[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21944-21948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10871]




[[Page 21943]]

_______________________________________________________________________

Part VI





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 156 and 170



Pesticide Programs; Worker Protection Standards; Final Rules and 
Proposed Rules

  Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules 
and Regulations   
[[Page 21944]] 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[OPP-250097A; FRL-4949-9]

RIN No. 2070-AC69


Pesticide Worker Protection Standard; Grace Period for Providing 
Worker Safety Training

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendment.

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

SUMMARY: EPA is amending the 1992 Worker Protection Standard (WPS), by 
making the 5-day grace period (the number of days of employment before 
workers must be trained) effective January 1, 1996. Additionally, 
effective January 1, 1996, EPA is requiring agricultural employers to 
assure that untrained workers receive basic pesticide safety 
information before they enter a treated area on the establishment.
EFFECTIVE DATE: This rule will become effective July 17, 1995.

FOR FURTHER INFORMATION CONTACT: Jeanne Heying, Office of Pesticide 
Programs (7506C), Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460. Office location and telephone number and e-mail 
address: Room 1121, Crystal Mall #2, 1921 Jefferson Davis Highway, 
Arlington VA, Telephone: 703-305-7164, Heying.J[email protected].

ADDRESSES: The Agency invites any interested person who has concerns 
about the implementation of this action to submit written comments 
identified by docket number ``OPP-250097A'' to: By mail: Public 
Response and Program Resources Branch, Field Operations Division 
(7506C), Environmental Protection Agency, 401 M St., SW., Washington, 
DC 20460. In person, bring comments to: Rm. 1132, Crystal Mall #2, 1921 
Jefferson Davis Highway, Arlington, VA 22202.
    Comments and data may also be submitted electronically by sending 
electronic mail (e-mail) to: [email protected]. 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-250097A.'' No Confidential Business Information 
(CBI) should be submitted through e-mail. Electronic comments on this 
document may be filed online at many Federal Depository Libraries. 
Additional information on electronic submissions can be found in Unit 
VI of this document.
    Information submitted as a comment concerning this document may be 
claimed confidential by marking any part or all of that information as 
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 4:30 p.m., Monday through Friday, excluding legal holidays.
SUPPLEMENTARY INFORMATION: This document discusses the background 
leading to this final rule amending the Worker Protection Standard; 
summarizes the public's comments on the provisions of the proposed 
amendments (60 FR 2820, January 11, 1995); provides EPA's response to 
comments and final determination with respect to modifying the training 
provisions of the Worker Protection Standard, and provides information 
on the applicable statutory and regulatory review requirements.

I. Statutory Authority

    This rule 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

    In 1992 EPA revised its Worker Protection Standard (40 CFR part 
170) (57 FR 38102, August 21, 1992) which is intended to reduce the 
risk of pesticide poisonings and injuries among agricultural workers 
who are exposed to pesticide residues. The WPS is also intended to 
reduce the risk of pesticide poisonings and injuries among pesticide 
handlers who may face more hazardous levels of exposure. The 1992 WPS 
superseded the 1974 WPS and expanded the WPS scope not only to include 
workers performing hand labor operations in fields treated with 
pesticides, but also to include workers in or on farms, forests, 
nurseries, and greenhouses, as well as pesticide handlers who mix, 
load, apply, or otherwise handle pesticides. The WPS contains 
requirements for pesticide safety training, notification of pesticide 
applications, use of personal protective equipment, restricted entry 
intervals following pesticide application, and decontamination and 
emergency medical assistance in the event of an accident.
    The 1992 WPS requires agricultural employers to assure that before 
the 6th day of employment (referred to as the grace period) a worker 
receives basic pesticides safety training before entering any areas on 
the agricultural establishment where, within the last 30 days, a 
pesticide has been applied or a restricted entry interval (REI) has 
been in effect. For the first 5 years after the effective date of the 
WPS, however, the WPS allows employers up to the 16th day of employment 
to assure that the worker receives the training. Additionally, workers 
are required to be retrained at 5-year intervals.
    Since the issuance of the 1992 WPS, farmworker groups have 
expressed an interest in enhancing specific protection measures, while 
grower groups, the National Association of State Departments of 
Agriculture and others have expressed an interest in addressing 
practical, operational concerns. The Agency received various requests 
and comments in the form of letters, petitions, and individual and 
public meetings to address concerns with the WPS, some specifically 
suggesting changes to the training requirements.
    In response, EPA proposed five actions to revise elements of the 
WPS. These actions were published on January 11, 1995 (60 FR 2820), and 
proposed to:
    (1) Shorten the time periods before which employers must train 
workers and retrain workers and handlers in pesticide safety.
    (2) Exempt those who perform crop advising tasks from certain 
requirements.
    (3) Allow early entry to pesticide treated areas to perform certain 
time-sensitive irrigation activities.
    (4) Allow early entry to pesticide treated areas to perform certain 
time-sensitive activities resulting in ``limited contact'' with 
pesticide-treated surfaces.
    (5) Allow workers to enter areas treated with certain lower risk 
pesticides after 4 hours rather than 12 hours.
    This action addresses the proposed rulemaking to shorten the time 
periods before which employers must train workers and retrain workers 
and handlers in pesticide safety. Final determinations on the other 
four actions mentioned above are being published elsewhere in this 
issue of the Federal Register. [[Page 21945]] 

III. Summary of the Final Rule Amendment

    The Agency is revising 40 CFR 170.130(a)(3) to require that basic 
pesticide safety information be provided to workers before entry. New 
Sec. 170.130(a)(3)(iii), the exception for the first 5-year period, 
allows a 15-day grace period until January 1, 1996. The Agency is 
thereby accelerating the transition to a 5-day grace period by 
approximately 2 years.
    The Agency is adding a new paragraph Sec. 170.130(c) and 
redesignating existing paragraphs to specify the content by including a 
reference to new paragraph (c). The Agency has decided to retain the 5-
year retraining interval in Sec. 170.130(a)(1). No other sections of 
the training provisions are affected by this final action.

IV. Summary of Response to Comments

    EPA received 91 comments referring to the pesticide safety training 
proposal from farm worker groups, individuals, State, commodity groups, 
and growers. Many comments from farmworker groups were supportive of 
eliminating a grace period provision and requiring retraining annually. 
Comments from commodity groups, growers and State Departments of 
Agriculture expressed concern regarding eliminating a grace period and 
supported maintaining a grace period and a longer retraining interval. 
A more detailed summary of the issues addressed by comments is 
presented below and in the Response to Comments document contained in 
the public docket.

A. Grace Period and Interim Grace Period

    EPA proposed several options: eliminating the grace period (from 
the current 15 days to 0 days) after 1 year; shortening the grace 
period from 15 days to between 1 and 5 days; or establishing a weekly 
training program for those requiring training.
    Comments, received primarily from farmworker groups, opposed a 
grace period of any length stating that training prior to potential 
exposure would provide greater protection for workers. Other industries 
which require worker training before potential exposure were cited as 
examples of how a 0-day grace period could be feasible in agriculture. 
Comments also stated that a grace period can create greater 
administrative cost and difficulty with enforcement given diverse crop 
production practices and high worker turnover.
    Growers and many States noted that a training grace period is 
necessary to cope with unanticipated circumstances that might require 
hiring large numbers of workers to harvest a crop quickly, for example, 
and with no time or capacity to train them. Additionally, the U.S. 
Department of Agriculture (USDA) and others pointed out that the 
training provisions are supplemental to other WPS provisions, such as 
central posting, that are intended to prevent or mitigate worker 
exposure to pesticides and that WPS training is not the primary means 
to avoid such exposure. USDA comments noted that WPS training is 
valuable reinforcement for the other WPS protections; however the 
existence of other methods of risk prevention and mitigation reduces 
the urgency for workers to have had training prior to the commencement 
of work at each new job.
    Some comments also supported making training available on a weekly 
basis for similar reasons discussed above, emphasizing the benefit of 
flexibility, the ability to absorb training costs, and the ability to 
plan training sessions based on hiring needs and practices. In addition 
to the options proposed, several comments supported alternative grace 
period options or providing an orientation session covering basic 
pesticide safety information before a new employee begins work. The 
more complete WPS pesticide safety training program would follow.
    EPA believes the WPS is comparable, in large measure, to 
requirements in other industries for training prior to exposure to 
hazardous chemicals. Pesticide handlers and early-entry workers must be 
trained prior to applying pesticides or entering treated areas during 
the restricted-entry interval (REI). The current training grace period 
applies only to agricultural workers who do not handle pesticides but 
may be exposed to pesticide residues after the REI. Prior to or in the 
absence of the worker training, the REI serves its intended purpose of 
limiting agricultural workers' exposure to pesticides by prohibiting 
routine early entry to pesticide-treated areas.
    EPA agrees that providing training before potential exposure would 
be more protective than after potential exposure, and that such a 
requirement would be easier to enforce. EPA strongly recommends that 
all agricultural employers provide the full WPS pesticide safety 
training to workers before they are allowed to enter pesticide treated 
areas on the establishment. However, EPA acknowledges that, given the 
diversity of agricultural operations across the United States, a 
training grace period may be needed to provide flexibility to 
agricultural establishment owners and will likely reduce administrative 
and compliance costs. EPA believes, that under some circumstances, 
without a grace period, agricultural employers may be in the position 
of needing to provide daily training during busy harvest periods. Daily 
training (estimated to take 30 to 40 minutes at a minimum), along with 
the need to hire a translator in some cases, could mean a significant 
loss in time, increase in cost and loss of agricultural productivity. 
Notwithstanding, EPA believes that it is feasible to provide basic 
safety information before untrained workers enter treated areas without 
compromising the flexibility afforded by a 5-day grace period.
    Effective January 1, 1996, EPA is requiring that all agricultural 
employers assure that untrained workers receive basic pesticide safety 
information before they enter a pesticide treated area on the 
establishment. The agricultural employer must assure the basic 
pesticide safety information is communicated to agricultural workers in 
a manner they can understand (e.g., by providing written materials, 
handouts, posters, or oral communication or by other means). Employers 
must be able to verify that they have complied with this requirement. 
EPA recommends a system which involves employee signature acknowledging 
receipt of the required information. Other verifiable means of showing 
compliance would be acceptable. EPA will develop and distribute, in 
cooperation with USDA and States, a model handout that will contain the 
basic pesticide safety information to satisfy this requirement. 
Agricultural employers can use this particular handout, develop their 
own, or use other materials that contain the basic pesticide safety 
information required by this rule. No more than five days after initial 
employment has commenced, all agricultural workers must receive 
complete WPS pesticide safety training before they enter pesticide 
treated areas.
    A few comments specifically addressed the issue of when the 15-day 
grace period should expire. Some comments supported keeping the 15-day 
grace period until October 20, 1997, while others preferred ending the 
15-day grace period after 1 year. EPA believes that a year (from 
implementation) is sufficient time to enhance training programs, 
acquire training materials and identify translators in the necessary 
languages. A lengthy (about 2 years) lead time was provided before the 
training provisions of the 1992 rule were enforceable. The 
[[Page 21946]] lead time, until January 1, 1996, allows for a 
substantial number of workers to be trained before the 5-day grace 
period is effective. The majority of workers are expected to be trained 
the first year under a 15-day grace period. Training after the first 
year is expected to be limited to new entrants to the workforce and 
those whose training is not recognized by a new employer.
    Therefore the Agency has decided to retain a 15-day grace period 
until January 1, 1996; thereafter a grace period of 5 days will become 
effective.
    EPA is revising Sec. 170.130(a)(3) by adding a new paragraph (i) to 
require that basic pesticide safety information be provided to workers 
before entry. The remaining paragraphs in this section are renumbered 
accordingly. Also EPA is revising Sec. 170.130(a)(3)(iii) to eliminate 
the 15-day grace period on December 31, 1995 and replace it with a 5-
day grace period.
    EPA is adding a new paragraph Sec. 170.130(c) to specify the 
content of the pesticide safety information. The remaining paragraphs 
in this section are renumbered accordingly and EPA is revising new 
Sec. 170.130(e) by including a reference to new paragraph (c).

B. Retraining Interval for Workers and Handlers

    EPA proposed the following options for the retraining interval: 
keep the 5 year retraining interval; establish a 3 year retraining 
interval; or require annual retraining.
    The following types of comments were supportive of a 5-year 
retraining interval: the level of safety information was fairly basic; 
the training would be easily retained, especially as workers 
incorporate the training into their work habits; that WPS signs, 
posters, and supervisor instructions would reinforce worker safety 
protections. Some comments noted that a 5-year interval would allow 
States the flexibility to establish a more frequent retraining interval 
that might better adapt to existing agricultural practices, workforce 
characteristics and educational and administrative programs in each 
State. Some comments supported shorter retraining interval for handlers 
and a 5-year retraining interval for workers.
    Some comments supported a 3-year retraining interval for both 
handlers and workers. A few comments supported a 3-year retraining 
period for handlers, noting increased risk of exposure for handlers 
compared to workers.
    Numerous comments supported an annual retraining requirement noting 
the need for repetitive training to improve retention. Some comments 
supported annual retraining for handlers only. A few comments indicated 
that training programs and materials were now available to reduce the 
costs of frequent training. However, many comments specifically noted 
that annual retraining would increase employer costs, especially for 
small growers, who may have to secure the services of trainers and 
interpreters.
    EPA has decided to maintain the 5 year retraining interval for 
workers and handlers. The Agency believes that the 5-year interval is 
adequate to cover basic safety principles without undue burden. The 5-
year retraining interval will continue to allow States and growers the 
flexibility to tailor their individual retraining intervals to best fit 
their needs and capabilities.
    Therefore, no change is made to the retraining provision in 
Sec. 170.130(a).

V. Reevaluation of Training Rule

    The Agency is adopting this amendment in order to ensure that 
agricultural workers receive needed training while still providing the 
agricultural sector flexibility to address practical concerns with 
regard to the timing and cost of training. As discussed more fully 
above, the Agency believes that any added risks associated with 
pesticide exposure of workers from activities conducted during the 5-
day grace period will be limited by other requirements in the WPS. EPA 
intends to reevaluate this decision after it has been implemented, 
because the WPS program is relatively new and there is relatively 
little experience either with the practical consequences of compliance 
or the extent of worker risks under the WPS.
    The Agency intends to collect information over the next several 
growing seasons to evaluate the effectiveness of this amendment. In 
particular, EPA is interested in determining whether, collectively, the 
requirements imposed by the WPS successfully protect workers against 
pesticide poisonings. EPA is also interested in better characterizing 
the extent and timing of training and in understanding whether the 5-
day grace period addresses the needs of growers and workers adequately. 
Finally, EPA would like to obtain information on the extent of 
compliance with the conditions in the training requirement and any 
practical problems with enforcement.
    To obtain a better understanding of the implementation and impacts 
of this amendment, EPA will work with USDA and States to gather 
relevant information. The Agency will hold public meetings in 
agricultural areas to provide those directly affected by the WPS--
growers, enforcement staff, and agricultural workers--an opportunity to 
comment on these actions and the WPS rule in general. As appropriate, 
EPA may conduct surveys and review incident data to assess how the 
rules are affecting agriculture. The Agency invites any interested 
person who has concerns about the implementation of this action to send 
comments to the Agency at the address listed at the beginning of this 
rule under the ADDRESSES section.

VI. Public Docket

     A record has been established for the rulemaking and this 
administrative decision under docket number ``OPP-250097A'' (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 
CBI, is available for inspection from 8 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The public record is located 
in Rm. 1132 of the Public Response and Program Resources Branch, Field 
Operations Division (7506C), Office of Pesticide Programs, 
Environmental Protection Agency, Crystal Mall #2, 1921 Jefferson Davis 
Highway, Arlington, VA.
    Electronic comments can 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.
    The official record for the rulemaking and this administrative 
decision, as well as the public version, as described above will be 
kept in paper form. Accordingly, EPA will transfer all comments 
received electronically 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. The 
official rulemaking record is the paper record maintained at the 
address in ADDRESSES at the beginning of this document.

VII. Statutory Review

    As required by FIFRA Section 25(a), this rule was provided to the 
USDA, and to Congress for review. EPA consulted informally with USDA 
during the development of the final rule and, through this exchange, 
addressed all of the Department's comments. The final rule was provided 
formally to USDA, as required by FIFRA. USDA had no 
[[Page 21947]] comment on the final rule. The FIFRA Scientific Advisory 
Panel waived its review.

VIII. 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 raises potentially novel legal or policy issues. This action 
was submitted to the Office of Management and Budget (OMB) for review 
under the Executive Order. Any comments or changes made during OMB 
review, have been documented in the public record.
    The total cost of this regulatory action will depend upon the 
additional training costs that may be incurred as a result of a shorter 
training grace period for the period from January 1, 1996 to October 
20, 1997, as well as the cost of providing basic safety information to 
all workers before they enter areas subject to WPS pesticide safety 
training. The cost of reducing the training grace period from 15 days 
to 5 days has been estimated by EPA and is presented in the Impact 
Assessment for the Worker Protection Standard, Training Provisions 
Rule. EPA has reviewed its Impact Assessment and has determined (with 
the concurrence of USDA) that whatever the incremental cost of this 
revision may be, it should be modest and that these additional costs 
are warranted.

B. Executive Order 12898

    Executive Order 12898 (environmental justice) was taken into 
account in developing the WPS amendments.

C. Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
which the President signed into law on March 22, 1995, EPA has assessed 
the effects of this regulatory action on State, local, and tribal 
governments, and the private sector. This action does not result in the 
expenditure of $100 million or more by any State, local or tribal 
governments, or by anyone in the private sector. The costs associated 
with this action are described in Unit VIII.A. above.
    In addition to the consultations prior to proposal, EPA has had 
several informal consultations regarding the proposed rule with some 
States through the EPA regional offices and at regularly scheduled 
State meetings. No significant issues or information was identified as 
a result of EPA's discussion with the States.

D. 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 an adverse impact on small entities. The smallest entities 
regulated under the Worker Protection Standard are family-operated 
agricultural establishments with no hired labor. These operations are 
not subject to the WPS training requirements, and therefore have no 
training 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.
    I therefore certify that this proposal does not require a separate 
analysis under the Regulatory Flexibility Act.

E. Paperwork Reduction Act

    EPA has determined that there are no information collection burdens 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., associated with the requirements contained in this final 
amendment.

List of Subjects in 40 CFR Part 170

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

    Dated: April 26, 1995.

Lynn M. Browner,

Administrator.
    Therefore, 40 CFR part 170 is amended as follows:

PART 170--[AMENDED]

    1. The authority citation continues to read as follows:

    Authority: 7 U.S.C. 136w.


    2. Section 170.130 is amended by revising the section heading and 
paragraph (a)(3), redesignating paragraphs (c) and (d) as paragraphs 
(d) and (e), respectively, adding paragraph (c), and revising newly 
designated paragraph (e)(1) to read as follows:


Sec. 170.130  Pesticide safety training for workers.

    (a) *  *  *
    (3) Requirements for other agricultural workers--(i) Information 
before entry. As of January 1, 1996, and except as provided in 
paragraph (a)(2) of this section, before a worker enters any areas on 
the agricultural establishment where, within the last 30 days a 
pesticide to which this subpart applies has been applied or the 
restricted-entry interval for such pesticide has been in effect, the 
agricultural employer shall assure that the worker has been provided 
the pesticide safety information specified in paragraph (c), in a 
manner that agricultural workers can understand, such as by providing 
written materials or oral communication or by other means. The 
agricultural employer must be able to verify compliance with this 
requirement.
    (ii) Training before the 6th day of entry. Except as provided in 
paragraph (a)(2) of this section, before the 6th day that a worker 
enters any areas 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 the worker has been 
trained.
    (iii) Exceptions during interim period. Until December 31, 1995, 
and except as provided by paragraph (a)(2) of this section, before the 
16th day that a worker enters any areas 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 has 
been in effect, the agricultural employer shall assure that the worker 
has been trained. After December 31, 1995 this exception no longer 
applies.
*    *    *    *    *
    (c) Pesticide safety information. The pesticide safety information 
required by paragraph (a)(3)(i) shall be presented to workers in a 
manner that the workers can understand. At a minimum, the following 
information shall be provided:
    (1) Pesticides may be on or in plants, soil, irrigation water, or 
drifting from nearby applications.
    (2) Prevent pesticides from entering your body by:
     (i) Following directions and/or signs about keeping out of treated 
or restricted areas.
    (ii) Washing before eating, drinking, using chewing gum or tobacco, 
or using the toilet.
    (iii) Wearing work clothing that protects the body from pesticide 
residues.
    (iv) Washing/showering with soap and water, shampoo hair, and put 
on clean clothes after work.
    (v) Washing work clothes separately from other clothes before 
wearing them again. [[Page 21948]] 
    (vi) Washing immediately in the nearest clean water if pesticides 
are spilled or sprayed on the body. As soon as possible, shower, 
shampoo, and change into clean clothes.
    (3) Further training will be provided within 5 days.
*    *    *    *    *
    (e) Verification of training. (1) Except as provided in paragraph 
(e)(2) of this section, if the agricultural employer assures that a 
worker possesses an EPA-approved Worker Protection Standard worker 
training certificate, then the requirements of paragraph (a) and (c) of 
this section will have been met.
*    *    *    *    *

[FR Doc. 95-10871 Filed 5-2-95; 8:45 am]
BILLING CODE 6560-50-F