[Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
[Rules and Regulations]
[Pages 8118-8124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3287]




[[Page 8117]]

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Part II





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; Final Rule

  Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / 
Rules and Regulations   
[[Page 8118]] 

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 110

[SD-94-001]
RIN 0581-AB22


Recordkeeping Requirements for Certified Applicators of Federally 
Restricted Use Pesticides

AGENCY: Agricultural Marketing Service (AMS), USDA.

ACTION: Final rule.

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

SUMMARY: The Agricultural Marketing Service, United States Department 
of Agriculture, is amending its regulations governing recordkeeping of 
federally restricted use pesticides by certified applicators. The final 
regulations revise the definitions of the terms ``medical emergency'' 
and ``licensed health care professional,'' provide new requirements for 
recording the location of ``spot applications'' of federally restricted 
use pesticides, reduce the time period for a certified applicator to 
make a record of the application of a federally restricted use 
pesticide, clarify the circumstances under which licensed health care 
professionals may obtain, utilize, and release restricted use pesticide 
records or record information, and clarify the penalty provisions in 
the regulations. The changes to the rule ensure that the regulations 
are consistent with the objectives of section 1491 of the Food, 
Agriculture, Conservation, and Trade Act of 1990. The changes should 
further ensure accuracy of records of the application of federally 
restricted use pesticides, and improve the ability of licensed health 
care professionals to provide medical treatment to an individual who 
may have been exposed to a federally restricted use pesticide.

EFFECTIVE DATE: May 11, 1995.

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 significant for purposes of 
Executive Order 12866 and therefore has been reviewed by OMB.
    This rule also has been reviewed under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). This rule will (1) revise certain 
definitions within the regulations; (2) require the location of spot 
applications of federally restricted use pesticides be designated as 
``spot application'' followed by a concise description of location and 
treatment; (3) reduce the time period within which the information 
required by the regulations must be recorded; (4) clarify the 
availability of pesticide record information to facilitate medical 
treatment or first aid; (5) clarify the utilization and release of 
pesticide records or record information by licensed health care 
professionals; and (6) clarify the penalty provisions.
    The Administrator of AMS has determined that approximately 1.3 
million certified pesticide applicators (980,000 private and 300,000 
commercial applicators) will be affected by this final rule. However, 
we do not anticipate that any of the revisions to the regulations or 
additional requirements will result in any significant additional 
economic impact on certified applicators of federally restricted use 
pesticides. The amendments to the rule will not increase the amount of 
time necessary for a certified applicator to record the information 
required by the regulations. Although the regulations will require 
certified applicators to record a concise description of the location 
of a ``spot application,'' this requirement does not significantly 
increase the time to make a record.
    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 rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This 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 
rule have been approved by the Office of Management and Budget (OMB), 
number 0581-0164.

Background

    As part of the Food, Agriculture, Conservation, and Trade Act of 
1990 (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.
    The regulations at 7 CFR part 110, ``Recordkeeping Requirements for 
Certified Applicators of Federally Restricted Use Pesticides,'' 
(hereinafter referred to as the regulations) require certified 
pesticide applicators to maintain records of federally restricted use 
pesticide applications for a period of 2 years. The regulations also 
provide for access to pesticide records or record information by 
federal or state officials, or by licensed health care professionals 
when needed to treat an individual who may have been exposed to 
restricted use pesticides, and penalties for enforcement of the 
recordkeeping and access provisions. The regulations became effective 
on May 10, 1993.
    After publication of the regulations, AMS proceeded with the 
implementation of a national program for recordkeeping of federally 
restricted use pesticides. Early in the implementation phase of the AMS 
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 
AMS.

Proposed Rule

    After a thorough review of the regulations and consideration of the 
issues raised by the lawsuit, we published a document on April 6, 1994, 
in the Federal Register (59 FR 16400-16403), proposing to amend the 
recordkeeping regulations for federally restricted use pesticides.

Comments on the Proposed Rule

    AMS solicited comments concerning our proposal for a 60 day comment 
period ending June 6, 1994. We received 47 comments from certified 
pesticide applicators, medical professionals, agricultural and 
farmworker organizations, State Departments of Agriculture, State 
Cooperative Extension Services and other individuals and groups. The 
comments received and our responses to those comments are as follows. 
[[Page 8119]] 

Section 110.2--Definitions

Licensed Health Care Professional

    The current regulations define ``licensed health care 
professional'' as ``a physician, nurse, emergency medical technician or 
other qualified individual, licensed by a State to provide medical 
treatment.''
    AMS proposed to amend the definition of a ``licensed health care 
professional'' to mean ``a physician, nurse, emergency medical 
technician or other qualified individual, licensed or certified by a 
state to provide medical treatment.'' AMS proposed this amendment to 
clarify our intention to include qualified individuals who have been 
certified by a state to provide medical treatment in the definition of 
``licensed health care professional.''
    Many comments supported the proposed change in the definition 
citing the need to include all individuals who are either state 
certified or licensed, and are qualified to provide medical treatment 
in cases of pesticide related illness in the definition of ``licensed 
health care professional.'' For example, one commentor stated, ``the 
proposed definition recognizes the realities of modern health care, in 
that many tasks are performed by paraprofessionals and other persons 
working under the direction of licensed professionals.'' Another 
commentor stated, ``* * * often the first responder for medical 
emergencies or medical care is not a licensed health care professional. 
The definition needs to be broadened to include other professionals to 
ensure greater access to immediate and appropriate medical treatment.''
    AMS agrees that under some circumstances certified individuals are 
qualified to provide medical treatment for pesticide related exposures. 
Some states use the term ``certified'' and ``licensed'' 
interchangeably. For example, a ``licensed nurse practioner'' in one 
state may be classified as a ``certified nurse practioner'' in another 
state. Therefore, this final rule amends the definition of ``licensed 
health care professional'' to include any qualified individuals 
certified by a state to provide medical treatment. However, individuals 
who have been certified only to provide first aid or cardiopulmonary 
resuscitation (CPR) through organizations such as the American Red 
Cross are not included in the definition of ``licensed health care 
professional'' in this final rule.
    AMS also received comments which expressed concerns that allowing 
access by ``certified'' individuals would greatly expand access to 
private record information to individuals who are not qualified to 
provide proper treatment for pesticide related illnesses. One commentor 
stated, ``* * * there are 23 different health care professionals 
certified by the state including such professions as: Athletic 
Training, Chiropractic, Mental Health Practice, Physical Therapy and 
Psychology. Under the proposed changes, these professionals would be 
able to request records and release the information. This change would 
not increase health protection, but rather provide an avenue for non-
related health care professionals to have access to private records.''
    We agree with comments received expressing concerns that certified 
individuals such as physical or athletic therapists should not be able 
to request pesticide record information. We are addressing these 
concerns in section 110.5(a) by allowing only the attending licensed 
health care professional, or an individual acting under the direction 
of the attending licensed health care professional, access to record 
information. This amendment to section 110.5(a) should eliminate the 
request for pesticide record information by individuals who are not 
qualified to provide medical treatment for pesticide related injuries 
or illness.
    For these reasons, we are adopting the proposed language. 
``Licensed health care professional'' shall be defined as ``a 
physician, nurse, emergency medical technician, or other qualified 
individual, licensed or certified by a State to provide medical 
treatment.''

Medical Emergency

    The current regulations define ``medical emergency'' as ``injuries 
or illnesses which require immediate medical attention to prevent life-
threatening or disabling conditions.''
    AMS proposed to change the definition of ``medical emergency'' 
after concerns were raised that the definition was too restrictive and 
could hinder medical treatment by licensed health care professionals of 
individuals who may have been exposed to a federally restricted use 
pesticide. It was not the intent of AMS to limit medical treatment of 
persons who may have been exposed to a restricted use pesticide. 
Therefore, AMS proposed that the term ``medical emergency'' be defined 
as ``a situation that requires immediate medical treatment or first 
aid.''
    AMS received 27 comments concerning the proposed change to the 
definition of ``medical emergency.'' The commentors who supported the 
proposed definition stated that the current definition was too 
restrictive. For example, one commentor stated that the proposed 
definition ``* * * ensures that all instances of pesticide related 
illnesses can be appropriately dealt with; that they do not get omitted 
inadvertently due to an overly narrow definition.'' Another commentor 
stated, ``Expanding this definition ensures the appropriate care and 
medical response for all pesticide related illnesses.''
    Commentors who opposed the proposed change stated that the current 
and proposed definitions of ``medical emergency'' are too broad because 
they encompass illnesses or injuries that have nothing to do with 
possible pesticide poisonings. One of these commentors stated that 
``The definition should refer to and be limited to the related 
pesticide situation to avoid confusion and misunderstanding.'' However, 
the comments opposing the change to the definition did support 
providing the record information when appropriate for pesticide related 
illness.
    AMS agrees that the current definition of ``medical emergency'' is 
too restrictive and could hinder appropriate medical treatment to 
individuals who may have been exposed to a federally restricted use 
pesticide. After considering the comments, we have adopted a definition 
that is less restrictive than the current definition and provides for 
more appropriate access to record information for a medical emergency. 
The definition of ``medical emergency'' in the final rule encompasses 
situations that require immediate medical treatment or first aid as set 
forth in the proposal. Further, in response to the comments which 
stated that the definition was too broad, we added a phrase which 
limits the definition of medical emergency to situations that require 
treatment or first aid ``to treat possible symptoms of pesticide 
poisoning or exposure.''
    Therefore, this final rule amends the definition of ``medical 
emergency'' to read as follows: ``A situation that requires immediate 
medical treatment or first aid to treat possible symptoms of pesticide 
poisoning or exposure.''

Section 110.3(a)(6)--Spot Applications

    The current pesticide recordkeeping regulations provide reduced 
requirements for recording information for ``spot applications.'' 
Section 110.3(a)(6) provides that applications of restricted use 
pesticides made on the same day in a total area of less than one-tenth 
(1/10) of an acre require the following elements be recorded: (1) Brand 
or product name and EPA registration number; (2) total amount applied; 
(3) location must be designated as ``spot application''; and (4) the 
date of application. Section 110.3(a)(6) does [[Page 8120]] not apply 
to records maintained for greenhouse and nursery applications.
    The reduced requirements for recordkeeping information for ``spot 
applications'' were intended to provide 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 application.
    After concerns were raised that the required spot application 
record information was not adequate for medical treatment because a 
specific location was not required to be recorded for each spot 
application, AMS proposed to delete section 110.3(a)(6), the spot 
application record element. By deleting section 110.3(a)(6), spot 
applications would be recorded in the same manner as all other 
federally restricted use pesticide applications.
    AMS received 35 comments addressing the deletion of the spot 
application provision. Comments which supported the deletion of the 
spot application provision generally stated that specific locations can 
provide important information for medical treatments. For example one 
commentor stated, ``In cases where an individual may have been poisoned 
by a spot application, it may be critically important to know the 
specific location of the application.''
    Comments opposing the proposed change stated that it would be 
extremely difficult to record the specific location of a spot 
application. For example one commentor stated that ``It would be very 
difficult, if not impossible, to provide the exact legal description of 
the area treated.'' Other commentors were concerned that the proposed 
change would be extremely burdensome to certified applicators, increase 
their workload and operating costs, and therefore have an economic 
impact. Other commentors stated that if the recordkeeping requirements 
become too burdensome, the net result would be non-compliance.
    AMS recognizes the importance of location information where an 
entire field or area has been treated. AMS also recognizes that, in 
some instances, knowing that a spot application was performed could be 
valuable information when needed to determine if a possible pesticide 
exposure could have occurred in a field or area.
    Moreover, because the purpose of a spot application is to apply 
pesticide to a small area targeting a specific pest, such as noxious 
weeds or an ant mound, it would be impractical to require certified 
applicators to supply a precise description of each application within 
a field or production area, in order to make an exact determination if 
a possible pesticide exposure occurred.
    In order to provide information on the location of spot pesticide 
applications, and avoid a cumbersome recording requirement for such 
spot applications, this final rule maintains the spot application 
provision in the regulations, but requires a more detailed description 
of the location of spot applications to be recorded than is currently 
required by section 110.3(a)(6). This final rule requires the certified 
applicator to provide location, designated as ``spot application,'' 
followed by a concise description of the location and treatment for 
spot applications of a federally restricted use pesticide. For example, 
a certified applicator who applied pesticides for noxious weeds could 
record the location and treatment as ``spot application,'' followed by 
a concise description such as ``treated thistle over entire farm 
acreage;'' a certified applicator who treated for fire ants could 
record the location of the application by stating ``spot application, 
sprayed fire ant mounds on pastures of lower creek farm.'' The 
description of the location of spot applications should assist licensed 
health care professionals to determine whether an individual has been 
exposed to a federally restricted use pesticide.
    Additionally we are making other changes for clarification and 
consistency between the recordkeeping requirements for spot 
applications and those for other applications set forth at section 
110.3(a)(1-5) which is redesignated in this final rule as section 
110.3(a). We are amending section 110.3(a)(6)(iv) from ``the date of 
application'' to ``the month, day, and year on which the restricted use 
pesticide application occurred.'' This language is consistent with that 
used in section 110.3(a)(4).
    Accordingly, this final rule amends the spot application provision 
in section 110.3(a)(6), which is redesignated in this final rule as 
section 110.3(b), to require certified applicators to maintain records 
of applications of restricted use pesticides made on the same day in a 
total area of less than one-tenth (1/10) of an acre. These records must 
include, for the application, the brand or product name and EPA 
registration number; total amount applied; location, designated as 
``spot application,'' followed by a concise description of location and 
treatment; and the month, day, and year on which the restricted use 
pesticide application occurred. This final rule does not change 
requirements as previously established for greenhouse and nursery 
applications of restricted use pesticides. The provisions for spot 
applications do not apply to applications of restricted use pesticides 
in greenhouses and nurseries. Instead, certified applicators who make 
applications in greenhouses and nurseries are required to keep all the 
data elements required by section 110.3(a).

Section 110.3(b)--Time for Making an Official Record

    The current regulations provide that the information required for a 
record shall be recorded within 30 days following the pesticide 
application.
    Concerns were raised regarding the accuracy of the records for both 
collecting information for a pesticide use data base and for medical 
treatment if application information was only required to be recorded 
within 30 days following the pesticide application. AMS responded by 
proposing that a record of the application of a restricted use 
pesticide be made within 7 days following the pesticide application.
    AMS received 41 comments on this issue. Comments ranged from 
suggestions that a record be completed upon application, within 24 
hours, shortened to 2 days, 3 days, 5 days, 14 days and maintained at 
the 30 day time period.
    Some commentors supported requiring certified applicators to record 
the required pesticide information within 7 days or less after 
application of the pesticide in order to have information available for 
medical treatment of possible pesticide exposure. AMS supports the need 
to have accurate information available in cases of medical treatment 
and has addressed these concerns by requiring in section 110.5(a), as 
amended by this final rule, that certified applicators provide the 
record information promptly to the atttending licensed health care 
professional when necessary to provide medical treatment or first aid, 
and immediately when the attending licensed health care professional 
determines that there is a medical emergency.
    AMS disagrees with those commentors who stated that pesticide 
application information must be recorded shortly after the pesticide 
has been applied so that it can be available for medical treatment. The 
current regulations require certified applicators to provide accurate 
record information for purposes of providing medical treatment or first 
aid, in accordance with section 110.5(a), whether or not the time to 
make a written record has elapsed. This final rule amends the 
[[Page 8121]] regulations by adding language which clarifies the 
certified applicator's responsibility to provide federally restricted 
use pesticide record information for medical treatment.
    AMS also received comments supporting allowing 30 days to record 
pesticide application information because it was consistent with 
section 1491(a)(2) of the FACT Act which requires certified commercial 
applicators to provide a copy of a restricted use application record 
within 30 days of the application. Although the FACT Act requires 
certified commercial applicators to provide a copy of the record 
information to their clients within 30 days of application, it does not 
provide a time period within which a certified applicator, private or 
commercial, shall make a record.
    In addition, numerous commentors supported the 30 day period to 
make a record because they believed the 7 days did not provide 
certified applicators adequate time to make a record in peak production 
periods. AMS has reevaluated the proposed 7 day time period and agrees 
that during peak production periods certified applicators could need 
more time to make accurate records due to the long hours many 
applicators spend in the field during those periods.
    Therefore, to provide a balanced approach to assure accurate 
information for data collection on federally restricted use pesticides 
and provide adequate time for certified applicators to make a record, 
we are amending section 110.3(b), which is redesignated in this final 
rule as section 110.3(c), to require that certified applicators must 
complete the record within 14 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 section 110.5(a).
    AMS also received comments from certified commercial applicators 
objecting to the change in the time frame to provide copies of 
restricted use application records to clients from 30 days to the 
proposed 7 days. We did not propose to change, nor does this final rule 
change the time within which certified commercial applicators must 
provide clients with copies of records of restricted use applications. 
Certified commercial applicators are still given 30 days to provide a 
copy of the federally restricted use application record to their 
clients.
    AMS also received comments requesting clarification of the use of 
the term ``official record'' in the supplementary information in the 
proposed rule. The use of the term ``official record'' was incorrect. 
Its use was our attempt to describe the recording of a pesticide 
application as required under 7 CFR part 110.

Section 110.5(a)--Availability of Records To Facilitate Medical 
Treatment

    Currently, section 110.5(a) of the rule states: ``When a 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 maintained, the certified applicator required 
to maintain the record shall provide the record information and any 
available label information promptly to the licensed health care 
professional. If it is determined by a 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.''
    AMS proposed to amend section 110.5(a) to address concerns that if 
a strict interpretation was applied to this section, it would require 
the licensed health care professional to personally make the record 
information request and possibly hinder access to record information 
and medical treatment. AMS 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.
    In order to clarify the regulations concerning the availability of 
pesticide record information to facilitate medical treatment, AMS 
proposed to amend section 110.5(a) to provide that either the licensed 
health care professional or an individual acting under the direction of 
the attending licensed health care professional could request record 
information when necessary to provide medical treatment or first aid. 
The proposed amendment reads 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.''
    AMS received 28 comments regarding proposed section 110.5(a). Most 
of the commentors supported the proposed change. Additionally, several 
commentors supported the concept of the proposed amendment, but 
suggested changes in the proposed language to decrease the possibility 
of unqualified licensed health care professionals obtaining the record 
information.
    After consideration of the comments, AMS agrees that the proposed 
language could be more specifically worded to address comments received 
regarding access to records by licensed health care professionals who 
may not be qualified to provide treatment for pesticide related 
illness. Therefore, we are adding the word ``attending'' to licensed 
health care professional to be consistent throughout the rule and help 
eliminate request for records or record information from individuals 
who may be licensed or certified by a state to provide medical 
treatment or first aid, but are not qualified to provide medical 
treatment for possible pesticide injury or illness. This final rule 
amends section 110.5(a) to read as follows:
    When the attending 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 a 
restricted use pesticide required to be maintained under Sec. 110.3 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 the attending 
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.
[[Page 8122]]

Section 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 section 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. Section 110.5(b) provides: ``No 
licensed health care professional shall release any record or 
information from the record obtained under paragraph (a) of this 
section except as 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.''
    Due to concerns that section 110.5(b) was too restrictive, AMS 
proposed to expand the circumstances under which the pesticide record 
information could be utilized and released, and to clarify who had the 
authority to release this information. Accordingly, AMS proposed to 
amend section 110.5(b) to provide: A licensed health care professional, 
or an individual acting under the direction of the attending licensed 
health care professional, may utilize and release the 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.
    In general, the comments received supported the proposed amendments 
to section 110.5(b). However, many comments expressed concern with the 
use of the term ``medical ethics'' as a criterion for the release of 
pesticide record information. One commentor stated, ``* * * matters of 
ethics are, in some respects, shared by a group, but are also 
inherently personal and subjective.'' Numerous commentors also thought 
that the use of ``medical ethics'' was vague and were opposed to the 
proposal unless the phrase was clarified as to what constitutes 
``consideration of medical ethics.'' However, the comments generally 
supported the use of record information by the licensed health care 
professional if it would prevent further pesticide health hazards.
    AMS agrees with the comments stating that the attending licensed 
health care professional in some instances should be able to utilize 
pesticide record information to prevent additional poisoning or 
injuries. AMS also agrees with the commentors that stated that the use 
of the term ``medical ethics'' is vague and open for broad 
interpretation. Therefore, the amended language deletes the use of the 
phrase ``medical ethics.'' Accordingly, this final rule provides the 
attending licensed health care professional with the ability to release 
pesticide record information to appropriate agencies when necessary to 
prevent further injury or illness.
    In addition, comments expressed the need to allow licensed health 
care professionals the flexibility to meet requirements of pesticide 
poisoning incident reporting. Again, comments generally supported the 
concept. However, some commentors were concerned about the certified 
applicator's right to confidentiality in the process of reporting.
    AMS agrees that the proposed language can be improved in order to 
address many of the comments and still provide the needed flexibility 
to assure that licensed health care professionals can utilize and 
release the pesticide record information for appropriate reasons.
    Therefore, we are amending section 110.5(b) to read as follows:
    (1) The attending licensed health care professional, or an 
individual acting under the direction of the attending licensed health 
care professional, may utilize and release the record or record 
information obtained under paragraph (a) of this section 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 or 
will be maintained. (2) The attending licensed health care professional 
may release the record or record information to appropriate federal or 
state agencies that deal with pesticide use or any health issue related 
to the use of pesticides when necessary to prevent further injury or 
illness. (3) A licensed health care professional may release the record 
or record information to submit pesticide poisoning incident reports to 
appropriate state or federal agencies.

Section 110.7--Penalties

    Section 110.7 provides that ``any certified applicator who violates 
7 U.S.C. 136i-1 (a), (b), or (c) shall be liable for a civil penalty of 
not more than $500 in the case of the first offense, and of not less 
than $1,000 in the case of each subsequent offense, except that the 
penalty shall be less than $1,000 for a second offense if the 
Administrator determines that the certified applicator made a good 
faith effort to comply with this part.''
    Several state pesticide regulatory agencies had questions regarding 
the application of the penalty provisions in section 110.7. After 
reexamining the issue, AMS proposed to amend section 110.7 to eliminate 
any ambiguity and make it clear that the Administrator of AMS, or the 
Administrator's designee, has flexibility in assessing civil penalties. 
The proposed changes paralleled the language in subsection (d) of the 
FACT Act. AMS proposed to amend section 110.7 to provide that ``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.''
    Numerous comments supported the proposed amendment. For example, 
one commentor stated, ``* * * the flexibility to tailor penalties to 
specific situations and consider the effort made to comply with the 
regulations are essential elements of good program implementation and 
enforcement.''
    Comments opposing the proposed change asserted that the Secretary 
of Agriculture should not have the discretion to waive the fine. AMS 
disagrees. The FACT Act provides the Secretary discretion to determine 
whether or not a penalty shall be assessed for violations of the FACT 
Act, and to assess a penalty of less than $1,000 if the Secretary 
determines that the certified applicator made a good faith effort to 
comply.
    Therefore, we are adopting the proposed language, with some minor 
changes for clarity. This final rule amends section 110.7 to read as 
follows: ``Any certified applicator who violates the requirements of 7 
U.S.C. 136i-1 (a), (b), or (c) or this part 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 civil penalty of not 
less than $1,000 for each violation, except that the civil penalty 
shall be less than $1,000 if the Administrator determines that the 
certified applicator made a good faith effort to comply with 7 U.S.C. 
136i-1 (a), (b), and (c) and this part.'' [[Page 8123]] 

Other Comments

    We also received a number of comments which are beyond the scope of 
this rulemaking proceeding, and therefore we are not addressing those 
comments in this final rulemaking document.

Conclusion

    Based upon the rationale in the proposed rule and this rulemaking 
document, we are adopting the provisions of the proposal as a final 
rule, except as previously discussed in this document and except for 
minor editorial changes for clarity.

List of Subjects in 7 CFR Part 110

    Pesticide and pests, reporting and recordkeeping requirements.

    Therefore, 7 CFR part 110, is amended as follows:

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

    1. The authority citation for part 110 is revised to read as 
follows:

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

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


Sec. 110.2  Definitions.

* * * * *
    Medical emergency. A situation that requires immediate medical 
treatment or first aid to treat possible symptoms of pesticide 
poisoning or exposure.
* * * * *
    4. In Sec. 110.2, the definition of the word ``recordkeeping'' is 
amended by removing the reference to ``Sec. 110.3(a)(1) through (6) of 
this part'' and adding ``Sec. 110.3(a) and (b)'' in its place.
    5. Section 110.3 is amended as follows:
    a. Paragraph (a) is revised as set forth below.
    b. Paragraphs (b) through (g) are redesignated as paragraphs (c) 
through (h) respectively.
    c. New paragraph (b) is added to read as set forth below.
    d. Redesignated paragraph (c) is revised as set forth below.


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

    (a) Certified applicators of restricted use pesticides shall 
maintain records of the application of restricted use pesticides. 
Except as provided in paragraph (b) of this section, these records 
shall include the following information for each application:
    (1) The brand or product name, and the EPA registration number of 
the restricted use pesticide that was applied;
    (2) The total amount of the restricted use pesticide applied;
    (3) The location of the application, the size of area treated, and 
the crop, commodity, stored product, or site to which a restricted use 
pesticide was applied. The location of the application may be recorded 
using any of the following designations:
    (i) County, range, township, and section;
    (ii) An identification system utilizing maps and/or written 
descriptions which accurately identify location;
    (iii) An identification system established by a United States 
Department of Agriculture agency which utilizes maps and numbering 
system to identify field locations; or
    (iv) The legal property description.
    (4) The month, day, and year on which the restricted use pesticide 
application occurred; and
    (5) The name and certification number (if applicable) of the 
certified applicator who applied or who supervised the application of 
the restricted use pesticide.
    (b) Certified applicators shall maintain records of the application 
of restricted use pesticides made on the same day in a total area of 
less than one-tenth (\1/10\) of an acre. Except for applications of 
restricted use pesticides in greenhouses and nurseries, to which the 
requirements of paragraph (a) of this section apply, these records 
shall include the following information for the application:
    (1) The brand or product name, and the EPA registration number of 
the restricted use pesticide that was applied;
    (2) The total amount of the restricted use pesticide applied;
    (3) The location of the application, designated as ``spot 
application,'' followed by a concise description of location and 
treatment; and
    (4) The month, day, and year on which the restricted use pesticide 
application occurred.
    (c) The information required in this section shall be recorded 
within 14 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 
Sec. 110.5(a).
* * * * *
    6. Section 110.5 is revised to read as follows:


Sec. 110.5  Availability of records to facilitate medical treatment.

    (a) When the attending 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 any 
restricted use pesticide required to be maintained under Sec. 110.3 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 the attending 
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)(1) The attending licensed health care professional, or an 
individual acting under the direction of the attending licensed health 
care professional, may utilize and release the record or record 
information obtained under paragraph (a) of this section 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 or 
will be maintained.
    (2) The attending licensed health care professional may release the 
record or record information to appropriate federal or state agencies 
that deal with pesticide use or any health issue related to the use of 
pesticides when necessary to prevent further injury or illness.
    (3) A licensed health care professional may release the record or 
record information to submit pesticide poisoning incident reports to 
appropriate state or federal agencies.
    7. Section 110.7 is revised to read as follows:


Sec. 110.7  Penalties.

    Any certified applicator who violates 7 U.S.C. 136i-1 (a), (b), or 
(c) or this part 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 civil penalty of not less than $1,000 for 
each violation, except that the civil penalty shall be less 
[[Page 8124]] than $1,000 if the Administrator determines that the 
certified applicator made a good faith effort to comply with 7 U.S.C. 
136i-1 (a) (b), and (c) and this part.

    Dated: February 2, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-3287 Filed 2-9-95; 8:45 am]
BILLING CODE 3410-02-P