (3) Requiring a weekly training program. The Agency is considering 
an option, where an employer would be required to provide a training 
session once a week to all untrained workers. This option might reduce 
the instances of workers entering treated areas before being trained, 
while reducing the training burden on employers by allowing 
predictability in providing training on a scheduled basis. A weekly 
training session may also result in less disruption to field labor 
activities. Also, a weekly training session may reduce cost by allowing 
for more trainees per session. For establishments with employee 
turnover, a weekly training session allows employers to ``accumulate'' 
new hires over the span of the week, potentially resulting in fewer 
training sessions needed than if employers were required to train each 
employee before applicable field entry. A weekly training session for 
untrained workers may, however, add a recordkeeping burden to the 
employer.
    The Agency is interested in receiving information and comments on 
all options, particularly the benefits expected to be gained by 
shortening the grace period, as well as expected costs. Specifically, 
the Agency is seeking information on the following: the practicality 
and effectiveness of the options, how the frequency of new hires may 
effect the frequency of training sessions, the rate of turnover in 
employment among agricultural workers and handlers, situations where 
training before entry would not be possible, the risks and/or benefits 
of providing safety training information before or after entering a 
treated area, the feasibility of providing training on a short notice 
to English and non-English speaking workers, mechanisms that are 
available or will be available to provide training on short notice, the 
impact on the employer and agricultural worker of a 1 year interim 
grace period before the 0-day grace period would go into effect, 
specific problems caused by eliminating or shortening the interim grace 
period 5 years to 1 year and what could be done to eliminate those 
problems, what the regulated community has done to develop training 
programs in the 2 years since the WPS was issued and the estimated 
costs of a 0-day, 1 to 5-day grace period or a weekly training regimen.

VI. The Retraining Interval for Workers and Handlers

    The Agency is proposing for comment three options for the 
retraining interval for workers and handlers; (1) retaining the 5 year 
retraining interval, (2) shortening the retraining interval from 5 to 3 
years or (3) provide annual retraining.
    Since chemical use patterns frequently change, and new hazards may 
be identified for existing chemicals, a shortened retraining interval 
would be helpful in mitigating the potential hazards to farm workers 
and handlers.
    The cost to employers of providing training to workers and handlers 
during an ``out'' year (any year after the first year of 
implementation) increases as the retraining period decreases. First 
year training costs are unaffected by the retraining interval. All 
workers must be trained during the first year, and handlers must be 
trained before they first handle pesticides. Due to turnover in the 
workforce, training after the first year will not be limited to every 
third year for a 3 year retraining interval. Rather, some mix of 
training and retraining will occur during all typical out years. A 
shorter retraining interval may require more training sessions during 
the average out year, with higher total costs. Also, if training of new 
workers and retraining of workers in out years are done at the same 
time, the costs of retraining (regardless of frequency) may be 
partially subsumed in the costs for initial training.
    The Agency is interested in receiving information and comments on 
all options, particularly the benefits expected to be gained by 
shortening the retraining interval, as well as the impacts of a 5 year, 
3 year and annual retraining interval. Specifically, the Agency is 
seeking information on the following: worker and handler retention of 
safety training information, whether agricultural workers and handlers 
have a greater need for retraining than workers in other occupations, 
the

[[Page 2823]]

effectiveness of the pesticide poster in reinforcing previous training 
and the burdens the various retraining options might place on 
agricultural employers or other entities that may perform worker or 
handler training. Concerns with each of the options are requested as 
well.
    Commenters supporting retaining the current 5-year retraining 
interval, shortening the retraining interval to 3 years, or providing 
annual retraining, should state explicitly the reasons for, and provide 
information on the need, costs and feasibility of, the recommended 
option.

VII. Solicitation of Comments

    A record has been established for this rulemaking under docket 
number ``OPP-250097'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as confidential business 
information (CBI), is available for inspection from 8 a.m. to 4 p.m., 
Monday through Friday, excluding legal holidays. The public record is 
located in Room1132 of the Public Response and Program Resources 
Branch, Field Operations Division (7506C), Office of Pesticide 
Programs, Environmental Protection Agency, CM #2, 1921 Jefferson Davis 
Highway, Arlington, VA. Written comments should be mailed to: Public 
Response and Program Resources Branch, Field Operations Division 
(7506C) Office of Pesticide Programs, Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460.
    EPA is interested in receiving comments and information on all of 
the proposed options. Comments are requested on: (1) general worker and 
handler hiring and employment practices, such as the rate of turnover 
and employment among agricultural workers and handlers, (2) the 
practicality and effectiveness of the grace period options, including 
how the frequency of hiring would affect the frequency of training 
sessions, situations where training before entry would not be possible, 
mechanisms that are available or will be available to provide training 
on short notice and the estimated costs of reducing or eliminating the 
grace period or providing a weekly training regimen, (3) the 
practicality and effectiveness of eliminating the interim grace period 
for training and (4) the retraining interval, including the impacts of 
a retraining interval of less than 5 years, worker and handler 
retention of safety training information over time, whether 
agricultural workers and handlers have a greater need for retraining 
than workers in other occupations, the effectiveness of the pesticide 
poster in reinforcing previous training and the burdens the various 
retraining options might place on agricultural employers or other 
entities that may perform worker or handler training. Comments should 
be distinguished as applying to workers, handlers, or both, as 
applicable.
    As part of an interagency ``streamlining'' initiative, EPA is 
experimenting with submission of public comments on selected Federal 
Register actions electronically through the Internet in addition to 
accepting comments in traditional written form. This proposed exception 
is one of the actions selected by EPA for this experiment. From the 
experiment, EPA will learn how electronic commenting works, and any 
problems that arise can be addressed before EPA adopts electronic 
commenting more broadly in its rulemaking activities. Electronic 
commenting through posting to the EPA Bulletin Board or through the 
Internet using the ListServe function raise some novel issues that are 
discussed below in this Unit.
    To submit electronic comments, persons can either ``subscribe'' to 
the Internet ListServe application or ``post'' comments to the EPA 
Bulletin Board. To ``Subscribe'' to the Internet ListServe application 
for this proposed exception, send an e-mail message to: 
[email protected] that says ``Subscribe RIN-2070-AC69 
 .'' Once you are subscribed to the ListServe, 
comments should be sent to: RIN-2070-AC[email protected]. All 
comments and data in electronic form should be identified by the docket 
number OPP-250097 since all five documents in this separate part 
provide the same electronic address.
    For online viewing of submissions and posting of comments, the 
public access EPA Bulletin Board is also available by dialing 202-488-
3671, enter selection ``DMAIL,'' user name ``BB--USER'' or 919-541-
4642, enter selection ``MAIL,'' user name ``BB--USER.'' When dialing 
the EPA Bulletin Board type  at the opening message. When the 
``Notes'' prompt appears, type ``open RIN- 2070-AC69'' to access the 
posted messages for this document. To get a listing of all files, type 
``dir/all'' at the prompt line. Electronic comments can also be sent 
directly to EPA at:
    [email protected].


    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. To obtain further 
information on the electronic comment process, or on submitting 
comments on this proposed exception electronically through the EPA 
Bulletin Board or the Internet ListServe, please contact John A. 
Richards (Telephone: 202-260-2253; FAX: 202-260-3884; Internet: 
[email protected]).
    Persons who comment on this proposed rule, and those who view 
comments electronically, should be aware that this experimental 
electronic commenting is administered on a completely public system. 
Therefore, any personal information included in comments and the 
electronic mail addresses of those who make comments electronically are 
automatically available to anyone else who views the comments. 
Similarly, since all electronic comments are available to all users, 
commenters should not submit electronically any information which they 
believe to be CBI. Such information should be submitted only directly 
to EPA in writing as described earlier in this Unit.
    Commenters and others outside EPA may choose to comment on the 
comments submitted by others using the RIN-2070-AC69 ListServe or the 
EPA Bulletin Board. If they do so, those comments as well will become 
part of EPA's record for this rulemaking. Persons outside EPA wishing 
to discuss comments with commenters or otherwise communicate with 
commenters but not have those discussions or communications sent to EPA 
and included in the EPA rulemaking record should conduct those 
discussions and communications outside the RIN-2070-AC69 ListServe or 
the EPA Bulletin Board.
    The official record for this rulemaking, as well as the public 
version, as described above will be kept in paper form. Accordingly, 
EPA will transfer all comments received electronically in the RIN-2070-
AC69 ListServe or the EPA Bulletin Board, in accordance with the 
instructions for electronic submission, into printed, paper form as 
they are received and will place the paper copies in the official 
rulemaking record which will also include all comments submitted 
directly in writing. All the electronic comments will be available to 
everyone who obtains access to the RIN-2070-AC69 ListServe or the EPA 
Bulletin Board; however, the official rulemaking record is the paper 
record maintained at the address in ``ADDRESSES'' at the beginning of 
this document. (Comments

[[Page 2824]]

submitted only in written form will not be transferred into electronic 
form and thus may be accessed only by reviewing them in the Public 
Response and Program Resources Branch as described above.)
    Because the electronic comment process is still experimental, EPA 
cannot guarantee that all electronic comments will be accurately 
converted to printed, paper form. If EPA becomes aware, in transferring 
an electronic comment to printed, paper form, of a problem or error 
that results in an obviously garbled comment, EPA will attempt to 
contact the comment submitter and advise the submitter to resubmit the 
comment either in electronic or written form. Some commenters may 
choose to submit identical comments in both electronic and written form 
to ensure accuracy. In that case, EPA requests that commenters clearly 
note in both the electronic and written submissions that the comments 
are duplicated in the other medium. This will assist EPA in processing 
and filing the comments in the rulemaking record.
    As with ordinary written comments, at the time of receipt, EPA will 
not attempt to verify the identities of electronic commenters nor to 
review the accuracy of electronic comments. Electronic and written 
comments will be placed in the rulemaking record without any editing or 
change by EPA except to the extent changes occur in the process of 
converting electronic comments to printed, paper form.
    If it chooses to respond officially to electronic comments on this 
proposed rule, EPA will do so either in a notice in the Federal 
Register or in a response to comments document placed in the rulemaking 
record for this proposed rule. EPA will not respond to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or conversion to printed, paper 
form as discussed above. Any communications from EPA employees to 
electronic commenters, other than those described in this paragraph, 
either through Internet or otherwise are not official responses from 
EPA.

VIII. Statutory Requirements

    As required by FIFRA section 25(a), this proposed rule was provided 
to the U.S. Department of Agriculture and to Congress for review. The 
FIFRA Scientific Advisory Panel waived its review.
    USDA provided extensive written comment. The general tenor of USDA 
comments suggest suspending the proposed changes to the training 
requirement until EPA observes the efficacy of current training 
provisions and the feasibility of a 0-day grace period. However, the 
Agency maintains that the options being proposed increase the chance of 
protection through earlier provision of safety training. The Agency 
intends to observe and evaluate the effectiveness of training in the 
field, with whatever option is selected.
    USDA's specific comments focused on the following areas: (1) 
Elimination of the grace period; (2) retraining interval; (3) training 
requirements by category; (4) the regulatory impact analysis; (5) 
training verification.
    (1) USDA expressed concern that elimination of the 5-day grace 
period would create costs for the employer, by preventing scheduled 
training for large groups, while providing little or no increase in the 
protection for workers. EPA believes that the elimination of the grace 
period will provide increased protection to workers by providing safety 
information before workers enter a treated area. The incremental cost 
incurred by the employer does not appear to outweigh the benefits that 
come with the potential prevention of exposure.
    EPA and USDA have differing opinions regarding the employer 
recordkeeping burden necessitated by a grace period. However, it is 
agreed that, for state regulators to verify compliance with the 
regulations, some employer burden of recordkeeping would be necessary 
during a grace period.
    USDA questions the need to train workers before they enter a 
treated field, due to other WPS protection provided workers, while EPA 
believes that these provisions are part of an integrated package of 
measures that are effective only after being explained through 
training. USDA suggests that, as a means to enhance understanding of 
pesticide safety, employers distribute the WPS worker training handbook 
to newly hired employees and follow with training in a few days, 
however this assumes that all employees would be able to read and 
understand the materials.
    (2) USDA questions the need for a shorter retraining interval, 
however, professional training organizations and farmworker groups 
assert that more frequent retraining is needed in order to assure 
retention of the substance of training sessions. More frequent 
retraining is especially needed for workers who may have poor reading 
skills and cannot rely on written materials to recall all safety 
information.
    (3) USDA expresses concern that clear distinctions be made among 
handlers, early-entry workers, production laborers and harvesters, and 
that they may also warrant different training requirements. EPA 
believes that the current regulation's distinctions between workers, 
handlers, and early-entry workers address USDA's concerns since these 
categories have different training requirements. This proposal does not 
address the substance of training or the training requirements.
    (4) USDA questions the strength of the conclusions of studies used 
in the regulatory impact analysis to support the assumption that risk 
is reduced through modifications of behavior after training. They also 
note that EPA uses the same number estimate for workers trained with a 
0-day grace period and a 15-day grace period. In the absence of data, 
EPA did use the same estimate of workers, and, as a consequence, 
conservatively overestimated the cost of a 0-day grace period. USDA 
questions the accuracy of other data that EPA used in the analysis of 
the costs of a 0-day grace period, however, EPA used USDA data and 
agricultural census data for this analysis.
    USDA asserts that the effect of a 0-day grace period could 
influence the employer to lower pay, possibly eliminate jobs. EPA 
believes that the cost of training would be small relative to the total 
cost of labor. USDA noted that EPA's estimate of the number of workers 
is incorrect. EPA used the same estimate of the number of workers as 
was used, and agreed upon by USDA, for the 1992 WPS. USDA pointed out 
that EPA's estimate of the number of handlers and workers is incorrect 
due to the use of 1987 data instead of 1990 data. EPA believed that the 
1987 data were better in that they were agricultural census data as 
opposed to general census data.
    USDA questions the use of 30 minutes per worker training session in 
EPA's cost estimates. EPA's worker training program was field tested in 
both English and Spanish, and, with questions, took approximately 30 
minutes.
    (5) USDA claims that the additional proof-of-identity requirement 
would be extremely difficult for employers to meet and would be a 
disincentive for employers to issue cards. This is a misreading of the 
WPS provision that ...``If the agricultural employer is aware or has 
reason to know that an EPA training verification card has not been 
issued in accordance with the provisions of WPS, or has not been issued 
to the employee bearing the card, or the date for retraining has past, 
an employee's possession of that training verification card does not 
relieve the employer of the training obligations under WPS.''

[[Page 2825]]

    USDA noted that issuing training cards would assist other employers 
who hire already trained workers. In addition, USDA is concerned that 
handlers and workers that possess cards will become preferred job 
applicants. USDA fears that since not all states on or verification 
cards it will cause a burden to job applicants in states where cards 
are not honored and give job preference to those employees who possess 
cards.
    The regulation establishes a training verification program that is 
voluntary, therefore, not all employers will participate. However, 
employers who do participate will relieve themselves from the burden of 
retraining workers who have already been trained.
    Forty states, Puerto Rico and 2 tribes have entered into an 
agreement to issue training verification cards. Three additional states 
say they will be entering into an agreement. Four states already have 
programs that are identical to the Federal program and will issue state 
cards. Over 2.5 million cards have been delivered to states who have 
entered into the program. By law, the employer can accept the card as 
verification that the employee was trained.
    USDA raised concern over the verification cards that have an 
expiration date based on the initial 5-year retraining interval date. 
Training cards are valid until the expiration date stated on the card. 
When the retraining interval is changed, these training cards will 
remain valid until the expiration date on the card.

IX. Regulatory Assessment Requirements

A. Executive Order 12866

    Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), 
it has been determined that this is a ``significant regulatory action'' 
because it raised potentially novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in the Executive Order. The total cost of this rule depends on 
the combination of options under the grace period and the retraining 
interval selected. The costs have been estimated by EPA and are 
presented in the Impact Assessment for the Worker Protection Standard, 
Training Provisions Rule. This proposal was submitted to OMB for 
review, and any comments or changes made have been documented in the 
public record.

B. Regulatory Flexibility Act

    This rule was reviewed under the provisions of sec. 3(a) of the 
Regulatory Flexibility Act, and it was determined that the rule would 
not have a significant adverse impact on a substantial number of small 
entities. The smallest entities regulated under the Worker Protection 
Standard, family-operated agricultural establishments with no hired 
labor, are not subject to the training requirements, and therefore have 
no cost associated with this rule. These small entities (with no hired 
labor) represent about 45 percent of the agricultural establishments 
within the scope of the WPS. The smallest of those entities which do 
hire labor are those with only one hired employee. Estimated costs per 
worker or handler are similar for an establishment with one employee as 
for larger establishments, causing no significant disproportionate 
burden on small entities. After the first year of implementation, the 
average annual training costs to comply with these regulations (not 
including the costs already being incurred) is also very modest, 
estimated at about $2.20 per worker.
    The largest difference in costs per worker occurs on vegetable/
fruit/nut farms, where estimated incremental first year cost per worker 
is $4.13 on small farms and $3.06 on larger farms; incremental first 
year cost per handler is estimated at $11.55 for both small and large 
farms. The largest cost per establishment is also on vegetable/fruit/
nut farms, where incremental first year cost per establishment is 
estimated to be $4.13 to $11.55 for small (single-employee) farms, and 
$77.49 for the typical large farm. Incremental cost of the proposed 
training options is also very modest. Average incremental cost to 
vegetable/fruit/nut farms (all sizes), is estimated at $37.15 the first 
year and $17.51 in subsequent years.
    I therefore certify that this proposal does not require a separate 
analysis under the Regulatory Flexibility Act.

C. Paperwork Reduction Act

    This proposal contains no information collection requirements, and 
is therefore not subject to the Paperwork Reduction Act.

D. Public Docket

    EPA has established a public docket (OPP-250097) containing the 
information used in developing this proposed rule. The public docket is 
open Monday through Friday from 8 a.m. to 4 p.m. and is located in 
Crystal Mall #2, Room 1132, 1921 Jefferson Davis Highway, Arlington, 
VA.

List of Subjects in Part 170

    Environmental protection, Pesticides and pests, Intergovernmental 
relations, Occupational safety and health, Reporting and recordkeeping 
requirements.

    Dated: January 3, 1995.

Carol M. Browner,
Administrator.

    Therefore, 40 CFR part 170 is proposed to be amended as follows:
    1. The authority citation would continue to read as follows:
    Authority: 7 U.S.C. 136w.


    2. In Sec. 170.130, by revising the section heading and paragraph 
(a)(1), removing paragraph (a)(3), and by revising paragraph (d)(2) to 
read as follows:


Sec. 170.130  Pesticide safety training for workers.

    (a) *  *  *
    (1) Requirement. The agricultural employer shall assure that each 
worker required by this section to be trained has been trained in 
accordance with paragraph (c) of this section before the worker enters, 
or before between the 1st and 6th day that the worker enters any area 
or during the first weekly training session available to each worker 
provided by the employer [grace period to be determined based on public 
comment will be insert in the final rule] on the agricultural 
establishment where, within the last 30 days, a pesticide to which this 
subpart applies has been applied or a restricted-entry interval for 
such pesticide has been in effect. The agricultural employer shall 
assure that each such worker has been trained during the last (Agency 
will insert 1, 3, or 5 years in the final rule based on public comment) 
counting from the end of the month in which the training was completed.
*      *      *      *      *      
    (d) *  *  *
    (2) If the agricultural employer is aware or has reason to know 
that an EPA-approved Worker Protection Standard worker training 
certificate has not been issued in accordance with this section, or has 
not been issued to the worker bearing the certificate, or the training 
was completed more than (Agency will insert 1, 3, or 5 years in the 
final rule based on public comment) before the beginning of the current 
month, a worker's possession of that certificate does not meet the 
requirements of paragraph (a) of this section.
*      *      *      *      *      

[[Page 2826]]

    3. In Sec. 170.230, by revising the section heading and paragraphs 
(a) and (d)(2) to read as follows:


Sec. 170.230   Pesticide safety training for handlers.

    (a) Requirement.  Before any handler performs any handling task, 
the handler employer shall assure that the handler has been trained in 
accordance with this section during the last (Agency will insert 1, 3, 
or 5 years in the final rule based on public comment) counting from the 
end of the month in which the training was completed.
*      *      *      *      *      
    (d) *  *  *
    (2) If the handler employer is aware or has reason to know that an 
EPA-approved Worker Protection Standard handler training certificate 
has not been issued in accordance with this section, or has not been 
issued to the handler bearing the certificate, or the handler training 
was completed more than (Agency will insert 1, 3, or 5 years in the 
final rule based on public comment) before the beginning of the current 
month, a handler's possession of that certificate does not meet the 
requirements of paragraph (a) of this section.
[FR Doc. 95-583 Filed 1-6-95; 12:17 pm]
BILLING CODE 6560-50-P