[Federal Register Volume 79, Number 53 (Wednesday, March 19, 2014)]
[Proposed Rules]
[Pages 15444-15531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04761]
[[Page 15443]]
Vol. 79
Wednesday,
No. 53
March 19, 2014
Part III
Environmental Protection Agency
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40 CFR Part 170
Pesticides; Agricultural Worker Protection Standard Revisions; Proposed
Rule
Federal Register / Vol. 79 , No. 53 / Wednesday, March 19, 2014 /
Proposed Rules
[[Page 15444]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 170
[EPA-HQ-OPP-2011-0184; FRL-9395-8]
RIN 2070-AJ22
Pesticides; Agricultural Worker Protection Standard Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing updates and revisions to the existing worker
protection regulation for pesticides. The proposed changes are in
response to extensive stakeholder review of the regulation and its
implementation since 1992, and reflect current research on how to
mitigate occupational pesticide exposure to agricultural workers and
pesticide handlers. EPA is proposing to strengthen the protections
provided to agricultural workers and handlers under the worker
protection standard by improving elements of the existing regulation,
such as training, notification, communication materials, use of
personal protective equipment, and decontamination supplies. EPA
expects the revisions, once final, to prevent unreasonable adverse
effects from exposure to pesticides among agricultural workers and
pesticide handlers; vulnerable groups, such as minority and low-income
populations, child farmworkers, and farmworker families; and the
general public. EPA recognizes the importance and independence of
family farms and is proposing to expand the immediate family exemption
to the WPS.
DATES: Comments must be received on or before June 17, 2014.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2011-0184, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Do not submit electronically any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute.
Mail: OPP Docket, Environmental Protection
Agency Docket Center (EPA/DC), Mail code: 28221T, 1200 Pennsylvania
Ave. NW., Washington, DC 20460. In addition, please mail a copy of your
comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503.
Hand Delivery: To make special arrangements for
hand delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.htm. Additional
instructions on commenting or visiting the docket, along with more
information about dockets generally, is available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Kathy Davis, Field and External
Affairs Division, Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 308-7002; fax number: (703) 308-2962;
email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you work in or
employ persons working in production agriculture where pesticides are
applied.
The following list of North American Industrial Classification
System (NAICS) codes is not intended to be exhaustive, but rather
provides a guide to help readers determine whether this document
applies to them. Potentially affected entities may include:
Agricultural Establishments (NAICS code 111000),
establishments or persons, such as farms, orchards, groves,
greenhouses, and nurseries, primarily engaged in growing crops, plants,
vines, or trees and their seeds.
Nursery and Tree Production (NAICS code 111421),
e.g., establishments or persons primarily engaged in (1) growing
nursery products, nursery stock, shrubbery, bulbs, fruit stock, sod,
and so forth, under cover or in open fields and/or (2) growing short
rotation woody trees with a growth and harvest cycle of 10 years or
less for pulp or tree stock.
Timber Tract Operations (NAICS code 113110),
e.g., establishments or persons primarily engaged in the operation of
timber tracts for the purpose of selling standing timber. Forest
Nurseries and Gathering of Forest Products (NAICS code 113210), e.g.,
establishments or persons primarily engaged in (1) growing trees for
reforestation and/or (2) gathering forest products, such as gums,
barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and
truffles.
Farm Labor Contractors and Crew Leaders (NAICS
code 115115), e.g., establishments or persons primarily engaged in
supplying labor for agricultural production or harvesting.
Farm Workers (NAICS codes 11511, 115112, and
115114), e.g., establishments or persons primarily engaged in providing
support activities for growing crops; establishments or persons
primarily engaged in performing a soil preparation activity or crop
production service, such as plowing, fertilizing, seed bed preparation,
planting, cultivating, and crop protecting services; and establishments
or persons primarily engaged in performing services on crops,
subsequent to their harvest, with the intent of preparing them for
market or further processing.
Pesticide Manufacturers (NAICS code 325320),
e.g., establishments primarily engaged in the formulation and
preparation of agricultural and household pest control chemicals
(except fertilizers).
Farm Worker Support Organizations (NAICS codes
813311, 813312, and 813319), e.g., establishments or persons primarily
engaged in promoting causes associated with human rights either for a
broad or specific constituency; establishments or persons primarily
engaged in promoting the preservation and protection of the environment
and wildlife; and establishments primarily engaged in social advocacy.
Farm Worker Labor Organizations (NAICS code
813930), e.g., establishments or persons primarily engaged in promoting
the interests of organized labor and union employees.
Pesticide Handling in Forestry (NAICS code
115310), e.g., establishments or persons primarily providing support
activities for forestry, such as forest pest control.
Administration of Conservation Programs (NAICS
code 924120), e.g., government establishments primarily engaged in the
administration, regulation, supervision and control of land use,
including recreational areas; conservation and preservation of natural
resources; erosion control; geological survey program administration;
weather forecasting program administration; and the administration and
protection of publicly and privately owned forest lands. Government
establishments responsible for planning, management, regulation and
conservation of game, fish, and wildlife populations, including
wildlife management areas and field stations; and other administrative
matters relating to the protection of fish, game, and wildlife are
included in this industry.
Pesticide Handling on Farms (NAICS code 115112),
e.g.,
[[Page 15445]]
establishments or persons primarily engaged in performing a soil
preparation activity or crop production service, such as seed bed
preparation, planting, cultivating, and crop protecting services.
Crop Advisors (NAICS codes 115112, 541690,
541712) e.g., establishments or persons who primarily provide advice
and assistance to businesses and other organizations on scientific and
technical issues related to pesticide use and pest pressure.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. Executive Summary
1. Purpose of the regulatory action. The Environmental Protection
Agency (EPA or the Agency) proposes to revise the existing Worker
Protection Standard (WPS) at 40 CFR part 170 to reduce the incidence of
occupational pesticide exposure and related illness among agricultural
workers (workers) and pesticide handlers (handlers) covered by the
rule. This regulation, in combination with other components of EPA's
pesticide regulatory program, is intended to prevent unreasonable
adverse effects of pesticides among pesticide applicators, workers,
handlers, the general public, and vulnerable groups, such as minority
and low-income populations.
2. Summary of the major provisions. This proposal revises the
existing WPS in several areas: Training, notification, hazard
communication, minimum age, and personal protective equipment. The key
changes are described below.
For training, the proposal requires employers to ensure that
workers and handlers receive pesticide safety training every year. The
content of the training is expanded to include how to reduce take-home
exposure to pesticides, as well as other topics. Employers are required
to retain records of the training provided to workers and handlers for
2 years from the date of training.
For notification, the proposal requires employers to post treated
areas when the product used has a restricted-entry interval (REI)
greater than 48 hours. It also requires that workers performing early-
entry tasks, i.e., entering a treated area when an REI is in effect,
receive information about the pesticide used in the area where they
will work, the specific task(s) to be performed, and the amount of time
the worker may remain in the treated area. Finally, the proposal
requires employers to keep a record of the information provided to
workers performing early-entry tasks.
For hazard communication, the proposal eliminates the requirement
for a central display of pesticide application-specific information.
The proposal requires the employer to maintain and make available upon
request the pesticide application-specific information, as well as the
labeling and safety data sheets for pesticides used on the
establishment for 2 years.
For minimum age, the proposal requires that handlers and workers
performing early-entry tasks be at least 16 years old. This minimum age
does not apply to immediate family members working on an establishment
owned by another immediate family member.
For personal protective equipment (PPE), the proposal adopts the
Occupational Safety and Health Act requirements for respirator use by
handlers, i.e., fit test, medical evaluation, and training. In
addition, the proposal adopts the existing California standard for
closed systems.
3. Costs and impacts. Under section 3(f)(4) of Executive Order
12866 (58 FR 51735; October 4, 1993), this action is a ``significant
regulatory action'' because it may raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order. Accordingly, EPA submitted
this proposed rulemaking to the Office of Management and Budget (OMB)
for review under Executive Orders 12866 and 13563 (76 FR 3821; January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the public docket for this action.
EPA has prepared an analysis of the potential costs and impacts
associated with this rulemaking. This analysis is summarized in greater
detail in Unit II.G. of this proposal. The following chart provides a
brief outline of the costs and impacts of this proposal:
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Category Description Source
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Monetized Benefits Avoided $5-14 million/year EA Chapter 6.5.
acute pesticide incidents. after adjustment
for underreporting
of pesticide
incidents.
Qualitative Benefits........ Willingness EA Chapter 6.
to pay to avoid
acute effects of
pesticide exposure
beyond cost of
treatment and loss
of productivity.
Reduced
latent effect of
avoided acute
pesticide exposure.
Reduced
chronic effects
from lower chronic
pesticide exposure
to workers,
handlers, and
farmworker
families, including
a range of
illnesses such as
Non-Hodgkins
lymphoma, prostate
cancer, Parkinson's
disease, lung
cancer, chronic
bronchitis, and
asthma.
[[Page 15446]]
Monetized Costs............. $62-73 million/year. EA Chapter 5.2.
Small Business Impacts...... No significant EA Chapter 5.4.
impact on a
substantial number
of small entities.
The
rulemaking will
affect over 300,000
small farms,
nurseries, and
greenhouses and
several hundred
small commercial
entities that are
contracted to apply
pesticides.
Impact less
than 0.1% of the
annual value of
sales or revenues
for the average
small entity.
Impact on Jobs.............. The rulemaking will EA Chapter 5.3.
have a negligible
effect on jobs and
employment.
The
marginal cost of a
typical farmworker
is expected to
increase $5/year.
The
marginal cost for a
more skilled
pesticide handler
is expected to
increase by $60 per
year, but this is
less than 0.3
percent of the cost
of a part-time
employee.
------------------------------------------------------------------------
B. What action is the Agency taking?
The WPS is a regulation intended to reduce the risks of injury or
illness resulting from agricultural workers' and handlers' use and
contact with pesticides on farms, forests, nurseries and greenhouses.
The rule does not cover persons working directly with livestock. The
existing regulation has provisions for employers to provide workers and
handlers with pesticide safety training, posting and notification of
treated areas, entry restrictions, and PPE for workers who enter
treated areas after pesticide application to perform crop-related
tasks, as well as for handlers who mix, load, and apply pesticides. The
rule was promulgated in 1992 and implementation was delayed until 1995.
The changes in this proposed revision of the WPS are intended to
address shortcomings in the current regulations, such as:
Absence of a minimum age for handlers of
pesticides and agricultural workers engaged in early-entry activities,
Inadequate hazard communication provisions,
Insufficient training of agricultural workers
before they face potential pesticide exposure,
Unclear requirements regarding the
decontamination supplies the WPS requires employers to provide, and
Insufficient recordkeeping to verify compliance
with regulations.
EPA believes that the proposed changes offer targeted improvements
that would reduce risk through protective requirements and improve
operational efficiencies. EPA expects the proposed changes to:
Improve effectiveness of worker and handler
training,
Improve protections to workers during
restricted-entry intervals (REIs),
Improve protections for workers during and after
pesticide applications,
Expand the information provided to workers, thus
improving hazard communication protections,
Expand the content of pesticide safety
information displayed, thus improving the display's effectiveness,
Improve the protections for crop advisor
employees,
Increase the amounts of decontamination water
available, thus improving the effectiveness of the decontamination
process,
Improve the emergency response when workers
experience pesticide exposures,
Improve the organization of the WPS, thus
improving employers' ability to understand and comply with the
provisions,
Clarify the coverage of the WPS to those
employed and receiving a salary or wage to ensure protection for
occupational pesticide workers,
Protect children by establishing a minimum age
for handlers and for workers who enter a treated area during an REI
while maintaining an exemption to the minimum age requirement for
children working on the establishment of an immediately family member,
and
Improve flexibility for small farmers and
members of their immediate family by expanding the definition of
immediate family members to be more inclusive and retaining the
exemptions from almost all WPS requirements for owners and their
immediate family members.
C. What is the Agency's authority for taking this action?
This action is issued under the authority of sections 2 through 35
of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7
U.S.C. 136-136y, and particularly section 25(a), 7 U.S.C. 136w(a).
D. Related Rulemaking
EPA is also considering a proposed rule to amend 40 CFR part 171,
titled ``Certification of Pesticide Applicators.'' Since parts 170 and
171, along with other components of the pesticide program, work
together to reduce and prevent unreasonable adverse effects to
pesticides, EPA may use any comments received on the proposed
amendments to part 171 when formulating a final rule to amend the
current WPS at part 170.
E. Benefits of the Proposal
The proposed changes to the current WPS requirements are expected
to lead to an overall reduction in incidents of unsafe pesticide
exposure and to improve the occupational health of the nation's
agricultural workers and pesticide handlers. This section provides an
overview of the qualitative benefits of the proposal and the estimated
benefits that would accrue from avoiding acute pesticide exposure in
the population protected by the WPS. It also provides an estimate of
the number of chronic illnesses with a plausible association with
pesticide exposure that would have to be prevented by the proposed
changes in order for the total estimated benefits to meet the estimated
cost of the proposal.
A sizeable portion of the agricultural workforce may be exposed
occupationally to pesticides and pesticide residues. These exposures
can pose significant long- and short-term health risks. It is difficult
to quantify a specific level of risk and project the risk reduction
that would result from this proposal because workers and handlers are
potentially exposed to a wide range of pesticides with varying
toxicities and risks. However, there is strong evidence that workers
and handlers may be exposed to pesticides at levels that can cause
adverse effects and that both the exposures and the risks can be
substantially reduced. EPA believes the provisions in the proposed rule
would reduce pesticide exposures and the associated risks.
The estimated quantified benefits from reducing acute worker and
handler exposure to pesticides total about $11.4 million annually (Ref.
1). This conservative estimate includes only the avoided costs in
medical care and lost productivity to workers and handlers and assumes
that just 25% of acute
[[Page 15447]]
pesticide incidents are reported. It does not include quantification of
the reduction in chronic effects of pesticide exposure to workers and
handlers, reduced effects of exposure including developmental impacts,
to children and pregnant workers and handlers or willingness to pay to
avoid symptoms of pesticide exposure. Because the chronic effects of
pesticide exposures are seldom attributable to a specific cause, and
thus are unlikely to be recorded in pesticide poisoning databases, EPA
is not able to quantify the benefits expected to accrue from proposed
WPS changes that would reduce chronic exposure to pesticides. However,
associations between pesticide exposure and certain cancer and non-
cancer chronic health effects are well documented in the peer-reviewed
literature, and reducing these chronic health effects is an important
FIFRA goal.
Even if the lack of quantitative data impairs the reliability of
estimates of the total number of chronic illnesses avoided, it is
reasonable to expect that the proposed changes to the WPS will reduce
the incidence of chronic disease resulting from pesticide exposure.
Therefore, EPA conducted a ``break even'' analysis to consider the
plausibility of the proposed changes to the WPS reducing the incidence
of chronic disease enough to cause the net benefits of the proposed
rule to exceed its anticipated costs. Under this analysis, EPA looked
at the costs associated with non-Hodgkin's lymphoma, prostate cancer,
Parkinson's disease, lung cancer, bronchitis, and asthma and their
frequency among agricultural workers, and found that reducing the
incidence of lung cancer by 0.08% and the incidence of the other
chronic diseases by 0.8% per year (about 53 total cases per year among
the population of workers and handlers protected under the WPS) would
produce quantified benefits sufficient to bridge the gap between the
quantified benefits from reducing acute incidents and the $62.1 million
to $72.9 million cost of the proposed rule. Overall, the weight of
evidence suggests that the proposed requirements would result in long-
term health benefits to agricultural workers and pesticide handlers in
excess of the less than 1% reduction in just six diseases that
corresponds with the break-even point for the proposed rule, not only
by reducing their daily risk of pesticide exposures, but also by
improving quality of life throughout their lives, resulting in a lower
cost of health care and a healthier society.
The proposed changes to the current WPS requirements, specifically
improved training on reducing pesticide residues brought from the
treated area to the home on workers and handlers' clothing and bodies
and establishing a minimum age for handlers and early entry workers,
other than those covered by the immediate family exemption, mitigate
the potential for children to be exposed to pesticides directly and
indirectly. The unquantified benefit to adolescent workers and
handlers, as well as children of workers and handlers is great;
reducing exposure to pesticides could translate into fewer sick days,
fewer days missed of school, improved capacity to learn, and better
long-term health. Parents and caregivers reap benefits by having
healthier families, fewer missed workdays, and better quality of life.
By proposing several interrelated exposure-reduction measures, the
revised rule is expected to mitigate approximately 56% of reported
acute WPS-related pesticide incidents. EPA believes the proposed rule
would substantially mitigate for these workers and handlers the
potential for adverse health effects (acute and chronic) from
occupational exposures to such pesticides and their residues. These
measures include requirements intended to reduce exposure by:
Ensuring that workers and handlers are informed
about the hazards of pesticides--the proposed rule changes the content
and frequency of required pesticide safety training, as well as
proposing changes to ensure that the pesticide safety training is more
effective.
Reducing exposure to pesticides--among other
things, the proposed rule changes and clarifies the requirements for
personal protective equipment. It also makes changes to the timing of
applications when people are nearby. These and other provisions should
directly reduce exposure in the agricultural workforce.
Mitigating the effects from exposures that
occur--some accidental exposures are inevitable. EPA expects the
proposed rule to mitigate the severity of health impacts by updating
and clarifying what is required to respond to exposures.
Further detail on the benefits of this proposal is provided in the
document titled ``Economic Analysis of Proposed Revisions to the Worker
Protection Standard'' which is available in the docket for this
rulemaking (Ref. 1). The following briefly highlights the anticipated
benefits:
1. Reduce incidents of exposure and illness through:
a. Expanded and more frequent training for workers and handlers.
EPA's current requirement for training workers and handlers fails to
address or to highlight the importance of some self-protective
practices, such as reducing pesticide exposure to workers, handlers,
and their families by avoiding bringing pesticide residues home on
clothing, shoes, or skin. The existing regulation requires employers to
provide training every 5 years. The proposed rule, if finalized, would
expand the content of the training, increase the frequency of training
to every year, and set higher standards for trainers. Providing workers
and handlers with information on reducing pesticide exposure in a
manner they understand, e.g., in a language they speak and at an
appropriate education level, and at intervals more likely to result in
retention of the information, would benefit workers and handlers. Thus,
EPA believes the proposed rule would reduce overall pesticide exposure
among workers, handlers, and their families.
b. Improved posting of pesticide-treated areas. The current WPS
allows growers to provide either an oral or posted warning to workers
about which areas have been treated with a pesticide and are under an
REI unless the pesticide label requires both an oral and posted
warning. Many of the occupational pesticide illnesses reported to state
health agencies have occurred when workers entered a treated area
before the REI expired. The proposed regulation would require posting
of all treated areas with an REI of greater than 48 hours, providing a
visual reminder to workers not to enter the specific pesticide-treated
area without proper protection.
c. Additional information before entering a pesticide-treated area
under an REI. As mentioned above, many incidents of pesticide exposure
among workers result from entering an area while an REI is in effect.
The proposed rule would require that worker training include
information about the limited circumstances in which workers may enter
a treated area under an REI, the hazards workers may face, and that the
employer must provide the proper PPE. Employers would also have to
inform workers entering a treated area under an REI about the
conditions under which they enter the treated area and the maximum time
they are permitted to stay in the treated area. Providing workers with
general information about working in a treated area under an REI as
well as with specific information about the circumstances of each
instance should make them aware of the elevated risks and the steps
necessary to protect themselves.
[[Page 15448]]
d. Access to more information about chemical hazards in the
workplace. The current WPS requires the employer to maintain records of
what pesticides have been used or have had an REI in effect on the
establishment in the last 30 days. The employer must provide the name
of the pesticide, EPA registration number, and other general
information at a central location on the establishment. The proposed
rule would require employers to maintain a copy of pesticide labeling,
the application records, and the Safety Data Sheet (SDS, formerly known
as Material Safety Data Sheet, or MSDS), as well as the information
currently required under the WPS, for 2 years after the product was
applied on the establishment. The employer would be required to provide
this information upon request and to ensure that health care providers
treating a worker or handler who was exposed on the establishment
receive a copy of this information. The more specific information
required, longer retention period, and provision to provide additional
information to health care providers should assist the health care
provider in determining the specific types of pesticides to which a
worker or handler may have been exposed and in more effectively
treating the injured person.
e. Strengthened requirements for handlers during applications. The
risk of illness resulting from exposure to pesticides through drift is
largely borne by agricultural workers. A recent study estimates that
37% to 68% of acute pesticide-related illnesses in agricultural workers
are caused by spray drift (Ref. 2). The proposed rule would require
handlers to immediately stop an application if, during the application,
anyone other than a properly equipped handler enters the entry-
restricted area or the area treated with pesticides. This, together
with the proposal to create entry-restricted areas around the treated
area for farms, forests and nurseries, is expected to result in reduced
incidents of worker exposure through unintentional contact during
application or through drift.
2. Strengthen protection for children through:
a. Implementing a minimum age of 16 for handlers and early-entry
workers. The current WPS does not have a minimum age for handlers or
early-entry workers. These tasks involve contact with concentrated
forms of pesticides, applying pesticides, or entering pesticide-treated
areas before the REI has expired. Children may be more susceptible to
the effects of pesticide exposure because their systems are developing,
and research shows that adolescents have not fully developed informed
decisionmaking skills. The Fair Labor Standards Act (FLSA) establishes
a minimum age of 16 for youth engaged in occupations deemed hazardous
by the Secretary of Labor (29 U.S.C. 213(c)(2)). This includes persons
handling toxicity category I and II pesticides in agriculture 29 CFR
570.71(a)(9). The FLSA prohibits youth under the age of 16 engaged in
nonagricultural employment from any work involving pesticides.
Implementing a requirement for handlers and early-entry workers to be
at least 16 years old would ensure that all persons handling
pesticides, regardless of the toxicity level, are protected, thereby
reducing their overall risk of pesticide exposure and illness. Persons
under the age of 16 working on the establishment owned by an immediate
family member would be exempt from the proposed minimum age
requirements.
b. Improving training for workers and handlers on reducing take-
home pesticide exposure. The current WPS training does not provide
specific information on how workers and handlers can minimize the
possibility for transferring pesticide residues from their clothing,
bodies, and shoes to their homes, vehicles, and family members.
Although studies documenting the effects of take-home pesticide
exposure are not conclusive, EPA has a reasonable concern about the
potential for unreasonable adverse effects caused by exposure to
workers, handlers, and their families. The proposed modest addition to
training would educate workers and handlers on how to protect
themselves and their families from take-home pesticide exposure.
3. Reduce some burdens on growers by:
a. Eliminating duplicative respirator requirements. Agricultural
worker and handler employers may also be subject to regulations issued
by other federal agencies, such as the Occupational Safety and Health
Administration (OSHA). The current WPS standard for proper use and
maintenance of a respirator differs from the standard established by
OSHA. The proposed rule harmonizes the requirements for agricultural
employers that may be required to provide a respirator for their
employees using pesticides under the WPS with those issued by OSHA for
respirator use in agriculture beyond pesticide use in order to reduce
the burden on employers to comply with two separate standards.
b. Providing a national mechanism to verify worker and handler
training. Under the current WPS employers may be uncertain about what
measures they must take to verify whether a worker or handler has
already received the required pesticide safety training on another
establishment. EPA administers a voluntary training verification
system, but it is not used nation-wide or consistently. As a result,
many employers provide pesticide safety training to all new employees.
The proposed revisions include a provision for the employer to provide
the worker or handler with a copy of the record of the training,
including worker or handler name, employer, trainer name, and date of
training. Workers and handlers can provide this record to their next
employer as proof of valid training and for the new employer to
maintain a copy in his or her records. EPA believes a reliable training
verification system will reduce overall burden on agricultural and
handler employers.
c. Streamlining notification requirements between handler employers
and agricultural establishment employers. Under the current WPS,
handler employers are required to notify the owner of the agricultural
establishment about the start and end time of applications, as well as
changes to the application start time and end time or application
duration, before the application begins. The proposed changes would
require handlers or their employers to provide changes to pesticide
application plans to the agricultural employer within 2 hours of the
end of the application rather than before the application. Changes to
the estimated application end time of less than one hour would not
require notification.
d. Improving clarity of the regulation. The Agency proposes to
revise and reorganize the WPS to enhance the ability of employers to
understand their responsibilities under the regulation, which could
lead to increased compliance with the rule. The proposed rule, if
finalized, would reorganize the rule into four sections: (1) General
requirements, (2) responsibilities of agricultural employers, (3)
responsibilities of handler employers, and (4) exceptions. Employers'
greater understanding and compliance with the WPS would ensure that
workers and handlers are provided with the information and equipment
they need to protect themselves. In turn, this should contribute to
reduced incidents of unreasonable adverse effects from pesticide
exposure.
F. Request for Comments
The Agency invites the public to provide its views and suggestions
for changes on all of the proposals in this
[[Page 15449]]
document. Specifically, the Agency requests the public to consider and
provide input on the following when providing comments:
The need for, value of, and any alternatives to the
requirements described in this document.
The studies and scientific articles used as the basis of
this proposed rule.
The clarity of the proposed revisions.
The ability to effectively enforce the proposed
regulation.
The economic analysis of the proposed rule, including its
underlying assumptions, economic data, high- and low-cost options and
alternatives, and benefits.
Additionally, in other parts of this proposed rule, EPA is
specifically requesting comments on certain issues. EPA welcomes
comments on these topics of particular interest to the Agency.
Commenters are encouraged to present any data or information that
should be considered by EPA during the development of the final rule.
Describe any assumptions and provide any technical information and data
used in preparing your comments. Explain evaluations or estimates in
sufficient detail to allow for them to be reproduced for validation.
Commenters are reminded that the submission of data derived from human
research should include information concerning the ethical conduct of
such research, in compliance with the requirements at 40 CFR 26.1303.
G. Reasons for The Proposed Action
The WPS is more than 20 years old and EPA believes it can be
improved. Since the late 1990s, EPA has engaged a wide range of
stakeholders to evaluate the effectiveness of the WPS and to determine
if improvements are necessary. EPA met with groups including, but not
limited to, farmworker organizations, health care providers, state
regulators, pesticide manufacturers, farmers, organizations
representing agricultural commodity producers, and crop advisors.
Through public meetings and federal advisory committees, and as
individuals and small groups, a broad spectrum of stakeholders provided
recommendations to EPA. Many of the proposed changes address their
recommendations and concerns.
EPA has also reviewed available information about occupational
pesticide exposure in agriculture. The Agency's review of these reports
indicates that many incidents might have been avoided if workers and
handlers had better training, were better notified of treated areas,
and used PPE properly when required. For example, workers became ill
after entering a treated area before the REI expired or without wearing
the proper equipment, and through drift from a nearby pesticide
application. EPA believes these types of incidents could be
significantly reduced by enhancing the training for workers and
handlers and strengthening provisions of the regulation designed to
keep workers and handlers out of pesticide-treated areas unless they
have the proper information and PPE.
The great majority of agricultural workers and handlers are
disadvantaged. The National Agricultural Worker Survey (NAWS) data
indicate the median family income range was $12,500-$14,999, many do
not speak English and are not literate in their native language, and
workers face challenges accessing health care and housing (Ref. 3).
Workers and handlers experience risks from occupational pesticide
exposure that are greater than those faced by the general population
because workers and handlers work with and around pesticides on a daily
basis, and language and literacy barriers make effective hazard
communication a challenge. EPA is paying special attention to the
disproportionate burden or risk carried by this disadvantaged
community. The proposed rule as a whole addresses many worker safety
concerns; throughout this document the environmental justice concerns
relative to specific changes will be highlighted.
In conjunction with various non-regulatory programs, the WPS
requirements are intended, among other things, to reduce the risks of
illness or injury to workers and handlers resulting from occupational
exposure to pesticides on agricultural establishments. Broadly
speaking, the WPS provisions are meant to (1) inform workers and
handlers about the hazards and risks from pesticides they use or to
which they come into contact in the workplace, (2) protect workers and
handlers from occupational exposure to pesticides and the potential
adverse effects of pesticides, and (3) mitigate the potential adverse
effects of unavoidable pesticide exposure, including accidents. Within
these categories, EPA evaluated the costs and benefits of alternative
requirements and is proposing a set of requirements that, in
combination, is expected to achieve substantial benefits at minimum
cost.
The overall costs of the proposal range from $62.1 to $72.9 million
annually. These costs would be borne almost entirely by agricultural
establishments, those who employ workers and handlers and use
pesticides. Although the cost per establishment will vary by the number
and type of employees, EPA estimates that the annual cost to large
establishments would be $340 to $400 per year. Small establishments
would incur a lower cost of $130 to $150 per year, which amounts to
less than 0.1 percent of their annual revenue. Presented differently,
the additional cost of employing a worker is estimated at less than $5
per year and the additional cost of employing a handler is estimated at
about $60 per year. EPA does not believe the cost of the regulation
will have a negative impact on employment.
The proposal, if finalized, would reduce the disproportionate risks
associated with occupational pesticide exposure that currently fall on
workers, handlers, and their families. Agricultural and handler
employers are the group responsible for, and that benefit from,
pesticide application on their establishments. Therefore, EPA believes
it is appropriate for these employers to bear the cost of the
protections for their employees, rather than to impose the costs on
workers and handlers themselves. Through the WPS and these proposals,
EPA seeks to have those responsible for making pesticide use decisions
and applying pesticides internalize the effects of their decisions.
This would minimize the externalities, i.e., undesirable or unintended
consequences of decisions that result in negative consequences for
other parties, to workers and handlers.
The benefits of the proposed rule primarily accrue to workers,
handlers and, indirectly, to their families. EPA estimates the
quantitative value of avoided acute incidents as a result of the
proposed rule to be between $1.2 million to $2.8 million annually (Ref.
1). However, EPA recognizes that this estimate is biased downward by an
unknown degree. First, pesticide incidents, like many illnesses and
accidents, are underreported because sufferers may not seek medical
care, cases may not be correctly diagnosed, and correctly diagnosed
cases may not be filed with the central reporting database. Also, many
symptoms of pesticide poisoning, such as a fatigue, nausea, rash,
dizziness, and diarrhea, may be confused with other illnesses and may
not be reported by the workers as related to their occupational
exposure. Studies estimate that underreporting of pesticide exposure by
workers and handlers ranges from 20 to 90 percent. Adjusting the
estimate based on a reasonable assumption that only 25% of acute
incidents are reported
[[Page 15450]]
brings the estimated benefits from reducing acute pesticide incidents
to $11.4 million annually (Ref. 1).
Second, EPA's approach to estimating the quantitative benefits of
the proposal only measures avoided medical costs and lost wages, not
the willingness to pay to avoid possible symptoms due to pesticide
exposure, which could be substantially higher. It also does not take
into account the disenfranchised nature of this population and the
relative impact that lost work time would have on their incomes and
family health. An increase in protections across the entire worker
population would be more beneficial and likely to effect positive
change than requiring individuals to value and pay for their own
increase in safety. Workers and handlers may not be able to pay for the
improvements to their own safety, necessitating intervention by the
government to ensure these populations are adequately protected.
Well-documented associations between pesticide exposure and certain
cancer and non-cancer chronic health effects exist in peer-reviewed
literature; however, the wide range of employment histories and
pesticide exposures characteristic of the agricultural workforce
generally prevents reliable estimates of the full impact of chronic
pesticide exposure. In order to account for the reduction in chronic
diseases expected as a result of the proposed WPS changes, OPP used a
``break-even'' analysis. Based on a literature review, EPA evaluated
the costs associated with six chronic illnesses that have well-
documented association with agricultural pesticide exposure: non-
Hodgkin's lymphoma, prostate cancer, Parkinson's disease, lung cancer,
bronchitis, and asthma. Owing to the high costs associated with these
chronic illnesses, improvements to the WPS that could reduce the
frequency of these illnesses among workers and handlers by less than 1%
(53 total cases per year) would result in sufficient benefits to bridge
the gap between the estimated costs of the revisions and the
anticipated benefits associated with reducing acute pesticide
exposures. For the reasons identified below, it is reasonable to expect
that the proposed changes to the WPS will reduce chronic pesticide
exposures enough to reduce the frequency of chronic illnesses by at
least 0.08% for lung cancer and at least 0.8% for the other illnesses
considered.
EPA believes the qualitative benefits of the proposed rule are
substantial. The proposals for more frequent, expanded training, better
identification of treated areas, strengthened requirements for PPE, and
clarifying the responses and information required in the event of an
emergency exposure all provide workers and handlers with more
information and a better ability to protect themselves from risks
associated with pesticide exposure. The proposals complement each other
and the resulting benefits are derived from implementation of the whole
package. Overall, the weight of evidence suggests that the proposed
requirements will result in both short- and long-term health benefits
to agricultural workers and pesticide handlers.
In addition, many of the proposed changes to current WPS
requirements would specifically mitigate risks to children. The
proposal would implement a minimum age of 16 for most handlers and
early-entry workers; the minimum age would not apply to handlers and
early-entry workers on an establishment owned by an immediate family
member. EPA believes that these two tasks present a higher risk of
exposure than do the general tasks assigned to a worker. Since
children's bodies are still developing, they may be more susceptible to
these elevated risks and therefore would benefit from strengthened
protections. In addition, the proposal seeks through additional
training to reduce the potential for workers to transport pesticide
residues home to their families. Although studies are inconclusive
about the effects of pesticides transferred from the treated area to
the home, EPA believes that providing additional general information to
workers and handlers about steps that may mitigate any potential risk
would be prudent. Thus, the proposed changes are expected to reduce
children's exposure to pesticides.
In the almost two decades since the 1992 WPS was implemented, EPA
has learned from the Pesticide Program Dialogue Committee, National
Assessment of the Pesticide Worker Safety Program process, meetings
with state regulators, and other stakeholder interaction, that the 1992
rule needs improvements. EPA believes that the data available to the
Agency supports this conclusion. The proposed rule reflects the
Agency's commitment to pay particular attention to the health of
children and environmental justice concerns. The proposal also aligns
with the President's January 18, 2011 Executive Order 13563 (76 FR
3821), requesting that agencies review existing regulations to improve
the efficacy of their protection, to balance costs and benefits, and to
maximize their efficiency.
In proposing this revision, the Agency is mindful of the effects on
small business, family farms, and other affected parties. The Agency
has attempted to keep the costs to the regulated community as low as
practicable, so that they are reasonably balanced against the
anticipated risk reduction benefits of the measures proposed below.
H. Summary of Proposed Changes
EPA proposes to revise the WPS by:
Amending the existing pesticide safety training content,
retraining interval (frequency), and qualifications of trainers,
Ensuring workers receive safety information before
entering any pesticide treated area by amending the existing ``grace
period'' and expanding the training required during the ``grace
period,''
Establishing a minimum age of 16 for handlers and for
workers who enter an area under an REI,
Establishing requirements for specific training and
notification for workers who enter an area under an REI,
Restricting persons' entry into areas adjacent to a
treated area during an application,
Enhancing the requirement for employers to post warning
signs around treated areas,
Modifying the content of the warning sign,
Adding information employers must keep under the
requirement to maintain application-specific information,
Requiring recordkeeping for pesticide safety training and
worker entry into areas under an REI,
Ensuring the immediate family exemption includes an
exemption from the proposed minimum age requirements for handlers and
early-entry workers,
Expanding the definition of ``immediate family'' to allow
more family-owned operations to qualify for the exemptions to the WPS
requirements,
Revising definitions to improve clarity and to refine
terms, and
Restructuring the regulation to make it easier to read and
understand.
III. Statutory Authority and Framework
This unit discusses the legal framework within which EPA regulates
the safety of those who work with and around pesticides in agriculture.
A. FIFRA
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of
1947 established a framework for the regulation of pesticide products.
Major amendments in 1972 by the Federal
[[Page 15451]]
Environmental Pesticide Control Act (7 U.S.C. 136 et. seq.) broadened
federal pesticide regulatory authority to make it ``unlawful for any
person to use any registered product in a manner inconsistent with its
labeling'' (7 U.S.C. 136i (a)(2)(G)). The 1972 amendments provided
civil and criminal penalties for violations of the Act (7 U.S.C. 136l)
and authorized the Administrator to provide regulations to carry out
the Act (7 U.S.C. 136w (a)). The new and revised provisions directed
EPA to protect humans and the environment from unreasonable adverse
effects of pesticides.
The legislative history of the 1972 amendments to FIFRA reflects
the clear intent of Congress that farmers and agricultural workers were
among those intended to be afforded protection under FIFRA. In
discussing the 1972 amendments, the Senate Committee on Agriculture
noted its intent of FIFRA to protect farmworkers and others from
contacting pesticides or their residues. (Ref. 4)
EPA has implemented many protections for workers through use
instructions on pesticide labeling, which have been legally binding on
pesticide users since the 1972 amendments. See FIFRA section
12(a)(2)(G), which makes it unlawful ``to use any registered pesticide
in a manner inconsistent with its labeling''. In order to expand these
protective measures without making individual product labeling
inordinately complex, the Agency decided to consolidate common
requirements in a single, uniform standard that could be incorporated
into agricultural pesticide labels by reference, the Worker Protection
Standard (WPS). In 1992, the Agency issued the WPS, which, where
mandated on a pesticide label, provides a uniform system of protections
to workers and handlers on farms, forests, nurseries, and greenhouses
from occupational exposure to the pesticide product. The WPS
establishes uniform requirements for practices that minimize exposure,
regardless of the risks of specific pesticides, and the individual
pesticide product labeling provides the specific requirements
appropriate to each pesticide product. The WPS sets basic requirements
for notification of a treated area, limited entry into a treated area,
supplies related to decontamination and maintenance of PPE, and access
to information about pesticides used on the agricultural establishment.
It also requires that workers and handlers receive basic safety
training to inform them about ways to minimize their exposure and risk.
B. EPA Regulation of Pesticides
In order to protect human health and the environment from
unreasonable adverse effects that might be caused by pesticides, the
Agency has developed and implemented a rigorous process for registering
and re-evaluating pesticides. The registration process begins when a
manufacturer submits an application to register a pesticide. The
application must contain required test data, including information on
the pesticide's chemistry, environmental fate, toxicity to humans and
wildlife, and potential for human exposure. The Agency also requires a
copy of the proposed labeling, including directions for use, and
appropriate warnings.
Once an application for registration of a new pesticide product is
received, EPA conducts an evaluation, which includes a detailed review
of scientific data to determine the potential impact on human health
and the environment. The Agency considers the risk assessments and
results of any peer review and evaluates potential risk management
measures that could mitigate risks above the Agency's level of concern.
Risk management measures could include, among other things, extending
the restricted-entry interval (REI), the period during which people are
prohibited from entering the treated area, to allow the pesticide
residues to reach an acceptable level before worker reentry is
permitted. They could also require certain engineering controls, such
as use of closed mixing systems to reduce potential exposure to those
who mix and load pesticides, or specific PPE, such as respirators, to
protect users against risks associated with inhalation of the product.
In the decision-making process, EPA evaluates the application to
determine whether the proposed use(s) meets the Agency's standards for
registration. FIFRA is a risk-benefit statute. In evaluating the impact
of a pesticide on occupational health and safety, EPA weighs the risks
associated with use of the pesticide (occupational, environmental) and
the benefits associated with use of the pesticide (economic, public
health, environmental). FIFRA does not require EPA to balance the risks
and benefits for each audience. For example, a product may pose risks
to workers, but risks may nevertheless be reasonable in comparison to
the economic benefit of continued use of the product to society at
large.
If the application does not contain enough evidence to prove that
the pesticide meets all of these standards, EPA communicates to the
applicant the need for more or better refined data, labeling
modifications, or additional use restrictions. Once the applicant has
demonstrated that a proposed product meets the statutory standards,
and, if the pesticide is intended to be used on food, a tolerance or
exemption from the requirement of a tolerance under the Federal Food,
Drug, and Cosmetic Act can be established, EPA will approve the
registration, subject to any risk mitigation measures necessary to
achieve that approval. EPA devotes significant resources to the
regulation of pesticides to ensure that each pesticide product meets
the FIFRA requirement that pesticides not cause unreasonable adverse
effects to the public and the environment.
When EPA approves a pesticide, the label reflects the risk
mitigation measures required by the Agency. Since users must comply
with the directions for use and use restrictions on a product's
labeling, EPA uses the labeling to establish and convey mandatory
requirements for how the pesticide must be used to protect people and
the environment from pesticide exposure. As discussed in Unit III.A.,
above, the labeling for agricultural pesticides requires compliance
with the WPS, in order that workers, handlers, and their employers have
a single, uniform set of specific requirements for the protection of
workers and handlers that complement the product-specific labeling
requirements.
C. EPA's Pesticide Reregistration and Registration Review Programs
FIFRA requires EPA to review periodically the registration of
pesticides currently registered in the U.S. The 1988 FIFRA amendments
required EPA to establish a pesticide reregistration program.
Reregistration was a one-time comprehensive review of the human health
and environmental effects of pesticides first registered before
November 1, 1984 to make decisions about these pesticides' future use.
The Food Quality Protection Act of 1996 required that EPA establish,
through rule making, an ongoing ``registration review'' process of all
pesticides at least every 15 years. The final rule establishing the
registration review program was signed and published in August 2006.
The purpose of both re-evaluation programs is to review all pesticides
registered in the U.S. to ensure that they continue to meet current
safety standards based on up-to-date scientific approaches and data.
Pesticides reviewed under the reregistration program that met
current scientific and safety standards were
[[Page 15452]]
declared ``eligible'' for reregistration. The results of EPA's reviews
are summarized in Reregistration Eligibility Decision (RED) documents.
The last RED was completed in 2008. Often before a pesticide could be
determined ``eligible,'' certain risk reduction measures had to be put
in place. For a number of pesticides, measures intended to reduce
exposure to handlers and workers were needed and are reflected on
pesticide labeling. To address occupational risk concerns, REDs include
mitigation measures such as voluntary cancellation; limiting the
amount, frequency or timing of applications; other application
restrictions; classification of a product or specific use as a
``Restricted Use Pesticide'' (RUP); PPE; specific REIs; user safety
requirements; and improved use directions.
Rigorous education and enforcement are needed to ensure that these
mitigation measures are appropriately implemented in the field. The
framework provided by the WPS is critical for ensuring that the
improvements brought about by reregistration, including worker risk
mitigation measures, are realized. The rule changes being proposed in
this notice are designed to enhance the effectiveness of the existing
structure.
In summary, EPA's pesticide reregistration and registration reviews
assess the specific risks associated with particular chemicals and
ensure that the public and environment do not suffer unreasonable
adverse effects from the risks. EPA implements the risk reduction and
mitigation measures that result from the pesticide reregistration and
registration review programs through individual pesticide product
labeling.
D. Existing Worker Protection Standard
The WPS currently covers pesticide use at establishments engaged in
the production of agricultural commodities: Farms, forests, nurseries,
and greenhouses. The WPS does not cover persons working directly with
livestock. WPS regulations are directed toward the working conditions
of two types of employees: Workers and handlers.
Workers perform tasks related to the cultivation and
harvesting of agricultural products on agricultural establishments.
Typical tasks include thinning, pruning, and harvesting commodities.
Handlers mix, load, and apply pesticides, and do other
activities linked to pesticide application on agricultural
establishments.
The WPS defines general protections that cover all workers or
handlers employed on an establishment that uses a pesticide that
references the WPS on the label and complements the specific risk
mitigation measures implemented through individual pesticide product
labeling. The existing WPS requires agricultural employers to provide
certain protections to their employees. Agricultural employers are
required to notify workers of areas treated with pesticides so workers
may avoid inadvertent exposures. Employers also must provide to all
workers that may enter a treated area pesticide safety training that
covers common routes of exposure, how to protect oneself from pesticide
exposure, information on decontamination, and what to do in an
emergency. Handlers receive more detailed training on using PPE,
conducting pesticide application, and following safety principles. A
central location on the establishment must have a pesticide safety
poster and information on recent pesticide applications. Handlers and
workers must be informed of specific requirements on the pesticide
label related to the WPS.
The labeling of agricultural pesticides generally specifies REIs (a
time during which entry into a treated area is strictly limited) for
areas treated with pesticides. The existing WPS regulation provides
detailed requirements regarding identifying areas under an REI and
notifying workers about them, excluding workers and others from the
treated areas, and the limited circumstances under which early entry
may occur. The WPS provides detailed information concerning the types
of PPE necessary for handlers and early-entry workers, if not specified
on the label, and instruction that employers must provide to workers
entering under an REI exception. The existing WPS also prohibits
applicators from applying a pesticide in a way that will expose workers
or other persons and excludes workers from areas while pesticides are
being applied. These general requirements serve as a counterpart to the
product-specific risk reduction measures implemented through the
pesticide label.
The WPS also mitigates the risks associated with pesticide exposure
by requiring agricultural employers to provide workers and handlers
with water, soap, and towels for routine washing after working in or
around areas where pesticides have been applied. There are also
provisions for decontamination in the event of an emergency. The
employer must provide transportation to a medical care facility for a
worker or handler who may have been poisoned or injured, and provide
information to the worker, handler, or medical personnel about the
pesticide to which the person may have exposed.
A detailed history of the development of the 1992 WPS and the
process leading to the proposed rule appears in Unit V.
IV. Overview of EPA's Protection of Pesticide Workers
A. Demographics of Agricultural Workers and Handlers
The task of protecting workers and handlers from occupational
exposure to pesticides presents a challenge, given the complexity of
the science issues involving pesticide use, variability of pesticide
use patterns, and the diversity of the labor population being served
and the tasks they perform.
According to information published by the Department of Labor's
(DOL) NAWS in 2001-2002, 75% of agricultural workers in the United
States were born in Mexico and 2% in Central America (Ref. 3 p. 3). A
majority (81%) of this group speaks Spanish as a native language, but a
growing percentage speaks languages such as Creole, Mixteco, and
indigenous languages (Ref. 3 p. 17). Approximately 44% could not speak
English at all, and 53% could not read any English (Ref. 3 p. 21). Many
have received minimal formal education; the foreign born workers, on
average, completed no more than a sixth grade education (Ref. 3 p. 18).
Approximately 43% of the survey respondents were classified as
migrant, having traveled at least 75 miles in the previous year to find
a job in agriculture (Ref. 3 p. 7). Over 20% of respondents lived in
housing provided by their employer and 58% rented housing from someone
other than their employer (Ref. 3 p. 43). In general, agricultural
workers surveyed by NAWS do not use health care facilities. Estimates
of agricultural workers lacking health insurance range from 77% to 85%
and estimates from the late 1990s indicate only 20% of those surveyed
had visited a health care facility in the preceding 2 years (Ref. 5 pp.
12-13). U.S. Department of Agriculture (USDA) research, based on NAWS
data, also reports that workers have difficulty entering the health
care system to receive treatment. Cost was a significant barrier for
two-thirds of farmworkers, while about a third listed language barriers
as an impediment to receiving care. The problem is more severe among
undocumented workers because they fear seeking treatment will lead to
deportation or other adverse legal action (Ref. 6).
USDA issued a report indicating that the factors mentioned above
contribute
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to the disadvantaged status of hired workers in agriculture (Ref. 6).
Unemployment rates, counting both crop and livestock workers (livestock
workers are outside the scope of the WPS), are twice that of all salary
and wage workers. The NAWS found crop workers' average annual income
was between $10,000 and $12,499, with total family income averaging
between $15,000 and $17,499 (Ref. 3 p. 47).
B. Incident Data Sources and General Information
Incident monitoring programs have provided the Agency with a better
understanding of common types of pesticide exposures and their
outcomes. In 2007, EPA released a report detailing the coverage of all
pesticide exposure incident reporting databases considered by the
Agency (Ref. 7). EPA consults two major databases for information on
occupational pesticide exposure incidents.
The first database, the Sentinel Event Notification System for
Occupational Risk (SENSOR), is maintained by the Centers for Disease
Control and Prevention (CDC)/National Institute for Occupational Safety
and Health (NIOSH). SENSOR covers all occupational injuries and has a
specific component for pesticides (SENSOR-Pesticides). EPA uses SENSOR-
Pesticides to monitor trends in occupational health related to acute
exposures to pesticides, to identify emerging pesticide problems, and
to build and maintain state surveillance capacity. SENSOR-Pesticides is
a state-based surveillance system with eleven state participants. The
program collects most poisoning incident cases from:
Department of Labor workers' compensation claims
when reported by physicians,
State Departments of Agriculture, and
Poison control centers.
A state SENSOR-Pesticides contact specialist follows up with
workers and obtains medical records to verify symptoms, circumstances
surrounding the exposure, severity, and outcome. Using a standardized
protocol and case definitions derived from poison center reporting,
SENSOR-Pesticides coordinators enter the incident interview description
provided by the worker, medical report, and physician into the SENSOR
data system. EPA believes that SENSOR-Pesticides provides the most
comprehensive information on occupational pesticide exposure, but
coverage is not nationwide and a majority of the data comes from
California and Washington State.
The American Association of Poison Control Centers maintains the
National Poison Data System (NPDS), formerly the Toxic Effects
Surveillance System (TESS). NPDS is a computerized information system
with geographically specific and near real-time reporting. While the
main mission of Poison Control Centers (PCC) is helping callers respond
to emergencies, not collecting specific information about incidents,
NPDS data help identify emerging problems in chemical product safety.
Hotlines at 61 PCCs nationwide are open 24 hours every day of the year.
There are many bilingual PCCs in predominantly Spanish speaking areas.
Hotlines are staffed by toxicology specialists to provide poisoning
information and clinical care recommendations to callers with a focus
on triage to give patients appropriate care. Using computer assisted
data entry, standardized protocols, and strict data entry criteria,
local callers report incidents that are retained locally and updated in
summary form to the national database. Since 2000, nearly all calls in
the system are submitted in a computer-assisted interview format by the
61 certified PCCs, adhering to clinical criteria designed to provide a
consistent approach to evaluating and managing pesticide and drug
related adverse incidents. Information calls are tallied separately and
not counted as incidents. The NPDS system covers nearly the entire
United States and its territories, but the system is clinically
oriented and not designed to collect detailed occupational incident
data.
Three studies showing undercounting of poison control data indicate
the magnitude of the problem. The studies each focus on a specific
region and compare cases reported to poison control with those
poisonings for which there are hospital records. In all three cases,
the studies indicate a substantial underreporting of poisoning
incidents to poison control, especially related to pesticides (Ref. 8)
(Ref. 9) (Ref. 10). Underreporting of pesticide incidents is a
challenge for all available data sources for a number of reasons, as
discussed below.
Symptoms of acute pesticide poisoning are often vague and mimic
other causes, leading to incorrect diagnoses, and chronic effects are
difficult to identify and track. The demographics of the worker
population also contribute to underreporting of incidents. Many
incident reports lack useful information, such as the exact product
that was the source of the exposure, the amount of pesticide involved,
or the circumstances of the exposure. There may not be enough
information to determine if the adverse effects noted were in fact the
result of pesticide exposure and not another contributing factor. A
more complete discussion of the underreporting and its effect on
pesticide incident reporting is located in the Economic Analysis for
this proposal (Ref. 1).
The data available do provide a snapshot of the illnesses faced by
workers and handlers in the field and the likely avenues of exposure.
Review of these data sources shows that workers and handlers continue
to face avoidable occupational pesticide exposure. The most common
types of incidents are related to pesticide drift and unpermitted entry
into an area under an REI (Ref. 11). Often handler exposure occurs when
handlers are using PPE and do not wear the PPE properly or the PPE
malfunctions. Generally, reports on the data note that many of the
incidents could be prevented with strengthened training for handlers
and workers and improved notification when an application is occurring
or a treated area is under an REI (Ref. 11).
C. Other Worker Protection Programs
EPA's Pesticide Worker Safety Program is comprised of three major
components: protections for agricultural labor through the WPS (40 CFR
part 170), described in Unit III.D.; certification of RUP applicators;
and the National Strategies for Health Care Providers: Pesticides
Initiative (Health Care Providers Initiative). EPA uses its field
programs and cooperative agreements to distribute information on the
risks associated with pesticides, developing technology, and self-
protection to avoid pesticide exposure. All three field programs
solicit feedback from the regulated and affected communities to EPA
about the effect of the pesticide labeling and mitigation measures. To
implement these programs, the Office of Pesticide Programs works with
an extensive network of partners, including state and tribal pesticide
regulatory agencies; USDA's National Institute of Food and Agriculture
(NIFA) (formerly the Cooperative State Research, Education, and
Extension Service (CSREES)); university cooperative extension services;
farmworker groups; and the regulated community. EPA funds collaborative
field projects and activities through grants with governmental and non-
governmental organizations with the goal of improving the health of
workers, handlers, applicators, the public, and the environment.
Under the Certification of Pesticide Applicators rule, 40 CFR 171,
EPA establishes standards for the
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competency of applicators who use RUPs. The rule requires applicators
to demonstrate competency to become certified to apply RUPs. Part 171
also has a section outlining the requirements for states, federal
agencies, and tribes to administer a program to certify applicators in
their jurisdictions. All states and several tribes, territories, and
federal agencies administer their own applicator certification
programs. EPA provides funding through an interagency agreement with
USDA to support the training of applicators using RUPs through the
cooperative extension services in each state.
The third prong of the Pesticide Worker Safety Program is the
Health Care Providers Initiative, aimed at improving the training of
health care providers in the recognition, diagnosis, and treatment of
occupational pesticide poisonings. EPA collaborated in the development
of a manual for health care providers called ``Recognition and
Management of Pesticide Poisonings'' (Ref. 12). This resource outlines
the health effects associated with different classes of pesticides and
suggests treatments based on the suspected exposure.
Under this initiative, EPA also works closely with the Migrant
Clinicians Network, an organization of health care providers serving
the migrant community, on a project to improve pesticide education and
awareness and to train health care providers to recognize and treat
pesticide-related conditions. This project also includes the
development of relevant resources and tools that health care providers
can use to deal effectively with pesticide-related health conditions,
and the distribution of these products through training sessions, the
Internet, and continuing education opportunities.
D. EPA-OSHA Relationship
The Occupational Safety and Health Act, 29 U.S.C. 651 et. seq.,
grants the Occupational Safety and Health Administration (OSHA)
authority to promulgate regulations to mitigate significant risks that
may occur in the occupational setting. Under its statutory authority,
OSHA promulgated a Hazard Communication Standard (HCS) (29 CFR
1910.1200) to protect employees from general chemical hazards in the
workplace. OSHA also establishes industry, chemical, and process-
specific standards to address workplace hazards that warrant additional
regulatory measures to ensure employees' occupational safety and
health.
Except as limited by section 4(b)(1) of the Occupational Safety and
Health Act, which prohibits OSHA from regulating working conditions or
hazards where other federal agencies exercise statutory authority to
prescribe or to enforce standards for occupational safety and health,
OSHA's HCS covers all industries in which an employee may be exposed to
a chemical hazard in the workplace. OSHA based the HCS on employees'
right to know about chemical hazards in the workplace in order to make
informed decisions about their work practices, to better protect
themselves, and to reduce their chances of illness or injury from a
workplace accident. OSHA determined that employees are at a significant
risk of experiencing adverse health effects in the absence of knowledge
of workplace hazards. Among other things, the HCS requires employers to
provide the following protections in the workplace:
Develop, implement, and maintain a written hazard
communication program;
Maintain a written list of all hazardous chemical products
and substances known to be present;
Ensure labeling of all chemical containers;
Provide employees with effective information and training
on chemical hazards; and
Maintain a copy of the safety data sheet (SDS, formerly
known as Material Safety Data sheet, or MSDS) containing the chemical
and physical hazard information for each hazardous chemical, and ensure
that SDSs are readily accessible to employees when they are at the
workplace.
To address the statutory limitation in section 4(b)(1) and to
ensure workplace protections of agricultural workers and handlers, OSHA
and EPA formed a working group to discuss the jurisdictional overlap
between OSHA's authority over workplace safety and health and EPA's
mandate to protect those who work with and around pesticides from the
risks associated with exposure. OSHA and EPA sought to coordinate
regulations related to workplace safety and health and to ensure that
they were within the scope of each agency's statutes. EPA and OSHA
agreed that OSHA's Field Sanitation Standard addresses general sanitary
standards, while EPA's WPS decontamination requirements are specific to
pesticide hazards. EPA stated that the intended reach of the WPS was
limited to occupational safety for pesticides and that OSHA was not
preempted from regulating any non-pesticide chemical or other workplace
hazards in agriculture. OSHA established a policy not to cite employers
covered under the WPS for pesticide-related HCS standards. The policy
also defers to EPA's regulatory authorities for pesticide labeling and
use, certification of pesticide applicators, and protection of handlers
and workers on establishments covered by the WPS (Ref. 13).
V. Sources of Information for Improvement of Worker Protection
A. History of the WPS Regulation
In 1974, EPA promulgated the first version of the WPS (39 FR 16888;
May 10, 1974). The regulation provided health protections for workers
exposed to pesticides from hand labor activities during and after
applications. The 1974 regulations contained four basic elements:
A prohibition against spraying workers,
Specific reentry intervals for 12 pesticides and a general
reentry interval for all other agricultural pesticides, prohibiting
entry until sprays had dried or dusts had settled;
A requirement for protective clothing for any worker who
had to reenter treated areas before the specific reentry interval had
expired; and
A requirement for ``appropriate and timely'' warnings.
A 1983 review of the WPS concluded that the 1974 regulation did not
adequately protect workers (49 FR 32605; August 15, 1984). New
information was becoming available about the use of pesticides and the
impact on occupational safety and health. OSHA had promulgated
occupational health standards for workers in non-agricultural
industries that provided greater protections than those contained in
the WPS. The OSHA Standards included requirements for notifying workers
of workplace chemicals to which they are exposed, personal protective
equipment to mitigate risks of exposure, hygiene facilities, medical
surveillance, worker training programs, and recordkeeping. EPA
considered the addition of similar protections to the WPS.
In addition to the shortcomings of the protections in the 1974
rule, there were legal issues with respect to the enforcement of the
protections. EPA realized that the four existing requirements of the
WPS were not typically included on the pesticide labeling. Without a
reference to the regulation on the labeling, the requirements were not
legally enforceable. Moreover, the regulation itself did not clearly
assign responsibility for compliance with the requirements; for
example, workers were prohibited from entering treated areas, but
nobody was charged with
[[Page 15455]]
communicating the prohibition to the workers or ensuring that they did
not enter.
The Agency also wanted to expand the scope of the regulation to
cover sites that had been exempted but were similar to farms, i.e.,
forests, nurseries, and greenhouses, and to add another group of people
facing occupational pesticide exposure in agriculture--handlers who
mix, load, or apply pesticides. Handlers' occupational exposure profile
is distinct from that of workers protected by the initial WPS. When
mixing, handlers may face exposure while pouring the concentrated
pesticide or stirring the diluted mix. Loaders and applicators handle
many gallons of the diluted pesticide and may experience exposure while
transferring the pesticide mixture into the application equipment or
making the application. The Agency believed that expanding the WPS to
include the additional sites and adding specific protections for
handlers was necessary.
In 1984, the Agency published an Advance Notice of Proposed
Rulemaking (49 FR 32605; August 15, 1984), announcing its intention to
revise the 1974 rule for the reasons outlined above and soliciting
public comment. EPA also initiated a process of regulatory negotiation
with parties interested in or affected by the WPS. Stakeholders with
competing interests worked to resolve issues through collaboration and
compromise. EPA convened a Federal Advisory Committee Act (FACA)
workgroup, ``The Advisory Committee on WPS for Agricultural
Pesticides,'' that had members representing a spectrum of stakeholder
perspectives from 25 entities. Certain labor representatives
discontinued their participation early in the process. As a result, the
full committee did not participate in decision making; therefore, a
consensus on proposed changes to the regulation could not be reached.
The public comments helped the Agency refine the areas for proposed
change. In 1988, EPA published a Notice of Proposed Rulemaking (NPRM)
(53 FR 25970; July 8, 1988) that proposed significant changes to the
then existing WPS, including the following:
Expansion of the scope of establishments covered;
Revision of reentry intervals to correlate with risks
posed by each pesticide;
Revision to the PPE requirements;
Improvement to worker notification provisions; and
Strengthening compliance with the regulation by
designating specific responsibilities of agricultural employers.
Following the publication of the NPRM, EPA held public meetings
across the country, primarily in major agricultural areas, to explain
the proposed rule and to respond to questions. EPA received 380 written
comments from the public on the proposed rule.
After review and careful analysis of the public comments, the
Agency promulgated the final rule, revising the WPS and adding Subpart
K (Labeling Requirements for Pesticides and Devices) to 40 CFR part 156
in August 1992 (57 FR 38101; August 21, 1992). Shortly after
publication of the final rule, agricultural groups raised concerns
related to the availability of materials necessary to implement the
rule and insufficient numbers of qualified trainers. Based on these
concerns, Congress enacted legislation delaying implementation of the
final rule. In response to the concerns raised, EPA worked with
stakeholders to develop training materials that were tested with focus
groups to ensure that they were appropriate for the language and
literacy level of the target training audiences. In response to
identified training needs, EPA has developed training materials in many
languages, including Spanish, Chinese (Mandarin), Tagalog, Haitian
Creole, Hmong, Ilocano, Khmer, Laotian, Polish, Portuguese, and
Vietnamese. EPA's revisions to the WPS were fully implemented in 1995.
The expanded regulation provided protections for agricultural workers
from pesticide exposure on farms and in forests, nurseries, and
greenhouses; included agricultural handlers; and held agricultural
employers and pesticide applicators responsible for complying with
specific portions of the regulation.
Since promulgating the WPS in 1992, EPA has made several minor
amendments. In 1995, EPA published a series of Federal Register
notices: (1) Reducing the grace period for agricultural employers to
provide pesticide safety training to workers from 15 days to 5 days (60
FR 21943; May 3, 1995), (2) establishing a 5-year retraining interval
for workers and handlers (60 FR 21943; May 3, 1995), (3) exempting
certain persons performing crop advisor tasks from WPS provisions
except for pesticide safety training, (60 FR 21948; May 1995), and (4)
creating exceptions to the WPS to allow workers to enter pesticide-
treated areas during an REI under specified conditions to perform
irrigation tasks (60 FR 21960; May 3, 1995) and tasks that involve
limited contact with pesticide-treated surfaces (60 FR 21955; May 3,
1995).
In 1996, EPA amended the regulation to: (1) Reduce the number of
days employers must provide to workers decontamination supplies (soap,
water, paper towels) after application of pesticides that are low risk
and have REIs of four hours or less (61 FR 33207; June 26, 1996), (2)
allow substitution of the language commonly spoken and read by workers
for the Spanish portion of the warning sign (61 FR 33202; June 26,
1996), and (3) allow the use of smaller signs in nurseries and
greenhouses (61 FR 33202; June 26, 1996).
Lastly, in 2004, EPA published a notice in the Federal Register
revising the WPS glove requirements. This notice allowed all early-
entry workers and handlers to wear disposable glove liners under
chemical-resistant gloves and eliminated the requirement for aerial
applicators to wear chemical-resistant gloves when entering and exiting
aircraft that have been used to apply pesticides unless required by the
labeling (69 FR 53341; September 1, 2004).
During the course of the states' implementation of the 1992 WPS
regulation, regulatory partners, the regulated community, and other
stakeholders raised numerous policy and enforcement questions. EPA
addressed most of these questions through reference to the official
rule text or the Agency's responses to public comments on the proposed
rule. Some questions, however, raised interpretive issues that required
the Agency to develop and issue interim guidance. EPA coordinated the
development of guidance through an interpretive guidance workgroup
(IGW) using a collaborative process that included all relevant and
affected EPA offices, and state regulatory partners from the Florida
Department of Agriculture and Consumer Services and the New Mexico
Department of Agriculture. The State FIFRA Issues Research and
Evaluation Group nominated the state participants on the IGW.
The IGW addressed the questions raised by stakeholders. The final
IGW guidance clarified definitions for terms used in the rule, the
scope of the WPS exceptions, and the intended scope and/or limits of
provisions. The final IGW guidance has been compiled into a document
available to the public (Ref. 14).
Although the IGW document provided answers to many of the issues
raised by stakeholders to EPA, it is only guidance. Therefore, the IGW
document is not legally binding on EPA, workers, handlers, agricultural
establishments, and others. EPA proposes to codify
[[Page 15456]]
certain of the elements in the IGW guidance document, as discussed in
Units VII through XVIII.
At the same time EPA published the 1992 WPS, the Agency also
published an NPRM on a Hazard Communication/Right-to-Know program for
agricultural workers (57 FR 38167; August 21, 1992). This NPRM
responded to comments received in response to the 1992 proposed rule
noting that protections for agricultural workers could not be
considered complete until workers were provided with specific hazard
information. Many comments called for EPA to adopt requirements
parallel to those imposed by OSHA rules. In the 1992 proposed rule, EPA
proposed options for providing written information about the specific
hazards posed by pesticides in the workplace, for alleviating confusion
about possible conflict and duplication between EPA and OSHA regulation
of occupational safety and health in pesticides, and for supporting
states in developing their own hazard communication programs. EPA never
promulgated a rule finalizing a Hazard Communication/Right-to-Know
program for agricultural workers because Agency resources were diverted
to develop training and compliance assistance materials to implement
the WPS as mandated by Congress. The Agency also wanted to solicit more
stakeholder feedback about states' experiences implementing different
approaches to hazard communication before moving forward with a final
regulation.
B. Stakeholder Engagement
Over the last 20 years, the Agency has repeatedly engaged the
public and particularly affected stakeholders in the assessment of the
1992 WPS and its implementation. This stakeholder engagement process
has provided EPA with a deep appreciation of the complex challenges
facing federal, state and tribal authorities, agricultural employers,
and workers and handlers in the ongoing effort to ensure pesticide use
is safe.
Immediately following full implementation of the 1992 WPS, EPA
began the Pesticide Dialogue Process. From 1996 to 2000, EPA held
public meetings across the country for open dialogue on rule
implementation, challenges in compliance, and perceived effectiveness.
The meetings were open to the general public.
The Agency initiated the National Assessment of EPA's Pesticide
Worker Safety Program (National Assessment) in 2000. Through this
process, EPA convened stakeholder meetings in Texas, California, and
Florida. Participants included representatives from farmworker
organizations, cooperative extension services, commodity organizations,
state regulatory agencies, federal agencies, pesticide manufacturers
and distributors, and individual workers, handlers, and growers.
Stakeholders provided information about the strengths and weaknesses of
the WPS's protections and implementation. EPA established three
workgroups: general training (Ref. 15), train-the-trainer (Ref. 16),
and hazard communication. Each of the workgroups met apart from the
public meetings to assess specific aspects of the WPS and to recommend
improvements. EPA held a final meeting in Washington, DC at which the
workgroups presented their findings to EPA.
The assessment concluded in 2005 with the presentation of the
``Report on the National Assessment of EPA's Pesticide Worker Safety
Program'' (Ref. 17). The opinions and suggestions made during the
course of the assessment centered on a few broad improvement areas: the
expansion and upgrade of applicator competency and worker safety and
promotion of safer work practices, improved training of and
communication with all pesticide workers, increased enforcement efforts
and improved training of inspectors, training of health care providers
and monitoring of pesticide incidents, and finally, program operation,
efficiency, and funding (Ref. 17 p. 1). While EPA addressed some of the
recommendations through grants, program guidance, and other outreach,
others required regulatory change (Ref. 17 p. 26).
During the initial stages of the framing of this proposal, EPA's
Federal Advisory Committee, the Pesticide Program Dialogue Committee
(PPDC), formed a workgroup in 2006 to provide feedback to EPA on
different areas for change. The workgroup had over 70 members
representing a wide range of stakeholders. EPA shared with the
workgroup suggestions for regulatory change identified through the
National Assessment and solicited comments. The workgroup convened for
a series of meetings and conference calls to get more information on
specific parts of the regulation and provided its thoughts to the
Agency. The workgroup never reached consensus; it focused on evaluating
possible changes under consideration by EPA providing feedback from
each member's or organization's perspective. Comments from the PPDC
workgroup members have been compiled into a single document and posted
in the docket.
EPA convened a Small Business Advocacy Review (SBAR) Panel on
potential revisions to the WPS in 2008. The SBAR Panel was convened
under section 609(b) of the Regulatory Flexibility Act as amended by
the Small Business Regulatory Enforcement and Fairness Act (SBREFA). As
part of the SBAR Panel's activities, EPA consulted with a group of
Small Entity Representatives (SERs) from small businesses and
organizations that could be affected by the potential revisions. EPA
provided the SERs with information on the WPS and potential revisions
and requested feedback on the proposals under consideration. EPA asked
the SERs to offer alternate solutions to the potential proposals
presented to provide flexibility or to decrease economic impact for
small entities while still accomplishing the goal of improved safety.
The SERs provided feedback on the following areas: Requiring all
treated areas to be posted, requiring pesticide safety training more
frequently than every 5 years, eliminating the grace period between
hiring a worker and providing pesticide safety training, and requiring
showers on establishments that employ handlers. EPA compiled the
responses from the SERs in an Appendix to the final Panel Report and
posted the full report and appendix in the docket (Ref. 18). EPA
considered the input from the SERs as part of the evaluation of
available options for this rulemaking, and where appropriate, feedback
from the SERs is discussed in various descriptions of proposed changes
in this preamble.
In addition to formal stakeholder outreach, EPA met with numerous
individual stakeholders when requested to discuss concerns and
suggestions in detail. Stakeholders included farmworker organizations
(Farmworker Justice, Migrant Clinicians Network, and El Comit[eacute]
de Apoyo a los Trabajadores Agr[iacute]colas [Farmworker Support
Committee]); the National Association of State Departments of
Agriculture (NASDA); the Association of American Pesticide Control
Officials (AAPCO); Crop Life America (CLA); and others.
C. GAO Audits
In 1992, prior to the promulgation of the amended WPS, the General
Accounting Office (now the Government Accountability Office; GAO)
published ``Hired Farmworkers: Health and Well-Being at Risk'' (Ref.
19). The report discussed a number of services, such as social
security, housing, field sanitation, job training and employment
programs, children's education, and other issues that the government
would need to
[[Page 15457]]
address to provide better conditions for farmworkers.
The 1992 report noted that at that time, EPA lacked an
understanding of the health risks for many older pesticides, placing
workers at risk from potentially unsafe exposure. The report also noted
that the 1974 rule requirement to limit worker entry into treated areas
was difficult for workers to follow. It prohibited reentry until
``sprays have dried or dusts have settled,'' language that involved
subjective judgments. The 1992 amendments to the WPS partially
addressed these issues by requiring interim protective intervals for
worker entry into treated areas based on the acute toxicity of the
product. Since that time, EPA's reregistration program, through which
EPA reviewed and assessed older pesticides to ensure they continue to
meet the FIFRA regulatory standard, has been completed. See Unit III.C.
Through that process, chemical-specific protective reentry intervals
have replaced the interim intervals.
In 2000, GAO issued another report, ``Pesticides: Improvements
Needed to Ensure the Safety of Farmworkers and Their Children,'' (Ref.
20). In this report, GAO focused more specifically on the potential
risks to children of entering a pesticide-treated area. It noted that
children under 12 years old may have a higher risk of adverse effects
related to pesticide exposure and should be protected adequately. It
also cited EPA data on WPS enforcement, noting the lack of consistency
and involvement by EPA in monitoring the inspections and the need to
have target numbers of inspections. The report recommended that EPA
``mitigate the potential adverse effects of pesticide exposure on
children below the age of 12 who work in agriculture or are otherwise
present in pesticide-treated fields'' (Ref. 20 p. 24). It also
suggested that EPA improve oversight of state-level WPS enforcement and
set standard guidance for inspections.
D. Environmental Justice
Executive Order 12898 (59 FR 7629; February 16, 1994) established
federal executive policy on environmental justice. It directs federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their missions by identifying and
addressing disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority and low-income populations in the United States. The Executive
Order establishes four areas for action:
Promote enforcement of all health and environmental
statutes in areas with minority populations and low-income populations;
Ensure greater public participation;
Improve research and data collection relating to the
health and environment of minority populations and low-income
populations; and
Identify differential patterns of consumption of natural
resources among minority populations and low-income populations. In
addition, the environmental justice strategy shall include, where
appropriate, a timetable for undertaking identified revisions and
consideration of economic and social implications of the revisions.
EPA's goal is to promote environmental justice for all communities
and persons across the United States, regardless of race, color,
national origin, or income. Ensuring environmental justice means not
only protecting health and the environment for everyone, but also
ensuring that all people are treated fairly and are given the
opportunity to participate fully in the development, implementation,
and enforcement of environmental laws, regulations, and policies.
Consistent with the Executive Order, the Agency's environmental justice
policies promote environmental protection by focusing EPA's attention
and efforts on addressing environmental risks among minority
populations.
As discussed above in Unit IV.A., most workers and handlers
intended to be protected by the WPS face significant disadvantages.
Most agricultural workers and handlers belong to minority groups.
Agricultural workers tend to have low literacy in any language and very
limited skills in English. Very often workers do not have permanent
housing and generally reside close to agricultural areas where
pesticides are applied. Many workers and handlers are not residents or
legal aliens in the United States. The low literacy rates, range of
non-English languages spoken by workers and handlers, economic
situation, geographic isolation, difficulty accessing health care, and
immigration status of workers and handlers pose challenges for
communicating risk management information and ensuring that these
groups are adequately protected.
Occupational tasks performed by workers and handlers create a
significant risk of pesticide exposure, which is increased by the
communication barriers discussed above. In addition to potential
exposure through work duties, studies show that workers and handlers
face a greater risk of exposure to pesticide drift from neighboring
areas than does the general population (Ref. 21). Pesticide exposure
can also come through residues transferred by workers and handlers on
their clothing and body from the treated areas to their cars and homes,
and from the proximity of the housing to agricultural areas treated
with pesticides (Ref. 21) (Ref. 22) (Ref. 23) (Ref. 24). Finally,
pesticide exposure may occur from the consumption of treated foods in
the treated area or washing hands in pesticide contaminated water (Ref.
25) (Ref. 26) (Ref. 27 p. 25).
Throughout the development of this proposed rule, the Agency has
continued to use research on the demographic characteristics, work
habits, and culture of the worker and handler populations to revise the
WPS to ensure it provides effective protection. Information for the
assessment and development of the rule was gathered through field
research and interaction with workers, handlers, worker and handler
representatives, and stakeholders. EPA extensively engaged farmworker
representatives, and when possible, worked directly with workers and
handlers, to solicit their feedback on the current regulation and ideas
for improvement.
With this stakeholder input, the Agency identified areas where the
existing WPS does not provide an appropriate level of protection and
evaluated the potential impact of various options for strengthening the
WPS for the worker and handler populations. That analysis identified
areas for improvement to the rule, such as expanding training to
provide information on how to minimize worker and handler exposure and
that of their families from pesticide residues carried from the treated
area to the home. The Agency's efforts to address environmental justice
through this rulemaking were reviewed repeatedly during the development
of the rule and its supporting documents. EPA believes that the
proposed changes would improve the health of workers and handlers by,
for example, increasing the frequency of training, enhancing training
content to include ways to minimize pesticide exposure to children and
in the home, adding posting of treated areas near worker and handler
housing to prevent accidental entry, and establishing a minimum age for
pesticide handlers and early-entry workers.
E. Children's Protection
An Executive Order issued in 1997 (62 FR 19885; April 23, 1997) and
modified in 2003 (68 FR 19931; April
[[Page 15458]]
23, 2003) requires federal agencies to identify and assess
environmental health risks that may disproportionately affect children.
In response to this mandate, EPA established the Children's Health
Protection Advisory Committee (CHPAC) to advise and make
recommendations to EPA on issues related to children's environmental
health. The CHPAC recommended that EPA ``re-evaluate the worker
protection standard in order to determine whether it adequately
protects children's health'' (Ref. 28). In a Federal Register Notice
issued on February 3, 1999, EPA committed to conducting an assessment
of the implementation and enforcement of the WPS (64 FR 5277; February
3, 1999).
Children face risks from exposure to agricultural pesticides mainly
through work in pesticide-treated areas. A 2003 study by Calvert, et
al. identified 531 children under 18 years old with acute occupational
pesticide-related illnesses over a ten-year period (Ref. 29). The same
study raised concerns for chronic impacts: ``because [the] acute
illnesses affect young people at a time before they have reached full
developmental maturation, there is also concern about unique and
persistent chronic effects'' (Ref. 29).
Although no conclusive data exist, studies have been conducted to
evaluate whether children of agricultural workers and handlers may face
elevated potential for exposure from pesticide residues brought to the
home by their parents (Ref. 30) (Ref. 31). Studies have also been
conducted to evaluate whether this exposure scenario may have
contributed to negative health or developmental effects (Ref. 32).
Higher concentrations of pesticide residues combined with the
susceptibility of children to the effects of pesticide exposure may
increase the likelihood that children will be adversely impacted. EPA
recognizes the need for more conclusive data on exposure to children
from pesticide residues brought into the home by agricultural workers.
However, given EPA's commitment to protecting children and to the
principles of environmental justice, EPA believes the cost of adding a
few minutes to pesticide safety training is reasonable when compared to
the benefit of reducing the potential risk.
The FLSA's child labor provisions, which are administered by the
Department of Labor, permit children to work at younger ages in
agricultural employment than in non-agricultural employment. Persons 12
and 13 years old may work in agriculture outside of school hours in
nonhazardous jobs if they are either working on the same farm as a
parent or person standing in the place of a parent, or working with
parental permission. 29 U.S.C. 213(c)(1)(B). Children under 16 years
old are prohibited from doing hazardous tasks, including handling or
applying pesticides that are classified as toxicity category I or II
but can apply pesticides that are classified with a lower acute
toxicity. (29 CFR 570.71(a)(9))
In summary, children working in agriculture and children of
agricultural workers and handlers may be at a higher risk of pesticide
exposure and illness; EPA believes these potential risks warrant
careful consideration in light of the provisions of the Executive Order
on children's health (EO 13296). EPA believes that the proposed changes
could protect children from many of the risks they may face.
F. Regulatory Review
In 2005, EPA reviewed the WPS pursuant to section 610 of the
Regulatory Flexibility Act (5 U.S.C. 610). The purpose of the review
was to determine whether the rule should be continued without change,
amended, or rescinded to minimize economic impacts on small entities
while still complying with the provisions of FIFRA. EPA solicited
comment on the continued need for the WPS; the complexity of the WPS;
the extent to which it overlaps, duplicates, or conflicts with other
federal, state, or local government rules; and the degree to which
technology, economic conditions or other relevant factors have changed
since the WPS was promulgated. See EPA Docket ID number OPP-2003-0115
at www.regulations.gov. The Agency received no comment on the action
and concluded that the rule needs no revisions to minimize impacts on
small entities while still complying with FIFRA.
While EPA found that no changes were necessary to minimize the
impacts on small entities, EPA believes that the WPS should be updated
for the reasons discussed in the previous sections. Through the
assessment process, EPA reviewed the 1992 WPS to determine whether the
requirements were effective, sufficiently protective, and unduly
burdensome on employers. As discussed in Unit V.B., EPA engaged in a
substantial stakeholder engagement process, apart from the 2005 review
mentioned in the previous paragraph, to review the effectiveness of the
current regulatory requirements, to identify gaps in protection, and to
determine flexible approaches to compliance for the regulated
community. EPA engaged with small business representatives to explore
flexible options for compliance. EPA believes the proposed changes
reflect the current understanding of the risks faced by workers and
handlers, thereby substantially improving the protections afforded to
workers and handlers under the WPS and decreasing the overall burden
associated with compliance for employers.
VI. Overview of Proposed Revisions to Part 170
Earlier Units of this preamble describe the various ways that
workers, handlers, and their families can be exposed to pesticides. The
stakeholder engagement described in Unit V.B. resulted in many
recommendations for EPA to revise the regulation. Through the SBAR
panel, SERs raised the need for EPA to be mindful of the burden the WPS
imposes on small business and to reduce it wherever possible (Ref. 18).
As discussed earlier in this document, EPA has imposed requirements
on the use of pesticides with the intent of averting unreasonable
adverse effects to human health and the environment. These requirements
include the WPS and pesticide-specific use restrictions found on
product labeling. In spite of these protections, worker and handler
illnesses resulting from pesticide exposure are documented, and the
Agency believes they are underreported. Peer-reviewed studies, based on
pesticide illness reporting and surveillance initiatives show evidence
of illnesses to workers and handlers. For example, one study finds that
acute pesticide poisoning incidents in the agriculture industry
``continues to be an important problem'' (Ref. 11). This study examined
pesticide poisoning incidents among agricultural workers from 1998-
2005, and analyzed 3,271 cases. Illness rates varied by category, but
across agricultural worker categories, risks of poisoning were an order
of magnitude higher than for almost all non-agricultural workers, which
include farmers, processing/packing plant workers, and other
miscellaneous agricultural workers. A study conducted by Das, et al.,
identified 486 pesticide illness cases among California farmworkers for
1998-1999, based on a surveillance program with mandatory reporting by
physicians. The study found that about half of all acute pesticide-
related illness cases in the California surveillance system affected
agricultural workers (Ref. 33). Over a quarter of the poisonings were
to those mixing, loading or applying pesticides. The most common
symptoms were dermatological (about 44%),
[[Page 15459]]
neurological (about 39%), and gastrointestinal (about 38%), and the
most common route of exposure was skin contact, followed by inhalation
and eye contact.
A 2008 report indicates that from 1998 to 2005 the major causes of
occupational pesticide exposure were off-target drift, early reentry
into a treated area, and pesticide use in conflict with the labeling
(Ref. 11). Studies have been conducted to evaluate whether worker and
handler families are exposed to pesticides because workers and handlers
bring pesticide residues home on their body, shoes, and clothing (Ref.
23) (Ref. 24) (Ref. 34). These studies recommend that workers and
handlers receive more specific information on how to protect their
families and avoid exposure in the workplace (Ref. 23) (Ref. 24) (Ref.
34).
EPA believes the proposed changes address the specific avenues of
occupational exposure and recognize the specific needs of the worker
and handler population. Units VII. to XX. describe the proposed changes
and alternative options considered by EPA. The presentation is
generally structured to provide, where appropriate:
A concise statement of the proposed change;
The current WPS requirements;
Stakeholder feedback and research supporting the proposed
change;
A detailed description of the proposed change and the
rationale for the change;
An estimated cost;
A description of significant alternatives considered by
EPA and the reasons for not proposing them; and
Specific questions on which the Agency seeks feedback.
For purposes of discussion, EPA groups the proposed changes and
considered alternatives as follows:
Unit VII: Changes to the training for workers and
handlers, including new recordkeeping requirements, multiple changes to
the content of the training, and trainer qualifications.
Unit VIII: Changes to the worker and handler notifications
including posted and oral notifications and revisions to the warning
sign content.
Unit IX: Hazard communication materials.
Unit X: Information that handlers and agricultural
employers must exchange.
Unit XI: Handler restrictions including minimum age
requirements for handlers.
Unit XII: Expansion of entry-restricted areas, minimum age
requirements for workers entering a treated area under an REI, and
clarification of the REI exceptions.
Unit XIII: Pesticide safety information display, including
location and content required.
Unit XIV: Decontamination requirements for handlers and
early entry workers.
Unit XV: Emergency assistance.
Unit XVI: Personal protective equipment, including the use
of closed systems.
Unit XVII: Monitoring handler exposure to cholinesterase-
inhibiting pesticides.
Unit XVIII: Exemptions for immediate family and crop
advisors and exception to requirement for workers to be fully trained
before entering a pesticide-treated area.
Unit XIX: General revisions to the WPS.
Unit XX: Implementation.
VII. Training for Workers and Handlers
The current WPS allows employers to utilize a ``grace period'' to
provide workers with basic training before entering the treated area
and before the 6th day that workers begin working in an area covered by
the WPS to provide the full pesticide safety training discussed below.
This provision is considered an exception to the training requirements;
therefore, the current ``grace period'' and proposed amendments are
discussed in Unit XVIII.C.
A. Shorten Retraining Interval for Workers and Handlers
1. Overview. The WPS currently requires employers to ensure that
workers and handlers are trained once every five years. EPA proposes to
establish an annual retraining interval for workers and handlers in
order to improve the ability of workers and handlers to protect
themselves and their families from pesticide exposure.
2. Existing WPS regulations. The WPS requires agricultural and
handler employers to ensure that handlers and workers receive pesticide
safety training once every five years (40 CFR 170.130(a) and
170.230(a)). This retraining time period was initially implemented to
minimize burden on employers when pesticide safety training was first
introduced, due to the limited number of trainers available at the
time. Worker and handler trainings, as discussed in Unit VII.E.,
provide information on protecting oneself and family from pesticide
exposure, recognizing and avoiding dangers in the workplace, and steps
to take in the event of pesticide exposure.
3. Summary of the issues. Many stakeholders have commented that a
5-year retraining interval is too long for workers and handlers to
retain the safety information (Ref. 17) (Ref. 28) (Ref. 35) (Ref. 15)
(Ref. 36) (Ref. 37). Through the National Assessment, letters to the
Agency, and feedback from PPDC on proposed options, various
stakeholders have recommended shortening the current interval in order
to improve workers' and handlers' understanding and recall of the
material covered. The General Training Issues Workgroup, with
representatives from across the agricultural community, recommended
shortening the retraining interval for workers and for the Agency to
base the standard on retraining intervals for other similar professions
(Ref. 16).
Research has indicated the importance of repetition in an
individual's retention of information (Ref. 38). Stakeholders,
particularly pesticide safety educators, have noted that ``repeating
basic safety messages increases adoption of improved safety
practices.'' (Ref. 39) Providing training more frequently than the
current requirement of every five years may be especially beneficial
for workers and handlers with limited knowledge of English or another
widely used language, e.g., Spanish, or who have recently started
working in an agricultural job, who may need additional review to fully
understand the material. Worker advocacy groups and educators have
repeatedly noted that more frequent training is important for the
worker community.
Additionally, a 2007 report for the EPA by JBS International titled
``Hazard Communications for Agricultural Workers'' reported that
workers who were interviewed wanted more frequent training on pesticide
safety (Ref. 40). Workers requested training to occur at least once a
year.
The DOL's NAWS provides information on the nature of worker
employment and turn-over rate. The most recent report available notes
that ``[i]n 2001-2002, crop workers, including foreign-born newcomers,
had been employed with their current farm employer an average of four
and a half years. Thirty-five percent had been working for their
current employer for one year or less, and 12 percent had been employed
at their current farm job for ten or more years (Ref. 3).
Agricultural employers that provided information to EPA during the
SBAR panel process on the WPS stated that they already provide annual
pesticide training, since verification of previous training can be
difficult to achieve and the employers want to ensure they comply with
the WPS to avoid liability. EPA has heard similar statements in
[[Page 15460]]
discussions with farmers in other venues, but recognizes that all
employers may not provide annual training. The Panel recommendations
recognized the value of retraining, and specifically its ability to
emphasize and remind the worker of important safety principles (Ref.
18). State and federal enforcement agents have also noted the
difficulty in determining if a worker or handler has been trained, when
relying on his recall of the training material over a long time period,
e.g., 5 years.
4. Details of the proposal/rationale. The Agency proposes to
establish an annual retraining interval for workers and handlers.
Accordingly, this would reduce the maximum time between trainings for
workers and handlers from 5 years to 1 year.
EPA believes that more frequent repetition of the protective
principles outlined in the pesticide safety training is particularly
important given the demographics of the worker population. As data
cited earlier show, workers generally have low literacy and limited
understanding of English. Therefore, it is important for workers and
handlers to receive the information in a manner they understand and
with sufficient frequency to ensure they retain the information.
Research shows that adults remember only about 10% of what they
hear and 50% of information that they see and hear (Ref. 41). EPA
expects the more frequent review of pesticide safety information, in
combination with the proposal for expanded display of pesticide safety
information at decontamination sites [see Unit XIII.A.], would improve
retention of safety principles and hygiene practices critical to self-
protection, reinforce the importance of protecting families from
pesticide exposure, encourage handlers' adherence to label
requirements, and remind workers and handlers of the obligations of
their employers under the rule.
This proposed rule reflects previously established training
requirements for similar occupational hazards. Federal agencies already
require annual training when hazardous substances may be encountered in
the workplace in many other industries. OSHA regulations require
employers to provide annual training to protect employees from chemical
hazards in the workplace including lead (29 CFR 1962.62(l)(1)),
asbestos (1926.1101(k)(9)), and cadmium (29 CFR 1926.1127(m)(4)). Under
the Resource Conservation and Recovery Act (RCRA), EPA requires
personnel at hazardous waste treatment, storage, and disposal
facilities to have annual training as well (40 CFR parts 264 and 265).
The risks from pesticide exposure through agricultural work are similar
to the threats posed by hazardous chemicals in other industries, and
the Agency believes training requirements to protect agricultural
workers and handlers should be comparable to those required by OSHA. In
addition, agricultural and handler employers may already be required to
keep records of annual training required by other regulations, such as
those listed above. EPA believes that agricultural and handler
employers would track an annual requirement for WPS training along with
required OSHA trainings and employment records, such as those required
by the Department of Labor.
The proposed regulatory text concerning shorter retraining
intervals for workers and handlers appears in Sec. Sec. 170.101(a) and
170.201(a), respectively, of the proposed rule.
5. Costs and benefits. EPA estimates the cost of the requiring
employers to provide pesticide safety to training workers annually
would be $8.7 million per year. Training its workers would cost each
agricultural establishment about $22 per year. EPA estimates the cost
to employers to provide pesticide safety training to handlers annually
would be $3.5 million per year. The average cost of training handlers
would be about $17 per year for agricultural establishments and $66 per
year for commercial pesticide handling establishments. For a complete
discussion of the costs of the proposals and alternatives, see the
``Economic Analysis of Proposed Revisions to the Worker Protection
Standard,'' Chapter 3 Cost Analysis (Ref. 1).
While EPA can estimate the costs of this proposed change,
quantifying the benefits is more difficult. Nonetheless, based on the
information and expert views described in this section, it is
reasonable to expect that more frequent training would lead to better
retention of information by workers and handlers, ultimately resulting
in fewer incidents of pesticide exposure and illness in workers and
handlers, reduced take-home exposure, and better protection of
children. The Agency concludes that the estimated costs are reasonable
when compared to the anticipated benefits resulting from the additional
training.
6. Alternative options considered but not proposed. The Agency
considered three alternative approaches to the retraining interval for
workers and handlers. The first alternative was recommended by the SBAR
panel, based on a comment from one of the SERs. This option would
require annual retraining and offer small establishments, those with
fewer than 10 employees, the option to provide training less frequently
for workers (Ref. 18). A small establishment requesting flexibility
would be required to maintain documentation to show that (1) no
additional workers were hired within the retraining interval, (2) no
new or different pesticide applications were made from the previous
year, and (3) they provided training for the specific workers on the
establishment previously. If the establishment added any new employees,
it would not be eligible to provide less frequent training. The
estimated cost for this option would be about $7.5 million annually, or
$60 for large agricultural establishments and $12 for small
agricultural establishments. The Agency agrees that this option could
reduce the burden on small entities of providing annual training, but
it would also reduce the benefit workers would receive from annual
retraining. Moreover, EPA notes that implementation of such an
exception would increase recordkeeping burdens on all small
establishments that would offset, to some degree, the savings for some
establishments from not having to provide training. The additional
recordkeeping costs were not quantified. Under this exception, those
small entities that added a new employee or applied a different
pesticide during the year would actually have higher costs, even though
the overall burden on small entities might be somewhat smaller. Based
on the marginal cost reduction, increased recordkeeping burden, and
potential risk to workers who would not receive training annually, the
Agency thinks that requiring all establishments to provide annual
training is more appropriate.
EPA also considered a 2-year retraining interval for all
establishments. EPA estimates that biennial training for workers would
cost about $3.2 million per year, or about $8 per agricultural
establishment per year. Biennial training for handlers would cost about
$1.6 million per year, or $8 per agricultural establishment and $27 per
commercial pesticide handling establishment per year. While biennial
training would provide more protection to workers and handlers than the
current 5-year retraining interval, EPA believes the longer timeframe
would not improve retention to the extent expected from annual
training. Employers are already required to provide and track OSHA
trainings and to maintain employment records, such as those required by
the Department of Labor, on an annual basis; requiring pesticide safety
training every 2 years could
[[Page 15461]]
increase the burden on agricultural and handler employers to track the
WPS training on a different schedule. Representatives on the SBAR panel
indicated that many employers already provide training on an annual
basis as part of their hiring process (Ref. 42 p. 2). EPA believes that
even with a biennial training requirement, many employers would
continue to provide training annually. Therefore, the burden on
employers would not be significantly reduced by a biennial training
requirement. EPA believes the costs of more frequent annual training
are reasonable when compared to the anticipated benefits, particularly
when combined with the stakeholder reports that annual training is
already provided in many cases.
Finally, EPA considered requiring a written test to gauge the
workers' or handlers' knowledge about the topics covered in training to
ensure that they have the information needed for self-protection. The
Agency, however, was dissuaded from this alternative due to concerns
for the ability of workers and handlers to successfully complete an
exam, even when they have been adequately trained, on account of
literacy and language challenges among workers and handlers. Some
stakeholders have indicated that noncertified applicators, who have
similar demographic profiles to workers and handlers, may find it
difficult to pass a written examination due to literacy and language
barriers; the Agency believes workers and handlers may have similar
difficulty (Ref. 36) (Ref. 37). Concerns exist for the perceived burden
on employers for providing the time for needed training and exam-
taking, and for the potential reduction in workforce when workers or
handlers cannot pass the exam, despite being aware of the training
content (Ref. 36) (Ref. 37). While testing might be a useful approach
in some situations, the Agency believes that in this context a testing
requirement is less likely than annual retraining to produce the
desired improvements in workers' and handlers' understanding of
pesticide safety. Therefore, EPA is not proposing testing as an
alternative to annual training.
7. Request for comment. EPA specifically requests comment on the
following questions:
Should EPA consider different pesticide safety training
timing? If so, what timeframe and why?
Do you have information concerning the relationship
between the frequency of training of workers and handlers and the
frequency of incidents of pesticide exposure or illness? If so, please
provide.
Are there other ways EPA could ensure that workers and
handlers retain the information presented in pesticide safety training
so the retraining interval can be longer than one year?
Are there other burdens or benefits associated with a 2-
year retraining interval that EPA has not considered?
What would be the impact of a 1- or 2-year retraining
interval on states and tribes?
Should EPA consider retaining the current 5 year
retraining interval for workers and handlers and adding a requirement
for annual refresher training? Please provide information on the
relative benefits to and burdens on employers, workers, and handlers.
EPA currently envisions that, if adopted, the annual refresher training
for workers would include the topics proposed at 170.309(e), the grace
period training (see Unit XVIII for a full discussion of the proposed
points for training workers under the grace period). The annual
refresher training for handlers would include a review of information
necessary for handlers to protect themselves, their families, workers,
and the environment from pesticide exposure. EPA anticipates that the
refresher training would be slightly shorter in duration than the
proposed full pesticide safety training, but seeks comment on the
duration of such refresher training. Retaining the current 5 year
retraining interval and adding a requirement for annual refresher
training would necessitate additional recordkeeping by the employer.
The employer would maintain training records for workers and handlers
as discussed in Unit VII.B. below, as well as records containing the
same information for the refresher training.
B. Establish Recordkeeping Requirements To Verify Training for Workers
and Handlers
1. Overview. The existing WPS does not establish any mandatory
mechanism for verifying that a worker or handler has received pesticide
safety training. To improve compliance with the WPS training
requirements and to address the absence of documentation of worker and
handler training, the Agency proposes to eliminate the voluntary
training verification card system and to require employers to maintain
records of WPS worker and handler training for two years. In addition,
the employer would be responsible for providing a copy of the record to
each worker or handler upon completion of the training. EPA believes a
requirement for employers to maintain the training roster, an official
record, of employees' training would address current enforcement
difficulties in verifying whether a worker or handler has received
training. The requirement to provide workers and handlers with a copy
of the training record would allow a subsequent employer to verify that
the worker or handler had received training and to copy the training
verification record for the subsequent employer's own files.
2. Existing WPS requirements. Presently, the WPS does not require
agricultural employers to document that they provided the training
required under the WPS for workers or handlers. The WPS also does not
require trainers or employers to record who they trained, what training
they provided, or when they provided pesticide safety training.
However, a voluntary program was established that allowed states,
tribes, and agricultural employers to use verification cards to
identify workers and handlers trained in accordance with the WPS.
Participating states, territories, and tribes have opted to distribute
cards printed by EPA or to generate agency-specific cards. States,
territories, and tribes allow distribution of the cards by trainers
qualified under the WPS or under stricter requirements. A few entities
require trainers of workers or handlers to submit the names of those
trained to the state regulatory agency; however, EPA does not maintain
such a list. Under the current voluntary training verification card
program, an agricultural or handler employer who hires workers and
handlers with valid training verification cards does not need to
provide training until the expiration date listed on the card. At least
20 states, territories, or tribes continue to use the voluntary
training card system (Ref. 43).
3. Summary of the issues. Since 1998, EPA has received considerable
feedback from stakeholders, including state regulatory partners,
regarding the difficulty of enforcing the training provisions of the
WPS rule, primarily due to a lack of recordkeeping (Ref. 17) (Ref. 18).
Inspectors have noted that they cannot consult a record to determine if
the workers and handlers on the establishment have been trained. Their
primary method for evaluating compliance with training requirements is
to interview workers and handlers regarding the content of training
received or whether any training has occurred. Stakeholders, including
state inspectors and farmworker organizations, have indicated that
interview results may be compromised as workers and handlers may not
recall the training they received, may not connect the questions with
the training information, and may not be able to communicate with the
inspector in a
[[Page 15462]]
language that both are comfortable speaking. Some workers and handlers
may feel intimidated and provide inaccurate responses due to a lack of
anonymity. Some states and territories, including AZ, CA, HI, NV, NH,
NJ, PA, and PR, have addressed the issue through requiring a form of
recordkeeping for worker and/or handler training, such as training
records maintained by the employer, training records submitted to the
state, or making mandatory the voluntary training verification card
system. California has implemented a requirement for employers to
maintain records of handler training for 2 years (3 CCR 6724(e)).
Some stakeholders voiced strong support for improved recordkeeping
as discussed in reports from the National Assessment of EPA's Pesticide
Worker Safety Program (Ref. 44). The General Training Issues Workgroup,
convened as part of the National Assessment, recommended that all
trainers be required to maintain records of trained workers for the
duration of the retraining interval, and suggested that EPA offer a
variety of methods for employers to demonstrate compliance (Ref. 15).
Farmworker organizations as well as other stakeholders have repeatedly
emphasized the need to improve enforcement and compliance verification
capabilities in order to assure greater protection for workers (Ref.
17) (Ref. 35).
States, territories, and tribes have noted that the voluntary
training verification card system is undermined by fraudulent cards.
They cite instances of workers, handlers, and labor contractors
illegally exchanging cards and altering the expiration date. Without an
expiration year printed on each card and annual reprinting of current
verification cards, it is difficult to assess the validity of the card.
Without any requirement for creating and maintaining records of
training, it is virtually impossible to verify who has been trained.
States have informed the Agency that workers perceive the card as a
credential that potential employers may use to determine their
employability. As a result, state agencies have reported that falsified
cards are common because workers and handlers want to show that they
are employable. The Agency believes, based on information gathered
since the implementation of the training verification card system, that
the current system of voluntary training verification cards has proven
to be an unreliable method of tracking and identifying trained workers
(Ref. 37) (Ref. 45) (Ref. 46).
4. Details of the proposal/rationale. The Agency proposes to
require agricultural and handler employers to keep records of all
workers and handlers who receive pesticide safety training for 2 years
on the agricultural establishment. Required information for the record
of worker and handler training would include the trained worker's or
handler's name, signature, date of birth, the date of training, the
trainer's name, proof of trainer's qualification to train, the
employer's name, employer's phone number or phone number of the
establishment, and which EPA-approved training materials were used. EPA
also proposes to require employers to provide a copy of the training
record to each worker and handler upon completion of the training.
EPA believes these new recordkeeping requirements would address
some of the difficulties in effectively enforcing the existing rule
raised by regulatory and farmworker advocacy stakeholders. This
proposal would allow inspectors to verify training through records
retained by the employer and maintained by the workers and handlers
themselves rather than solely through interviews with workers and
handlers. The Agency's proposal is flexible in that it would allow
paper or electronic recordkeeping, so an employer could scan the
training records with employees' signatures and maintain electronic
files.
The recorded date of birth would be used to verify that the minimum
age for handlers and early-entry workers has been met. [See Units XI.B.
and XII.A.] Retaining the trainer's proof of qualification to train
would allow the inspector to determine if the trainer met the criteria
to be a trainer. [See Unit VII.D]
EPA recognizes the importance of maintaining some mechanism for
workers and handlers to change employers without repeating pesticide
safety training each time they enter an establishment. EPA believes
that the proposed option would meet the need for employers to verify
that workers and handlers have received appropriate training by
providing an official record rather than the voluntary training
verification card. The proposal to require employers to maintain
specific records of worker and handler training and to provide a copy
of the training record to each trained worker and handler would make
the voluntary training verification card program obsolete, redundant,
and unnecessary. An employer could consider a worker or handler trained
if either the employee or prior employer presents a copy of the
training record. EPA believes requiring employers to provide a record
of the training to workers and handlers would allow workers and
handlers to show future employers they have received WPS training. In
addition, future employers could maintain a copy of the workers' or
handlers' record in their files to comply with the requirement to
ensure the employees have received the appropriate training.
The proposed regulatory text concerning the recordkeeping
requirements to verify training for workers and handlers appears in
Sec. Sec. 170.101(d) and 170.201(d), respectively, of the proposed
rule.
5. Costs and benefits. EPA estimates the cost of requiring
employers to maintain records of worker training for 2 years would be
$1.6 million annually and about $4 per agricultural establishment per
year. The cost for employers to maintain records for handler training
for 2 years would be $160,000 annually, or less than $1 per
agricultural establishment and about $3 per commercial pesticide
handling establishment per year. For a complete discussion of the costs
of the proposals and alternatives, see the ``Economic Analysis of
Proposed Revisions to the Worker Protection Standard,'' Chapter 3 Cost
Analysis (Ref. 1).
Although EPA cannot quantify the benefits of this specific proposed
option, EPA believes that requiring records of worker and handler
training would improve employers' compliance with the training
requirements. Improved compliance would increase the likelihood that
workers and handlers perform WPS tasks with the information necessary
to mitigate exposure to pesticides for themselves and their family
members.
6. Alternative options considered but not proposed. First, EPA
considered an option to require the employer or trainer to provide
every trained worker and handler with a wallet-sized verification
record (similar to the current voluntary training verification card)
that contains the proposed recordkeeping information, instead of the
proposal to provide a photocopy of the training recordkeeping form.
Distribution of the training verification cards would be limited to
trainers who meet the proposed qualifications. [See Unit VII.D.] The
cards would be issued by EPA on an annual basis and would indicate a
date after which the card would no longer be valid, i.e., a 2015 card
would state that it would not be considered a valid verification of
training after 12/31/2016. The annual card issuance by EPA and clear
statement of the card's longest potential
[[Page 15463]]
validity could help cut down the issues of fraudulent use raised by
states and other stakeholders.
This alternative would increase the burden on trainers, employers,
and EPA and states, territories, and tribes. Instead of providing a
copy of the training record, the trainer would be required to copy the
information onto each individual training verification card. Subsequent
employers would need to verify the information on the card with the
original trainer or employer and to obtain a copy of the original
training record for their files. EPA would be responsible for printing
cards annually. EPA and states, territories, and tribes would be
responsible for distributing cards to approved trainers and tracking
who received the cards. EPA estimates that a mandatory training
verification card program for workers would add about $640,000 to the
cost of training records, increasing the total cost to about $2.2
million. Based on the increased burden to trainers, employers, and
states, territories, and tribes without significantly different
anticipated benefits to workers, handlers, trainers, and employers, EPA
decided not to propose this option.
Second, EPA also considered requiring agricultural and handler
employers to submit worker and handler training records to EPA or to
the state, territory, or tribal regulatory authority. The agency
responsible at the federal or state, territory, or tribal level would
then maintain a database of trained workers and handlers. The Agency
believes that it is adequate for employers to maintain the records,
making them available to inspectors upon request. The submission of
training records to a central repository might benefit EPA and others
wishing to verify a worker's or handler's status. However, employers
would still bear the cost of either creating a record of the training
in the central repository or verifying a worker's or handler's
eligibility in the system. Since most workers and handlers have one or
two employers per year, the burden on employers to report to and check
with a central repository of information may not be justified. The
proposed rule would require that the employer maintain records on-site
for inspection purposes.
Third, EPA also considered an option to require trainers, rather
than or in addition to employers, to retain records of those trained.
EPA is not pursuing this option because the WPS focuses on the
responsibilities of agricultural and handler employers. Trainers are
not responsible for the use of the pesticide on the establishment and
therefore cannot be legally responsible for following the labeling and
complying with the WPS requirements. Ultimately, the agricultural or
handler employer is responsible for ensuring that workers and handlers
receive training and for tracking that training. Inspections focus on
compliance of the agricultural or handler employer with the provisions
of the WPS, not the trainer. The WPS would not prohibit the creation of
training records by the trainer; however, the agricultural or handler
employer would have to maintain a copy of the records.
Finally, the Agency considered establishing a 5-year interval for
the record retention cycle, which would coincide with the statute of
limitations for civil violations (28 U.S.C. 2462). The estimated cost
of this requirement would be $2 million for worker training records and
$290,000 for handler training records. The incremental cost between
record retention for two or five years would be negligible. However,
EPA believes based on state programs (e.g., California and Florida) and
stakeholder feedback that a requirement to keep records for 2 years is
sufficient. Therefore, EPA decided not to propose a 5-year interval for
record retention.
7. Request for comment. EPA specifically requests comment on the
following questions:
Would a requirement for employers to report worker and
handler training information to the state or federal government for
compilation in a central repository have benefits? If so, please detail
the potential benefits and cost.
Should the Agency reconsider any of the alternate options
presented in developing a final rule? If so, why? Please provide data
to support your position.
Are there changes that would make the training
verification card program more effective and less prone to falsified
cards? If so, please provide detailed suggestions for improving the
system.
Should EPA consider a performance standard to evaluate
worker and handler training (asking questions based on the training
content) rather than recordkeeping? Are there benefits or drawbacks to
this approach that the Agency has not considered?
Would employers rely on training records provided by the
worker or handler as verification that the worker or handler had
received pesticide safety training?
C. Require Employers To Provide Establishment-Specific Information for
Workers and Handlers
1. Overview. The existing WPS does not require employers to provide
to workers and handlers establishment-specific information on the
location of decontamination supplies as part of their pesticide safety
training. In order to allow workers and handlers to adequately protect
themselves in the event of an unexpected exposure that could occur
through spills, being sprayed, or other unusually high exposure
situations, the Agency proposes that in addition to required general
training employers must provide establishment-specific information
about the location of decontamination supplies and pesticide safety and
hazard information, as well as how to obtain medical assistance.
Agricultural and handler employers would be required to provide this
establishment-specific information to all workers and handlers,
including those previously trained on other establishments. The Agency
expects this change will equip workers and handlers with the knowledge
and capability to assist in better protecting themselves from adverse
effects of pesticide exposure.
2. Existing WPS regulations. Sections 170.135(e) and 170.235(e)
require the employer to notify workers and handlers respectively about
the location of the pesticide safety poster and the emergency medical
information. Presently, part 170 has no requirement for employers to
provide information on the location of decontamination supplies or
hazard information to workers and handlers.
3. Summary of the issues. Farmworker organizations have raised to
EPA the need for workers and handlers to receive establishment-specific
information even if the employer can verify that the workers and
handlers have already received pesticide safety training. The pesticide
safety training covers general self-protection principles.
Establishment-specific information on where to find, among other
things, decontamination supplies, emergency contact information, and
pesticide application information, is not consistent across
establishments. While the workers and handlers may have received
general information on how to protect themselves, without knowledge of
where the necessary supplies are located or how to obtain emergency
medical assistance they would not be able to use the knowledge to
protect themselves.
4. Details of the proposal/rationale. The Agency proposes to
require employers to provide establishment-specific pesticide safety
training for workers and handlers when they enter the establishment and
before beginning WPS tasks. Content for the establishment-specific
information
[[Page 15464]]
would include the location of pesticide safety information, the
location of pesticide application and hazard information, the location
of decontamination supplies, and how to obtain emergency medical
assistance. Employers would be required to provide this training prior
to the handler performing handler activities or the worker performing
worker activities orally in a manner that the handler or worker can
understand, such as through a translator. Lastly, this training would
be required even if the employer can verify that the worker or handler
has already received pesticide safety training on another
establishment.
EPA acknowledges that some of this information is already required
under the current rule. However, EPA believes that consolidating the
requirements for establishment-specific training would make them easier
for employers to find and comply with, resulting in a higher likelihood
that workers and handlers would receive the necessary information.
The proposed regulatory text concerning the requirement for
employers to provide location-specific information to workers and
handlers appears in Sec. Sec. 170.103 and 170.203(b) of the proposed
rule.
5. Costs and benefits. The estimated cost of this proposal is
included in the cost of expanded training discussed in Unit VII.E. EPA
assumes that employers cover this information as part of routine
pesticide safety training and therefore including the establishment-
specific information would add negligible time and cost.
6. Alternative options considered but not proposed. EPA did not
consider any significant alternatives to the proposed option.
7. Request for comment. EPA specifically requests comment on the
following question:
To what extent do employers already provide this
information to all workers and handlers when they first arrive at the
establishment, for example, during the hiring process?
The current rule requires employers to ensure that the
workers and handlers receive information in a manner they understand.
Are there any issues with the current requirement for employers? If so,
please describe and provide data to support this position.
D. Establish Trainer Qualifications
1. Overview. The current rule allows workers and handlers to be
trained by a variety of persons, including certified applicators and
handlers. In order to ensure that the pesticide safety training
received by workers and handlers is provided in a manner conducive to
adult learning and provided in a language and manner in which they can
understand, the Agency proposes to require trainers of workers to have
completed an EPA-approved train-the-trainer program or be designated by
EPA or an appropriate state or tribal agency as trainers of certified
applicators. Certified applicators would no longer be automatically
considered qualified to train workers. The Agency proposes to retain
the existing qualifications for handler trainers, namely that in order
to be a trainer of handlers, one must be a certified applicator under
40 CFR part 171 at the time of the training, to have completed train-
the-trainer program, or be designated by EPA or an appropriate state or
tribal agency as a trainer of certified applicators and to limit
approval of train-the-trainer programs to EPA. In addition, EPA
proposes to require trainers to be present throughout the training and
to ensure that there are no distractions, e.g., background videos, loud
machinery, or other instructions, competing for the worker's or
handler's attention.
2. Existing WPS regulations. The existing WPS designates the
following groups as qualified to be pesticide safety trainers for
workers:
Applicators certified according to 40 CFR part 171
(private and commercial applicators of RUPs);
Persons designated as trainers of certified applicators,
or pesticide handlers by the appropriate state, federal, or tribal
agency;
Individuals who have completed an approved pesticide
safety train-the-trainer program; or
Persons who have completed WPS handler training.
The existing WPS designates the following groups as qualified to be
pesticide safety trainers for handlers:
Applicators certified according to 40 CFR part 171;
Persons designated as trainers of certified applicators or
pesticide handlers by the appropriate state, federal, or tribal agency;
and
Individuals who have completed an approved pesticide
safety train-the-trainer program.
The current WPS also requires trainers to be present to answer
questions but does not require that they be present for the entire
length of the training.
3. Summary of the issues. When EPA proposed what would become the
1992 WPS (53 FR 25970; July 8, 1988), stakeholders, specifically USDA
and farmer organizations, raised concerns about the need for adequate
numbers of qualified WPS trainers. To ease the burden of transition for
agricultural employers during the implementation of the rule, EPA made
approved criteria for trainers in the final rule (57 FR 38102, 38128-
29; Aug 21, 1992) intentionally broad. Since that time, the pool of
qualified trainers has expanded due to the increase and availability of
train-the-trainer programs. EPA has supported the Association of
Farmworker Opportunity Programs (AFOP) ``Serving America's Farmworkers
Everywhere'' AmeriCorps project for over ten years. This project
connects trainers with farmworker communities to build training
capacity and to provide free training services to agricultural and
handler employers. In addition, EPA has developed a train-the-trainer
handbook for worker training (Ref. 47). Many states have also increased
the number of qualified trainers through train-the-trainer programs and
other mechanisms.
Farmworker organizations and pesticide safety educators have raised
to EPA the importance of pesticide safety trainers having expertise
both in the subject matter covered and in adult education for low-
literacy audiences. The Hazard Communications for Agricultural Workers
Report by JBS International found that workers want to receive
pesticide safety training from trainers who are knowledgeable and
certified (Ref. 40). In order to convey information about routes of
pesticide exposure, potential accidents and how to mitigate pesticide
exposure, and avoiding exposure through basic hygiene, the trainer must
have a strong knowledge of the subject matter. A person can obtain this
knowledge in several ways. First, a person who has gone through a
train-the-trainer program would become versed in the specific
information to be conveyed to the training audience. Second, a person
who is qualified, as a university professor or cooperative extension
agent, to conduct training for a broad range of pesticide users, would
have a working knowledge of the potential pesticide risks faced by
workers and handlers. Lastly, handlers and applicators learn the
subject matter in the training and certification programs, which cover
the concepts presented in pesticide safety training in more detail.
Research and stakeholder input have highlighted the need for
trainers to have specific skills to reach this type of audience.
Farmworker organizations and pesticide educators expressed concern
about the ability of individuals without knowledge of adult education
practices to conduct effective pesticide safety training (Ref. 39)
(Ref. 46) (Ref. 48). Stakeholders have also informed EPA that training
may be presented
[[Page 15465]]
simultaneously with other information, preventing workers and handlers
from focusing completely on the safety information presented.
Stakeholders have raised concerns that trainers lacking skills in
adult education may be ineffective in communicating necessary pesticide
safety information to workers (Ref. 35) (Ref. 36) (Ref. 48) (Ref. 46)
(Ref. 39). Farmworker organizations have supported limiting eligibility
of trainers of workers and handlers to those completing a train-the-
trainer program ``covering methods of conducting an informal adult
participatory education session for low literacy learners, with limited
English proficiency'' (Ref. 35). A pilot train-the-trainer program in
Washington State showed that participants who learned training
techniques applicable to the worker population were more successful in
communicating with their target audience than they had been prior to
training, indicated by improved performance of the audience on a post-
training evaluation of knowledge (Ref. 17).
4. Details of the proposal/rationale. EPA proposes to require
trainers of workers to complete a pesticide safety train-the-trainer
program approved by EPA or to be designated as a trainer of certified
applicators by EPA or a state or tribal agency responsible for
pesticide enforcement. The proposal would delete the option for
certification under 40 CFR part 171 or training as a WPS handler to
serve as sufficient qualifications for a person to be a trainer for
workers.
Additionally, the Agency proposes to require trainers of workers
and trainers of handlers to be present during the entirety of a
training session and to answer questions. Trainers must also ensure
that the training is presented in a manner free of distractions.
EPA proposes to retain the existing categories for trainers of
handlers and to add a requirement that the train-the-trainer program be
approved by EPA.
Under a cooperative agreement with the NASDA Research Foundation,
EPA has developed the National Worker Safety Trainer Handbook (Ref.
47). This manual outlines the necessary pesticide safety information
for workers, as well as describing adult education principles and how
to communicate across languages and cultures. In addition to the
National Worker Safety Trainer Handbook, EPA also supports the training
of pesticide safety trainers of workers by AFOP. Both of these programs
would serve as models for an EPA-approved train-the-trainer program.
Using these models, EPA would develop guidance to describe the
necessary elements of a train-the-trainer program and the process for
seeking EPA approval. EPA anticipates that any interested
organizations, including non-profit organizations, universities, state
regulatory agencies, and the pesticide industry, could seek approval
for and administer a train-the-trainer course that meets EPA's
standards.
EPA proposes to retain the options for persons designated as
trainers of certified applicators or handlers by EPA or a state or
tribal agency responsible for pesticide enforcement because either EPA
or the state or tribe has recognized that they have the subject matter
expertise and qualifications necessary to convey the pesticide safety
information to workers or handlers. Many cooperative extension services
(part of land grant universities) have experts on pesticide safety that
work with agricultural employers to provide information on safe
pesticide use. EPA believes that in their role as educators and with
knowledge of adult education, pesticide application, and safety
principles, these persons are qualified to provide the information to
workers and handlers. State regulatory agencies also hire or contract
with adult educators to provide pesticide safety training to workers or
handlers. Rather than increase the burden on the state or tribal lead
agency by requiring that all persons complete a pesticide safety train-
the-trainer course, EPA believes that state and tribal lead agencies
would ensure that persons they designate as trainers can appropriately
convey the information required under the proposed regulation to
workers and handlers.
EPA proposes to eliminate the automatic authorization of certified
applicators and WPS handlers to train workers. Although certified
applicators have demonstrated competency in pesticide application and
safety, they may not possess skills as trainers, particularly for low-
literacy, non-English speaking, adult audiences. Handlers may possess
pesticide safety knowledge and may have cultural and language abilities
in common with workers, but they may lack teaching skills or sufficient
technical knowledge needed to effectively convey the information. For
training to make the most impact, trainers need to be competent not
only in their knowledge of pesticide risks but also in communicating
with adult learners with educational challenges. Trainers may have
difficulty conveying the abstract concept of pesticide risk, due to
barriers such as the limited English language skills, cultural
differences, and low educational levels of many workers and handlers.
EPA believes that there are sufficient qualified trainers to meet the
proposed requirements now, as opposed to when the 1992 WPS was
implemented, based on trainers qualified by AFOP initiatives and the
publication and dissemination of an EPA train-the-trainer handbook.
EPA proposes to retain the option for certified applicators to
train handlers. While the Agency has some concern regarding the ability
of certified applicators to provide effective training for workers
because worker trainers need to have specific capability to deliver
basic information to an audience that may have a low education level
and limited literacy and English skills, EPA thinks this group can be
successful as trainers for handlers. There is a large overlap between
the roles of applicators and handlers, which allows applicators to draw
on their personal knowledge and skills needed to correctly and safely
perform handler tasks. In addition, in the revisions to part 171, EPA
is proposing to require certified applicators to provide training that
mirrors the WPS handler training to noncertified applicators applying
RUPs under their direct supervision. EPA believes that the certified
applicators are appropriately qualified to convey the proper pesticide
application techniques and importance of protecting oneself from
pesticide exposure to handlers that will be performing similar tasks in
areas that have been treated with pesticides.
EPA believes that increasing the qualifications of trainers will
increase the value of training sessions by improving the quality of the
training. Workers will benefit by improved understanding of the
learning objectives and an increased ability to protect themselves and
their families.
To ease implementation and ensure a sufficient cadre of qualified
trainers is available, EPA proposes to continue allowing certified
applicators to conduct worker training until two years following the
effective date of the final rule. This transition period would allow
time for applicators and other persons that do not meet the current
requirements and who wish to conduct worker training to qualify as
trainers under the proposed requirements, either by attending an EPA-
approved train-the-trainer program or seeking designation as an
approved trainer of workers from EPA or the state or tribe, and for all
trainers to become familiar with new training materials developed as a
result of the finalized rule.
EPA plans to support the development of training materials for
workers and handlers that reflect the
[[Page 15466]]
new training requirements such as manuals and videos. EPA will work
with stakeholders to develop these materials when the amendments to the
rule are finalized and plans to have them ready for distribution when
the revised training requirements go into effect.
The proposed regulatory text concerning trainer qualifications for
workers and handlers appears in Sec. Sec. 170.101(c)(4) and
170.201(c)(4) respectively of the proposed rule.
5. Costs. EPA estimates the cost of revising the standards for
worker trainers would be $1.1 million annually, or about $3 per
agricultural establishment. For a complete discussion of the costs of
the proposals and alternatives, see the ``Economic Analysis of Proposed
Revisions to the Worker Protection Standard,'' Chapter 3 Cost Analysis
(Ref. 1).
EPA cannot quantify the precise benefits associated with this
proposal; however, EPA believes requiring trainers to have the ability
to convey the pesticide safety information, along with knowledge of
adult education principles and how to communicate with low-literacy
audiences, would increase overall understanding and retention of the
pesticide safety training by workers. This improvement would increase
the likelihood that workers and handlers adopt the principles outlined
in the pesticide safety training and reduce the potential for exposure
to themselves and their family members.
6. Alternative options considered but not proposed. EPA considered
several options regarding categories of qualified trainers. One option
considered by the Agency was to continue to consider applicators
certified under 40 CFR part 171 and handlers as qualified to train
workers. EPA does not think, however, that a certified applicator's
knowledge of pesticide safety and application principles alone is
sufficient to qualify the certified applicator as an educator for basic
safety principles for workers. As discussed above, teaching an adult
population, especially individuals with low-literacy skills, differing
cultural norms, and a variety of primary languages, requires trainers
with skills in reaching this type of audience. After considering this
alternative in light of the demographics of workers and the importance
of providing safety information in manner workers can understand, EPA
does not consider it reasonable to assume that certified applicators
and handlers necessarily have the adult education skills to adequately
perform WPS training for workers. Certified applicators and handlers
may become trainers if they complete a train-the-trainer course or are
designated as trainers by the EPA or a state or tribal agency.
EPA also considered an option to restrict trainer eligibility to
only trainers who have completed a train-the-trainer program. The
Agency believes that allowing trainers of applicators and those having
completed a train-the-trainer course to train workers, as well as
allowing certified applicators to train handlers, will offer continued
flexibility for agriculture and result in less burden than restricting
the qualifications to a single type of trainer. EPA has confidence that
trainers designated as qualified by EPA or the states or tribes would
have knowledge of adult education and the safety principles that
workers need to know. Requiring all worker and handler trainers to
complete a train-the-trainer program would limit the number of eligible
trainers and as a result there might not be sufficient numbers to meet
employers' training needs.
EPA also considered implementing a test to determine the
eligibility of trainers. Though examination would provide a method of
evaluating knowledge, safety educators and advocate groups maintained
that trainers need skills that cannot readily be assessed by an
examination. For example, it would be difficult to assess, through an
exam, whether a person has skills in communicating with low-literacy,
adult audiences. EPA believes that train-the-trainer courses in which
trainers learn and practice interactive and engaging training
techniques, in addition to the necessary pesticide safety information,
would be more effective than a written exam to prepare educators for an
audience of workers and handlers.
7. Request for comment. EPA specifically requests comment on the
following questions:
Are there other programs that would prepare trainers to
convey pesticide safety information to workers and handlers? Please
describe the program and the feasibility of its implementation for
affected establishments.
Should EPA consider requiring trainers of workers and
handlers to refresh their qualifications periodically, such as
requiring attending a train-the-trainer program every 5 years? Please
provide data in support or opposition.
The current rule requires employers to ensure that the
workers and handlers receive information in a manner they understand.
Are there any issues with the current requirement for trainers? If so,
please describe and provide data to support this position.
E. Expand the Content of Worker and Handler Pesticide Safety Training
1. Overview. The WPS currently requires employers to provide
pesticide safety training covering specific content to workers and
handlers. EPA proposes to expand the information required to be covered
in worker and handler pesticide safety training so that workers and
handlers can better protect themselves from adverse effects of
pesticide exposures.
Additional content in worker pesticide safety training would
include, among other things, information on: how to reduce pesticide
take-home exposure, the requirements for early-entry notification, the
requirement for emergency assistance for workers, and the availability
of hazard communication materials for workers, and informing workers of
the obligations of agricultural employers and what workers can expect.
Additional content in handler pesticide safety training would
include the handlers' requirement to cease application if he or she
observes a person other than another trained and properly equipped
handler in the area under treatment or entry restricted area, and a
requirement for OSHA-equivalent training on respirator use, fit-testing
of respirators, and medical evaluation for respirator users.
EPA expects this additional information provided in the proposed
expansions to worker and handler pesticide safety training to better
protect workers and handlers from risks associated with pesticides.
2. Existing WPS regulations. Under 40 CFR 170.130(d)(4), worker
pesticide safety training must include, at a minimum, the following 11
basic safety training points:
Where and in what form pesticides may be encountered
during work activities.
Hazards of pesticides resulting from toxicity and
exposure, including acute and chronic effects, delayed effects, and
sensitization.
Routes through which pesticides can enter the body.
Signs and symptoms of common types of pesticide poisoning.
Emergency first aid for pesticide injuries or poisonings.
How to obtain emergency medical care.
Routine and emergency decontamination procedures,
including emergency eye flushing techniques.
Hazards from chemigation and drift.
Hazards from pesticide residues on clothing.
Warnings about taking pesticides or pesticide containers
home.
[[Page 15467]]
Requirements of the WPS designed to reduce the risks of
illness or injury resulting from workers' occupational exposure to
pesticides, including application and entry restrictions, the design of
the warning sign, posting of warning signs, oral warnings, the
availability of specific information about applications, and the
protection against retaliatory acts.
Under 40 CFR 170.230(c)(4), handler pesticide safety training must
include, at a minimum, the following 13 basic safety training points:
Format and meaning of information on the product label,
including safety information.
Hazards of pesticides from toxicity and exposure.
Routes through which pesticides can enter the body.
Signs and symptoms of pesticide poisoning.
Emergency first aid for pesticide poisoning.
How to get emergency medical care.
Routine and emergency decontamination procedures.
Personal Protective Equipment (PPE).
Heat-related illness issues.
Safety requirements for handling, transporting, storing,
and disposing of pesticides.
Environmental concerns.
Warnings about taking pesticides or pesticide containers
home.
Training on the requirements of the regulation related to
handling.
3. Summary of the issues. The stakeholder engagement process
produced many comments on the content of pesticide safety training for
workers and handlers. [See Unit V.B.] Recommendations to improve worker
pesticide safety training in the ``Report on the National Assessment of
EPA's Pesticide Worker Safety Program'' included adding elements to
training on potential sources of pesticide exposure and preventing
family exposure, such as specific information on the need to wash work
clothes separately from other clothing (Ref. 17) (Ref. 15).
Additionally, farmworker organizations support expansion of the worker
pesticide safety training to include general information about
pesticide hazards, ways to reduce take-home exposure, and worker
rights. In contrast, other stakeholders raised concerns for extending
the length of training, increasing the burden on employers, or making
the training tedious for workers who may not be paid for time spent in
training. Many stakeholders also requested that EPA be mindful when
revising the WPS of the burdens faced by workers and some handlers, due
to their low income, low literacy, and limited English language skills.
4. Details of the proposal/rationale. EPA is proposing a number of
new provisions to be included in the content for worker and handler
safety training. Each of these is discussed in greater detail in this
section. Where some proposed changes only clarify or enhance an
existing training topic, rather than substantially altering the content
of the topic, EPA does not discuss the proposed modifications in as
great detail as the proposed modifications to existing language that
substantially alter the content of the training topic.
EPA proposes to add the following topics to both worker and handler
training: protection from pesticide take-home exposure, enhanced
emergency assistance provisions in the WPS, and the availability of
hazard communication materials.
Additional worker safety training topics would add about 15 minutes
to the training and would include, in addition to the points in the
current WPS: Handler tasks that employers must not direct or allow
workers to do, early-entry notification requirements including age
restrictions, hazards of pesticide exposure to children and pregnant
women, how to report suspected violations, and the prohibition of
employer retaliation for reporting suspected violations or attempting
to comply with 40 CFR part 170.
The proposed revised regulation for worker training at Sec.
170.101(c)(2) through (3) would require the following training content:
Agricultural employers' obligation to provide workers with
information and protections designed to reduce work-related pesticide
exposures and illnesses. This includes providing pesticide safety
training, pesticide safety and application information, decontamination
supplies, and emergency medical assistance, and notifying workers of
restrictions during applications and on entering pesticide treated
areas.
How to recognize and understand the meaning of the warning
sign used for notifying workers of restrictions on entering pesticide
treated areas on the establishment.
How to follow directions and/or signs about keeping out of
entry restricted or pesticide treated areas.
Where and in what form pesticides may be encountered
during work activities and potential sources of pesticide exposure on
the agricultural establishment. This includes pesticides drifting from
nearby applications, and that pesticide residues may be on or in
plants, soil, irrigation water, tractors, application equipment, or
used personal protective equipment.
Potential hazards from toxicity and exposure that
pesticides present to workers and their families, including acute and
chronic effects, delayed effects, and sensitization.
Potential hazards from chemigation and drift.
Routes through which pesticides can enter the body.
Signs and symptoms of common types of pesticide poisoning.
Emergency first aid for pesticide injuries or poisonings.
Routine and emergency decontamination procedures,
including emergency eye flushing techniques.
Wash immediately in the nearest clean water if pesticides
are spilled or sprayed on the body and as soon as possible, shower,
shampoo hair, and change into clean clothes.
How and when to obtain emergency medical care.
When working near pesticides or in pesticide treated
areas, wear work clothing that protects the body from pesticide
residues and wash hands before eating, drinking, using chewing gum or
tobacco, or using the toilet.
Wash or shower with soap and water, shampoo hair, and
change into clean clothes as soon as possible after working near or in
pesticide treated areas.
Potential hazards from pesticide residues on clothing.
Wash work clothes before wearing again.
Wash work clothes separately from other clothes.
Do not take pesticides or pesticide containers used at
work to your home.
Agricultural employers are required to provide workers
with pesticide hazard information.
Agricultural employers must not allow or direct any worker
to mix, load or apply pesticides or assist in the application of
pesticides unless the worker has been trained as a handler.
There are minimum age restrictions and notification
requirements for early-entry activities.
Potential hazards to children and pregnant women from
pesticide exposure.
Keep children and nonworking family members away from
pesticide treated areas.
Remove work boots or shoes before entering home.
After working near pesticides or in pesticide treated
areas, remove work clothes and wash or shower before physical contact
with children or family members.
[[Page 15468]]
How to report suspected pesticide use violations to the
state or tribal agency responsible for pesticide enforcement.
Agricultural employers are prohibited from intimidating,
threatening, coercing, or discriminating against any worker for the
purposes of interfering with any attempt to comply with the
requirements of this part, or because the worker has made a complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing pursuant to this part.
Additional handler training topics would add about 15 minutes to
the existing training and would include: proper removal of PPE; the
requirement for handlers to cease application if persons are in the
treated area or entry restricted area; the requirement that handler
employers must ensure handlers have received respirator fit-testing,
training, and medical evaluation if required to wear a respirator; and
the minimum age requirement for handlers.
The proposed revised regulation for handler training at Sec.
170.201(c)(2) through (3) would require the following training content:
Employers' obligation to provide handlers with information
and protections designed to reduce work-related pesticide exposures and
illnesses. This includes providing pesticide safety training, pesticide
safety and application information, decontamination supplies, and
emergency medical assistance, and notifying handlers of restrictions
during applications and on entering pesticide treated areas.
How to recognize and understand the meaning of the warning
sign used for notifying workers of restrictions on entering pesticide
treated areas on the establishment.
How to follow directions and/or signs about keeping out of
entry restricted or pesticide treated areas.
Where and in what form pesticides may be encountered
during work activities and potential sources of pesticide exposure on
the agricultural establishment. This includes pesticides drifting from
nearby applications, and that pesticide residues may be on or in
plants, soil, irrigation water, tractors, application equipment, or
used personal protective equipment.
Potential hazards from toxicity and exposure that
pesticides present to workers and their families, including acute and
chronic effects, delayed effects, and sensitization.
Potential hazards from chemigation and drift.
Routes through which pesticides can enter the body.
Signs and symptoms of common types of pesticide poisoning.
Emergency first aid for pesticide injuries or poisonings.
Routine and emergency decontamination procedures,
including emergency eye flushing techniques.
Wash immediately in the nearest clean water if pesticides
are spilled or sprayed on the body and as soon as possible, shower,
shampoo hair, and change into clean clothes.
How and when to obtain emergency medical care.
When working near pesticides or in pesticide treated
areas, wear work clothing that protects the body from pesticide
residues and wash hands before eating, drinking, using chewing gum or
tobacco, or using the toilet.
Wash or shower with soap and water, shampoo hair, and
change into clean clothes as soon as possible after working near or in
pesticide treated areas.
Potential hazards from pesticide residues on clothing.
Wash work clothes before wearing again.
Wash work clothes separately from other clothes.
Do not take pesticides or pesticide containers used at
work to your home.
Agricultural employers are required to provide handlers
with pesticide hazard information.
Agricultural employers must not allow or direct any worker
to mix, load or apply pesticides or assist in the application of
pesticides unless the worker has been trained as a handler.
Early-entry workers must be at least 16 years of age to
perform early-entry activities and workers must receive notification
prior to conducting early-entry activities.
Potential hazards to children and pregnant women from
pesticide exposure.
Keep children and nonworking family members away from
pesticide treated areas.
Remove work boots or shoes before entering home.
After working near pesticides or in pesticide treated
areas, remove work clothes and wash or shower before physical contact
with children or family members.
How to report suspected pesticide use violations to the
state or tribal agency responsible for pesticide enforcement.
Employers are prohibited from intimidating, threatening,
coercing, or discriminating against any handler for the purposes of
interfering with any attempt to comply with the requirements of this
part, or because the worker has made a complaint, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing pursuant to this part.
Information on proper application and use of pesticides.
Requirement for handlers to follow all pesticide label
directions.
Format and meaning of all information contained on
pesticide labels and in labeling.
Need for and appropriate use and removal of all personal
protective equipment.
How to recognize, prevent, and provide first aid treatment
for heat-related illness.
Safety requirements for handling, transporting, storing,
and disposing of pesticides, including general procedures for spill
cleanup.
Environmental concerns, such as drift, runoff, and
wildlife hazards.
Handlers must not apply pesticides in a manner that
results in contact with workers or other persons.
Handler employers are required to provide handlers with
information and protections designed to reduce work-related pesticide
exposures and illnesses. This includes providing, cleaning,
maintaining, storing, and ensuring proper use of all required personal
protective equipment; providing decontamination supplies; and providing
specific information about pesticide use and labeling information.
Handlers must cease or suspend a pesticide application if
workers or other persons are in the treated area or the entry-
restricted area.
Handlers must be at least 16 years of age.
Handler employers must ensure handlers have received
respirator fit-testing, training, and medical evaluation if they are
required to wear a respirator.
Handler employers must post treated areas as required by
this rule.
i. Protection from Pesticide Take-Home Exposure. Although the
current training instructs workers and handlers not to take home
pesticide containers and that clothing can carry pesticide residue, the
Agency proposes to expand the existing sections to include more
specific information in the worker and handler pesticide safety
training on ways to reduce take-home pesticide exposure. Specifically,
the expanded training content would include the following: Instructions
on washing before touching family members, removing soiled work boots
or shoes before entering the home, washing clothes that may have
pesticide residues
[[Page 15469]]
on them before wearing them again and separately from other family
clothes, and keeping family members away from treated areas, as well as
information on the potential risks to children and pregnant women from
pesticide exposure.
Workers and handlers may be exposed to pesticides at work;
additionally, they and their families may be exposed to pesticide
residues brought into their homes from the workplace. ``Take-home''
exposure is the movement of agricultural pesticides from the workplace
to the home via contact with pesticide-contaminated clothing, dirt
tracked into the home, or other pathways. This type of exposure has
generated concern among health care professionals and worker advocates.
A 1995 study by the Centers for Disease Control (CDC) on worker's home
contamination found, in multiple industries, that hazardous chemical
contamination of workers' homes is a worldwide problem, resulting in
injury and at times, death (Ref. 49 pp. vii, 17-19).
Although EPA does not have conclusive data about the impact of
pesticide residue transfer from a worker or handler to his or her home,
car, and family members, the Agency recognizes that workers and
handlers are exposed to chemicals in the workplace and should be
educated on minimizing the transfer of these chemicals to non-work
locations. Some studies have been conducted to evaluate whether non-
working children in agricultural families may have greater exposure to
agricultural chemicals than children of non-agricultural families from
the presence of pesticide residue in their home (Ref. 50).
Contamination of the home from agricultural pesticides can come from
numerous sources, including soil, dust, or other residue on clothing
and vehicles and contaminated storage containers (Ref. 49) (Ref. 51).
Additionally, agricultural pesticides introduced into the home may
persist longer than in outdoor areas, due to the lack of degradative
environmental processes, such as those furthered by rain and sun. Peer-
reviewed studies have concluded that ``farmworker and all rural
families must be educated about drift and how to reduce exposure''
(Ref. 52 p. 1259) (Ref. 53) and that ``pregnant farmworkers and those
living with farmworkers need to be educated to reduce potential take-
home pesticide exposure'' (Ref. 34 p. 491).
Studies have focused on the presence of agricultural pesticides in
the homes of workers. Centers for Children's Environmental Health and
Disease Prevention Research were established to explore ways to reduce
children's health risks from environmental factors. The program is
jointly funded by EPA and the National Institute of Environmental
Health Sciences (NIEHS) and also collaborates with the Centers for
Disease Control (Ref. 54). Two of the centers, the University of
California at Berkeley (UC Berkeley) and the University of Washington,
have a number of studies which focus on agricultural pesticides and
children, some with a primary outcome of pesticide exposure reduction
strategies. The Center for the Health Assessment of Mother and Children
of Salinas (CHAMACOS) Study, a longitudinal birth cohort study of
children in the Salinas Valley, California, is the largest study
administered by UC Berkeley's Children's Center (Ref. 55). California
Department of Health Services tested dust in worker and non-worker
homes and concluded that there is a greater presence of pesticide
residue in the homes of workers (Ref. 56). Additional studies apart
from the UC Berkeley activities have also examined the transfer of
pesticide residues from pesticide-treated areas to the home and
automobiles, i.e., the take-home pathway (Ref. 23) (Ref. 50) (Ref. 51)
(Ref. 57) (Ref. 58).
Effective methods of reducing take-home exposure exist. CDC's 1995
study identified worksite behaviors, such as minimizing workplace
exposures, storing clean clothes in uncontaminated areas of the
worksite, changing work clothes prior to returning home, and showering
before leaving the workplace, that are effective means to reduce take-
home exposure (Ref. 49). The report also identified methods in the home
to reduce contamination, such as laundering work clothes separately
from family laundry, preventing family members from visiting the
workplace, and informing the workers of risks to family members and how
to minimize their exposure. Workers and their families should be
familiar with how behaviors such as hand washing, proper laundering,
and removing work clothes before entering the home can reduce risk of
exposure (Ref. 34).
ii. Training on Reporting Violations and Employer Retaliation
Prohibition
EPA proposes to require that worker and handler pesticide safety
training include information on how to report suspected pesticide use
violations. EPA also proposes to include a training point explaining
that agricultural employers are prohibited from retaliation against
workers and handlers for attempting to comply with the WPS or reporting
suspected violation of the WPS. Including this information in the
worker and handler training would increase the effectiveness of the
existing WPS protections against retaliations.
Under the current 40 CFR 170.7(b) employers are prohibited from
taking ``any retaliatory action for attempts to comply with this part
or any action having the effect of preventing or discouraging any
worker or handler from complying or attempting to comply with any
requirement of this part.'' The existing Sec. 170.130(d)(4)(xi)
requires employers to provide training on protections against
retaliatory acts. Similar protection against retaliation for handlers
is covered in Sec. 170.230(c)(4)(xiii).
Farmworker advocacy organizations recommend including in the worker
and handler pesticide safety training information on the rights of
workers and handlers under the WPS (Ref. 36). The Agency agrees that
workers and handlers should be aware of WPS provisions on how to report
violations and the prohibition on retaliation by the agricultural
employer. Farmworker advocacy organizations indicate that workers and
handlers informed of their employers' requirements and the process to
report violations and pesticide exposure incidents are more likely to
report them. This can lead to a clearer understanding of circumstances
leading to WPS violations and pesticide exposure issues by enforcement.
EPA believes it is important for workers and handlers to understand
that the WPS provides protections for their safety and that if their
employers do not provide the required protections, the government can
assist them. By incorporating this information into the WPS training,
it is more likely that workers and handlers will understand the
information and be aware of the resources available to them in the
event of a suspected act of retaliation or noncompliance with the WPS.
Farmworker organizations requested that WPS worker and handler
training include contact information for legal representation (Ref.
35). EPA, however, does not agree. EPA does not consider it appropriate
to recommend particular attorneys or legal representatives. Moreover,
while legal representation may be helpful for a worker or handler who
experiences retaliation or a serious pesticide exposure, it is not
clear that requiring the requested notification would significantly
contribute to the goals of FIFRA.
The proposed regulatory text concerning training in regard to
reporting suspected violations and employer prohibition against
retaliation
[[Page 15470]]
appears in Sec. Sec. 170.101(c)(3)(viii) through (ix) and
170.201(c)(3)(v) of the proposed rule.
iii. Training on Hazard Communications Materials for Workers and
Handlers. EPA proposes to require agricultural and handler employers to
provide workers and handlers with access to the expanded pesticide
application information, the SDS, and the pesticide product labeling
upon request for up to two years. [See Unit IX.] EPA proposes to
include an overview of the new hazard communication requirements and
materials (expanded application information, SDS, and product labeling)
in the pesticide safety trainings for workers and handlers.
The proposed regulatory text concerning hazard communication
content of worker and handler pesticide safety training appears in
Sec. Sec. 170.101(c)(3)(i) and 170.201(c)(3)(v) of the proposed rule.
iv. Training on Early-Entry Notification for Workers. EPA is
proposing to add to the worker pesticide safety training points about
the minimum age restriction and notification requirements for early-
entry work. Workers would learn that entry into a treated area under an
REI would be limited to workers 16 years of age or older and what
notification requirements must be provided prior to being directed to
perform early-entry tasks. EPA expects that providing this information
to workers during training would make workers aware of their
agricultural employer's obligation to provide information on the
protections required when asked to perform early-entry work. EPA
believes that workers should be made aware of employer obligations in
their training so they will understand the significance of (and, if
they fail to receive it, notice the absence of) the information
employers would be required to provide. For a complete discussion of
the proposed amendments to the early-entry requirements, see Unit XII.
The proposed regulatory text concerning early-entry notification and
minimum age content of worker and handler pesticide safety training
appears in Sec. Sec. 170.101(c)(3)(iii) and 170.201(c)(3)(v) of the
proposed rule.
v. Handler Responsibilities. EPA proposes that a handler be
required to cease application if the handler observes a person other
than another trained and properly equipped handler in the area under
treatment or associated entry-restricted area. EPA believes that either
the handler would have prior knowledge that another handler would be in
the area during treatment, or would cease application until he or she
could verify whether the person(s) in the treated area met the standard
as a trained and properly equipped handler. This new requirement would
impose additional responsibility on handlers. [See Unit XI.] Therefore,
EPA proposes to add to the handler training requirements a point on
this specific handler responsibility.
The proposed regulatory text concerning the cessation of
application content of handler pesticide safety training appears in
Sec. 170.201(c)(3)(i) of the proposed rule.
vi. Respirator Fit-Testing and Medical Evaluation for Handlers.
Unit XVI.E. discusses EPA's proposal to adopt the OSHA standard (29 CFR
part 1910) for respirator use. The OSHA standard requires employers and
users to take steps to ensure respirators are used safely, including
fit testing the handler's respirator, conducting medical evaluation,
and training handlers on proper respirator use.
EPA proposes to require that handler training inform handlers of
the new obligations of handler employers regarding proper respirator
use. Handler training content is proposed to inform handlers that their
employer must ensure they have received respirator fit-testing,
training and medical evaluation if they are required to wear a
respirator; only those handlers who would use a respirator would need
to receive the full OSHA training on respirators. EPA expects this
change would inform handlers of the new requirements for respirator use
and their importance.
The proposed regulatory text concerning adding to the training the
employer's responsibility to provide handlers using respirators with
respirator training, fit-testing, and medical evaluation appears in
Sec. 170.201(c)(3)(iii) of the proposed rule.
5. Costs. The proposed expansions to training content would expand
worker training from approximately 30 minutes to 45 minutes, and
handler training from 45 minutes to 60 minutes. The Agency believes
that the expanded training is necessary for workers and handlers to
better protect themselves.
EPA estimates the cost of expanding pesticide safety training for
workers would be $4.3 million annually or about $11 per agricultural
establishment per year. The cost to expand pesticide safety training
for handlers would be $660,000 annually, or about $3 per agricultural
establishment and $15 per commercial pesticide handling establishment
per year. For a complete discussion of the costs of the proposals and
alternatives, see the ``Economic Analysis of Proposed Revisions to the
Worker Protection Standard,'' Chapter 3 Cost Analysis (Ref. 1).
EPA cannot quantify the specific benefits associated with this
proposal. However, EPA believes that adding information to worker and
handler training would assist workers and handlers to mitigate
pesticide exposure to themselves and their families. EPA believes this
would result in a lower number of occupation-related pesticide
exposures and reduce chronic and developmental effects from pesticide
exposure.
6. Alternate options considered but not proposed. EPA considered
various combinations of the additional training content discussed
above. For example, EPA considered simply clarifying the training
required under the current rule to be more specific about the
information to be covered. EPA also considered not adding the
information about employers' responsibilities to provide training to
early-entry workers and to handlers using respirators in order to
shorten the total duration of a training program; however, given the
importance of communicating the additional information to workers and
handlers to ensure they have the information necessary to protect
themselves and their families from pesticide exposure and the
relatively low burden associated with extending the training to cover
the content, EPA believes that all of the aforementioned points should
be added to the training.
While a shorter training program with fewer points would reduce the
cost of the proposal slightly, EPA believes the benefits of providing
the proposed additional training topics to workers and handlers are
reasonably balanced against the cost.
7. Request for comment. EPA specifically requests comment on the
following questions:
Are there any training points listed above that EPA should
consider not including in the final proposal? If so, which points and
why?
Are there points that EPA should consider adding to the
training content? If so, what points should be added? Please provide a
rationale for why the additional content would benefit workers and/or
handlers.
F. Retain Audiovisual Presentations as Permissible Methods for
Pesticide Safety Training
1. Overview. The existing WPS allows trainers to train workers and
handlers using a variety of methods, including an EPA-approved video or
DVD. EPA recognizes concerns raised by stakeholders that the video/DVD
may not be an adequate training tool when
[[Page 15471]]
used as a stand-alone training, but EPA has decided to retain the video
as a training method and to add requirements for the trainer to be
present throughout the presentation, to answer all questions from those
participating in the training, and to ensure that the training is
reasonably free of distractions.
2. Existing WPS regulations. The WPS requires trainers to present
the pesticide safety information ``either orally from written materials
or audiovisually'' (40 CFR 170.130(d)(1) and 170.230(c)(1)). EPA
developed a variety of training materials, including training videos
covering the pesticide safety points specified in 40 CFR 170.130 and
170.230. A worker training video, ``Chasing the Sun Pesticide Safety
Training'' runs for approximately 30 minutes, and a handler training
video, ``Pesticide Handlers and the WPS'' runs for approximately 50
minutes. Each video covers the current training points and both are
available in English and Spanish.
3. Summary of the issues. Farmworker organizations have voiced
opposition to maintaining a video as the training device (Ref. 35),
instead recommending that EPA require employers to provide training
using methods with greater interaction to better communicate with
workers (Ref. 36). A report from EPA's National Assessment of the
Worker Protection Program recommended that training materials encourage
interaction and participation, and be both culturally and
linguistically appropriate (Ref. 15).
The Agency recognizes the passive nature of video training and
understands that some stakeholders believe that a lack of worker or
handler engagement during video training may prevent effective
transmission of pesticide safety information. Focus-group research,
however, indicates that workers prefer to receive training information
in a video or provided orally along with simple drawings on paper as
visual aids rather than an oral presentation without any visual aids
(Ref. 40). Additionally, research has shown that comprehension of
pictorials for safety-related information is significantly enhanced
when accompanied by even brief trainer involvement (Ref. 59).
4. Details of the proposal/rationale. EPA proposes to continue to
allow audiovisual training tools, and to add requirements for the
trainer to be present during the training, to answer questions from
trainees, and to ensure that the training is reasonably free from
distractions. [See Unit VII.D.] Combined with more qualified trainers
familiar with the principles of adult education, EPA expects that use
of EPA-approved video would enhance, rather than diminish,
comprehension of training objectives.
Based on feedback received directly from the affected community of
workers, EPA decided to retain the option for trainers to use
audiovisual materials, including but not limited to videos, DVDs, and
PowerPoint presentations, as part of the training program. EPA believes
that allowing use of audiovisual training tools provides flexibility to
trainers and employers by allowing them to be present to monitor the
audience, to stimulate discussion, and to answer questions, while the
video presents the major concepts of the training. This would help
small establishments that conduct infrequent trainings to ensure that
the training covers all of the major points. In addition, EPA
recognizes that some employers and trainers are more comfortable
utilizing audiovisual materials as part of training because widely used
videos employ actors portraying workers to communicate the messages,
which can be more convincing to the training audience.
The proposed regulatory text requiring the trainer to be present
throughout the training for workers and handlers appears in Sec. Sec.
170.101(c)(1) and 170.201(c)(1), respectively, of the proposed rule.
5. Costs and benefits. EPA does not estimate any costs associated
with this proposal because it retains an existing provision of the
rule.
6. Alternate options considered but not proposed. EPA considered
eliminating the option for trainers to present material audio visually.
Based on the rationales discussed above, EPA believes that allowing
trainers to use audiovisual training materials and adding a requirement
for the trainer to be present and answer workers and handlers'
questions would adequately address the concerns raised by farmworker
groups while allowing trainer's flexibility in how they communicate
with workers and handlers.
7. Request for comment. EPA specifically requests comment on the
following question:
Please provide any additional information on the efficacy
of different methods used to conduct worker and handler training.
G. Eliminate Exception to Handler Training Requirements
1. Overview. Currently, an employer does not have to provide
handler training to a person performing handler tasks if the handler
has satisfied the training requirements under the Certification of
Pesticide Applicators Regulation (40 CFR part 171). In order to ensure
handlers receive the information necessary to understand WPS
protections, EPA proposes to eliminate this exception. EPA expects
removal of this exception would ensure all handlers receive complete
information to protect themselves in situations specific to WPS
establishments.
2. Existing WPS regulations. Under 40 CFR 170.230, pesticide
handlers currently are required to be trained on pesticide safety.
Under 40 CFR 170.230(b)(2), employers may be excepted from the
requirement to provide handler training when their handlers have
satisfied the training requirements in 40 CFR 171. Part 171, however,
does not include specific training requirements relevant to WPS;
therefore, the exception allows handlers to qualify without learning
about part 170 requirements, such as REIs and the prohibition against
spraying when anyone is in the treated area.
3. Details of the proposal/rationale. EPA proposes to eliminate the
exception for handler training for a handler who has been trained in
accordance with the requirements in 40 CFR part 171. In essence, this
change would require persons who apply pesticides under the direct
supervision of a certified applicator to receive handler training under
the WPS. As explained in Unit II, the Agency is considering separate
revisions to 40 CFR part 171 that could include specific training
requirements for persons applying RUPs under the supervision of a
certified applicator. Although the training requirements in these two
proposed rules overlap substantially (e.g., safe application
techniques, understanding label requirements, safe storage and
disposal), the training EPA is considering to require under 40 CFR part
171 does not include specific information on WPS requirements, handler
responsibilities, and reducing take-home exposure specifically in
agriculture. WPS information is critical for handlers so they can
protect themselves, their families, workers, the environment, and
bystanders.
4. Alternative options considered but not proposed. While EPA
considered proposing identical training requirements for both Sec.
170.201 and part 171, many RUP users never apply agricultural
pesticides, and would not need to know all the detailed requirements
related to the WPS protections, such as warning sign postings and
specific handler responsibilities. EPA believes the WPS-
[[Page 15472]]
specific information is critical to equip a handler to avoid risk of
exposure and illness in agricultural situations. Therefore, the Agency
does not intend to impose the same training requirements for
noncertified applicators under 40 CFR part 171.
5. Cost. EPA believes the cost for this requirement would be
negligible. Those employers that intend to provide training under 40
CFR part 171 for their handler employees would be able provide the
proposed WPS handler training and satisfy the requirements of both
regulations. The estimated training burden for the two requirements is
substantially similar.
6. Request for comment. EPA requests feedback on the following:
Should the proposed training under 40 CFR part 171 include
a requirement for expanded training on the WPS?
How would the benefits to employers from giving a single
training that would apply to both WPS handlers and applicators using
RUPs under the direct supervision of a certified applicator compare to
the costs of requiring agricultural applicator training for all
applicators using RUPs under the direct supervision of a certified
applicator?
VIII. Notifications to Workers and Handlers
A. Posted Notification Timing & Oral Notification
1. Overview. The current rule allows employers to provide to
workers either oral or posted warnings about areas where an REI
(regardless of its length) has been in effect within the last 30 days
unless required to provide both oral and posted warnings by the
specific pesticide label. For farms, forests, and non-enclosed
nurseries (what EPA is proposing to define as ``outdoor production''),
EPA proposes to require that agricultural employers post warning signs
regarding the application of a pesticide that has an REI greater than
48 hours, and proposes to allow the option of oral warning or posted
notification for products with REIs of 48 hours or less. For
greenhouses and indoor nurseries (what EPA is proposing to define as
``enclosed space production''), EPA proposes to require that
agricultural employers post warning signs according to the current
posted warning requirements when the product applied has an REI greater
than 4 hours, and proposes to allow the option for oral or posted
notification where the product applied has an REI of 4 hours or less.
EPA expects the changes to improve worker protection by increasing
workers' awareness of treated areas and reminding them to take required
precautions and to avoid pesticide exposure, leading to an overall
reduction in occupational pesticide-related illnesses.
2. Existing WPS regulations. Under 40 CFR 170.120, agricultural
employers are required to notify workers about pesticide applications
and areas on the agricultural establishment subject to an REI.
Notification is required when workers or handlers are on the
establishment during application or the REI and will pass within one
quarter (1/4) mile of the treated area. In greenhouses and some
enclosed nurseries, the agricultural employer must post warning signs.
On farms, and in forests and non-enclosed nurseries, the agricultural
employer may choose either to post warning signs at the usual points of
entry around the treated area or to notify workers orally about
applications that will take place on the establishment. Both posted and
oral worker notification must inform workers about the location of the
application and treated areas under REIs so workers do not enter. In
cases where the product labeling requires both written and oral
notification of workers, the WPS also requires this ``double
notification.'' Part 170 does not currently require the agricultural
employer to keep a record of oral warnings.
3. Summary of the issues. In 2006, Farmworker Justice sent a letter
to the EPA Administrator, signed by more than 50 different farmworker
groups, suggesting revisions for making the WPS more protective. The
letter states, ``Restricted-entry intervals (REIs) are . . . intended
to provide a physical barrier, reducing worker exposure to pesticides
when and where the risk is greatest. But workers are not effectively
warned to keep out of recently treated areas.'' (Ref. 35) Farmworker
organizations noted three problems with the current requirement:
Workers may not remember REI details that span multiple days, oral
warnings may not be adequately provided by the employer in the
appropriate language or understood and retained by the worker, and
compliance with the oral warning requirement is difficult to verify.
Farmworker Justice recommended posting areas treated with a pesticide
with an REI longer than 72 hours and requiring recordkeeping of oral
notifications to workers.
The Farmworker Justice comments are consistent with research
showing that oral instruction alone may not be an effective method of
safety instruction.
4. Details of the proposal/rationale. For ``outdoor production,''
EPA proposes to require that agricultural employers post warning signs
where the pesticide to be applied has an REI greater than 48 hours, and
to allow the option of oral warning or posted notification for products
with an REI of 48 hours or less. For ``enclosed space production,'' EPA
proposes to require posting of warning signs where the product applied
has an REI greater than 4 hours, and to allow the option of oral
warning or posted notification for products with an REI of 4 hours or
less.
EPA believes that under the current rule agricultural employers
most commonly opt to provide oral notification to their workers because
this is less costly and less burdensome than physically posting treated
areas. However, workers may not recall oral notifications when REIs are
longer than a few days. Adults remember only about 10% of what they
hear, but when the information is seen and heard retention improves to
about 50% (Ref. 41). Entry into a treated area during an REI presents
an elevated risk of pesticide exposure and EPA believes that ensuring
that workers are adequately notified of treated areas in a manner they
can recall and understand would result in fewer entries into treated
areas during the REI without appropriate protection.
A 2008 SENSOR-Pesticides/California Department of Pesticide
Regulation publication cites reentry into pesticide-treated areas prior
to the end of the REI as the second leading factor contributing to
reports of acute occupational pesticide poisoning cases in agricultural
workers (Ref. 11). One reason workers may be entering pesticide-treated
areas is their lack of awareness that the area has been treated with a
pesticide and is under an REI, which EPA believes can be addressed by
more robust posting of treated areas.
Because workers face challenges with literacy and understanding
English, EPA believes that reducing the reliance on spoken messages to
protect workers and increasing reliance on a clear, graphic, posted
warning would better protect workers from the risks of entering a
treated area before the REI expires without proper protection. The
posted warning signs will serve as physical reminders for workers to
avoid areas in which the REI has not expired. During pesticide safety
training, workers would be informed of the requirement for agricultural
employers to provide oral or posted notification for treated areas, in
addition to the current requirement to describe the warning signs,
which would increase workers' likelihood of noticing and complying with
entry restriction signs. [See Unit VII.E.]
[[Page 15473]]
Treated areas under an REI pose elevated risk of exposure; thus, by
keeping workers out, negative health effects of pesticide exposure may
be avoided. EPA expects the proposed requirement to increase the number
of areas posted on agricultural establishments across the nation,
thereby increasing the number of workers who are aware of the REI and
avoid entering, and ultimately leading to a reduction of incidence of
pesticide illnesses related to unintentional entry into treated areas
under an REI.
The protective effect of increased posting requirements through
subsequent reduction of pesticide illnesses has been shown in Monterey
County, California. In response to a series of worker exposure
incidents, Monterey County required agricultural employers to post
areas treated with a pesticide with an REI of 24 hours or longer. Since
its implementation, this county-specific requirement has led to a
significant reduction in pesticide-related illnesses caused by entering
a treated area before the expiration of an REI (Ref. 60). California
cannot provide specific data on the percent reduction, but a 2001
report from the California Department of Pesticide Regulation noted
stakeholder consensus on and support for the requirement, stating:
``All participants strongly believe that field posting prevents workers
from early reentry. Monterey County participants support their 24-hour
posting regulations, even though compliance is costly, because field
posting prevents both application and reentry errors'' (Ref. 60).
EPA believes the proposed posting requirement may also foster
compliance and facilitate enforcement because WPS inspectors could
readily view posted warning signs. Inspectors who see workers in a
treated area while the posted warning signs were displayed could
investigate whether the workers received proper early entry
protections.
EPA believes posting all treated areas would be a very effective
method for ensuring that workers are notified about what areas are
under an REI. However, the burden on employers to post all treated
areas subject to an REI would be substantial. To treat an area with an
REI of 24 hours, the employer would have to post the area, make the
treatment, and retrieve the signs the following day. EPA believes that
it is reasonable to expect workers to remember oral warnings related to
treated areas under REIs for at most 2 work days, or about 48 hours.
EPA is proposing to allow oral or posted warnings for areas in
greenhouses treated with an REI of 4 hours or less. Greenhouse
production is much more compact than outdoor production. In a row of
planting tables, there could be many applications. EPA recognizes the
need for workers to have information about the different risks they
face; however, EPA also believes that products with an REI of 4 hours
or less generally pose lower risks than products with longer REIs.
As noted, EPA believes that workers can retain warning information
provided orally for up to 48 hours. However, greenhouses and other
enclosed space production establishments have significantly more
applications in a smaller space. EPA believes it is unreasonable to
expect workers to remember all of the information provided orally about
treated areas when each different planting tray could have different
requirements, therefore EPA is proposing a lower threshold for posting
notification of treated areas on establishments where multiple
applications may be conducted in a small area. EPA believes allowing
employers the option to provide oral or posted notification of treated
areas for a small subset of pesticides provides employers with
flexibility while ensuring workers receive the information necessary to
protect themselves.
The proposed regulatory text concerning notification appears in the
following sections of the proposed rule: outdoor production--Sec.
170.109(a)(1)(i) and enclosed space production--Sec.
170.109(a)(1)(ii).
5. Costs and benefits. EPA estimates the cost of requiring
employers to post all treated areas with an REI longer than 48 hours
would be $11.1 million annually, or about $28 per establishment per
year. EPA estimates that the proposed changes to notification in
greenhouses would save about $10,000 per year, or $14 per small
greenhouse. For a complete discussion of the costs of the proposals and
alternatives, see the ``Economic Analysis of Proposed Revisions to the
Worker Protection Standard,'' Chapter 3 Cost Analysis (Ref. 1).
EPA cannot quantify the benefits associated with this specific
proposal; however, EPA believes requiring employers to post treated
areas under an REI of greater than 48 hours would provide workers with
more reliable information on treated areas and when to stay out. EPA
expects this would result in fewer workers entering treated areas under
an REI and therefore reduce the number of pesticide-related illnesses
attributable to this cause.
6. Alternative options considered but not proposed.--i.
Alternatives to Posting Timeframe. EPA considered the Farmworker
Justice recommendation for EPA to require posted warning signs in
treated areas with REIs greater than 72 hours. This option would
provide more protection than the current regulation, but not as much as
the proposed option which would require the same posting, but for REIs
greater than 48 hours. Given the importance to the worker of
understanding which areas are under an REI, EPA believes that posted
notification for products with REIs over 72 hours would not adequately
warn workers to take precautions. EPA believes that it would be
unreasonable to expect a worker to retain the information about what
areas were treated and when REIs expire for longer than a two day
period. EPA estimates the cost of this proposal would be about $7.9
million, or $20 per establishment.
EPA also considered requiring agricultural employers to post
warning signs in treated areas with an REI of 24 hours or longer,
similar to the requirement in Monterey County, California. EPA
recognizes the impact of Monterey's posting requirement in reducing
exposure to workers. However, EPA also recognizes the need to balance
the protection of workers and burden on agricultural employers and
applicators. Monterey County represents a small geographical area. EPA
believes that while posting of treated areas with an REI of 24 hours or
longer may have been practical in this limited region, it would not be
practical as a national requirement. Agricultural employers would have
a much higher burden to post every treated area with an REI of 24 hours
or longer. EPA believes that workers could retain information on
treated areas and REIs for up to two days.
Lastly, EPA considered a requirement to post warning signs in all
treated areas under REIs for enclosed space and outdoor production.
This option would ensure that workers are aware of the status of every
treated area and every area without posting would be safe for workers
to enter. Posting of all treated areas where an REI is in effect would
send a clear message to workers; however, it would be very difficult
for agricultural employers to comply with this requirement. Some
products have an REI of 4 hours. In essence, an employer would post
signs after application and almost immediately take them down. While
this task may be easy in enclosed space production, it may be
substantially more burdensome for an agricultural employer engaged in
outdoor production.
[[Page 15474]]
EPA believes that the proposed option to require posting of all
areas of outdoor production treated with a product with an REI greater
than 48 hours strikes a balance between the three alternatives
considered. EPA recognizes the value of allowing oral warning for
worker notification of treated areas with REIs less than 48 hours
because this option would provide regulatory flexibility (Ref. 18). EPA
believes that workers informed orally can remember that an area has
been restricted for entry for up to two days. Posting areas treated
with a pesticide product with an REI greater than 48 hours would
provide workers visual reminders when the REI is sufficiently long that
a worker could have difficulty remembering the specific area treated or
length of the REI.
ii. Recordkeeping of Oral Notification. To address concerns that
workers may not receive oral notifications of treated areas with REIs
shorter than or equal to 48 hours, EPA considered adding a requirement
for agricultural employers to retain records of the oral warning
provided, signed by the workers who received the notification, for 2
years. The required record would contain:
Location and description of the entry-restricted area and
the treated area;
Date and time the REI starts and ends;
Date and time the agricultural employer provided the oral
warning;
Name and signature of the person providing the warning;
and
Name and signature of each employee that received
notification.
Requiring the employee's signature on the record would provide
incentive to the employer to provide the notification in a manner the
worker understands in order to obtain the signature. This requirement
would impose significant burden on employers. The time required to
comply with the recordkeeping would substantially increase the time
currently required to provide the oral notification, based on the
additional requirement to explain the notification record and secure
the signatures of all workers entering or working within 1/4 mile of
the treated area.
In addition, workers may have difficulty reading and understanding
the record of the notification because many are not literate in
English. Workers may sign the notification record because instructed to
do so by the employer, not because they understand the information
provided and intent of the record of the oral notification, undermining
the intent of the record as confirmation of transfer of information to
workers.
EPA estimates the cost to collect and retain records for 2 years
would be about $20 million, or about $51 per establishment. This cost
is substantially higher than the cost for recordkeeping of pesticide
safety training because pesticide safety training would only occur once
annually per worker whereas records of oral notification could be
required almost every time an application occurs. EPA has insufficient
data to support a claim that the potential benefits of this
alternative, i.e., increased enforceability of the WPS, would outweigh
the potential burden on agricultural employers to record and maintain
the information.
7. Request for comment. EPA specifically requests comment on the
following questions:
For outdoor production, EPA proposes to allow the option
of oral warning or posted notification for products with an REI of 48
hours or less. Is there a different time period that would better
balance the costs of compliance with the expected risk reduction?
Will the proposed requirements for posting instead of oral
warnings provide sufficient benefit for workers to warrant the
additional burden placed on agricultural employers?
Should EPA require recordkeeping for oral notification? If
so, why?
B. Locations of Warning Sign
1. Overview. Where the existing WPS requires a warning sign to be
posted, the signs must be placed where they are visible from all usual
points of worker entry to the treated area, the corners of the treated
area, or an area affording maximum visibility. EPA proposes to revise
the required posting locations to include locations visible from a
worker housing area if the housing area is within 100 feet of a treated
area for outdoor production.
2. Existing WPS regulations. The WPS requires employers to post
warning signs (40 CFR 170.120(c)). For applications in farms, forests,
and non-enclosed nurseries (what EPA is proposing to define as
``outdoor production''), the warning signs must be visible from all
usual points of worker entry into the treated area, including, at a
minimum, each access road, each border with a labor camp (what EPA is
proposing be referred to as a ``worker housing area'') adjacent to the
treated area, and each footpath or other walking route that enters the
treated area. For applications in greenhouses and indoor nurseries
(what EPA is proposing to define as ``enclosed space production''), the
warning signs must be visible from all usual points of worker entry to
the treated area, including, each aisle or other walking route that
enters the treated area. When there are no usual points of worker entry
to the treated area (farm, forest, nursery or greenhouse), the employer
must post signs in the corners of the treated area or in any other
location offering maximum visibility.
3. Summary of the issues. During the National Assessment process,
stakeholders, including farmworker groups and healthcare organizations,
raised concerns about providing notice to worker housing inhabitants
when their location is not directly adjacent to the treated area (Ref.
17). Workers and their families housed near treated areas may have a
higher likelihood of exposure to pesticides from inadvertently entering
a treated area; the increased detection of pesticides in the body has
been found to be associated with housing adjacent to treated areas
(Ref. 51) (Ref. 57). In order to mitigate the risk associated with
walking into a treated area without adequate notification, stakeholders
suggested increasing the posting of areas near worker housing areas
(Ref. 35).
4. Details of the proposal/rationale. To prevent inadvertent entry
into treated areas from onsite worker housing areas, EPA proposes to
require a posted warning sign visible from a worker housing area if the
housing area is within 100 feet of a treated area for outdoor
production in addition to the required current locations. EPA expects
this requirement would improve notification of workers and their
families in worker housing areas, mitigating exposure resulting from
entry into a treated area under an REI. This additional posting
location should also improve safety of families living on or near
agricultural establishments. Individuals in worker housing areas would
be able to see the posted warning signs and avoid entry into the area.
EPA considered the demographics of the worker population when
developing this proposal. In recognition of their low literacy and
limited English language skills, EPA proposes to use the widely
recognized warning sign indicating to stay out of a particular area
with text in at least two languages. In addition, workers and their
families generally live near agricultural areas but may not be aware of
when a nearby area has been treated. Children may play around the home
in a treated area, increasing the likelihood of exposure to pesticides.
By posting information warning of pesticide applications near worker
housing for workers and their families to see, EPA believes that they
will be less likely to inadvertently enter a
[[Page 15475]]
treated area and thereby will reduce overall risk of exposure to
pesticides. This proposal supports EPA's commitments to keeping
children safe and to take specific measures to protect vulnerable or
disadvantaged communities and populations.
The proposed regulatory text concerning the warning sign appears in
Sec. 170.109(b)(3)(ii) of the proposed rule.
5. Cost. EPA believes the cost of this proposed expansion of the
areas that must be posted would be negligible. For a complete
discussion of the costs of the proposals and alternatives, see the
``Economic Analysis of Proposed Revisions to the Worker Protection
Standard,'' Chapter 3 Cost Analysis (Ref. 1).
6. Alternative options considered but not proposed. EPA considered
a recommendation offered by Farmworker Justice to require signs to be
posted at the usual points of entry and every 100 feet along the
perimeter of the treated area (Ref. 35). Many members of the PPDC
workgroup, including state regulatory agencies, cooperative extension
services, and the agricultural industry, said that posting warning
signs every 100 feet around treated areas under an REI would impose
unnecessary burdens on the agricultural employer without resulting in
additional protections for workers (Ref. 36). Based on anticipated high
burden without demonstrable benefits for this option, EPA decided not
to propose increasing posting to every hundred feet around the
perimeter.
7. Request for comment. EPA specifically requests comment on the
following questions:
Are there preferable alternatives to the proposed option
for posting locations that EPA has not considered? If so, please
describe and provide data to support the alternative.
C. Warning Sign Content
1. Overview. The current WPS warning sign says ``Keep Out'' and has
a picture of a stern-faced man with an upraised hand in a red circle.
EPA proposes to require the phrase ``Entry Restricted'' instead of
``Keep Out'' on warning signs. EPA also proposes to change the red
shape on the sign from a circle to an octagon. EPA believes the text
change would more accurately reflect the intended message for workers
to be adequately prepared and informed before entering a posted area,
and the octagonal shape will provide an effective signal that entry is
restricted that does not depend on literacy or language spoken.
2. Existing WPS regulations. Under 40 CFR 170.120(c)(1), posted
warning signs must state ``Danger, Pesticides'' and ``Keep Out'' in
English and Spanish or another language the workers understand and
contain the ``stern-faced man with the upraised hand'' in a red circle
as pictured (in black and white) below.
[GRAPHIC] [TIFF OMITTED] TP19MR14.000
3. Summary of the issues. Stakeholders, including state regulators,
educators, and farmworker groups, have noted that the message on the
sign can be confusing. Under the WPS, workers can be trained and
equipped to enter a treated area during an REI to conduct certain
early-entry tasks, such as repairing a clogged irrigation hose. [See
Unit XII.B.] Due to these exceptions, including the ``Keep Out'' text
on the warning sign may lead to worker confusion, since workers have
been trained to stay out of a treated area posted with the warning sign
and also may be directed by their employer to enter the treated area to
conduct an appropriate early-entry task.
4. Details of the proposal/rationale. EPA proposes to revise the
required text on the warning sign to convey more accurate information
to workers. While warning signs would retain the phrase ``Danger,
Pesticides'' text at the top, the message at the bottom of the sign
would read ``Entry Restricted'' instead of ``Keep Out''. EPA believes
this revision to the text more accurately reflects that the sign is a
warning to those entering a treated area. ``Entry restricted'' provides
a bold warning for anyone entering a treated area but also allows that
some entry may be permitted.
Additionally, EPA plans to replace the current shape of the red
circle that contains the stern-faced man with the upraised hand with an
octagon. A red octagon is a widely-recognized symbol to stop, and this
will provide a stronger signal to workers to be cautious when they
encounter the posted warning sign, even if they are unable to
comprehend the text. Workers will receive pesticide safety training to
reinforce the meaning of the warning signs and help them in determining
how to proceed. [See Unit VII.E.] The proposed warning sign is pictured
below (in black and white).
[GRAPHIC] [TIFF OMITTED] TP19MR14.001
EPA specifically considered input received directly from workers in
developing this proposal. Workers have indicated that they prefer to
get information in simple language and images that communicate the
message (Ref. 40). EPA expects that these modifications to the warning
sign will provide a clearer, simpler warning to workers. EPA is aware
of the importance of conveying clear and simple safety information to
worker populations, particularly for workers who may have a low
literacy level in English or their native language (Ref. 61, p. 16).
NAWS data show that 85% of workers would have difficulty obtaining
information from printed materials in any language (Ref. 3, p. 17). The
proposed modifications to the warning sign would make it clearer and
simpler, which should enhance comprehension by low-literacy adults, and
by children of farm workers (Ref. 62).
The proposed regulatory text concerning the content of the warning
sign appears in Sec. 170.109(b)(2) of the proposed rule.
5. Costs and benefits. EPA estimates the cost of requiring
employers to use the revised warning sign would be $99,000 annually, or
an average of $0.25 per establishment per year. EPA estimates that
employers currently purchase new signs every 2 years because weather
and outdoor exposure renders the signs unusable after this period. For
a complete discussion of the costs of the proposals and alternatives,
see the ``Economic Analysis of Proposed Revisions to the Worker
Protection Standard,'' Chapter 3 Cost Analysis (Ref. 1).
EPA cannot quantify specific benefits for this proposal. EPA
believes that requiring the use of signs that more accurately convey
the intended message would lead to better understanding of the sign and
its message by workers. This would result in less confusion about what
the sign means, which should mean less potential for workers to
disregard the sign out of confusion, and thus, fewer workers entering
treated areas under an REI which should decrease the number of
occupational pesticide-related illnesses.
6. Alternative options considered but not proposed. Farmworker
Justice
[[Page 15476]]
recommended that EPA replace the ``stern-faced man with the upraised
hand'' with the skull and crossbones. They noted that the skull and
crossbones is a universally recognized symbol that communicates high
risk of danger or death, and suggest that workers would better
recognize the risks associated with entering an area posted with the
warning sign if it bore this symbol.
EPA considered Farmworker Justice's recommendation to change the
warning sign graphic to the skull and crossbones, but decided against
this option. The skull and crossbones symbol is currently used on
Toxicity I and II pesticide product labeling and for designation of
treated areas for certain extremely hazardous pesticides, for example,
fumigants, and using the same symbol in less hazardous conditions would
weaken its impact where it is needed most. The skull and crossbones
symbol is associated with extreme toxicity or death, which is not
always appropriate for every pesticide that has an REI. In contrast,
the proposed sign indicates to workers that they should use caution in
entering the treated area, but that entry may be permissible with the
proper safety equipment. EPA does not want to send workers a mixed
message by using the skull and crossbones on the sign. In addition,
workers have been trained to recognize the current sign since the rule
went into effect. The Agency believes that the ``stern-faced man with
the upraised hand'' is still the most appropriate and well-recognized
symbol for workers.
7. Request for comment. EPA specifically requests comment on the
following questions:
Should EPA consider replacing the current or proposed
general field posting sign with risk-based reentry signs? What would be
the costs and benefits of using risk-based signs?
IX. Hazard Communication
A. Pesticide-Specific Hazard Communication Materials--General
1. Overview. The existing WPS does not require employers to provide
workers and handlers with pesticide-specific hazard information on the
products they may be exposed to in the workplace. In contrast, OSHA's
Hazard Communication Standard (HCS), which covers most workplaces,
requires employers to provide chemical-specific hazard information
(i.e., the safety data sheets or SDSs) to workers before they enter an
area where they could be exposed and to make the same material
available to workers upon request. EPA proposes to require that
agricultural and handler employers provide workers and handlers with
access to copies of the SDS and pesticide labeling for products that
have been applied on the establishment and to which workers and
handlers may be exposed. EPA believes making this information available
to workers and handlers may assist them and possibly health care
providers in the event of an emergency situation involving pesticide
exposure. EPA also believes that providing access to specific hazard
information would assist workers and handlers in better protecting
themselves and others from pesticide hazards in the workplace.
2. Existing WPS regulations. The WPS contains several provisions
designed to communicate pesticide hazard information to workers and
handlers. By providing workers and handlers with relevant information,
these provisions minimize workplace risks associated with pesticide use
and mitigate the potential for occupational pesticide exposure. First,
the WPS requires employers to train workers and handlers on basic
pesticide safety and the general hazards associated with pesticides (40
CFR 170.130 and 170.230). Second, the WPS requires employers to display
basic pesticide safety information at a central location on the
establishment to remind workers and handlers of safe practices when
working with or around pesticides and to provide information about
obtaining emergency medical assistance (40 CFR 170.124 and 170.224).
Third, the WPS requires employers to provide handlers with access to
the pesticide labeling during pesticide handling activities and to
ensure that the handler has read the labeling, or been informed in a
manner the handler understands, of all labeling requirements related to
safe pesticide use (40 CFR 170.232(a)). Lastly, employers must display
certain information about pesticide applications made on the
establishment whenever workers or handlers will be on the establishment
and a pesticide has been applied or an REI has been in effect within
the last 30 days (40 CFR 170.122 and 170.222). Although the existing
WPS requirements provide workers and handlers with basic safety
information on how to protect themselves from general pesticide
hazards, and where pesticides have been applied on the establishment,
no requirement exists for employers to make pesticide-specific hazard
communication materials, such as the SDS and the pesticide labeling,
accessible to both workers and handlers.
3. Summary of the issues. During the National Assessment meetings,
health care, medical, and farmworker organizations urged the Agency to
add pesticide-specific hazard communication provisions to the rule
(Ref. 17). They noted that the WPS-required information about pesticide
applications that must be displayed at the establishment provides a
limited set of information about the pesticides used on the
establishment. The information does not provide an explanation of the
specific symptoms associated with exposure to a specific product, nor
does it provide other use-related information that workers, handlers,
and health care providers would benefit from reviewing in the event of
a pesticide-related illness or an emergency. To support their request,
they noted the disparity between information about chemical hazards
required to be provided to workers and handlers covered by the WPS and
the information provided to workers in all other industries under the
OSHA HCS.
Farmworker organizations suggested that workers and handlers should
receive ``written information, in a pictorial and low-literacy format,
concerning the short- and long-term health effects associated with each
pesticide used at their worksite'' (Ref. 35, p. 2). Farmworker Justice
recommended that growers provide ``crop sheets,'' i.e., booklets with
information on each pesticide used on an establishment, to each worker
and handler at the beginning of each work period that involves entry
into any treated area. (Crop sheets can take various forms but
generally summarize information about the pesticides used on a
particular crop, the timing of application, the type of application
(for example, air blast or ground boom), and potential symptoms from
exposure to the pesticide.) Farmworker Justice suggested that the crop
sheets be available in English and Spanish. They believe that
information presented in this format would enable workers and handlers
to recognize adverse effects and seek medical assistance if they
experienced symptoms related to exposure to a specific pesticide (Ref.
35). Other stakeholders have suggested that the detailed health effects
information from Safety Data Sheets be provided orally to employees.
EPA believes that the benefits of reading this detailed and often
lengthy information to workers and handers are uncertain and such
information could confuse workers with complex pesticide hazard
information where the level of hazard is different for every situation.
Pesticide safety trainer representatives on the Pesticide Program
Dialogue Committee Workgroup suggested that providing simple
information on how to prevent potential pesticide exposure is
[[Page 15477]]
the most effective way to enable workers and handlers to protect
themselves (Ref. 36) (Ref. 39); they did not endorse a specific type of
hazard communication information. Health care organizations noted that
requiring employers to maintain pesticide labeling or SDS could
facilitate quick access to these documents by workers, handlers, or
their representatives in the event of an accidental exposure requiring
medical attention. These groups noted that health care practitioners
can provide more appropriate medical attention if they can review and
reference either the label or the SDS. [See Unit XIV.]
4. Details of the proposal/rationale. EPA proposes to require that
agricultural and handler employers make available to workers and
handlers SDS and the labeling for pesticides used on the establishment
that require WPS compliance. This proposed requirement would be in
addition to the existing requirements to notify workers and handlers of
the date, time, and location of application, length of REI, and to
identify the pesticide product. Employers would be required to maintain
the SDSs and the pesticide labeling on the establishment for 2 years
from the date of the pesticide application. Workers, handlers or their
authorized representatives could request access to the pesticide-
specific hazard information during normal business hours. [See Units
IX.B. and IX.C. for proposed revisions to employer requirements to
provide information about pesticide applications.]
In adopting the Hazard Communication Standard, OSHA said there was
evidence to indicate potential for chemical exposure in every type of
industry, and that lack of knowledge about those hazardous chemicals
puts employees at significant risk of experiencing material impairment
of health (52 FR 31852; August 24, 1987) (59 FR 6126; February 9, 1994)
(Ref. 63). While the WPS pesticide safety training provides general
information about risks associated with pesticide exposure and how a
worker or handler can protect himself or herself, the addition of a
requirement to provide information about each specific pesticide would
provide complete hazard information. The addition of a requirement to
provide pesticide-specific hazard information about each pesticide
product requiring WPS compliance that is applied on the establishment
would provide workers and handlers with more complete information about
the chemical hazards they may encounter in the workplace.
Requiring employers to maintain the product labeling and SDSs for
products applied on their establishment would ensure that workers and
handlers have access to detailed types of pesticide hazard and
emergency response information that would enable them to better protect
themselves and respond to emergencies. Additionally, as discussed in
Unit XVI., medical personnel are generally able to provide better
treatment in the event of a pesticide exposure incident when they have
more information about the pesticide product to which the worker or
handler may have been exposed. Allowing authorized representatives of
workers and handlers to have access to the product labeling and SDSs
upon request would assure that the information can be accessed if a
worker or handler is incapacitated; in addition, it would help assure
that access to this information is not impeded due to employee fears of
retaliation. It also increases the likelihood that workers and handlers
will receive assistance in reading and understanding these documents in
cases where they need such assistance.
EPA believes that imposing this requirement would not be unduly
burdensome to employers and would provide workers, handlers, and
emergency responders with access to appropriate pesticide-specific
hazard information that should meet their needs. The SDS provides
succinct information about the known health hazards of the material,
providing hazard information that typically is not presented on the
product labeling, and it is readily available from pesticide
manufacturers and should be provided with the pesticide container at
the point of sale. Based on EPA's review of current state pesticide
laws and regulations, and labor laws pertaining to agricultural
operations using pesticides, 12 states currently require agricultural
employers to make SDSs available to employees that may potentially be
exposed to pesticides as part of their occupational duties (Ref. 64).
Ten of the states implement this requirement under state labor
regulations. Florida and California implement it under state pesticide
laws.
The use of SDS in hazard communication in all other industries, as
well as in agriculture in several states, leads the Agency to believe
that it would be the appropriate vehicle to make pesticide-specific
hazard information available to workers and handlers.
EPA recognizes that some employers may maintain electronic copies
of their records. Under the proposed option, an employer could maintain
a copy of the pesticide labeling used for the application and the
corresponding SDS in either paper or electronic form. The employer
would need to be able to provide a paper copy of the materials upon
request. Employers would not need to update the pesticide labeling on
file each time a new version is released; the labeling on file must
correspond with the labeling used at the time of application.
The proposed regulatory text concerning the provision of SDSs and
pesticide product labeling appears in Sec. 170.11(b) of the proposed
rule.
5. Costs and benefits. EPA estimates the cost of requiring
employers to maintain application information, SDS, and labeling for 2
years would be $3 million annually, or about $8 per WPS establishment
per year. The cost to obtain the SDS and labeling, as well as the
additional information described in unit IX.B., and to make it
available would be about $5.3 million annually, or about $14 per
establishment. For a complete discussion of the costs of the proposals
and alternatives, see the ``Economic Analysis of Proposed Revisions to
the Worker Protection Standard,'' Chapter 3 Cost Analysis (Ref. 1).
EPA cannot quantify the specific benefits associated with this
proposal; however, the Agency believes that workers and handlers would
benefit from having access to more complete information about the
pesticides to which they may be exposed. The additional information
also could be used to assist in more accurately diagnosing and treating
pesticide-related illnesses. EPA believes the costs of making more
pesticide application information available to workers and handlers are
reasonable when compared to the expected benefits associated with the
requirement.
6. Alternative options considered but not proposed. EPA considered
three alternatives to the proposed option: a requirement to make crop
sheets available, a requirement to translate SDSs into different
languages, and limiting the required pesticide information to the
pesticide labeling.
First, the Agency considered requiring employers to provide workers
and handlers with a crop sheet in English and Spanish for each
pesticide they might encounter, each time they enter the treated area.
The Agency is aware of several attempts by state agencies to pilot this
use of crop sheets. California and Texas have had requirements for
employers to provide crop sheets to those working in pesticide-treated
areas. Texas funded the initial development and periodic updating of
the crop sheets, but the process became too expensive and labor
intensive for the
[[Page 15478]]
state to continue. The states reported that the crop sheets were left
as litter in the treated area. Texas reported that the redundancy
between the requirements under Texas law and the WPS contributed to the
decision to discontinue the crop sheet program.
EPA believes that developing crop sheets as recommended by
farmworker organizations would be challenging because they suggested
simple pictorial descriptions of hazards and symptoms, which would not
be accomplished easily with the technical information that is generally
included on an SDS. In addition, many agricultural enterprises produce
a variety of commodities, increasing the number and complexity of the
crop sheets. Agricultural practices differ across regions and according
to local conditions, making it difficult to develop a standard set of
crop sheets that could be used nationally; a booklet that would be
useful for vegetables grown in New England would not be representative
of practices in vegetable production in the Southwestern United States.
As part of its consideration, the Agency assessed the cost of
developing crop sheets based on the assumption that pesticide
registrants would develop the crop sheets because they have the most
complete knowledge of each pesticide's properties, hazards, and
potential health effects. The estimated cost of $13 million annually
does not include copying and distributing the crop sheets to workers
and handlers every time they enter a treated area. Copying and
distributing the crop sheets would significantly increase the cost of
this option.
Based on the experience of states that have attempted to implement
crop sheet distribution programs, EPA does not believe that workers and
handlers would benefit sufficiently to justify the cost of developing,
compiling, translating, and distributing specific crop sheets.
Second, EPA considered requiring pesticide-specific hazard
communication materials to be made available in a language that workers
and handlers can understand. This would mean translating a copy of the
SDS and labeling into each language understood by a worker or handler
on the establishment and maintaining copies of the original and
translated SDS and labeling, rather than providing the information in
English and putting the burden of translation on the worker or handler.
The NAWS estimates that the majority of agricultural workers (83%)
are non-English speakers (Ref. 65). Additionally, NAWS data show that
85% of workers ``would have difficulty obtaining information from
printed materials in any language'' (Ref. 61, p. 16). Additionally,
workers and handlers speak a large number of languages and dialects,
and the Agency believes it would be impractical to translate and
present complex information into so many different languages. This
requirement would be complicated further by the fact that some
indigenous worker and handler populations do not have a written
language. EPA assumes that a majority of requests for the SDS will be
made related to a health care incident, which means that either the
health care practitioner or a worker advocacy support group would
likely receive the information. These groups are more likely to have
staff that speak English and are capable of translating the information
for the worker or handler if necessary.
All other industries--including the construction, janitorial, and
maintenance industries where there are traditionally significant
numbers of workers with limited skills reading or understanding
English--use SDSs in English to meet OSHA's Hazard Communication
Standard requirements to make chemical hazard information available to
employees (29 CFR 1910.120(g)). Most readily available sources of
pesticide-specific hazard information, such as SDS and pesticide
labeling, are in English. EPA did not estimate the cost of translating
the SDS and labeling into each language spoken by workers and handlers,
but expects that the burden would be extremely high. The burden of
producing SDSs in multiple languages would probably fall on
registrants, but agricultural and handler employers would bear the
burden of obtaining and maintaining a copy of this information in every
language spoken by their workers and handlers.
Based on this information, EPA does not believe that the risk
reductions expected to result from providing SDSs to workers in their
native languages would justify the significant costs of doing so.
Medical and legal personnel who would provide assistance to workers in
the event of a suspected exposure are proficient in English and could
use the SDSs as already developed by the pesticide registrant.
Finally, EPA considered requiring the employer to maintain only
labeling for pesticides that require WPS compliance that are applied on
their establishments, rather than both the product's labeling and SDS.
Pesticide labeling must accompany the product; therefore, employers
generally already have a copy of the labeling for products applied on
their establishment. When a pesticide is applied by a commercial
applicator or someone other than the agricultural employer, he or she
can easily request a copy of the pesticide labeling from the person who
made the application. The SDS, on the other hand, does not accompany
the product and may require more time to locate, increasing the burden
on the agricultural employer. Limiting the requirement to the pesticide
labeling could reduce the burden on agricultural employers.
EPA believes that the burden associated with retrieving a pesticide
SDS is, however, not substantial because the SDS is readily available
online and can be requested from and provided by the pesticide
manufacturer and sometimes the pesticide dealer. The SDS contains
information necessary for the diagnosis and treatment of certain
pesticide-related illnesses. In some instances of pesticide-related
illnesses, time is of the essence in determining the course of
treatment. In these instances, having the SDS readily available for the
worker, handler, and/or treating medical personnel could be essential
to ensuring proper treatment. The cost for requiring the employer to
collect and make available only the labeling would be about $1.6
million, or about $4 per establishment. EPA believes that the
additional burden associated with retrieving the SDS for each product
is justified by the potential benefit to workers and handlers from
having the SDS available in the event of a pesticide-related illness.
7. Request for comment. EPA specifically requests comment on the
following questions:
What would be the burden on employers to maintain the SDS
and pesticide label for 2 vs. 5 years?
Do agricultural employers already collect SDSs? If so, how
do they obtain them and what burden is associated with retrieving the
SDS for one or more products?
What are the benefits and drawbacks of requiring employers
to maintain and provide access to employees and others the proposed
pesticide-specific hazard information?
Are there other approaches for providing workers and
handlers with understandable, readily accessible, and relevant
information on the symptoms, short-term health effects, and long-term
health effects of exposure (including prenatal exposure) to specific
pesticides? If so, please describe these approaches, their
implementation, and the advantages they provide in comparison to the
proposed approach.
Are there other data on the benefit to workers and
handlers from receiving
[[Page 15479]]
pesticide-specific information before every entry into a pesticide
treated area?
Does opening access to pesticide-specific information to
authorized representatives raise any problems? If so, please describe
the potential issues with particularity and provide supporting
information where available.
B. Pesticide Application Information--Content and Timing
1. Overview. The existing WPS contains requirements for
agricultural employers to record and display information about
pesticide applications and to make that information accessible to
workers and handlers. However, the existing requirements do not include
some key information about pesticide applications that could help
workers and handlers better identify treated areas on the establishment
and avoid pesticide exposure. EPA proposes to require additional
information about pesticide applications to be recorded. EPA also
proposes to change the timing of when employers must record the
information. EPA believes the additional information would better
inform workers and handlers of relevant information about pesticide
applications. The more flexible timing requirements for recording
application information would reduce burden on employers. [See Unit
IX.C. for proposed revisions to requirements for displaying information
about pesticide applications.]
2. Existing WPS regulations. The existing WPS requires agricultural
employers to record and display certain information about pesticide
applications at a central location on the establishment. Employers must
comply with this requirement when workers or handlers will be on the
establishment and an application of a pesticide requiring WPS
compliance has been made or an REI has been effect within the last 30
days (40 CFR 170.122 and 170.222). The purpose of this requirement is
to communicate information to workers and handlers about the locations
of potential pesticide hazards on the establishment, for example, entry
restricted areas or areas under an REI. The WPS requires employers to
record and display the following information about pesticide
applications:
Location and description of the treated area,
Product name,
EPA registration number,
Active ingredient(s) of the pesticide product,
Time and date the pesticide is to be applied, and
REI for the pesticide.
The existing WPS requires the application information to be
accurate and to be displayed before application takes place if workers
are present on the establishment. If no workers or handlers are on the
establishment at the time of application, the information must be
posted before the first work period when workers or handlers are on the
establishment. If warning signs are posted for the treated area before
an application, the specific application information for that
application must be displayed at the same time or earlier, in
accordance with the display requirements. When workers or handlers are
present on the establishment, the employer must display the application
information for at least 30 days after the end of the REI. Employers
may discontinue the information display prior to 30 days after the end
of the REI when workers or handlers are no longer on the establishment.
3. Summary of the issues. During the National Assessment and SBREFA
consultation process, employers and pesticide applicators noted that
they had difficulty recording and displaying application information
before the application occurs (Ref. 17) (Ref. 18). They cited changes
in pesticide application plans, usually to accommodate changing weather
conditions, as a primary reason for not being able to accurately record
the pesticide application information.
State regulatory agencies noted that the current requirement for
providing information about pesticide applications lacked specific
information necessary to enable state inspectors to accurately
determine the start and end times of the REIs (Ref. 17). As a result of
a high-profile pesticide enforcement case and the aforementioned
difficulty determining REI start and end times, North Carolina informed
EPA that it has taken steps to amend the state pesticide laws. The
amended laws would require the end times of pesticide applications to
be recorded as part of state pesticide recordkeeping so inspectors
could calculate precise REIs (Ref. 66).
4. Details of the proposal/rationale. In addition to the pesticide
application information currently required to be recorded, the Agency
proposes to require agricultural employers to record further specific
information about pesticide applications. The proposed information
would include the specific crop or site treated, the start and end
dates and times of the application, and the end date and duration for
the REI. EPA also proposes to revise the requirement for when
information must be recorded to allow flexibility for agricultural
employers to record the pesticide application information no later than
the end of the day of the application.
An agricultural establishment can grow a variety of crops in
specific areas. EPA believes that adding the type of crop site to the
record would help workers, handlers, and pesticide inspectors to
distinguish the particular treated area to which the information
pertains. EPA also believes that including the specific start and end
times for the pesticide application, in addition to the date of
application, would assist workers, handlers, and inspectors in
accurately calculating the date and time the REI ends. The requirement
for employers to note the specific date and time when the REI ends
would clarify when workers may enter the treated area. The proposed
revisions would require agricultural employers to make the pesticide
application information (as well as the proposed pesticide-specific
hazard information [see Unit IX.A.]) available no later than the end of
the day of the pesticide application when workers are on the
agricultural establishment that day. By ``make available,'' the Agency
means that the agricultural employer must, at a minimum, have the
materials in a place where the workers, upon request, can have access
to view them. If workers are not on the establishment on the day of
application, the information must be made available at the beginning of
the first work period following application. Changing when the
application information must be made available allows flexibility if
the application schedule changes. Making these changes would allow more
realistic timeframes for recording application information and would
take into account the realities of fluctuations in application timing.
The change also would accommodate the requests to record the end time
of the application and timing of REI. Information would be more
accurate and the burden of correcting the information would be reduced.
EPA does not believe that allowing the application information to
be made available by the end of the day would put workers and handlers
at risk because notification of treated areas to workers and handlers
must occur before the treatment commences by either oral notification
or by the posting of warning signs. Therefore, EPA believes that
workers would be protected during application and immediately post-
application by the WPS notification provisions.
The proposed regulatory text concerning the timing and content of
[[Page 15480]]
pesticide application information required to be displayed appears in
Sec. 170.11(b) of the proposed rule.
5. Costs. Because the information required in this proposal is
linked to the retention of the pesticide labeling and SDS, the costs
were calculated together. Therefore, the estimated costs for this
proposal are included in the cost discussed in Unit IX.A. For a
complete discussion of the costs of the proposals and alternatives, see
the ``Economic Analysis of Proposed Revisions to the Worker Protection
Standard,'' Chapter 3 Cost Analysis (Ref. 1).
6. Request for comment. EPA specifically requests comment on the
following questions:
Would the additional pesticide application information
proposed by EPA impose undue burden on the applicator or the employer?
Are there benefits or drawbacks to requiring this
additional information that EPA has not considered? If so, please
describe.
C. Pesticide Application Information--Location and Accessibility
1. Overview. The WPS contains requirements for agricultural
employers to record and display information about pesticide
applications made on the establishment at a central location on the
establishment from the time of the application until 30 days after the
REI expires. EPA proposes to replace the current requirement with a
requirement for employers to make pesticide application information
available on request by a worker, handler, or his or her
representative. The proposal would also increase the time employers
must maintain the application information on the establishment from 30
days after the REI expires to 2 years. The employer would maintain the
pesticide application information in the same location as the SDS and
labeling (pesticide-specific hazard communication; see Unit IX.A.). EPA
believes this proposal would reduce the overall burden on agricultural
employers while still providing workers and handlers with reasonable
access to information regarding pesticide applications and pesticide-
specific hazard information.
2. Existing WPS regulations. As described in Unit IX.B., the WPS
requires agricultural employers to record and display certain
information about WPS-covered pesticide applications at a central
location on the establishment when workers or handlers will be on the
establishment and an application of a WPS-covered pesticide has been
made or an REI has been in effect within the past 30 days (40 CFR
170.122 and 170.222).
3. Summary of the issues. During the National Assessment meetings,
stakeholders, particularly employers, noted the difficulty in
maintaining the pesticide application information at a central posting
site (Ref. 17). Pesticide application plans frequently change, and
keeping a notice board at a central location, which, in some cases, may
be a significant distance from the treated area, up to date with those
changes presents a challenge to the employer, especially prior to the
application.
Agricultural employer stakeholders noted that weathering of the
posted information quickly impacts legibility, making it difficult to
meet the legibility requirements for the information (Ref. 67). Some
states, including Florida, recognize the difficulty facing employers
and have developed a portable central location display. Florida's
display includes a laminated metal sign and weatherproof box to contain
the necessary WPS information. Florida developed this display to
increase compliance, to increase durability of the poster and
information, and to provide a solution to the problems noted with
maintaining the legibility of information required to be displayed at a
central location on large establishments (Ref. 67).
Keeping the information current at the central location has been
problematic for agricultural employers, as records of frequent
pesticide applications on an establishment with multiple crops can be
difficult to maintain accurately during the growing season (Ref. 17).
Employers argued that keeping the application information at a central
location essentially requires them to maintain two copies of pesticide
application records because they cannot rely on the WPS central posting
site to be the only copy of application records, imposing a double
recordkeeping burden. Keeping two separate sets of application
information records with the same information on a busy establishment
can be difficult.
4. Details of the proposal/rationale. EPA proposes to require the
employer to maintain pesticide application information and make it
accessible to workers, handlers, or authorized representatives of
workers or handlers upon request, and to eliminate the requirement for
agricultural employers to display the pesticide application information
at a central location. The proposed requirement does not specify a
particular location on the establishment where the employer must store
records, but does require that pesticide application records must be
maintained on the establishment and must be made available upon request
to workers, handlers, or their representative during normal business
hours. The application information must be maintained in addition to
the pesticide-specific hazard information. [See Unit IX.A.]
The requirement for display of pesticide application information at
a central posting site has been the most frequently cited area for non-
compliance and violations. Between 2006 and 2008, there was an annual
average of 770 WPS violations related to central posting reported by
states to EPA's Office of Enforcement and Compliance Assurance (Ref.
68) (Ref. 69) (Ref. 70). EPA has concerns about the difficulties
expressed by stakeholders such as regulators and agricultural employers
in maintaining this information at the central posting area, and it is
reflected in the violation records. EPA has concerns about the
usefulness of the central display to workers and handlers, especially
on large establishments, because the worker or handler may be assigned
to work miles from the central display and would not encounter it on a
routine basis. Moreover, if the information is not accurate or
correctly maintained, workers and handlers could be deprived of
receiving accurate information about pesticide applications on the
establishments. Rather than continue a requirement that burdens
employers without clear benefits to workers and handlers, EPA has
decided to revise the requirement related to displaying information
about pesticide applications.
The proposed requirement for maintaining and making pesticide
application information (and the related pesticide-specific hazard
communication information as discussed in Unit IX.A) available to
workers and handlers upon request parallels OSHA's requirement for
employers to provide hazard information. EPA recognizes that OSHA's HCS
has been successfully implemented in all other industries, and that
employers covered by the WPS struggle with maintaining the central
display according to current requirements. The intent of the
requirement is to give the workers and handlers access to accurate and
legible pesticide application and hazard information. EPA believes that
a requirement that allows employers to keep records in a location other
than on display at a central location will significantly reduce burden
on the employers without sacrificing the
[[Page 15481]]
amount or type of information to which workers or handlers have access.
The proposed regulatory text concerning the accessibility of
application information appears in Sec. 170.11(b) of the proposed
rule.
5. Costs and benefits. EPA estimates the cost of requiring
employers to make pesticide application information available upon
request and eliminating the requirement for central posting would be
$1.1 million annually, or about $3 per WPS establishment. This
estimated cost does not include any additional copies of the pesticide
application information necessary because time and weather render the
display illegible. The cost estimate includes an assumption that 25% of
workers and handlers would request access to the materials, which EPA
recognizes is a conservative estimate and drives the cost of the
requirement higher. The anticipated benefits of this proposal were
discussed in the section above. For a complete discussion of the costs
of the proposals and alternatives, see the ``Economic Analysis of
Proposed Revisions to the Worker Protection Standard,'' Chapter 3 Cost
Analysis (Ref. 1).
EPA believes that this proposal would reduce the burden on
employers by allowing them to maintain the records in a location that
is not subject to weathering and would not substantially increase the
burden on workers and handlers seeking this information. EPA believes
that most workers do not routinely pass the central posting area
because their workplace is at a different part of the establishment.
The proposed change would continue to make available at a designated
location pesticide application information for workers and handlers.
6. Alternative options considered but not proposed. EPA considered
requiring that employers post specific pesticide application
information on the signs used to post each treated area. Under this
option, specific information about the pesticide used, date of
application, and REI would be included on the bottom of each warning
sign posted around a treated area. [See Unit VIII.C. for a discussion
of the proposals related to notifications to workers and handlers.]
This option would allow early-entry workers to access information about
the specific pesticides used in areas where they may be working at the
time they enter the treated area. However, this alternative option
would substantially increase the burden associated with posting treated
areas because employers would have to copy the pesticide and
application information onto each warning sign. In addition, when
treated areas are posted for multiple days, the sign could become
weathered and illegible, imposing the additional burden on the grower
to update the legibility of the sign or negating the intended
protection associated with providing the information at the treated
area. This option could also reduce information available to workers
and handlers because pesticide application information would not be
available when the treated area does not require a posted warning sign.
EPA believes that the proposed options to post a general warning
sign at pesticide treated areas [see Unit VIII] and to require the
employer to maintain and make accessible pesticide-specific application
information balance the need for workers and handlers to have access to
pesticide hazard information and the burden on agricultural employers.
Therefore, EPA decided not to propose this option.
D. Pesticide Application Information and Pesticide-Specific Hazard
Communication Materials--Retention of Records
1. Overview. The current WPS requires employers to maintain
information about pesticide applications from the time of application
until 30 days after the REI expires. The Agency proposes to require
employers to retain the pesticide application and related pesticide-
specific hazard communication information for 2 years from the date of
the end of the REI for each product applied. EPA believes the extended
recordkeeping period would ensure that state, tribal and federal
agencies, workers, handlers, and health care workers have access to the
information when necessary to investigate a health-related pesticide
incident or potentially unlawful pesticide application.
2. Existing WPS regulations. The existing WPS requires agricultural
employers to display information about pesticide applications from the
time of application until 30 days after the REI has expired (40 CFR
170.122(b) and 170.222(b)).
3. Details of the proposal/rationale. The Agency proposes to
require employers to retain and make available for 2 years from the
date of the end of the last applicable REI pesticide application
information and related pesticide-specific hazard communication
information that includes the SDSs and product labeling for pesticides
that require WPS compliance. EPA expects the extended recordkeeping
period would ensure that application information is maintained for a
sufficient period of time to allow for follow-up in the event of health
problems that might be related to pesticide exposure or for
investigation of a suspected pesticide misuse. EPA recognizes that some
employers may maintain electronic copies of their application records
and other documents such as SDS and pesticide labeling. Under the
proposed option, an employer could maintain a copy of the application
information, the pesticide labeling used for the application, and the
corresponding SDS in either paper or electronic form. The employer
would need to be able to provide access to the electronic format of the
materials or make available a paper copy of the materials upon request.
Employers would need to ensure that the copy of the pesticide label on
file is the same as the label for the pesticide product at the time it
was applied on the establishment. Employers would not need to update
the pesticide labeling or SDS on file each time a new version is
released; however, if the product used in a subsequent application
bears a different version of the labeling, the employer would need to
keep both versions of the labeling on file, in a manner identifying
which version was used on which occasion.
EPA believes the current 30-day timeframe for retention of the
application information is not adequate for workers or handlers to
access the information, especially if there has been a delayed health
impact from the exposure. It is possible for latent health effects from
a pesticide exposure to occur after the 30-day window, necessitating
access to information about the potential source of exposure and the
types of pesticides that may have been involved. In 2004 and 2005,
farmworker women who had worked in Florida, North Carolina, and New
Jersey gave birth to babies with birth defects. In 2006, EPA
investigated the incidents and sought information about pesticide
exposures several months after the women's employment ended (Ref. 71).
The ability to perform a full investigation into the serious health
effects was hampered by the 30-day limit for retention of the WPS-
required application information (Ref. 72).
The proposed regulatory text concerning the 2-year recordkeeping
requirement appears in Sec. 170.11(b)(2) of the proposed rule.
4. Costs. The costs of this proposal were discussed in Unit IX.A.
in conjunction with the requirement to retain and make available the
SDS and pesticide labeling. For a complete discussion of the costs of
the proposals and alternatives, see the ``Economic
[[Page 15482]]
Analysis of Proposed Revisions to the Worker Protection Standard,''
Chapter 3 Cost Analysis (Ref. 1).
5. Alternative options considered but not proposed. EPA considered
requiring application records and hazard information to be maintained
for 5 years. The incremental cost between the 2-year and 5-year period
is negligible because the principal costs of recordkeeping occur when
the record is created. Several states, including California, have
required employers to retain WPS records for 2 years. Based on their
experience, 2 years is a sufficient time to allow the state to
investigate complaints. Therefore, it is not clear that the increased
burden associated with requiring employers to maintain records for 5
years would be justified.
6. Request for comment. EPA specifically requests comment on the
following questions:
Should EPA consider a different timeframe for
recordkeeping for this requirement? If so, what period and why?
What burdens would be imposed on agricultural employers as
a consequence of the proposed two-year record retention requirement?
How would the burden of the proposal to maintain
application records compare with the current requirement to maintain a
central display?
X. Information Exchange Between Handler and Agricultural Employers
1. Overview. The current WPS requires handler and agricultural
employers to exchange information about pesticide applications. EPA
proposes to add to the existing requirement information about the
location of the ``entry-restricted areas'' and the start and end times
of pesticide applications. EPA also proposes to require the handler
employer to provide any changes to pesticide application plans to the
agricultural employer within 2 hours of the end of the application
rather than before the application. Changes to the estimated
application end time of less than one hour would not require
notification. EPA expects these changes to reduce worker pesticide
exposure by providing accurate, timely information about applications
to the agricultural employer.
2. Existing WPS regulations. When handlers are employed by an
employer other than the agricultural employer, the existing WPS
requires the agricultural employer to provide the handler employer with
information about treated areas on the agricultural establishment,
including specific location and description of any such areas and
restrictions on entering those areas (40 CFR 170.124).
The WPS requires handler employers to provide agricultural
employers with the following information prior to the pesticide
application:
Location and description of the area to be treated,
Time and date of application,