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RIN2070

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AJ22_EO12866_AgWPS_FRM_FRd ocument_2015

- 08

- 05.docx 

### Draft document as submitted for review under EO 12866

15P

- 0213 BILLING CODE 6560

- 50

- P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part s 9 and 170

[ EPA

- HQ

- OPP

- 2 0 11

- 0184 ; FRL

- 9931

- 81 ]

RIN 2070

- AJ22
Pesticides; Agricultural Worker Protection Standard Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is final izing updates and revisions to the existing worker protection 1
regulation for pesticides. Th is final rule will enhance the protections provided to agricultura l 2

workers , pesticide handlers , and other persons under the Worker P rotection S tandard (WPS) by 3
strengthening elements of the existing regulation, such as training, notification, pesticide safety 4

and hazard communication information , use of personal protect ive equipment, and the providing 5

of supplies for routine washing and emergency decontamination

. EPA expects th is final rule to 6
prevent unreasonable adverse effects from exposure to pesticides among agricultural workers 7
and pesticide handlers
, vulnerable groups ( such as minority and low

- income populations, child 8

farmworkers, and farmworker families ) and other persons who may be on or near agricultural 9

establishments, and to mitigate exposures that do occur

. In order to reduce compliance burdens 10

for family farms , EPA has included an expand ed immediate family exemption in th is final rule

. 11
In addition, in order to display the OMB control number for the information collection 12
requirements contained in this final rule, EPA is amending the table of OM B approval numbers 13

for EPA regulations that appears in 40 CFR part 9. 14

DATES: This final rule is effective [ insert date 60 days after date of publication in the Federal 15*** EO 12866 Review Draft

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Page 2 of 286 [RIN 2070

– AJ22 ] Register ]. Agricultural employers and handler employers will be required to comply with most 16
of the new requirements on [ i nsert date one year and 60 days after date of publication in the 17
Federal Register ], as provided in 40 CFR 170.2

. Agricultural employers and handler employers 18
will be required to comply with certain new requirements on [ i nsert date two years and 60 days 19

after date of publication in the Federal Register ] or later, as provided in 40 CFR 170.311(a)( 3 ), 20

170.401(c)(3), 170.501(c)(3) and 170.505(b). 21

ADDRESSES: The docket for this action, identified by docket identification (ID) number EPA

22

HQ

- OPP

- 2011

- 0184
, is available at http://www.regulations.gov or at the Office of Pesticide 23
Programs Regulatory Public Docket ( OPP Docket ) in the Environmental Protection Agency 24

Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution 25
Ave., NW., Washington, DC 20460

- 0001. The Public Reading Room is open from 8:30 a.m. to 26
4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the 27

Public Readin g Room is (202) 566

- 1744, and the telephone number for the OPP Docket is (703) 28

305

- 5805. Please review the visitor instructions and additional information about the docket 29

available at http://www.epa.gov/dockets

. 30

FOR FURTHER INFORMATION CONTACT: Kathy Davi s , Field and External Affairs 31
Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 32
Pennsylvania Ave., NW., Washington, DC 20460

– 0001; telephone number: (703) 308

- 7002; 33

email address: davis.kathy @epa.gov

. 34

SUPPLEMENTARY INFOR MATION: 35

I. Executive Summary 36

A. What is the Agency's authority for taking this action? 37
This action is issued under the authority of sections 2 through 35 of the Federal 38
Insecticide, Fungicide, and Rodenticide Act (FIFRA) , 7 U.S.C. 136

- 136y, and particularly 39*** EO 12866 Review Draft

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– AJ22 ] section 25(a), 7 U.S.C. 136w(a). 40

B

. What is the p urpose of the regulatory action ? 41

EPA i s revis ing the existing Worker Protection Standard (WPS)
, 40 CFR part 170
, to 42
reduce occupational pesticide exposure and incidents of related illness among agricultural 43
workers (workers) and pesticide handlers (handlers) covered by the rule , and to protect 44
bystanders and others from exposure to agricultural pesticide use

. This regulation, in 45
combination with other components of EPA’s pesticide regulatory program, is intended to 46
prevent unreasonable adverse effects of pesticides among workers, handlers and other persons 47
who may be on or near agricultural establishments
, including vulnerable groups, such as 48
minority and low

- income popul ations. 49

C

. What are the major changes from the proposal to the final rule ? 50
This final rule revises the existing WPS

. Some significant changes are described in this 51

Unit

. Units V. through XIX. discuss in more detail the proposed rule, public comments 52
submitted, EPA’s responses to the public comments
, and final regulatory requirements. 53
In regard to training, the final rule retains the proposed content expansions (including 54
how to protect family member s and reduce take

- home exposure) and the requirement for 55
employers to ensure that workers and handlers receive pesticide safety training every year. 56
Employers are required to retain records of the training provided to workers and handlers for two 57
years fro m the date of training. The final rule eliminates the training “grace period,” which 58
allowed employers to delay providing full pesticide safety training to workers (for up 5 days 59
under the existing rule and for up to two days under the proposal) from the t ime worker activities 60
began, if the workers received a n abbreviated training prior to entering any treated area. 61
In regard to notification, the final rule retains the proposed requirements for employers to 62

post warning signs around treated areas in outdo or production when the product used has a 63*** EO 12866 Review Draft

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– AJ22 ] restricted

- entry interval (REI) greater than 48 hours and to provide to workers performing early

64
entry tasks, i.e., entering a treated area when an REI is in effect, information about the pesticide 65

used in the area where they will work, the specific task(s) to be performed, the personal 66
protective equipment (PPE) required by the labeling and the amount of time the worker may 67

remain in the treated area. The final rule does not include the proposed requirement for 68

e mployers to keep a record of the information provided to workers performing early

- entry tasks. 69
The final rule retains the existing requirements concerning the sign that must be used when 70
posted notification of treated areas is required. 71
In regard to hazar d communication, the final rule requires employers to post pesticide 72
application information and a safety data sheet (SDS) for each pesticide used on the 73

establishment (know n together as pesticide application and hazard information) a t a central 74

location o n the establishment (the “central display”), a departure from the proposal to eliminate 75

t he existing requirement for a central display of pesticide application

- specific information. The 76

final rule also requires the employer to maintain and make available t o workers and handlers
, 77
their designated representatives, and treating medical personnel upon request , the pesticide 78
application

- specific information and the SDSs for pesticides used on the establishment for two 79

years. The final rule does not include the p roposed requirement for the employer to maintain 80
copies of the labeling for each product used on the establishment for two years. 81
In regard to protections during pesticide applications, the final rule designates the area 82
immediately surrounding the application equipment as the area from which workers and other 83
persons must be excluded . This “application exclusion zone” differs from the proposed “entry

84
restricted areas,” which would have extended a specified distance a round the entire treated area 85
during application based on the application equipment used. The final rule requires handlers to 86
suspend application , rather than cease application, if they are aware of any person in the 87*** EO 12866 Review Draft

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– AJ22 ] application exclusion zone other than a properly trained an d equipped handler involved in the 88
application

. 89
In regard to establishing a minimum age for handlers and workers performing early

- entry 90

tasks , the final rule requires that handlers and workers performing early

- entry tasks be at least 1 8 91
years old , rather than the proposed minimum age of 16 years old . This minimum age does not 92
apply to an adolescent working on an establishment owned by an immediate family member. The 93
final rule does not require the employer to record workers’ or handlers ’ birthdates as part of the 94
training record , but does require the employer to verify they meet the minimum age 95
requirements. 96
In regard to PPE, the final rule cross

- reference s certain Occupational Safety and Health 97

A dministration’s (OSHA) requirements for respirator use that employers will be required to 98
comply with , i.e., fit test, medical evaluation, and training for handlers using pesticides that 99
require respirator use

. The final rule expands the respirators subject to fit testing beyond the 100
proposal to include filtering facepiece respirators. T he final rule maintains the existing ex c eption 101
from the handler PPE requirements when using a closed system to transfer or load pesticides, and 102
adopts a general performance standard for closed systems , which differ s from the specific design 103

standards based on California ’s existing standard for closed systems discussed in the proposal

. 104

D. What are the incremental impacts of the final rule? 105
EPA has prepared an economic analysis (EA) of the potential impacts associated with 106
this rulemaking (Ref. 1)

. This analysis , which is available in the docket, is summarized in greater 107

detail in Unit II. C

. , and t he following chart provides a brief outline of the costs and impacts 108

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Category Description Source Monetized Benefits Avoided acute pesticide incidents $ 0. 6

– 2. 6 million/year after adjustment for underreporting of pesticide incidents EA Chapter 4 .5

Qualitative Benefits  Willingness to pay to avoid acute effects of pesticide exposure beyond cost of treatment and loss of productivity.

 Reduced latent effect s 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. EA Chapter 4

Monetized Costs $ 60.2

– 66.9 million/year EA Chapter 3.3

Small Business Impacts No significant impact on a substantial number of small entities.

 The rule will affect over 295 ,000 small farms, nurseries, and greenhouses
, and 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. EA Chapter 3.5

Impact on Jobs The rule will 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 $ 50 per year, but this is le ss than 0.2% of the cost of a part

time employee. EA Chapter 3.4

111

II. General Information 112

A. Does this action apply to me ? 113
You may be potentially affected by this action if you work in or employ persons working 114
in crop production agriculture where pestic ides are applied. The following list of North 115
American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but 116
rather provides a guide to help readers determine whether this document applies to them. 117*** EO 12866 Review Draft

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– AJ22 ] Potentially affected entiti es may include: 118

• Agricultural Establishments (NAICS code 111000), e.g., establishments or persons, 119
such as farms, orchards, groves, greenhouses, and nurseries, primarily engaged in growing crops, 120
plants, vines, or trees and their seeds. 121

• Nursery and Tree Production (NAICS code 111421), e.g., establishments or persons 122
primarily engaged in (1) growing nursery products, nursery stock, shrubbery, bulbs, fruit stock, 123
sod, and so forth, under cover or in open fields and/or (2) growing short rotation woody t rees 124
with a growth and harvest cycle of 10 years or less for pulp or tree stock. 125

• Timber Tract Operations (NAICS code 113110), e.g., establishments or persons 126
primarily engaged in the operation of timber tracts for the purpose of selling standing timber. 127

• Forest Nurseries and Gathering of Forest Products (NAICS code 113210), e.g., 128
establishments or persons primarily engaged in (1) growing trees for reforestation and/or (2) 129
gathering forest products, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, 130
ginseng, and truffles. 131

• Farm Workers (NAICS codes 11511, 115112, and 115114), e.g., establishments or 132
persons primarily engaged in providing support activities for growing crops; establishments or 133
persons primarily engaged in performing a soil preparation activity or crop production service, 134
such as plowing, fertilizing, seed bed preparation, planting, cultivating, and crop protecting 135
services; and establishments or persons primarily engaged in performing services on crops, 136
subsequent to th eir harvest, with the intent of preparing them for market or further processing. 137

• Pesticide Handling on Farms (NAICS code 115112), e.g., establishments or persons 138
primarily engaged in performing a soil preparation activity or crop production service, suc h as 139
seed bed preparation, planting, cultivating, and crop protecting services. 140

• Farm Labor Contractors and Crew Leaders (NAICS code 115115), e.g., establishments 141*** EO 12866 Review Draft

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– AJ22 ] or persons primarily engaged in supplying labor for agricultural production or harvesting. 142

• Pesticide Handling in Forestry (NAICS code 115310), e.g., establishments or persons 143
primarily providing support activities for forestry, such as forest pest control. 144

• Pesticide Manufacturers (NAICS code 325320), e.g., establishments primarily engaged 145
in the formulation and preparation of agricultural and household pest control chemicals (except 146

fertilizers). 147

• Farm Worker Support Organizations (NAICS codes 813311, 813312, and 813319), e.g., 148
establishments or persons primarily engaged in promoting caus es associated with human rights 149
either for a broad or specific constituency; establishments or persons primarily engaged in 150
promoting the preservation and protection of the environment and wildlife; and establishments 151
primarily engaged in social advocacy. 152

• Farm Worker Labor Organizations (NAICS code 813930), e.g., establishments or 153
persons primarily engaged in promoting the interests of organized labor and union employees. 154

• Crop Advisors (NAICS codes 115112, 541690, 541712) e.g., establishments or perso ns 155
who primarily provide advice and assistance to businesses and other organizations on scientific 156
and technical issues related to pesticide use and pest pressure. 157

B

. What action is the Agency t aking? 158
EPA is finalizing changes to the WPS. The WPS is a regulation primarily intended to 159
reduce the risks of injury or illness resulting from agricultural workers’ and handlers’ use and 160
contact with pesticides on farms, forests, nurseries and greenhouses. The rule primarily seeks to 161
protect workers (those who perform hand

- labor tasks in pesticide

- treated crops, such as 162
harvesting, thinning, pruning) and handlers (those who mix, load and apply pesticides). The rule 163
does not cover persons working with livestock. The existing regulation has provisions requiring 164
employers to provide workers and handlers with pesticide safety training, posting and 165*** EO 12866 Review Draft

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– AJ22 ] notification of treated areas, and information on entry restrictions, as well as PPE for workers 166
who enter treated areas after pesticide application to perform crop

- related tasks and handlers who 167
mix, load, and apply pesticides. 168
The final rule takes into consideration comments received from the public in response to 169
the proposed rule ( Ref. 2 ) , as well as additional information such as reported incidents of 170
pesti cide

- related illness or injury. 171
EPA believes that the changes to the WPS offer targeted improvements that will reduce 172
risk through protective requirements and improve operational efficiencies. Among other things, 173
EPA expects the changes to: 174

• Improve effe ctiveness of worker and handler training. 175

• Improve protections to workers during REIs

. 176

• Improve pro tections for workers during and after pesticide applications. 177

• Expand the information provided to workers, thus improving h azard communication 178
protecti ons. 179

• Expand the content of pesticide safety information displayed to improve the display’s 180

effectiveness. 181

• Improve the protect ions for crop advisor employees. 182

• Increase the amounts of decontamination water available, thus improving the 183

effectiveness of the decontamination process. 184

• Improve the emergency response when workers or handlers experience pesticide 185

exposures. 186

• Improve the organization of the WPS, thus making it easier for employers to understand 187
and comply with the rule

. 188

• Clarify that workers and handlers are covered by the rule only if they are employed
, 189*** EO 12866 Review Draft

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– AJ22 ] directly or indirectly, by the establishment (i.e., receiving a salary or wage )

. 190

• Protect adolescents by establishing a minimum age for handlers and for workers who 191

enter a tre ated area during an REI , but adding an exemption to the minimum age requirement for 192

adolescents who work on an establishment owned by a n immediate family member. 193

• Improve flexibility for small farmers and members of their immediate family by 194
expanding th e definition of immediate family members to be more inclusive and retaining the 195
exemptions from almost all WPS requirements for owners and their immediate family members. 196

C

. What are the c osts and b enefits of the r ule ? 197

EPA estimates the incremental cost of the revisions to the WPS to be between $ 60.2 and 198

$ 66.9 million per year, given a three percent discount rate. Using a seven percent discount rate, 199

the rule is estimated to cost between $ 56.2 and $ 66.9 million per year. The majority of the costs, 200

$5 3 .0 t o $6 2.2 million per year, are borne by farms, nurseries, and greenhouses that hire labor 201
and use pesticides, which account for about 20 percent of all farms producing crops in the United 202
States. The approximately 2,000 commercial pesticide handling establ ishments, which are 203
contracted to apply pesticides on farms, may collectively see an incremental cost of about $1.9 204
million per year. Family farms, i.e. , not hiring labor, that use pesticides may collectively bear 205
costs of about $1.4 million per year. To tal costs amount to an average expenditure of about $30 206
per year per farm worker. Benefits, in terms of reduced illness from exposure to pesticides, are 207
likely to exceed $ 6 4 million per year in terms of avoided costs associated with occupational 208
pesticide incidents and with reductions in chronic diseases associated with occupational pesticide 209
exposure, although the amount EPA can quantify is much less. 210
The changes to the current WPS requirements are expected to lead to an overall reduction 211

in incidents of unsafe pesticide exposure and to improve the occupational health of the nation’s 212
agricultural workers and pesticide handlers. This section provides an overview of the qualitative 213*** EO 12866 Review Draft

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– AJ22 ] benefits of the proposal and the estimated benefits that would accrue from a voiding acute 214
pesticide exposure in the population protected by the WPS. It also provides an estimate of the 215
number of chronic illnesses with a plausible association with pesticide exposure that would have 216
to be prevented by the rule changes in order for t he total estimated benefits to meet the estimated 217
cost of the proposal. 218
A sizeable portion of the agricultural workforce may be exposed occupationally to 219
pesticides and pesticide residues. These exposures can pose significant long

- and short

- term 220

health r isks. It is difficult to quantify a specific level of risk and project the risk reduction that 221

would result from this rule, because workers and handlers are potentially exposed to a wide 222
range of pesticides with varying toxicities and risks. However, there is strong evidence that 223
workers and handlers may be exposed to pesticides at levels that can cause adverse effects and 224
that both the exposures and the risks can be substantially reduced. EPA believes the provisions in 225

the final rule w ill reduce pesticide exposures and the associated risks. 226
The estimated quantified benefits from reducing acute worker and handler exposure to 227
pesticides total between $ 0. 6 million and $ 2. 6 million annually ( Ref. 1 ) . This conservative 228
estimate includes only the avoided costs in medical care and lost productivity to workers and 229
handlers and assumes that just 10 % of acute pesticide incidents are reported. It does not include 230
quantification of the reduction in chronic e ffects of pesticide exposure to workers and handlers, 231
reduced effects of exposure
, including developmental impacts, to children and pregnant workers 232
and handlers or willingness to pay to avoid symptoms of pesticide exposure. Because the chronic 233

effects of pesticide exposures are seldom attributable to a specific cause, and thus are unlikely to 234
be recorded in pesticide poisoning databases, EPA is not able to quantify the benefits expected to 235

accrue from the final WPS changes that are expected to reduce chron ic exposure to pesticides. 236
However, associations between pesticide exposure and certain cancer and non

- cancer chronic 237*** EO 12866 Review Draft

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– AJ22 ] health effects are well documented in the peer

- reviewed literature, and reducing these chronic 238
health effects is an important FIFRA goal. 239
Even if the lack of quantitative data impairs the reliability of estimates of the total number 240
of chronic illnesses avoided, it is reasonable to expect that the proposed changes to the WPS will 241

reduce pesticide exposure, and thereby reduce the incidence of chronic disease resulting from 242
pesticide exposure. Therefore, EPA conducted a “break even” analysis to consider the 243
plausibility of the changes to the WPS reducing the incidence of chronic disease enough to cause 244
the net benefits of the propos ed rule to exceed its anticipated costs. Under this analysis, EPA 245

looked at the costs associated with non

- Hodgkin’s lymphoma, prostate cancer, Parkinson’s 246
disease, lung cancer, bronchitis, and asthma and their frequency among agricultural workers, and 247

foun d that reducing the incidence of lung cancer by 0.0 78 % and the incidence of the other 248
chronic diseases by 0

. 78 % per year (about 44 total cases per year among the population of 249
workers and handlers protected under the WPS) would produce quantified benefits sufficient to 250
bridge the gap between the quantified benefits from reducing acute incidents and the final rule’s 251

estimated high

- end cost of $ 6 6.9 million. Overall, the weight of evidence suggests that the 252
requirements will result in long

- term health benefi ts to agricultural workers and pesticide 253

handlers in excess of the less than 1 % reduction in just six diseases that corresponds with the 254

break

- even point for the final rule, not only by reducing their daily risk of pesticide exposures, 255
but also by improvin g quality of life throughout their lives, resulting in a lower cost of health 256
care and a healthier society. 257
The changes to the current WPS requirements, specifically improved training on reducing 258
pesticide residues brought from the treated area to the ho me on workers ’ and handlers’ clothing 259
and bodies and establishing a minimum age for handlers and early entry workers, other than 260
those covered by the immediate family exemption, mitigate the potential for children to be 261*** EO 12866 Review Draft

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– AJ22 ] exposed to pesticides directly and i ndirectly. The unquantified benefit to adolescent workers and 262
handlers, as well as children of workers and handlers is great; reducing exposure to pesticides 263
could translate into fewer sick days, fewer days missed of school, improved capacity to learn, 264

and better long

- term health. Parents and caregivers reap benefits by having healthier families, 265
fewer missed workdays, and better quality of life. 266
By finalizing several interrelated exposure

- reduction measures, the rule is expected to 267

avoid or mitigate appro ximately 44 to 73 % of annual reported acute WPS

- related pesticide 268
incidents. EPA believes the final rule will substantially reduc e for these workers and handlers the 269
potential for adverse health effects (acute and chronic) from occupational exposures to su ch 270
pesticides and their residues. These measures include requirements intended to reduce exposure 271
by: 272

• Ensuring that workers and handlers are informed about the hazards of pesticides

– the 273
final rule changes the content and frequency of required pesticide safety training, as well as 274
making changes to ensure that the pesticide safety training is more effective. 275

• Reducing exposure to pesticides

– among other things, the final rule chang es and 276
clarifies the requirements for personal protective equipment. It also makes changes to the timing 277
of applications when people are nearby. These and other provisions should directly reduce 278
exposure in the agricultural workforce. 279

• Mitigating the eff ects from exposures that occur

– some accidental exposures are 280
inevitable. EPA expects the final rule will mitigate the severity of health impacts by updating and 281
clarifying what is required to respond to exposures. 282

Further detail on the benefits of this proposal is provided in the document titled 283
“Economic Analysis of the Agricultural Worker Protection Standard Revisions” which is 284
available in the docket for this rulemaking ( Ref. 1 )

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– AJ22 ] III. Introduction and Procedural History 286
The existing WPS was publishe d in 1992 and implemented fully in 1995. Since 287
implem entation, EPA has sought to ensure that the rule provides the intended protections 288
effectively and to identify necessary improvements. To accomplish this, EPA engaged diverse 289
stakeholders, individually a nd collectively through organized outreach efforts, to discuss the rule 290
and get feedback from affected and interested parties. Groups with which EPA engaged 291

include d , but we re not limited to, farmworker organizations, health care providers, state 292
regulator s, educators and trainers, pesticide manufacturers, farmers, organizations representing 293
agricultural commodity producers and crop advisors. EPA engaged these groups formally 294
through the National Assessment of the Pesticide Worker Safety Program 295

( http://www.epa.gov/pesticides/safety/workshops.htm ), public meetings ( e.g., National Dialogue 296
on the Worker Protection Standard), federal advisory committee meetings (e.g., Pesticide 297
Program Dialogue Committee, http://www.epa.gov/pesticides/ppdc/ ) and a Sm all Business 298
Advocacy Review Panel (Ref. 3 )

. EPA also engaged stakeholders informally, as individual 299
organizations and in small groups. 300
Using feedback from stakeholders, along with other information, EPA developed 301
proposed changes to the WPS and publishe d them for public comment (Ref. 2 )

. EPA received 302
substantial feedback on the proposal , including about 2,400 written comments with over 393,000 303
signatures. Commenters included farmworker advocacy organizations, state pesticide regulatory 304
agencies (states) and organizations, public health organizations, public health agencies, growers 305
and grower organizations, agricultural producer organizations, applicators and applicator 306
organizations, pesticide manufacturers and organizations, PPE manufacturers, farm bureaus, crop 307
consultants and organizations, and others. The comments received cov ered a wide range of 308

issues and took diverse positions. Overall, the comments were thoughtful and demonstrated a 309*** EO 12866 Review Draft

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– AJ22 ] high level of interest in ensuring the protection of workers and handlers, while minimizing 310
burden on employers and regulatory age ncies. Th is document discusses some of the significant 311
comments received and EPA’s responses. A full summary of comments received and EPA’s 312
responses are available in the docket for this rulemaking (Ref. 4 )

. 313
While considering stakeholder feedback and suggestions in developing the final rule, 314
EPA also gathered additional information, such as updated demographic information for 315

farmworkers, new data from the U.S. Department of Agriculture’s (USDA) National Agricultural 316
Statistics Service, information on other federal rules (e.g., respirator standards, anti

- retaliatory 317
provisions), and more recent data on incidents related to occupational pesticide exposure in 318
agriculture. EPA reviewed the me thodology used to estimate the number of acute pesticide

319
related incidents in agriculture and used the updated information to revise the estimated number 320

of incidents that could be avoided under the final rule. EPA also revised the Economic An alysis 321

for th e final rule to include more recent information from the National Agricultural Statistics 322

Service and with input from public comments. 323

IV. Context and Goals of This Rulemaking 324
A. Context for this Rulemaking 325

1. Statutory a uthority

. Enacted in 1947 , FIFRA established a framework for the pre

326
market registration and regulation of pesticide products; since 1972, FIFRA has prohibited the 327
registration of pesticide products that cause unreasonable adverse effects. FIFRA makes it 328
unlawful to use a pesticide in a manner inconsistent with the labeling and gives EPA’s 329
Administrator authority to develop regulations to carry out the Act. FIFRA’s legislative history 330
indicates that Congress specifically intended for FIFRA to protect workers and other persons 331
from occupat ional exposure directly to pesticides or to their residues (Ref. 5 )

. 332
Under FIFRA’s authority, EPA has implemented measures to protect workers, handlers, 333*** EO 12866 Review Draft

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– AJ22 ] other persons, and the environment from pesticide exposure in two primary ways. First, EPA 334
includes sp ecific use instructions and restrictions on individual pesticide product labeling. These 335

instructions and restrictions are the result of EPA’s stringent registration and reevaluation 336
processes and are based on the risks of the particular product. Since use rs must comply with 337
directions for use and restrictions on a product’s labeling, EPA uses the labeling to convey 338
mandatory requirements for how the pesticide must be used to protect people and the 339

environment from unreasonable adverse effects of pesticide exposure. Second, EPA enacted the 340
WPS to expand protections against the risks of agricultural pesticides without making individual 341
product labeling longer and much more complex. The WPS is a u niform set of requirements for 342
workers, handlers and their emplo yers that are generally applicable to all agricultural pesticides 343

and are incorporated onto agricultural pesticide labels by reference. Its requirements complement 344
the product

- specific labeling restrictions and are intended to minimize occupational exposur es 345
generally

. 346
2. EPA’s regulation of pesticides

. EPA uses a science

- based approach to register and re

347
evaluate pesticides, in order to protect human health and the environment from unreasonable 348
adverse effects that might be caused by pesticides. The registration process begins when a 349
manufacturer submits an application to register a pesticide. The application must contain 350
required test data, including information on the pesticide’s chemistry, environmental fate, 351
toxicity to humans and wildlife, an d potential for human exposure. EPA also requires a copy of 352
the proposed labeling, including directions for use and appropriate warnings. 353
Once an application for a new pesticide product is received, EPA conducts an evaluation, 354

which includes a detailed re view of scientific data to determine the potential impact on human 355

health and the environment. EPA considers the risk assessments and results of any peer review, 356
and evaluates potential risk management measures that could mitigate risks that exceed EPA’s 357*** EO 12866 Review Draft

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– AJ22 ] l evel of concern. In the registration process, EPA evaluates the proposed use(s) of the pesticide 358

to determine whether it would cause adverse effects on human health, non

- target species, and the 359

environment. In evaluating the impact of a pesticide on occupa tional health and safety, EPA 360

considers the risks associated with use of the pesticide (occupational, environmental) and the 361
benefits associated with use of the pesticide (economic, public health, environmental). However, 362
FIFRA does not require EPA to bala nce the risks and benefits for each audience. For example, a 363
product may pose risks to workers, but risk m ay nevertheless be reasonable in comparison to the 364
economic benefit of continued use of the product to society at large. 365
If the application for regis tration does not contain evidence sufficient for EPA to 366
determine that the pesticide meets the FIFRA registration criteria, EPA communicates to the 367
applicant the need for more or better refined data, labeling modifications, or additional use 368

restrictions. Once the applicant has demonstrated that a proposed product meets the FIFRA 369
registration criteria and any applicable requirements under the Federal Food, Drug, and Cosmetic 370

Act (FFDCA ), 21 U.S.C. 3 2 1 et seq. , EPA approves the registration subject to any ri sk 371
mitigation measures necessary to meet the FIFRA registration criteria . EPA devotes significant 372
resources to the regulation of pesticides to ensure that each pesticide product meets the FIFRA 373
requirement that pesticides not cause unreasonable adverse effects to the public and the 374

environment. 375
When EPA approves a pesticide, the labeling generally reflects all risk mitigation 376
measures required by EPA. The risk mitigation measures may include requiring certain 377
engineering controls, such as the use of clo sed systems for mixing pesticides and loading them 378
into application equipment to reduce potential exposure to those who handle pesticides; 379
establishing conditions on the use of the pesticide by specifying certain use sites, maximum 380
application rate or maxi mum number of applications; or establishing REIs during which entry 381*** EO 12866 Review Draft

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– AJ22 ] into an area treated with the pesticide is generally prohibited until residue levels have declined to 382

levels unlikely to cause unreasonable adverse effects

. Because users must comply with the 383
directions for use and use restrictions on a product’s labeling, EPA uses the labeling to establish 384
and convey mandatory requirements for how the pesticide must be used to protect the applicator, 385
the public, and the environment from pesticide exposure. 386
Under FIFRA, EPA is required to review periodically the registration of pesticides 387
currently registered in the United States. The 1988 FIFRA amendments required EPA to 388
establish a pesticide reregistration program. Reregistration was a one

- time comprehens ive review 389
of the human health and environmental effects of pesticides first registered before November 1, 390
1984 to make decisions about these pesticides' future use. The 1996 amendments to FIFRA 391
require that EPA establish, through rule making, an ongoing “ registration review” process of all 392
pesticides at least every 15 years. The final rule establishing the registration review program was 393
signed in August 2006 (Ref. 1 6 )

. The purpose of both re

- evaluation programs is to review all 394
pesticides registered in th e United States to ensure that they continue to meet current safety 395
standards based on up

- to

- date scientific approaches and relevant data. 396
Pesticides reviewed under the reregistration program that met current scientific and safety 397

standards were declared “eligible” for reregistration. The results of EPA’s reviews are 398
summarized in Reregistration Eligibility Decision (RED) documents. The last RED was 399
completed in 2008. Often before a pesticide could be determined “eligible,” additional risk 400

reduction measu res had to be put in place. For a number of pesticides, measures intended to 401
reduce exposure to handlers and workers were needed and are reflected on pesticide labeling. To 402
address occupational risk concerns, REDs include mitigation measures such as: Volun tary 403
cancellation of the product or specific use(s); limiting the amount, frequency or timing of 404
applications; imposing other application restrictions; classifying a product or specific use(s) for 405*** EO 12866 Review Draft

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– AJ22 ] restricted use only by certified applicators ; requiring the use of specific PPE; establishing 406
specific REIs ; and improving use directions. 407

EPA’s registration review program is a recurring assessment of products against current 408

standards. EPA will review each registered pesticide at least every 15 years to determine whether 409
it continues to meet the FIFRA standard for registration. Pesticides registered before 1984 were 410
reevaluated initially under the reregistration program. These and pesticides initially registered in 411

1984 or later are all subject to registr ation review. 412
In summary, EPA’s pesticide reregistration and registration reviews assess the specific 413
risks associated with particular chemicals and ensure that the public and environment do not 414

suffer unreasonable adverse effects from th os e risks. EPA i mplements the risk reduction and 415
mitigation measures identified in the pesticide reregistration and registration review programs 416
through amendments to individual pesticide product labeling. 417

3. WPS. The WPS regulation is incorporated by reference on certai n pesticide product 418
labeling through a statement in the agricultural use box. The WPS provides a comprehensive 419
collection of pesticide management practices generally applicable to all agricultural pesticide use 420

scenarios in crop production , complementing t he product

- specific requirements that appear on 421
individual pesticide product labels. 422

The risk reduction measures of the WPS may be characterized as being one of three 423

types : I nformation, protection and mitigation. To ensure that employees will be informed about 424
exposure to pesticides, the WPS requires that workers and handlers receive training on general 425
pesticide safety, and that employers provide access to information about the pesticides with 426
which workers and handlers may have contact

. To protect worke rs and handlers from pesticide 427
exposure, the WPS prohibits the application of pesticides in a manner that exposes workers or 428
other persons, generally prohibits workers and other persons from being in areas being treated 429*** EO 12866 Review Draft

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– AJ22 ] with pesticides, and generally prohibits workers from entering a treated area while an REI is in 430
effect (with limited exceptions that require additional protections). In addition, the rule protects 431
workers by requiring employers to notify them about areas on the establishment treated with 432
pesticides, through posted and/or oral warnings. The rule protects handlers by ensuring that they 433
understand proper use of and have access to required PPE. Finally, the WPS has provisions to 434
mitigate exposures if they do occur by requiring the employer to provide to workers and handlers 435

with an ample supply of water, soap and towels for routine washing and emergency 436

decontamination. The employer must also make transportation available to a medical care 437
facility if a worker or handler may have b een poisoned or injured by a pesticide and provide 438
information about the pesticide(s) to which the person may have been exposed. 439
EPA manages the risks and benefits of each pesticide product primarily through the 440
labeling requirements specific to each pes ticide product . If pesticide products are used according 441
to the labeling , EPA does not expect use to cause unreasonable adverse effects. However, data on 442

incidents of adverse effects to human health and the environment from the use of agricultural 443
pesticid es show that users do not always comply with labeling requirements

. Rigorous ongoing 444
training, compliance assistance and enforcement are needed to ensure that risk mitigation 445
measures are appropriately implemented in the field. The framework provided by th e WPS is 446
critical for ensuring that the improvements brought about by reregistration and registration 447
review are realized in the field. For example, the requirement for handlers to receive instruction 448

on how to use the pesticide and the application equipme nt for each application is one way to 449
educate handlers about updated requirements on product labeling to ensure they use pesticides in 450
a manner that will not harm themselves, workers, the public or the environment. In addition, the 451

REIs are established thr ough individual product labeling, but action needs to be taken at the use 452

site to ensure that workers are aware of areas on the establishment where REIs are in effect and 453*** EO 12866 Review Draft

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– AJ22 ] given directions to be kept out of the treated area while the REI is in effect. The c hanges to the 454

WPS are designed to enhance the effectiveness of the existing structure of protections and to 455
better realize labeling

- based risk mitigation measures at the field level

. 456
B. Goals of This Rulemaking 457
Discussions with stakeholders over many years, together with EPA’s review of incident 458
data, led EPA to identify several shortcomings in the current regulation that will be addressed by 459

this final rule

. As discussed in Unit IV.A., EPA uses both product

- spec ific labeling and the WPS 460
to effectuate occupational protections for workers and handlers. EPA engages in ongoing 461
reviews and reassessments of pesticide products to ensure they continue to meet the standard of 462
not causing unreasonable adverse effects to hu man health and the environment. The WPS must 463
be updated to ensure that the rule continues to complement the labeling

- based protections and to 464
address issues identified through experience with the WPS, and review of incident data and 465
stakeholder engagement. 466

1. Purpose of the WPS

. The WPS is intended to reduce the risks associated with 467
occupational pesticide exposure to workers, handlers and their families, and to protect others and 468
the environment from risks of pesticide use in agricultural production. The rule makes employers 469
of workers and handlers responsible for providing protections to workers and handlers on their 470

establishments. By imposing this obligation, EPA seeks to ensure those who make pesticide use 471

decisions (employers) i nternalize the effects of their decisionmaking rather than passing on the 472
costs associated with these decisions (risks of pesticide exposure) to others (workers and 473

handlers ). 474
As noted in Unit IV.B., the components of the WPS generally can be grouped into three 475
categories : I nformation, protection, and mitigation. Employers must provide w orkers and 476

handlers with information needed to protect themselves, others, and the environment from 477*** EO 12866 Review Draft

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– AJ22 ] pesticides and pesticide residues through pesticide safety training, pes ticide application and 478

hazard information, and access to labeling

. Employers must provide protections to workers and 479
handlers during and after applications in order to minimize potential for exposure. Finally, 480
employers must be prepared to mitigate exposur es that do occur by providing supplies for 481
washing and emergency decontamination, and emergency transportation to a medical facility if 482

necessary. These elements are necessary to implement product

- specific labeling requirements 483
effectively

. For example, pe sticide safety training informs workers that areas treated with 484
pesticides are off limits for entry for a certain period after the application, i.e., a product

- specific 485
REI, and that their employers will inform them of where and when REIs are in effect and entry 486

into the treated areas is prohibited. In some instances, employers must provide further protection 487
by posting warning signs at treated areas while REIs are in effect to remind workers t o keep out 488

of the treated areas. For handlers, training informs them about basic pesticide safety and handling 489
precautions and reducing the potential to expose themselves or others. In addition, the employer 490
must provide information for each application, informing the handler about the pr oduct

- specific 491
labeling restrictions and requirements. 492
In summary, the WPS works in conjunction with product labeling to protect workers and 493
handlers from occupational pesticide exposure. The rule imposes on the employer the 494
responsibility for provid ing p rotections to workers and handlers and to ensure they have access 495
to information necessary to protect themselves and others during and after pesticide application. 496

2. Surveillance data. When EPA promulgated the existing rule, it used existing data on 497

occ upational pesticide

- related incidents to estimate that that approximately 10,000 to 20,000 498
incidents of physician

- diagnosed (not hospitalized) pesticide poisonings occurred in the 499

WPS

- covered workforce annually. For this rulem akin g, EPA estimates that abou t 1,81 0 to 2,950 500
acute pesticide exposure incidents occur annually that potentially could be prevented by the 501*** EO 12866 Review Draft

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– AJ22 ] WPS

. This substantial drop in the estimated number of incidents shows that the existing rule and 502
efforts by employers, workers and handlers have m ade great accomplishments in reducing 503
pesticide exposure for workers and handlers. Pesticide use in agriculture is safer than it was 20 504

years ago. 505

Current occupational health incident s urveillance data show , however, that avoidable 506

incidents continue to occur. For example, some of the occupational pesticide illnesses reported to 507
state health agencies have occurred when workers entered a treated area before the REI expired. 508
Although employers are obligated to warn work ers to keep out of treated areas and to ensure that 509
workers receive training on and information about treated areas, incidents continue to occur. 510
Another example of potentially avoidable exposure is s pray drift . Labeling instructs handlers to 511
apply pestici des in a manner that does not contact other persons, but pesticide drift continues to 512
cause exposure incidents. In addition to surveillance data, studies also show that pesticide 513
residues are brought home by workers and handlers on their bodies and clothin g (known as 514

“take

- home exposure”) , creating an exposure pathway for family members. 515
This rulemaking is intended to reduce avoidable incidents by improving information, 516
protections, and mitigations for workers and handlers without imposing un reasonable bu rden s on 517
employers. Although EPA cannot quantify the specific reduction in incidents from any single 518
change to the regulation, taken together, EPA estimates that the final rule will result in a n annual 519

reduction of between 540 and 1,620 acute, health

- relat ed incidents. In addition, EPA expects that 520
the final rule will reduce chronic health problems among workers and handlers by reducing daily 521
pesticide exposures, and thereby improving quality of life throughout their lives, resulting in a 522
lower cost of health care and a healthier society. (See Unit II.C. ) Units V. through X I X. describe 523
the final regulatory requirements and their potential to reduce avoidable incidents. The Eco nomic 524
Analysis for this rulemaking provides an estimate of the costs of the requirements and a 525*** EO 12866 Review Draft

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– AJ22 ] quantitative and qualitative discussion of the potential benefits, including avoiding acute 526
pesticide

- related illnesses in workers and handlers ( Ref. 1)

. 527

3 . Dem ographics of workers and handlers . In addition to the complexity of the science 528
issues involving pesticide use, variability of pesticide use patterns and incomplete information 529
about occupational pesticide

- related illnesses and injuries, the diversity of t he labor population at 530

risk and the tasks they perform makes it challenging to ensur e that workers and handlers are 531
adequately protected. 532
According to the most recent public data set available from the Department of Labor’s 533

(DOL) National Agricultural Work er Survey ( NAWS ) for 2011

- 2012, 64 % of agricultural 534

workers in the United States were born in Mexico and 6 % in Central and South America (Ref. 535

6 )

. A majority ( 69 %) of all survey respondents speak Spanish as their primary language (Ref. 6 )

. 536
Approximately 65 % of this population speaks a little or no English ; 38 % cannot read English at 537
all and another 30% can only read English “a little” ( Ref. 6 )

. Many have received only some 538

formal education; on average, the highest grade completed by foreign

- born workers was seventh 539
grade (Ref. 6 )

. 540
Approximately 17 % of the survey respondents were classified as migrant, having traveled 541
at least 75 miles in the previous year to find a job in agriculture (Ref. 6 )

. O nly 17 % of 542
respondents lived in housing provided by their employer and 5 5 % rented housing from someone 543
other than their employer (Ref. 6 )

. In general, agricultural workers surveyed by NAWS do not 544
have access to employer

- provided health insurance

– in 2011

- 2012, only 21% of farmworkers 545
reported having the option f or employer

- provided health insurance (Ref. 6 )

. USDA research, 546
based on NAWS data, also reports that workers have difficulty entering the health care system to 547

receive treatment (Ref. 7 )

. Cost was a significant barrier for two

- thirds of farmworkers, while 548
about a third listed language barriers as an impediment to receiving care. Most workers fear that 549*** EO 12866 Review Draft

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– AJ22 ] seeking treatment will result in losing their job because someone will replace them while they 550
are getting treatment or the employer will label them as troubl emakers and dismiss them. T he 551
problem is more severe among undocumented workers because they fear seeking treatment will 552
lead to deportation or other adverse legal action (Ref. 7 )

. A USDA report indicat es that the 553

factors mentioned previously contribute t o the disadvantaged status of hired workers in 554
agriculture (Ref. 7 )

. 555

The NAWS found that 19% of workers and handlers surveyed earned less than $10,000 556
annually from agricultural work, and another 39% earn between $10,000 and $20,000 annually. 557
Over 55% of respondents reported a total family income below $22,500 (Ref. 6 )

. 558

B oth the existing WPS and the changes included in the final rule seek to eliminate some 559
of the potential barriers to achieving effective protection of these persons by requirin g training in 560
a manner that workers and handlers can understand, requiring the employer to ensure that 561
handlers understand relevant portions of the labeling before handling a pesticide, and expanding 562
training to provide information on seeking medical care in the event of a pesticide exposure and 563
highlighting the anti

- retaliation provisions of the WPS. 564
4. Summary of the final rule. The final rule amends the WPS by: 565

• Requiring pesticide safety training at one

- year interval s and a mending the existing 566
pesti cide safety training content. 567

• Requiring recordkeeping for pesticide safety training. 568

• Eliminating the “grace period” that allowed workers to enter a treated area to perform 569
WPS tasks before receiving full pesticide safety training. 570

• Establishing a m inimum age of 1 8 for handlers and for workers who enter an area under 571

an REI

. 572

• Establishing requirements for specific training and notification for workers who enter 573*** EO 12866 Review Draft

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– AJ22 ] an area under an REI

. 574

• Restricting persons’ entry into certain areas surrounding application equipment during 575
an application. 576

• Clarifying requirements for supplies for routine washing and emergency 577

decontamination. 578

• Requiring employers to post warni ng signs around treated areas when the product 579
applied has an REI greater than 48 h ours and allowing the employer to choose to post the treated 580
area or give oral notification when the product applied has an REI of 48 hours or less (unless the 581
labeling requires both types of notification)

. 582

• Requiring employers to maintain and make avail able copies of the SDS s for products 583

used on the establishment

. 584

• Requiring employers to provide application information and SDSs to designated 585
representatives making the request on behalf of workers or handlers

. 586

• A dding elements to the req uirement to maintain a pplication

- specific information. 587

• Adopting by cross reference certain OSHA requirements for employers to provide 588
training, fit testing and medical evaluations to handlers using products that require use of 589
respirators. 590

• Requiring employers to provide supplies for emergency eye flush at all pesticide mixing 591
and loading sites when handlers use products that require eye protection. 592

• Maintaining the immediate family exemption and ensuring it includes an exemption 593

from the new minimum age requirements for handlers and early

- entry workers

. 594

• Expanding the definition of “immediate family” to allow more family

- owned operations 595
to qualify for the exemptions to the WPS requirements

. 596

• Revising definitions to improve clarity and to refine terms. 597*** EO 12866 Review Draft

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– AJ22 ] • Restructuring the regulation to make it easier to read and understand. 598

Units V

. through X VIII

. discuss the final rule requirements and elements considered in 599
the proposal but not included in the final rule. Unit X I X

. discusses implementation of the final 600
regulatory requirements. Each of these Units generally describes the existing rule, proposal and 601
final regulatory requirements (where appropriate) , and summarizes the major comments received 602
and EPA’s responses. A separate docu ment summarizing the comments received that were 603
relevant to the proposal and EPA’s responses has also been prepared and is available in the 604
docket for this rulemaking (Ref. 4 )

. 605
EPA has grouped the discussion of the final rule and elements considered in t he proposal 606

but not included in the final rule as follows: 607

• Unit V: Pesticide Safety Training for Workers and Handlers

. 608

• Unit VI: Notification. 609

• Unit VII: Hazard Communication

. 610

• Unit VIII: Information Exchange Between Handler and Agricultural Employers. 611

• Unit IX: Drift

- Related Requirements

. 612

• Unit X: Establish Minimum Age for Handling Pesticides and Working in a Treated 613

Area while an REI is in Effect

. 614

• Unit XI: Restrictions on Worker Entry into Treated Areas

. 615

• Unit XII: Display of Pesticide Safety Information

. 616

• Unit XIII: Decontamination

. 617

• Unit XIV: Emergency Assistance

. 618

• Unit XV: Personal Protective Equipment

. 619

• Unit XVI: Decision not to Require Monitoring of Handler Exposure to Cholinesterase

620

Inhibitin g Pesticides

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– AJ22 ] • Unit XVII: Exemptions and Exceptions

. 622

• Unit XVIII: General Revisions. 623

• Unit XIX: Implementation

. 624

V. Pesticide Safety Training for Worker s and Handlers 625
A. Shorten Retraining Interval for Workers and Handlers 626

1. Current rule and proposal. The existing WPS requires employers to ensure that 627
workers and handlers are trained once every five years. EPA proposed to establish an annual 628
retraining interval for workers and handlers in order to improve the ability of workers and 629

handle rs to protect themselves and their families from pesticide exposure. 630

2. Final rule. In the final rule, EPA has adopted the proposed requirement for workers 631
and handlers to receive full pesticide safety training annually. The final regulatory text for the se 632
requirements is available at 40 CFR 170.401(a) and 170.50 1(a)

. 633
3. Comments and responses. 634

Comments. S everal farmworker advocacy groups and public health organizations 635
supported full, annual training, stating that the more frequent training would impr ove workers’ 636
and handlers’ ability to protect themselves and their families, and that annual training would be 637
simple to track administratively

. Agricultural producer organizations and pesticide producers 638

recommended an initial in

- depth training for new wo rkers followed annually by a shortened 639
“refresher” training. A similar suggestion was to require initial in

- depth training for workers and 640
handlers, followed by four years of refresher training, with an in

- depth training every fifth year. 641

Some state s sugge sted training every two or three years , or allowing each state to set its own 642
training interval, to parallel the state’s pesticide applicator recertification interval. A few states 643
recommended a system where the training timeframe is based on the calendar year, to allow 644
flexibility for employers. For example, under this proposal, an employee trained in March 2014 645*** EO 12866 Review Draft

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– AJ22 ] could be retrained as late as December 2015. This suggestion would extend the permitted 646
interval between worker and handler trainings to as long a s two years. Comments from pesticide 647
industry organizations suggested that the frequency of worker safety training be commensurate 648
with an individual workers’ tasks, previous training, and experience. 649
EPA Response . EPA considered the alternatives describe d for training frequency, and 650
agrees with the comments that annual training, in some form, is the appropriate interval to ensure 651
that workers and handlers receive more frequent reinforcement of the safety principles. EPA 652
rejected t he suggestion for a limit ed refresher training based on the difficulty both employers and 653
regulators would face in tracking multiple levels of training among a mobile workforce, the 654
burdens of maintaining multiple forms of training materials and providing different trainings 655

where employees are on differing cycles for full and refresher training , and the fact that very 656
little of the substantive content of the required training appears to be material that would not 657
need to be brought to employees’ attention annually. 658
The suggestio ns for biennial or triennial training and allowing the states to base the 659
frequency of training for workers and handlers on their pesticide applicator recertification 660
requirements would present similar administrative problems with tracking trainings and 661
introduce the possibility that workers or handlers would miss information needed to protect 662

themselves. Finally, the alternative to establish the frequency of training based on the calendar 663
year presents similar issues with tracking training and needed frequency of repetition. 664
The recommendation for training to be tailored to the individual workers’ tasks, 665
experience, and prior training was rejected based on the difficulty in tracki ng the specific 666
training needs with a mobile workforce, the need for multiple forms of training materials, and the 667
potential burden on employers to determine specific needs for each employee. In addition, the 668
training gives practical information that is us eful to everyone who works with or around 669*** EO 12866 Review Draft

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– AJ22 ] agricultural pesticides. 670
B. Establish Recordkeeping Requirements to Verify Training for Workers and Handlers 671

1. Current rule and proposal . The existing WPS does not specify how an employer must 672
verify that a work er or handler has received pesticide safety training. EPA proposed to eliminate 673
the existing voluntary training verification card system and to require employers to maintain 674
records of WPS worker and handler training for two years. EPA proposed that the tr aining record 675
include, among other things, the employee’s birthdate to verify minimum age for early

- entry 676

worker or handler activities. EPA proposed to require the employer to provide a copy of the 677
record to each worker or handler upon completion of the tr aining

. 678

2. Final rule. EPA has finalized the proposed requirement for employers to maintain 679
records of worker and handler training for two years. Required information for the record of 680
worker and handler training include s the trained worker’s or handler’s name and signature, the 681
date of training, the trainer’s name, evidence of the trainer’s qualification to train, the employer’s 682

name, and which EPA

- approved training materials were used. EPA has not included in the final 683
rule the proposed requirement for t he employer to record or retain birthdate of the employee. The 684
final rule does not require employers to automatically provide a copy of the training record to 685

each worker and handler; instead, the final rule only requires the employer to provide a copy of 686
the training record to the trained employee upon the employee’s request. The final regulatory 687

text for the worker and handler training recordkeeping requirements appears at 40 CFR 688

1 70. 401 (d) and 170. 501 (d), respectively. 689

3. C omments and responses. 690

Comments

– compliance monitoring. Comments in support of a requirement for 691
recordkeeping stated that it would ensure employees received the training and that it would 692
improve enforcement and compliance. 693*** EO 12866 Review Draft

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– AJ22 ] EPA Response

. E PA agrees with these commenters that recordkeeping is necessary for 694
the purpose of compliance monitoring. 695

Comments

– burden. Commenters stated that the proposed requirement to distribute the 696
record to every trained worker or handler would be burdensome an d that most workers or 697
handlers would not take or keep the records. 698
EPA Response

. EPA agrees with these commenters and has modified the requirement. 699
The final rule requires employers to provide training records to the trained employee only on the 700
employe e’s request. This will reduce the burden on employers while ensuring that interested 701
employees will be able to demonstrate to future employers that they were appropriately trained. 702

Comments

– birthdate. There were a number of comments, particularly from state s , 703
related to the proposed requirement that employers include the trained employee’s birthdate 704
among the information to be recorded to document training. EPA proposed including the trained 705
employee’s birthdate in the recordkeeping in order to facilitate its use to verify that workers or 706
handlers met the proposed minimum age requirement for handling pesticides or entering treated 707
areas while under an REI as allowed under the early entry exceptions. Sta tes noted that a 708
person’s birthdate can be considered confidential and personal information, the distribution of 709
which can lead to identity theft. 710
EPA Response

. EPA has decided the advantages of requiring the employer to record the 711

birthdate of the train ed worker or handler are outweighed in this instance by the concerns for 712
protecting confidential and personal information. Under the final rule, the employer is 713
responsible for determining that each employee has met the minimum age requirement. The final 714

rule does not include the proposed requirement for the employer to collect or retain specific 715
documentation of the employee’s birthdate or age. 716

C . Establish Trainer Qualifications for W orkers and H

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– AJ22 ] 1. Current rule and proposal

. The exist ing WPS allows workers and handlers to be 718
trained by a variety of persons, including pesticide applicators certified to use restricted use 719
pesticides (RUPs) under 40 CFR part 171, persons identified by the agency with jurisdiction for 720
pesticide enforcement as a trainer of certified applicators, or persons having completed an 721
approved pesticide safety train

- the

- trainer course. In addition, persons trained as handlers under 722
the WPS are also eligible to train workers. 723
EPA proposed to limit eligible trainers o f workers to those who complete an EPA

724
approved train

- the

- trainer program or are designated by EPA or an appropriate state or tribal 725
agency as trainers of certified applicators ; b eing a c ertified applicator or trained as a handler 726

under the WPS would no t a utomatically qualify a person to train workers under the proposal

. 727
EPA did not propose to change the qualifications for trainers of handlers. 728

2. Final rule. In the final rule, EPA has expanded the class of persons qualified to train 729

workers relative to t he proposed rule

. Under the final rule, qualified trainers of workers include 730
persons who : H ave completed a pesticide safety train

- the

- trainer program approved by EPA, are 731
designated as a trainer of certified applicators , handlers or workers by EPA or a state or tribal 732
agency responsible for pesticide enforcement, or are certified pesticide applicators under 40 CFR 733
part 171. Unlike the proposal, certified applicators are considered qualified to train workers 734

under the final rule. However, co nsistent with the proposal, the persons trained as handlers 735
under the WPS are not considered qualified to train workers under the final rule. 736
The final rule does not make any changes from the existing rule and proposal related to 737
who is qualified to provi de training to handlers. 738
The final regulatory text for worker and handler trainer qualifications is available at 40 739

CFR 170.401(c)(4) and 170.501(c)(4), respectively. 740
3. Comments and responses. 741*** EO 12866 Review Draft

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Page 33 of 286 [RIN 2070

– AJ22 ] Comments. Many of the comments advised EPA to retain certi fied applicators as trainers 742

of workers in the final rule. Several commenters stated that without certified applicators 743
providing worker training, resources such as cooperative extension trainers would be severely 744

strained and there might not be adequate r esources to provide annual training for workers. 745

Several state s and others noted that certified applicators possess the necessary competence to 746
provide training to workers; in some states, they must receive training specifically for the 747
purpose of training workers in order to meet their certification requirements. Commenters also 748
questioned how a certified applicator could be considered qualified to train handlers, but not 749
workers, as many handlers have the same demographic profile as workers. 750

There were few comments in support of retaining handlers as trainers for workers. One 751
comment suggested that handlers could be required to take an approved train

- the

- trainer course 752
to ensure they can adequately train workers. 753
EPA Response

. EPA is persuaded by the c omments that it is reasonable to expect that 754
certified applicators can competently train workers, as well as handlers. Commenters note that 755
certified applicators possess knowledge of pesticide safety from their certification training and 756
pesticide handling experience. The comment er s stated that the additional burden from the 757
proposed requirement for annual training in combination with the elimination of certified 758
applicators as trainers would severely strain trainer resources and potentially result in fewer 759
workers receiving annual training . This concern persuaded EPA to include certified applicators 760
as qualified to train workers in the final rule

. 761
EPA agrees with the comment that handlers who have gone through a train

- the

- trainer 762
course should be eligible to train workers. Under the final regulation, any person, including a 763
handler, is qualified to train workers after successfully complet ing an approved train

- the

- trainer 764

course. 765*** EO 12866 Review Draft

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Page 34 of 286 [RIN 2070

– AJ22 ] D . Expand the Content of Worker and Handler Pesticide Safety Training 766

1. Curr ent and proposed rule. The existing WPS requires employers to provide pesticide 767
safety training covering specific content to workers and handlers. Under the existing rule, worker 768
safety training content must include the following 11 points: 769

• Where and i n what form pesticides may be encountered during work activities. 770

• Hazards of pesticides resulting from toxicity and exposure, including acute and chronic 771
effects, delayed effects, and sensitization. 772

• Routes through which pesticides can enter the body. 773

• Signs and symptoms of common types of pesticide poisoning. 774

• Emergency first aid for pesticide injuries or poisonings. 775

• How to obtain emergency medical care. 776

• Routine and emergency decontamination procedures, including emergency eye flushing 777

tec hniques. 778

• Hazards from chemigation and drift. 779

• Hazards from pesticide residues on clothing. 780

• Warnings about taking pesticides or pesticide containers home. 781

• Requirements of the WPS designed to reduce the risks of illness or injury resulting from 782

w orkers' occupational exposure to pesticides, including application and entry restrictions, the 783
design of the warning sign, posting of warning signs, oral warnings, the availability of specific 784
information about applications, and the protection against reta liatory acts. 785
Under the existing rule, pesticide handler safety training must include the following 13 786
basic safety training points: 787

• Format and meaning of information contained on pesticide labels and in labeling, 788
including safety information such as precautionary statements about human health hazards. 789*** EO 12866 Review Draft

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– AJ22 ] • Hazards of pesticides resulting from toxicity and exposure, including acute and chronic 790
effects, delayed effects, and sensitization. 791

• Routes through which pesticides can enter the body. 792

• Signs and symptoms of pesticide poisoning. 793

• Emergency first aid for pesticide injuries or poisoning s

. 794

• How to get emergency medical care. 795

• Routine and emergency decontamination procedures. 796

• Need for and appropriate use of PPE. 797

• Prevention, recognition, and first aid treatment of heat

- related illness

. 798

• Safety requirements for handling, transporting, storing, and disposing of pesticides. 799

• Environmental concerns. 800

• Warnings about taking pesticides or pesticide containers home. 801

• Training on the requi rements of the regulation related to handling. 802
EPA proposed a dditional content in worker pesticide safety training includ ing , among 803
other things, information on the requirements for early

- entry notification and emergency 804
assistance, how to reduce pesticid e take

- home exposure, the availability of hazard 805
communication materials for workers, the minimum age requirements for handling and early 806
entry, and the obligations of agricultural employers to provide protections to workers. 807
EPA proposed additional cont ent in handler pesticide safety training , including the 808
requirement for handlers to cease application if they observe a person, other than another trained 809
and properly equipped handler, in the area being treated or the entry

- restricted area , and 810

informatio n about the requirement for OSHA

- equivalent training on respirator use, fit

- testing of 811
respirators, and medical evaluation in the event a handler must wear a respirator. 812

2. Final rule. EPA has finalized the proposed additions to and expansions of the wor ker 813*** EO 12866 Review Draft

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Page 36 of 286 [RIN 2070

– AJ22 ] and handler pesticide safety training. The final regulatory text for the content of worker and 814
handler pesticide training is available at 40 CFR 170.401 (c)(2)

- (3) and 170.501 (c)(2)

- (3). 815
The final rule requires employers to ensure that workers are trained on the following 816
topics after EPA has announced the availability of training materials (see Unit XIX. for 817
information on the timing of implementation): 818

• The responsibility of a gricultural employers to provide workers and handlers with 819

information and protections designed to reduce work

- related pesticide exposures and illnesses. 820

This includes ensuring workers and handlers have been trained on pesticide safety, providing 821
pesticide safety and application information, decontamination supplies and emer gency medical 822

assistance
, and notifying workers of restrictions during applications and on entering pesticide 823

treated areas. A worker o r handler may designate in writing a representative to request access to 824
pesticide application and hazard information. 825

• How to recognize and understand the meaning of the warning sign used for notifying 826
workers of restrictions on entering pesticide

- treated areas on the establishment. 827

• How to follow directions and/or signs about keeping out of pesticide

- treated areas 828

su bject to a n REI and application exclusion zones

. 829

• Where and in what form pesticides may be encountered during work activities and 830
potential sources of pesticide exposure on the agricultural establishment. This includes exposure 831

to pesticide residues that may be on or in plants, soil, tractors, application and chemigation 832
equipment, or used PPE , and that may drift through the air from nearby applications or be in 833
irrigation water

. 834

• Potential hazards from toxicity and exposure that pesticides present to workers and their 835
families, including acute and chronic effects, delayed effects, and sensitization. 836

• Routes through which pesticides can enter the body. 837*** EO 12866 Review Draft

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Page 37 of 286 [RIN 2070

– AJ22 ] • Signs and symptoms of common types of pesticide poisoning. 838

• Emergency first aid for pesticide i njuries or poisonings. 839

• Routine and emergency decontamination procedures, including emergency eye flushing 840
techniques, and if pesticides are spilled or sprayed on the body , to use decontamination supplies 841
to wash immediately or rinse off in the nearest clean water
, including springs, streams, lakes, or 842

other sources, if more readily available than decontamination supplies, and as soon as possible, 843

wash or shower with soap and water , shampoo hair, and change into clean clothes. 844

• How and when to obtain e mergency medical care. 845

• When working in pesticide

- treated areas, wear work clothing that protects the body 846
from pesticide residues and wash hands before eating, drinking, using chewing gum or tobacco, 847
or using the toilet. 848

• Wash or shower with soap and water, shampoo hair, and change into clean clothes as 849
soon as possible after working in pesticide

- treated areas. 850

• Potential hazards from pesticide residues on clothing. 851

• Wash work clothes before wearing them again and wash them separately from other 852

clothes. 853

• Do not take pesticides or pesticide containers used at work to your home

. 854

• Safety data sheets provide hazard, emergency medical treatment and other information 855
about the pesticides used on the estab lishment they may come in contact with. 856
The responsibility of a gricultural employers to do all of the following: Display safety data sheets 857
for all pesticides used on the establishment, provide workers and handlers information about the 858

location of the sa fety data sheets on the establishment, and provide workers and handlers 859
unimpeded access to safety data sheets during normal work hours. 860

• The rule prohibits a gricultural employers from allow ing or direct ing any worker to mix, 861*** EO 12866 Review Draft

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Page 38 of 286 [RIN 2070

– AJ22 ] load or apply pesticides or assist in the application of pesticides unless the worker has been 862

trained as a handler. 863

• The responsibility of a gricultural employers to provide specific information to workers 864
before directing them to perform early

- entry activities. Workers must be 18 years old to perform 865
early

- entry activities. 866

• Potential hazards to children and pregnant women from pesticide exposure. 867

• Keep children and nonworking family members away from pesticide

- treated areas. 868

• After working in pesticide

- treated areas, remove work boots or shoes before entering 869

your home, and remove work clothes and wash or shower before physical contact with children 870
or family members. 871

• How to report suspected pesticide use violations to the state or tribal agency responsible 872
for pesticide enforcement. 873

• T he rule prohibits a gricultural employers from intimidating, threatening, coercing, or 874
discriminating against any worker or handler for complying with or attempting to comply with 875
the requirements of this rule, or because the worker or ha ndler has provided, caused to be 876
provided, or is about to provide information to the employer or to the EPA or its agents regarding 877
conduct that the employee reasonably believes violates this part, and/or has made a complaint, 878
testified, assisted, or parti cipated in any manner in an investigation, proceeding, or hearing 879
concerning compliance with this rule. 880

The final rule requires employers to ensure that handlers are trained on the following 881
topics after EPA has announced the availability of training mat erials (see Unit XIX. for 882
information on the timing of implementation): 883

• All content for worker training. 884

• Information on proper application and use of pesticides. 885*** EO 12866 Review Draft

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Page 39 of 286 [RIN 2070

– AJ22 ] • Handlers must follow the portions of the labeling applicable to the safe use of the 886
pesticide

. 887

• Format and meaning of information contained on pesticide labels and in labeling 888
applicable to the safe use of the pesticide

. 889

• Need for and appropriate use and removal of all PPE

. 890

• How to recognize, prevent, and provide first aid treatm ent for heat

- related illness. 891

• Safety requirements for handling, transporting, storing, and disposing of pesticides, 892
including general procedures for spill cleanup. 893

• Environmental concerns, such as drift, runoff, and wildlife hazards. 894

• Handlers mu st not apply pesticides in a manner that results in contact with workers or 895
other persons. 896

• The responsibility of h andler employers to provide handlers with information and 897
protections designed to reduce work

- related pesticide exposures and illnesses. Th is includes 898
providing, cleaning, maintaining, storing, and ensuring proper use of all required personal 899
protective equipment; providing decontamination supplies; and providing specific information 900
about pesticide use and labeling information. 901

• Handlers m ust suspend a pesticide application if workers or other persons are in the 902
application exclusion zone

. 903

• Handlers must be at least 18 years old

. 904

• The responsibility of h andler employers to ensure handlers have received respirator fit

905
testing, training a nd medical evaluation if they are required to wear a respirator by the product 906
labeling. 907

• The responsibility of agricultural employers to post treated areas as required by this 908

rule. 909*** EO 12866 Review Draft

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Page 40 of 286 [RIN 2070

– AJ22 ] EPA intends to develop the training materials that meet the final training requirements 910

and to publish in the Federal Register a notice of their availability

. To allow time for the 911
completion and distribution of revised training materials and to allow time for trainers to become 912

familiar with them an d begin training workers and handlers, the rule extends the implementation 913
period for training on the new requirements for two years, or until six months after EPA has 914
made the revised training materials available, whichever is longer. The final requireme nts for the 915
content of worker and handler pesticide safety training are available at 40 CFR 170.401(c)(2)

- (3 ) 916

and 170.501(c)(2)

- (3) , respectively

. 917
3. Comments and responses. 918

Comments. Farmworker advocacy organizations, many state s , and public health 919
organizations provided support for the expanded training topics, in particular information about 920
preventing take home exposure and medical evaluation, fit testing and training on respirator use 921
for handlers who need to wear respirators. Some farmworker adv ocacy organizations commented 922
on the importance of information about worker rights. 923
Agricultural producer organizations expressed concern for the additional burden of the 924
lengthier training. Some states asserted that several of the handler training point s are beyond the 925
scope of the WPS and should be addressed in applicator certification only

. S pecifically, they 926
requested that EPA eliminate training on environmental concerns from pesticide use; proper 927
application and use of pesticides; and requirements fo r handlers to understand the format and 928
meaning of all information contained on pesticide labels and labeling, and to follow all pesticide 929
label directions. These commenters stated that these training points are appropriate for persons 930

who work under the s upervision of certified applicators, but they do not relate directly to worker 931
or handler safety. Two states recommended a revision to language in the handler training topics 932
requiring that “all” information on the pesticide label would be required to be c overed, stating 933*** EO 12866 Review Draft

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Page 41 of 286 [RIN 2070

– AJ22 ] that all labeling information may not be relevant to a given application. 934
EPA Response

. EPA does not agree with comments from states that the handler training 935
topics related to environmental concerns from pesticide use, proper application and use, 936
requirements for handlers to understand the format and meaning of information on labels and to 937
follow label directions are beyond the scope of the WPS and may expand the liability of 938

handlers. First, the “Worker Protection Standard” title is desc riptive, and not jurisdictional. The 939
WPS is, in essence, a codification of material that EPA would otherwise have to require to 940
appear on the labels of agricultural pesticides. Thus its potential scope is as broad as EPA’s 941
labeling authority. While there m ay be some point at which a prospective provision might be so 942
tangentially related to the rest of the WPS that its inclusion in the WPS w ould cause excessive 943

confusion, that is not the case with the provisions included in today’s final rule. 944

In addition, this is not the first time that requirements included in the WPS have served 945
purposes beyond the protection of agricultural workers and handlers. Section 170.210(a) of the 946
existing rule requires that “The handler employer and the handler shall assure that no pesticide is 947
applied so as to contact, either directly or through drift, any worker or other person , other than 948
an appropriately trained and equipped handler” (emphasis added). Section 170.234(c) of the 949
existing rule requires that, among other things, when application equipment is sent to non

950
handlers for repair, the handler employer must assure that pesticide residues have been removed, 951
or else warn the person who would perform the repair. The handler training point on 952
environmental concerns from pesti cide use already appears in the existing rule at 40 CFR 953
170.230(c)(4)(xi). In response to a similar comment on the proposal that resulted in the existing 954
regulation , EPA stated: 955
One comment questioned the relevancy of environmental information in worker 956 protection training. The Agency believes such training is relevant to worker 957 protection. Many environmental concerns are applicable not only to the organisms 958*** EO 12866 Review Draft

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Page 42 of 286 [RIN 2070

– AJ22 ] in the environment, but also to workers and other persons who may be in that 959 environment. Ground a nd surface water warnings, for example, are designed not to 960 protect only aquatic organisms, but to protect workers and other persons who may 961 be using the water for drinking, cooking, bathing, etc. The Agency notes that 962 FIFRA defines “ environment ” as includ ing “ water, air, land, and all plants and man 963 and other animals living therein, and the interrelationships which exist among these 964 (Ref. 8 )

. 965 966

The final rule retains the requirement for handler training on environmental concerns 967
related to pesticide use fr om the current WPS. 968
EPA does not agree that the training topic requiring handlers to receive instruction on 969
proper application and use of pesticides is only appropriate for noncertified applicators making 970
application under the direct supervision of a cert ified applicator. First, handlers routinely apply 971
pesticides, and misapplication of pesticides can result in injury to persons covered by the WPS, 972
including workers and handlers. Training on proper use can help prevent such misapplication and 973

consequent ex posure to people. Second, relying solely on the training of noncertified applicators 974
under direct supervision would cover only applicators using Restricted Use Products (RUPs), 975
and many agricultural use products covered by the WPS are not RUPs. To ensure t hat handlers 976
under the WPS have the training to apply pesticides properly, it is necessary for them to be 977
trained on proper use. The final rule includes the handler training topic requiring information on 978
proper application and use of pesticides. 979

EPA does not agree with the commenters that requirements for handlers to understand the 980
format and meaning of information on labels and to follow label ing directions are only 981
appropriate for noncertified applicators applying under the supervision of certified appl icators. 982
To properly handle agricultural pesticides covered by the WPS rule, handlers need to understand 983

the information on the label ing related to safe use of the pesticide and follow the use instructions. 984
Use of a product in a manner inconsistent with the label ing may cause injury or illness to the 985*** EO 12866 Review Draft

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Page 43 of 286 [RIN 2070

– AJ22 ] handler and to others. For a more detailed discussion of the comments and EPA’s responses on 986
issues related to labeling , see Unit X VII I.A

. 987

E

. Exception to Full Pesticide Safety Training for W orkers P rior to E

ntry into Treated Areas 988

(Grace Period)

. 989
1. Current rule and proposal. Except in regard to workers entering treated areas during 990
an REI, the existing WPS permits the agricultural employer to delay providing full pesticide 991
safety training until the end of the fifth day after the worker’s entry into a treated area, often 992
called the “grace period
, ” provided that the worker receives training in a basic set of two safety 993
points before entering the treated area (i.e., an area that has been treated or where an RE I has 994
been in effect within the last 30 days)

. Under this exception, the worker must receive the full 995
safety training on the content outlined in the rule prior to the sixth day of entry into a treated 996

area. EPA proposed to shorten the “ grace period ” to two days, require that full training take place 997
before the third day of entry into a treated area, and expand the basic set of safety information to 998
be provided prior to the worker’s first entry into a treated area under the “grace period.” 999

2. Final rule. EPA has eliminated the “grace period” entirely. The final rule requires 1000
employers to ensure that workers receive full pesticide safety training before entering a treated 1001

area (i.e., an area that has been treated or where an REI has been in effect wit hin the last 30 1002
days)

. 1003
3. Comments and responses. 1004

Comments. Few commenters supported the proposed two day grace period coupled with 1005
the expanded basic safety points prior to first entry. Many agricultural producer organizations 1006
requested that EPA retai n the five day grace period in the existing rule , stating it is needed for 1007
flexibility in scheduling training sessions as workers arrive at various times on the establishment. 1008

Several farmworker advocacy organizations and two states recommended elimination of the 1009*** EO 12866 Review Draft

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Page 44 of 286 [RIN 2070

– AJ22 ] grace period entirely

. O ne state recommend ed , as an alternative, adoption of the two day grace 1010
period with reduced material relative to the proposal required prior to first entry. Farmworker 1011
advocacy organizations that support ed the elimination of the grace period cite d the importance of 1012

workers hav ing full safety information prior to entering an area with pesticide residues. One state 1013
that supported the elimination of the grace period expressed concern that this change would 1014
heighten concerns about the number of qualified trainers in the event that EPA would follow 1015
through on its proposal to make certified applicators ineligible to train workers. 1016
EPA Response

. While EPA recognizes the flexibility that the grace period offers 1017
agricultural employers in scheduling training sessions for workers , and the economic importance 1018
of that flexibility , EPA remains convinced that the elimination of the grace period is reasonable. 1019

The full pesticide safety training provides information that workers need to have b efore their 1020
exposure to pesticide treated areas so they can protect themselves. Under OSHA, training must 1021
take place at the time of the employee’s initial assignment

. EPA has decided that the cost of 1022
eliminating the grace period is reasonable when compared to the benefit from workers receiving 1023
the complete pesticide safety training before their first exposure to pesticides. 1024
EPA acknowledges concerns raised by agricultural producer organizations and states that 1025
eliminating the “grace period” combined with the proposal to limit who is qualified to conduct 1026
worker training could result in an inadequate number of people available to provide worker 1027
training. The final rule continues to allow certified applicators to be trainers of workers ( see Unit 1028

V.D. ). As a r esult, EPA expects that there will be an adequate number of trainers to provide full 1029
pesticide safety training for workers prior to their entry into treated areas. 1030

F

. Training Program Administration Requirements 1031
1. Current rule and proposal. Under the e xisting WPS, pesticide safety training must be 1032
presented either orally from written materials or in audiovisual format. The information must be 1033*** EO 12866 Review Draft

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Page 45 of 286 [RIN 2070

– AJ22 ] presented in a manner that the worker or handler can understand, and the trainer must respond to 1034
questions, but the existing rule does not require the trainer to be present for the entire training 1035
period. EPA proposed to retain the requirement to provide training in an oral and audiovisual 1036

format, to require that the trainer remain present throughout the training se ssion, and to require 1037

that the training be presented in a place that is conducive to learning and reasonably free of 1038

distractions. 1039

2. Final rule. EPA has finalized the proposed requirements for the presentation of 1040
training. T rainers of workers and handlers must remain present during training sessions to 1041
respond to questions. The training environment must be conducive to training and be reasonably 1042
free of distractions, to help ensure training quality. The final rule retains the existing requirement 1043
for pesticide safety training to be delivered either orally from written materials or by audiovisual 1044

means. 1045
The final regulatory text for these requirements is available at 40 CFR 170.401(c)(1) and 1046

170.501(c)(1)

. 1047

3. Comments and res ponses. 1048

Comments on use of videos. Some f armworker advocacy organizations endorsed the use 1049
of videos, stating that when used they enhance understanding of the material, especially when 1050

combined with hands

- on activities or other kinds of learning approache s. Other f armworker 1051
advocacy organizations stated that there is a lack of interaction between the trainer and the 1052
employees trained using a video, resulting in reduced information transfer. Agricultural producer 1053
organizations and state s also supported the use of the video, citing ease of use, and effectiveness. 1054
Many commenters from each category urged EPA to update the videos; a few suggested EPA 1055
evaluate different media presentations. 1056
EPA Response

. EPA agrees with the commenters who consider videos to be effective and 1057*** EO 12866 Review Draft

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Page 46 of 286 [RIN 2070

– AJ22 ] useful training material. EPA recognizes that a video is a passive form of training, and has added 1058
the requirement for the trainer to be present to answer questions during the entire session to 1059
mitigate this problem. EPA also expects t he requ irement for the training to be in a location 1060
reasonably free of distractions to improve the ability of workers and handlers to absorb and 1061

retain information. 1062
Comments on the requirement for trainers to remain present during entire training 1063

session. Farmw orker advocate organizations and a nother commenter supported the proposal for 1064
trainers to remain present during the entire training, citing the need for them to be interactive 1065
with workers to enhance the training and facilitate discussion. One commenter, experienced in 1066
providing pesticide safety training, noted that the interaction with trainees, through hands

- on 1067
training and sharing of experiences, was effective. Agricultural producer organizations opposed 1068
the requirement, stating that it would be distrac ting for the video to be interrupted for questions, 1069

and there would be lost time for the trainer. One commenter suggested it would lead to larger 1070
training conferences that would discourage post

- video interaction. S ome s tate s opposed the 1071
requirement for the trainer to be present throughout the training; one state recommended that the 1072

trainer only needs to be available before and after the training if a video is used. 1073
EPA Response

. EPA agrees that having trainers present during the entire training 1074

program co uld facilitate discussion and promote interaction. EPA disagrees that the questions for 1075

the trainer would be disruptive to the training. A 2006 study (Burke) cited interactive training 1076
activities as a best practice for supporting training transfer. EPA is convinced that the trainer’s 1077
presence during the video enhances the training by enabling questions and discussion during the 1078
presentation (Ref. 9 )

. 1079
Comments on the requirement for the training environment to relatively free of 1080

distractions and conducive t o learning. The commenters were mostly in agreement that the 1081*** EO 12866 Review Draft

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Page 47 of 286 [RIN 2070

– AJ22 ] learning environment needs to have minimal distractions and be conducive to learning. 1082

Farmworker advocacy organizations and public health organizations supported the proposed 1083
requirement as a way to improve the learning environment. Two farm bureaus suggested 1084
allowing the trainer to be absent during the video, and to have a supervisor present to ensure the 1085
quality of the training environment. One state supported the proposed requirement for the 1086

tr aining to be conducted in an environment free of distractions. Finally, one agricultural 1087
organization described the environment where their workers receive training as taking place 1088
either on or outside their transportation bus or in the field, and noted th at the low number of 1089

incidents is evidence that the training is effective. 1090
EPA Response

. EPA agrees that the requirement for the training environment to be 1091
reasonably free from distractions and conducive to training would make it easier for workers and 1092

ha ndlers to learn. As discussed in the previous response , EPA disagrees with comments 1093
requesting that EPA eliminate the requirement for the trainer to be present throughout the 1094
training. The proposal and final rule establish requirements for the training location; the ultimate 1095
responsibility for ensuring the re quirements are met rests with the employer. EPA recognizes that 1096
there are challenges in locating environments in agriculture that are quiet and present few 1097

distractions ; classrooms are rarely convenient. However, EPA is requiring employers to provide 1098

a tra ining environment that is reasonably free from distractions and conducive to training

. EPA 1099
notes that the final rule does not prohibit providing training in any specific location, such as 1100

outdoors or on a bus, as long as the environment is reasonably free from distraction and 1101
conducive to training. 1102
G. Require Employers to Provide Establishment

- Specific Information to Workers and Handlers 1103
1. Current rule and proposal. The existing WPS does not clearly require employers to 1104
provide to workers and handlers est ablishment

- specific information on the location of 1105*** EO 12866 Review Draft

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Page 48 of 286 [RIN 2070

– AJ22 ] decontamination supplies or hazard information as part of their pesticide safety training. EPA 1106
proposed that in addition to required pesticide safety training, employers must provide workers 1107

and handlers w ith establishment

- specific information about the location of decontamination 1108
supplies and pesticide safety and hazard information, as well as how to obtain medical 1109
assistance. EPA proposed that agricultural and handler employers would be required to provid e 1110

this establishment

- specific information to all workers and handlers, including those previously 1111

trained on other establishments. 1112

2. Final rule. EPA has finalized the proposed requirement for employers to provide 1113

establishment

- specific information to wo rkers and handlers. The final rule requires employers to 1114
provide establishment

- specific information for workers and handlers when they enter the 1115
establishment and before beginning WPS tasks in areas where within the last 30 days a product 1116
requiring complia nce with the WPS has been applied or an REI has been in effect. Content for 1117

the establishment

- specific information includes the location of the pesticide safety information, 1118
the location of pesticide application and hazard information, and the location of decontamination 1119
supplies. Employers are required to provide this information in a manner that the worker or 1120
handler can understand, such as through a translator, and prior to the worker or handler 1121
performing activities covered by the WPS. Lastly, this info rmation is required even if the 1122
employer can verify that the worker or handler has already received the general pesticide safety 1123
training on another establishment, because the information required is specific to each 1124
establishment. The final regulatory tex t for these requirements is available at 40 CFR 170.403 1125

and 170.503(b). 1126
3. Comments and responses. 1127

Comments. Commenters largely supported the addition of the establishment

- specific 1128
training, with some noting that it is currently being provided voluntari ly. 1129*** EO 12866 Review Draft

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– AJ22 ] EPA Response. EPA agrees with the commenters that the establishment

- specific training 1130
is necessary for workers and handlers to know where to find information on the establishment to 1131
protect themselves from pesticides and their potential effects. EPA notes that some of this 1132
information is required under the existing rule. However, EPA is convinced that consolidating 1133
the requirements for establishment

- specific training will make them easier for employers to find 1134
and comply with, resulting in a higher li kelihood that workers and handlers will receive the 1135
necessary information. 1136

H. Costs and Benefits of Revisions to Pesticide Safety Training 1137

1. Costs. EPA estimates the cost of changes to pesticide safety training for workers and 1138

handlers , including increas ed frequency, expanded content, recordkeeping, eliminating the 1139
“grace period,” changing who is qualified to conduct training, and amending training program 1140
administration requirements would be $ 29.9 million annually and range from approximately $ 62 1141

to $80 per agricultural establishment per year. For a complete discussion of the costs see the 1142
“Economic Analysis of Final Revisions to the Worker Protection Standard” (Ref. 1)

. 1143

2. Benefits. While EPA can estimate the costs of the changes to pesticide safety tr aining 1144
for workers and handlers, quantifying the benefits is more difficult. Nonetheless, as explained in 1145
the NPRM, it is reasonable to expect that more frequent training would lead to better retention of 1146
information by workers and handlers, ultimately res ulting in fewer incidents of pesticide 1147
exposure and illness in workers and handlers, improved decontamination procedures, reduced 1148

take

- home exposure, and better protection of children. Similarly, providing workers with training 1149
before they enter a treated area will give them tools they need to protect themselves before they 1150
encounter pesticides as part of their occupation. Improving the quality of worker training by 1151
limiting trainers to persons who have completed a train

- the

- trainer course, are certified 1152

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– AJ22 ] pesticide enforcement as a trainer of workers, handlers or certified applicators is expected to 1154
advance worker comprehension of the safety principles and result in b etter self

- protection. 1155
Finally, enhancing the quality of the training environment and ensuring that there is a 1156
knowledgeable person available throughout the training session to respond to questions will 1157
improve the ability of the trainee to retain the info rmation. 1158
The expansion of information provided in the training will enable workers and handlers 1159
to better protect themselves and their families, by increasing their knowledge of how to reduce 1160

take

- home residues from treated areas. The training gives pract ical information that is useful to 1161
everyone who works with or around agricultural pesticides. 1162
The requirement for recordkeeping is an important element of the training requirement. 1163
Although in itself not a protective factor, it will support the determinat ion of compliance when 1164
partnered with worker and employer interviews and therefore promote adherence to the 1165
requirements. In the final rule the employer must provide the record to the worker or handler 1166

upon request

. The burden of providing copies of traini ng records will be offset by the reduction 1167

in the number of trainings that would otherwise have to be provided to workers and handlers who 1168
have already been trained at another establishment

. 1169

VI. Notification 1170
A. Posted Notification Timing and Oral Notifica tion 1171

1. Current rule and proposal . The current WPS requires agricultural employers to notify 1172
workers about pesticide applications and areas on the agricultural establishment subject to an 1173

REI. Notification is required when workers are on the establishment during application or the 1174
REI and will pass within one

- quarter mile of the treated area. On farms, and in forests and non

1175
enclosed nurseries (referred to as “outdoor production” in the proposal ) the agricultural employer 1176
may choose either to post warning signs at the usual points of entry around the treated area or to 1177*** EO 12866 Review Draft

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– AJ22 ] notify workers orally about applications that will take place on the establishment. In greenhouses 1178

and some other enclosed spaces (referred to as “ enclosed space production” in the proposal ), the 1179
agricultural employer must post warning signs for all applications, regardless of the product’s 1180

REI . In cases where the product labeling requires both written and oral notification of worke rs, 1181
the WPS also requires this “double notification.” 1182
For outdoor production, EPA proposed requiring agricultural employers to post warning 1183
signs where the pesticide to be applied has an REI greater than 48 hours, and to allow the option 1184
of oral warning or posted notification for products with an REI of 48 hours or less. For enclosed 1185

space production, EPA proposed requiring posting of warning signs only when the product 1186
applied has an REI greater than four hours, and to allow the option of oral warning or posted 1187
notification for products with an REI of four hours or less. 1188

2. Final rule

. EPA has finalized the proposed requirements to post warning signs for all 1189
“outdoor production” when a product with an REI longer than 48 hours is used , and to allow 1190

either oral or posted warnings for “enclosed space production” when a product with an REI of 4 1191

hours or less is used

. The final regulatory text for these requirements is available at 40 CFR 1192

170.409(a) (1)(ii)

- (v)

. The final rule eliminates the existing requiremen t for employers to take 1193
down posted warning signs within three days of the expiration of the REI, but prohibits worker 1194
entry into the area until the posted warning signs have been removed (except for early entry 1195
pursuant to 40 CFR 170.603) . The final regu latory text for this prohibition is available at 40 1196

CFR 170.409(b). 1197
3. Comments and Responses. 1198

Comments

. Many states and some farmworker advocacy organizations and public health 1199
organizations supported the “field posting” and notification requirements as proposed. They 1200
noted the potential benefit to workers and employees of crop advisors of mandatory posting for 1201*** EO 12866 Review Draft

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– AJ22 ] the most toxic pesticides. They agreed with EPA’s a ssessment that additional posting would 1202
provide added protection for workers while placing a minimal burden on employers. 1203
Several grower associations and farm bureaus supported the proposed change in 1204
notification requirements for indoor production but op posed the proposal for additional posting 1205
for outdoor production. They noted that signs can be destroyed, removed, or relocated and that 1206
agricultural producers may not return to some fields more than once per week. One grower 1207

association specifically reque sted that EPA clarify how enforcement would address these 1208
challenges without inappropriately penalizing agricultural employers. This group stated that 1209
workers are fully capable of understanding oral notification and suggest focusing instead on 1210
reinforcing the existing oral notification. Several grower organizations also did not agree that 1211
EPA justified the cost of the proposal with the benefits. 1212
Farmworker advocacy organizations suggested a number of alternatives, including 1213
requiring both posting signs and providing oral warnings for all pesticide applications, or at a 1214
minimum for those pesticides with an REI of 12 hours or more. Some farmworker advocacy 1215
organizations suggested mandatory posting of any treated area subject to an REI greater than 24 1216

hours, a nd others requested that EPA require mandatory posting of any treated area subject to an 1217

REI. They reiterated EPA’s rationale that oral notification of pesticide application information is 1218
difficult to recall over multiple days, that oral notification may not be clearly communicated due 1219
to multiple language barriers and that it is difficult to verify whether oral notification was in fact 1220
given. 1221
EPA Response

. EPA considered the comments submitted and agrees that increasing 1222

workers' awareness of treated area s will lead to an overall reduction in occupational pesticide

1223

related illnesses at reasonable cost. 1224
EPA disagrees with comments that suggest oral notification alone would provide 1225*** EO 12866 Review Draft

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– AJ22 ] sufficient notification to workers and agrees with comments that support in creased posting 1226
requirements

. As noted in the proposal for this rule, research has shown that oral instruction 1227
alone may not be an effective method of safety instruction . EPA is aware that compliance with 1228
the posting requirement for outdoor production coul d require some establishments to change 1229
their business practices or monitor posted fields more often. 1230
EPA considered additional posting requirements presented by farmworker advocacy 1231
organizations and was not convinced that the increased cost to employers to post all treated 1232
areas, or to post areas treated with products with REIs of 12 hours or greater, or 24 hours or 1233

greater would result in significantly more increased protections than the requirement to post 1234
areas treated with products with an REI of 48 hours or greater

. EPA concluded that it is 1235
reasonable to expect workers to remember oral warnings regard ing REIs for two work days, or 1236

about 48 hours total , and reasonable to require visual reminders for longer periods

. 1237

4. Costs and b enefits

. EPA estimates the annual cost of posting treated areas under an 1238

REI of more than 48 hours and allowing oral notification for indoor production applications of 1239
products with an REI of 4 hours or less to be $ 10.4 million annually , with the per establishment 1240

cost of $ 33 , and finds this cost to be reasonable in comparison to the benefit to workers to avoid 1241
pesticide illness by remaining out of treated areas under an REI. 1242

B. Revise Content of Warning Sign 1243

1. Current rule and proposal . The existing WPS requires agricultural employers to post 1244
warning signs with the words “DANGER
, ” “PELIGRO,” “PESTICIDES” and “PESTICID AS,” 1245
at the top of the sign, and the words “KEEP OUT” and “NO ENTRE” at the bottom of the sign. 1246
A circle containing an upraised hand on the left and a stern face on the right must be near the 1247
center of the sign. EPA proposed replacing “KEEP OUT” and “NO EN TRE” with “Entry 1248
Restricted” and “Entrada Restringida
, ” and changing the shape containing the face and hand to 1249*** EO 12866 Review Draft

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– AJ22 ] an octagon (similar to a stop sign). 1250

2. Final rule

. EPA has decided not to change the text or graphic of the existing warning 1251
sign. The final regulatory text for the warning sign content is available at 40 CFR 170. 409(b)(2)

. 1252
3. Comments and responses. 1253

Comments

. Two state s and several grower organizations supported the proposed changes 1254
on the grounds that "Entry Restricted" would be l ess confusing to workers than “KEEP OUT,” 1255
since entry is allowed under certain circumstances. Many more state, farmworker advocacy 1256
organizations , and public health organizations opposed changing the existing warning sign. 1257

Those commenters asserted that “ KE EP OUT ” sends a much clearer message than “Entry 1258

Restricted, ” particularly to people with lower levels of literacy. They note d that the term 1259

“ Entrada Restringida ” is not common in Spanish, which is the first language of the majority of 1260

farmworkers in the U

. S

. , whereas “ KEEP OUT ” is simple and well understood even by people 1261
who do not speak or read English. Commenters pointed to s tandard readability test results 1262

confirm ing that “ KEEP OUT ” is easily understood by most six

- year

- olds, while “Entry 1263

Restricted” i s placed at the grade 12

- 13 reading level and would be beyond the reading and 1264
comprehension level of the majority of farmworkers in the U.S. 1265

A number of state s commented that the existing sign is sufficient

. They noted that 1266
although “ Entry Restricted ” is more accurate, it would be a costly change for growers that may 1267
lead to confusion and not be more protective than the language on the existing warning sign. 1268

State s also commented that 20 years of training and experience with the current sign is what 1269

ma kes it effective for keeping workers out of fields under an REI. The states and farmworker 1270
advocacy organizations agreed that for the predominantly low

- literacy population of 1271

farmworkers
, a simpler message, along with training on the message, is more prote ctive than the 1272
proposed wording for the warning sign

. 1273*** EO 12866 Review Draft

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– AJ22 ] EPA Response

. EPA was persuaded that the proposed changes to the warning sign would 1274
be costly for employers and not increase protections for workers as much as expected. A 1275
significant factor in EPA ’s d ecision was the additional information presented in public comments 1276
regarding the potential lack of understanding of the term “Entrada Restringida.” EPA was 1277
convinced that eliminating the existing language, “ KEEP OUT
, ” in favor of a technically more 1278

accura te sign would be less protective for the majority of workers. The goal of the warning sign 1279
is to keep workers out of areas that are treated with certain pesticides. Entry into these areas is 1280
prohibited while the REI is in effect with a few narrow exception s. Workers that are directed to 1281

enter treated areas under an REI and/or areas where the warning sign is posted must have 1282
received pesticide safety training, be provided additional protections, and be informed that their 1283
entry is subject to the limitations established for early entry exceptions in the regulation. Because 1284
EPA expects that t he majority of workers would never enter treated areas during an REI
, because 1285
20 years of training and experience have familiarized workers with the message an d intent of the 1286
sign, and because EPA has added additional training and protection for workers entering treated 1287

areas while an REI is in effect , EPA agrees with commenters that the easily understood message 1288

of “ KEEP OUT ” is most appropriate. 1289

4. Costs and benefits

. Since the final rule does not change the requirement in the existing 1290

rule , there are no costs associated with this decision. 1291

C. Warning Sign Location Revisions 1292
1. Current rule and proposal. Under the existing rule, when signs are required for 1293

ap plications in outdoor production , they “shall be visible from all usual points of worker entry to 1294
the treated area, including at least each access road, each border with any labor camp adjacent to 1295
the treated area, and each footpath and other walking route that enters the treated area.” EPA 1296
proposed maintaining the existing posting requirement for outdoor production and clarifying the 1297*** EO 12866 Review Draft

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– AJ22 ] language to require posting be visible from “each border with any worker housing area within 1298

100 feet of the treated area,” rather than “labor camps adjacent to the treated area

. ” 1299

2. Final rule

. EPA has finalized the proposed changes to the warning sign location 1300
requirements for outdoor production

. The final regulatory text for this requirement is available at 1301

40 CFR 170.409(b)(3)(ii)

. 1302
3. Comments and responses. 1303

Comments

. Several state s , grower organizations, and farmworker advocacy organizations 1304
supported the proposal and agreed that it would support EPA’s goal of increasing clarity of the 1305

rule and enhance the abil ity of employers to understand their responsibilities under the 1306
regulation. Commenters in support of the change noted that “ adjacent ” is a vague term that may 1307
be interpreted differently by different people and that “ labor camp ” is too limited and does not 1308
technically include worker housing. They noted that clearer posting requirements could lead to 1309
better compliance and thus be a better system for keeping people living in close proximity to 1310

treated fields safe. 1311

Some pesticide manufacturers opposed the pro posal on the grounds that it is an overly 1312
prescriptive, costly, and unnecessary provision which would not provide additional protection 1313
above that already provided by the label and existing WPS. 1314
A public health organization proposed adding pesticide appli cation information and REIs 1315
to the posting requirement near worker housing areas. One state suggested revising the language 1316
by stating “ Each border with any worker housing area provided by this establishment/employer 1317

within 100 feet of the treated area. ” 1318
EPA Response

. EPA was not persuaded by the comments that the requirement would be 1319
a significant additional burden on employers. The requirement only clarifies where employers 1320
need to post warning signs but does not increase posting requirements beyond what was intended 1321*** EO 12866 Review Draft

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– AJ22 ] in the existing regulation. EPA agrees with commenters who noted that increased clarity on 1322
posting requirements will lead to better compliance and increase awareness of treated fields by 1323

workers who live near treated areas. 1324

4. Costs and bene fits . Because this change only clarifies an existing requirement, the cost, 1325
if any, would be negligible. 1326

V II . Hazard Communication 1327
A. Hazard Information

– Location and Accessibility 1328
1. Current rule and proposal. The existing WPS requires employers to display certain 1329
information about pesticide applications at a central location on the establishment when workers 1330

or handlers are present and an application of a pesticide requiring compliance with the WPS has 1331

been made or an REI has been in effect within t he past 30 days (referred to as the “central 1332
display” requirement)

. 1333
EPA proposed to replace the existing requirement for the application information to be 1334
located at the central display with a requirement for employers to make the application 1335

information and additional hazard information accessible upon request by workers, handlers or 1336
their authorized representatives. 1337

2. Final rule

. EPA has decided not to finalize the proposal. The final rule generally 1338

retains the existing requirement related to the locat ion of
, and accessibility for workers and 1339

handlers to
, the pesticide application information, makes some changes to the content of the 1340
required information, requires display of hazard information , and includes the accessibility 1341
requirements proposed for worker s, handlers, and their designated representatives (“authorized 1342
representatives” in the proposal)

. T he employer must display th e information at a place on the 1343
establishment where workers or handlers are likely to pass by ( the “central display”). Th e 1344

information must be displayed when workers or handlers are on the establishment and an 1345*** EO 12866 Review Draft

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– AJ22 ] application of a WPS

- covered pesticide has been made or an REI has been in effect within the 1346
past 30 days. After this time, the information must be kept on the establish ment for two years 1347

and made available to workers
, handlers
, or t heir designated representatives or any treating 1348
medical personnel

. The final rule contains more specificity than the proposal, particularly in 1349
reference to the designated representative , where details are drawn from OSHA’s rule at 29 CFR 1350

1910 (Ref. 17)

. 1351

The designated representative must provide written evidence of such designation, 1352
including the name of the worker or handler being represented
, a description of the specific 1353
information being requested, including dates of employment of the employee, the dates for 1354
which the records are requested, the type of work conducted by the worker or handler during that 1355
period
, a statement indicating that the representative is designated by the worker or h andler , the 1356
specific application and/or hazard information requested, a statement designating the 1357
representative to request the information on the worker’s or handler’s behalf, the date of the 1358
designation, and the printed name and contact information for t he designated representative

. If 1359
the information is to be sent to the requester, direction for where that information must be sent is 1360

to be included. When the employer is presented a request that contains all of the necessary 1361
information specified in the regulations , the employer must provide a copy of, or access to, all of 1362
the requested information that is applicable within 15 working days from the receipt of the 1363

request

. Failure to respond to the request would be a violation of the rule

. The final regula tory 1364

text for this requirement is available at 40 CFR 170.311(b)(9 )

. 1365
Workers and handlers who worked on the establishment may request , orally or in writing, 1366
the pesticide

- specific information retained by the employer . The information must have been 1367
displ ayed while the worker or handler worked on the establishment. The employer must provide 1368
access to, or a copy of, the information within 15 days of the request. The regulatory text for this 1369*** EO 12866 Review Draft

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– AJ22 ] requirement is available at 40 CFR 170.311(b)(7). 1370
Medical personnel or persons acting under their supervision may also request the 1371
pesticide

- specific information required to be retained in 170.311(b)( 8 ) to inform diagnosis or 1372

treatment of workers or handlers who were employed on the establishment during the time the 1373
information was required to be displayed. The request may be provided orally or in writing to the 1374
agricultural employer, and the employer must respond promptly to the request. 1375
Lastly, t he final rule makes some changes to the content of the required pesticide 1376
application information and when it must be posted, as explained in Units VII.C

. and VII.D. 1377
3. Comments and responses. 1378

Comments . The overwhelming majority of comment er s requested E PA to keep the 1379
existing central display requirement. Many comments from farmworker advocacy organizations, 1380
public health organizations, state s , and some members of Congress noted that they thought it was 1381
unreasonable and unrealistic to think a vulnerable p opulation such as workers and handlers 1382
would request hazard information from their employers. These commenters cited many reasons 1383
for this position , including barriers (e.g., language differences, concern about compromising their 1384
immigration status, and fe ar of retribution, retaliation or job loss ) and the power and social 1385
dynamics between employer and employee. These commenters were adamant that workers and 1386
handlers needed ready, anonymous, unhampered access to hazard information as currently 1387
provided thro ugh the central display requirement. 1388
Most of these commenters supported the inclusion of a designated representative who 1389
could request the hazard information on behalf of a worker or handler , including farmwo rker 1390
advocacy organizations citing OSHA’s requirements at 29 CFR 1910.1020(e)(1) that establish 1391
access to exposure records for workers in other industries

. Comments in support of including 1392
access to hazard information by workers’ or handlers’ designated repr esentatives note that 1393*** EO 12866 Review Draft

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– AJ22 ] workers a nd handlers may be reluctant to request the information for themselves due to their 1394
inability to communicate effectively with, or fear of, their employer, or because they may not be 1395
able to understand the information without help. One comment described a s ituation where a 1396
farmworker advocacy organization requested such information from an employer on behalf of 1397
two ill workers, but their request was denied because the workers themselves did not make the 1398

request. 1399

In contrast, th ere was s ignificant opposition from the agricultural industry to the proposal 1400
for the authorized representative , including growers, pesticide manufacturers, and their 1401
organizations, and some state s . Commen ts from these groups centered on the additional burden 1402

on employers to provide t he records . Commenters also expressed concerns that allowing access 1403
to pesticide application information by designated representatives could b e abused by anti

1404
pesticide organizations, who could send people onto the establishment requesting information 1405

purp ortedly on behalf of a worker or handler. In addition, some farm bureau comments stated 1406
that the requirement for providing the information to a representative is a violation of farmer’s 1407
legal and privacy rights , stating that the representative could demand all information related to 1408
pesticides on that establishment

. 1409

Some commenter s provided recommendations to improve the proposed requirement for a 1410
designated representative

. Suggested improvements included limiting the designated 1411
representative requirement to current workers and handlers or to employees who worked on the 1412

establishment within two years of the request , limiting access to medical personnel only, or 1413
limiting the request to a specific incident. Many commenters recommended that the re quest be 1414

in written form, and include designation of the representative by the worker or handler. One 1415
state recommended defining a time frame for provision of the information to the requester. 1416
Another state suggested that the request clearly identify the information required to be provided 1417*** EO 12866 Review Draft

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– AJ22 ] to the authorized representative, and the purpose of the request or intended use of the 1418

information. 1419
Many of the commenters in favor of keeping the existing central display requirement 1420
explained that a central display requirement that provides information about general pesticide 1421
safety, including symptoms of pesticide illness, and the specific pesticides used on the 1422

establishment, is necessary to protect the health of workers and handlers. First, having 1423

information avai lable in non

- emergency situations could help workers and handlers be aware of 1424
symptoms before they occur, help them avoid exposure, and possibly enhance the reporting of 1425
illnesses. Secondly, they stated that emergency medical personnel would not have to lo se critical 1426
time tracking down information instead of treating the ill or injured person if they could rely on 1427
accessing the information quickly from the central display. 1428
EPA also received comments from one pesticide manufacturer organization, a couple of 1429
states and some farm bureaus in favor of the proposal to eliminate the existing requirement for a 1430
central display of pesticide application information. These commenters agreed with EPA’s 1431
observations in the preamble to the proposal that this requirement i mposes a paperwork burden 1432

and that state s often cite employers for technical violation s of the display requirement. The 1433
commenters stated it is difficult to keep the displayed information current when application plans 1434
change, especially on large establish ments. They a lso noted the difficulty keeping information 1435
legible when it is displayed at a central location subject to weather conditions. These 1436
commenters encouraged EPA to eliminate the existing central display requirement, not to 1437
finalize the proposed requirement to provide hazard communication information to workers, 1438
handlers, or their designated representative , and to require employers to only keep records of 1439
pesticide applications on their establishment. 1440
EPA Response

. EPA agrees with those commenter s who argued that workers and 1441*** EO 12866 Review Draft

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– AJ22 ] handlers must have relatively unhindered access to pesticide

- specific information, and has 1442
decided to retain the central display requirement. Although the extent and type of barriers and 1443
employer

- employee dynamics are unique t o each situation, EPA recognizes that a significant 1444
number of workers and handlers face disadvantages that can reasonably be expected to make 1445

them hesitant to ask their employers for information relating to their pesticide exposure

. 1446
Consequently, EPA believes that it is not reasonable to make an employee’s task of obtaining 1447
this information more difficult, particularly given the potential usefulness of the information if an 1448
employee may have been harmed by a pesticide. Therefore, EPA has decided to retain the 1449
requirement for the pesticide application information to be displayed at a place on the 1450
establishment where workers and handlers are likely to pass by or congregate and has added the 1451
requirement that the SDS must also be displayed at that location

. In addition, in the final rule, 1452

workers and handlers and their designated representative may request either a copy of or access 1453
to the pesticide

- specific information that was required to be displayed while the worker or 1454

handler was emplo yed on the establishment. The records of application and SDSs must be 1455
retained for two years after the application. Access to the SDSs after the display period will 1456
afford workers and handlers information about the pesticides they may have been exposed to
, 1457
and the hazards they may present. 1458
EPA recognizes, however, that there can be difficulties in complying with the central 1459
display requirement. In response to comments about the difficulty of keeping accurate 1460
information posted, EPA has attempted to simpli fy the central display requirement by changing 1461
the required time frame for posting the application

- specific information (see Unit VII. D. )

. EPA 1462

expects this modification to the requirement for the timing to post the application information 1463

will reduce the b urden on employers, while providing employees with ready access to accurate 1464

information. In response to the comments about the difficulty of maintaining a legible central 1465*** EO 12866 Review Draft

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– AJ22 ] display when it is subject to weather conditions, EPA notes that the central display requirement 1466
does not mandate that employers post the information outdoors

. The information must be 1467
displayed “where workers and handlers are likely to pass by and congregate and where it can be 1468
readily seen and read” and workers and handlers must be able t o access the information at all 1469
times during work hours. This does not preclude the central display from being maintained in a 1470
location sheltered from weather conditions, such as a bathroom, break area, or changing area, as 1471
long as the requirements of this section are met. 1472
EPA has been convinced by comments in support to retain the option for a designated 1473
representative to access hazard information (application information and SDS) on behalf of a 1474

worker or handler . EPA agrees that i ncluding in the rule a requirement , based on OSHA’s rule at 1475

29 CFR 1910.1020, for employers to provide the information to a representative who has been 1476
designated to act on the behalf of the worker or handler would give workers and handlers more 1477

access to information related to pesticides used in their workplace. Also, EPA is aware that 1478
California and Texas regulations include requirements for employee representatives’ to be given 1479

access to hazard information for farmworkers, and comments from the Texas Department of 1480
Agriculture encouraged EPA to require the designation in writing and to limit access to records 1481
to the retention timeframe of two years. EPA is unaware of issues related to worker 1482
representatives in those states. 1483
In response to the many comments opposin g the establishment of the authorized or 1484
designated representative based on concerns for the potential for anti

- chemical activists 1485
fraudulently acquiring records, the final rule includes a requirement for the representative to 1486
provide to the employer docum entation (written authorization) signed by the worker or handler 1487
that clearly designates that person to act as his or her designated representative. The information 1488
that can be obtained is limited to the application and hazard information that is required by § 1489*** EO 12866 Review Draft

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– AJ22 ] 170.311(b) of the final rule that was required to be displayed while the worker or handler was on 1490

the establishment
, and for the dates applicable to the worker’s or handler’s dates of employment 1491

on the establishment. The employer must provide the info rmation regardless of the worker ’s or 1492

handler ’s employment status on that establishment at the time of the request

. 1493
EPA was convinced by comments about the need for the pesticide specific information 1494
by medical personnel treating workers or handlers who may have been exposed to pesticides on 1495
the establishment, and has added a requirement that employers promptly provide the information 1496
to the requesting medical personnel or persons the y supervise . The information would help 1497

ensure that the medical consider ations would include the possibility that a pesticide exposure 1498

was involved in the worker’s or handler’s illness

. 1499

B. Pesticide

- Specific Hazard Communication Materials

– General 1500

1. Current rule and proposal. The existing WPS requires employers to provide workers 1501
and handlers with specific pesticide application information, but not pesticide

- specific hazard 1502
information on the pesticides they may be exposed to in the workplace. 1503
EPA proposed to require employers to provide workers and handlers with access to the 1504

SDS s and pesticide labeling for products that have been applied on the establishment and to 1505
which workers and handlers may be exposed , in addition to the pesticide application information 1506
already required to be made available

. 1507

2. Final rule. EPA has finalized the requirement for agricultural employers to display at a 1508

central location pesticide application information and SDS s for pesticide product s used on the 1509

establishment ( referred to as “ pesticide application and hazard information ” in the final rule )

. 1510
EPA has not finalized the proposal to require employers to provide access to p esticide labeling. 1511
The final regulatory text for this requirement is available at 40 CFR 170.311(b)

. 1512
3. Comments and responses. 1513*** EO 12866 Review Draft

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Page 65 of 286 [RIN 2070

– AJ22 ] Comments on p roviding s afety d ata s heets and p esticide l abeling. EPA received many 1514
comments in favor of the proposed requirement. Although many farmworker advocacy 1515
organizations expressed support for a requirement that employers maintain both labeling and 1516

SDS and make them available to wor kers and handlers, few discussed the merits or drawbacks. 1517
Many farmworker advocacy organizations, public health organizations and academics, a grower 1518
organization and others supported a requirement to maintain and provide SDSs. Some of these 1519

commenters ind icated that the information on a SDS would be helpful for the correct diagnosis 1520
and treatment of pesticide

- related illnesses. Farmworker advocacy organizations explained that 1521
workers want more information on what pesticides are used and what they are expos ed to, along 1522
with possible side effects. On the other hand, a few grower organizations, a farm bureau, a 1523
pesticide manufacturer organization and a couple of states were against a requirement to provide 1524
SDSs. These commenters argued that EPA had not made a case strong enough to justify why 1525

workers need SDSs. They also opposed display of SDSs on the grounds that while the pesticide 1526
product label poses legally enforceable requirements on users, SDSs do not. 1527
Some farmworker advocacy organizations, public heal th organizations, a grower 1528
organization
, a farm bureau and others thought it would not be much of a burden on agricultural 1529
employers to acquire the SDSs of pesticide products because they are easily available online or 1530
can be requested from the pesticide m anufacturer or distributor. One farmworker advocacy 1531
organization gave the Washington State Employer Hazard Communication rule (EHC rule ) as an 1532
example of a requirement for employers to make SDSs available to employees that is feasible

. 1533
http://www.lni.wa.go v/IPUB/413

- 012

- 000.pdf

. The Washington State EHC rule applies to 1534
employers with one or more employees who either handle or are potentially exposed to 1535
hazardous chemicals, including pesticides, in their workplace. It requires employers to make 1536

SDSs for each chemical that employees may encounter readily accessible and easily obtained 1537*** EO 12866 Review Draft

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– AJ22 ] without delay during each work shift, and to ensure that employees traveling between 1538
workplaces during a work shift can immediately obtain the SDS in an emergency. In con trast, a 1539
couple of grower associations stated that it is overly burdensome for agricultural employers to 1540
get SDSs. One state thought it would be difficult for employers to locate the correct SDS for 1541
pesticide products. They also noted that small businesses and private applicators will have the 1542
most difficulty since they are not already accustomed to keeping SDSs. 1543
EPA received some comments both for and against providing pesticide product labeling. 1544
Many farmworker advocacy groups supported a requirement fo r the employer to provid e the 1545

label ing . These commenters maintained that workers and handlers want more information on 1546
chemicals to which they may be exposed. On the other hand, farm bureaus, growers and grower 1547
organizations and state s opposed a requiremen t to provide the label ing

. These commenters 1548
expressed concern that EPA is expanding its mandate by requiring agricultural employers to 1549
provide the product “labeling” when it should be limited only to the WPS portions of the “label

. ” 1550
These commenters argued that an agricultural employer could easily violate this requirement by 1551
not having the most current or correct version of the label ing , such as a specimen or technical 1552

label. 1553
EPA Response

. After consideration of the comments, EPA remains convinced that a ccess 1554
to SDSs offers significant health and safety benefits to workers and handlers. SDSs contain 1555
information that is not generally included in pesticide labeling regarding chronic, developmental, 1556
and reproductive toxicity that can be valuable to exposed a nd potentially exposed workers, and 1557
to medical personnel and others who provide treatment to an ill or injured person. Moreover, 1558
given the ubiquity of chemicals subject to the OSHA Hazard Communication Standard that 1559
mandates the development and distributio n of SDSs, it is likely that many health care 1560
professionals are more familiar with SDSs than pesticide labeling. Requiring the SDS as part of 1561*** EO 12866 Review Draft

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– AJ22 ] the central display facilitates a quicker identification of the pesticide product used in case of an 1562

incident and may assist in diagnosis

. The SDS contains information about symptoms expected in 1563
a person exposed to the chemical (immediate, delayed and chronic effects) as well as 1564

recommended treatment, whereas the label may not include detailed information on symptoms or 1565

treatment. EPA recognizes that state pesticide regulatory agencies do not review, approve, or 1566

take enforcement action based on the information in SDSs. However, comments from worker 1567

advocates indicate that workers and handlers want to have more information on health effects
, 1568

which is available on SDSs and generally not available on the pesticide label ing

. OSHA is 1569
requiring that all SDS s be in a standard format, making it easier to locate health information 1570

( Ref. 17)

. Accordingly, EPA concludes th at a requirement to post SDSs is an effective way to 1571

communicate pesticide hazard information important to workers and handlers. EPA notes that 1572
under the final rule workers and handlers will learn during pesticide safety training about SDSs, 1573

the informatio n they contain, and their availability at central display locations. This addition to 1574
the training will further reinforce workers’ and handlers’ awareness and potential use of SDSs. 1575
EPA is persuaded that access to SDSs is not a significant obstacle to re quiring 1576
agricultural employers to keep and display SDSs for pesticide products used on the 1577

establishment . Agricultural employers can obtain SDSs from the distributor of the pesticide, 1578
online, or upon request from the product manufacturer. For example, empl oyers in industries 1579
other than agriculture

– including retailers and wholesalers of agricultural chemicals

- are 1580
required by the OSHA Hazard Communication Standard to make available SDSs to their 1581
employees. 1582
Upon consideration of the comments, EPA has dec ided not to require agricultural 1583
employers include the pesticide product label or labeling as part of the central display 1584
requirement . EPA recognizes the burden on employers to provide both the SDS and label or 1585*** EO 12866 Review Draft

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– AJ22 ] labeling in addition to the pesticide applica tion information. As noted previously , the SDS 1586

contains the health

- related information requested in comments by worker advocates, and that 1587

would be most useful to persons providing treatment to those who may have been exposed to 1588
pesticides. EPA agrees that if necessary, the labeling for a product used for a specific application 1589
can be located using the application

- specific information that employers are also required to post

. 1590

See Unit X VIII.A. for a complete discussion of comments related to labels and labeling. 1591

Comments on the extent of the requirement. EPA received comments both to narrow and 1592
to expand the scope of the proposal requiring employers to maintain SDSs and make them 1593
available to emp loyees. Among the suggestions to narrow the scope of the proposal, one state 1594
suggested EPA keep a central repository of SDS s for agricultural employers to access and 1595
require employers to keep the SDS only while the associated pesticide product remains on t he 1596

establishment. Farmworker advocacy organizations and public health organizations 1597

recommended expanding the proposed requirement to a full Hazard Communication Standard as 1598
required by the Washington S tate ECHC for all hazardous chemicals , which requires employers 1599

to develop a written Hazard Communication program, maintain availability and access to SDSs, 1600
provide information and training on hazards in the workplace, translat e certain documents upon 1601
request, and keep and provide access to exposure records f or at least 30 years. 1602
Many farmworker advocacy organizations suggested that EPA require SDS s to be 1603
available in multiple languages and provided two examples of similar requirements

. First, one 1604
farmworker advocacy organization cited the Migrant and Season al Agricultural Protection Act
, 1605
administered by the DOL, which requires written information on the terms of employment to be 1606
provided in English, Spanish or other language common to workers. Second, one farmworker 1607
advocacy organization claimed that in Wash ington State, agricultural employers are required to 1608
provide translated documents if requested. Farmworker advocacy organizations asserted that it 1609*** EO 12866 Review Draft

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– AJ22 ] would be easy to translate SDS s because of the standard format required by OSHA’s adoption of 1610
the Globally Ha rmonized System of Classification and Labeling of Chemicals. One pesticide 1611
manufacturer organization was opposed to translating the SDS because of the many indigenous 1612
languages present among workers. 1613
EPA Response. After reviewing the comments, EPA has decided on an approach that will 1614
provide workers and handlers with more information about the potential health effects associated 1615
with the pesticides to which they may be exposed without overly burdening agricultural 1616
employers. Obtaining the SDS s for products used on the establishment should not be overly 1617
burdensome to employers; SDS s are available from pesticide dealers and the internet. An EPA

1618
managed repository of the SDSs of a ll WPS pesticides would not significantly improve access 1619

and would be a significant burden for EPA because of the number of pesticides included

. 1620

S takeholders such as grower organizations are free to voluntarily develop SDS repositories with 1621

assistance from members. Voluntary programs of this sort would involve limited subset s of all 1622

WPS

- scope pesticide products and could possibly be accomplished within a short period in 1623
comparison to a national, full

- scale repository program. 1624

EPA has decided not to reduce the amount of time the SDS must be available. The cost of 1625
retaining the SDS, once obtained, is negligible. Employees and medical personnel could benefit 1626

from a ccess to the health effects information in the SDS in case of symptoms that develop 1627

sometime afte r the application has been completed. 1628
EPA disagrees with commenters’ request to adopt a full hazard communication proposal 1629
as required by the Washington State ECHC for all hazardous chemicals. The full set of the WPS 1630
requirements in the final rule provide protections similar to those provided to workers in other 1631
industries under OSHA’s Hazard Communication Standard program, while recognizing 1632
differences between agriculture and other industries. As discussed in the Agency’s 1992 1633*** EO 12866 Review Draft

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– AJ22 ] proposed rule on the Worker Protection Standard; Hazard Information (Ref. 18)
, in response to 1634
numerous concerns about potential overlap or conflict between EPA’s July 1988 propos ed WPS 1635

( Ref. 18 ) and OSHA’s August 1988 proposed Hazard Communications Standard ( Ref. 19 ) , EPA 1636

committed t o work with OSHA to minimize confusion and avoid duplication between the two 1637
agencies’ requirements. Rather than require agricultural establishments that may not routinely 1638

use the same pesticides to develop and maintain a written Hazard Communication Stand ard plan 1639
listing all chemicals that will be used in the workplace, EPA ’s approach, in both the 1992 1640
proposed rule on Hazard Information ( Ref, 20) and this final rule, has been to identify specific 1641
requirements
, tailored to fit the c ontext of pesticide use in agricultural production that serve a 1642
purpose similar to the Hazard Communication Standard requirements in other industries

. These 1643
requirements include pesticide safety training, display of basic pesticide safety information, 1644
notification or posting of t reated areas, and access to information about pesticides used in the 1645
workplace at a central location. EPA notes that the WPS does not exempt employers with 10 or 1646

fewer employees , unlike OSHA’s Hazard Communication Standard

. EPA also notes that the cost 1647

of a developing and implementing a full hazard communication program specific to each 1648

establishment could be burdensome to small agricultural establishments. 1649
Lastly, although EPA is not requiring that SDSs be translated at this time, EPA is open to 1650
conferring with stakeholders on the need for translation , identif ying content to be translate d , and 1651
implementing a translation program, if necessary

. EPA notes that some pesticide manufacturers 1652
already make pesticide product SDSs available in Spanish. 1653

Com ments on other forms of hazard communications materials

. Many farm worker 1654
advocacy organizations suggested EPA develop and provide crop sheets, booklets, or other types 1655

of materials that describe the health effects of pesticides , either in lieu of or in add ition to the 1656

SDS . These commenters identified a need for a pictorial booklet designed for low

- literacy 1657*** EO 12866 Review Draft

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– AJ22 ] audiences on the health effects from exposure to pesticides, based on the information in SDSs. 1658

One state suggested that a small booklet with basic pestic ide exposure symptoms by classes of 1659
chemicals or modes of action, described in layman’s terms would be more helpful to workers 1660

than SDSs. One pesticide manufacturer organization opposed the development of crop sheets. 1661
EPA Response. EPA agrees with the ba sic concept of providing workers and handlers 1662
with information on the health effects of pesticides for workers and handlers in a manner they 1663

can understand

. Pesticide safety training and the pesticide information display provide workers 1664

and handlers with i nformation on the symptoms that may be associated with exposure to 1665
different pesticides. If workers or handlers need information about the specific effects of a 1666
pesticide with which they have worked, they can consult the SDS. However, EPA does not agree 1667

wi th the commenters’ request to require crop sheets or similar materials because, in EPA’s 1668
judgment, the benefits of such a requirement would not justify the substantial costs associated 1669
with creating, updating, translating and distributing materials for eve ry crop, growing region, and 1670

WPS

- scope pesticide product. As noted in the proposal for this rule , crop sheets and other types 1671
of material have been developed in the past, with very limited success. For example, one state’s 1672
crop sheet program proved to be e xpensive and labor intensive, and the crop sheets were left as 1673

litter in the fields, unused. SDSs already contain information about the potential health effects 1674
(acute, delayed, and chronic) associated with use of pesticide products and will be readily 1675

ava ilable in a uniform format , including provide hazard information in words and in pictograms

. 1676

Comments on inconsistencies in information between labels and SDSs . A pesticide 1677

manufacturer organization opposed any requirement by EPA to provide SDSs to worke r and 1678
handlers upon request. This commenter expressed concern about the confusion that may be 1679
caused by inconsistencies between pesticide labels and SDSs. OSHA requires manufacturers to 1680

use GHS terms and chemical classification criteria on SDS s whereas EPA does not require their 1681*** EO 12866 Review Draft

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– AJ22 ] use on pesticide product labels. As a result, SDS s and pesticide product labels could have 1682
different hazard statements, pictograms and signal words. 1683
EPA Response . EPA has not finalized the proposed requirement for the employer to 1684

make available pesticide product labeling upon request. Instead, the final rule requires the 1685
employer to display only pesticide application information and SDSs for pesticide products used 1686

on the establishment

. The SDS provides succinct informa tion about the known health hazards of 1687
the product that typically is not presented as part of the product label or labeling. Such 1688
information can be invaluable to medical professionals for the diagnosis and treatment of certain 1689
pesticide

- related illnesses and injuries . Because EPA is not requiring the employer to display the 1690

label ing, EPA does not expect issues with a perception of conflict between labeling and SDSs. 1691
The persons who wear PPE and have access to the label are pesticide handlers who receive mo re 1692
thorough training than workers. If pesticide handlers encounter conflicting information on 1693
labeling and SDSs, such as the PPE identified, they should know they must follow the 1694
instructions on the pesticide labeling, as they are trained to do. For inform ation on OSHA’s 1695
adoption of the Globally Harmonized System of Classification and Labeling of Chemicals for 1696
SDSs and the pesticide product label ing , see EPA’s Pesticide Registration (PR) Notice 2012

- 1, 1697
Material Safety Data Sheets as Pesticide Labeling 1698

( http ://www2.epa.gov/sites/production/files/2014

- 04/documents/pr2012

- 1.pdf )

. 1699

C. Pesticide Application Information

– Content of Pesticide Application Information 1700

1. Current rule and proposal. In the existing WPS, the agricultural employer must record 1701
and display the following information about each pesticide application: T he location and 1702
description of the area to be treated, the product name, EPA registration number and active 1703
ingredient(s) o f the pesticide product, time and date the pesticide is to be applied, and REI for the 1704
pesticide. 1705*** EO 12866 Review Draft

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– AJ22 ] EPA proposed to require the agricultural employer to record and make available , in 1706
addition to the information required in the existing regulation: T he spec ific crop or site treated, 1707
the start and end dates and times of the application, and the end date and duration of the REI

. 1708

2. Final rule. EPA has finalized the proposed requirements for the contents of pesticide 1709
application information, with one change. T he final rule requires agricultural employers to record 1710
and display the following pesticide application infor mation : Product n ame, EPA registration 1711
number, and active ingredient(s) of the pesticide product applied; the crop or site treated and the 1712

location and description of the treated area; the date(s) and times the application started and 1713
ended; and the duration of the REI. The final rule does not require the employer to record the end 1714

date of the REI . The final regulatory text for this requirement is av ailable at 40 CFR 1715

170.311(b)(1)(ii)

- (v)

. 1716
The agricultural employer must record and display the information about the crop or site 1717

treated and the location of the treated area . EPA encourages employers to display the 1718

information in such a way that workers and handlers can understand and distinguish each treated 1719

area from all other areas on the establishment ; in some cases , a map or diagram may be 1720
appropriate

. 1721
EPA encourages and supports the provision and display of the application information so 1722

it is most useful to workers and handlers on the establishment. One such option is to separate the 1723

information about treated areas, so those areas where an REI is in effect are distinct from those 1724
where the REI has expired, allowing the viewer to more quickly id entify areas where entry is 1725
restricted. Similarly, maps highlighting areas where an REI is in effect and those where the REI 1726
has expired could also present the information in a user friendly, pictorial manner. EPA also sees 1727
an opportunity for employers to provide information of this nature through texting and other 1728
electronic means to their employees, and encourages such communication, in addition to the 1729*** EO 12866 Review Draft

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– AJ22 ] requirement for maintaining this information as part of the central display

. 1730
3. Comments and responses. 1731

Comments. Many farmworker advocacy organizations, a few pesticide regulatory 1732
agencies, a grower organization and others supported the proposed expansion of the content 1733
requirement for pesticide application information records. According to these commente rs, it 1734
would be a small burden to require additional application information, such as crops treated, that 1735
could help workers proactively avoid exposure to pesticides. One state asked EPA to parallel the 1736
information required by USDA to avoid confusion, whil e another suggested that more 1737
information be required in addition to the information proposed to assist state pesticide 1738
regulatory personnel in determining compliance

. 1739
Several farm bureaus, one grower organization and several state s opposed any changes. 1740

These commenters asserted that the content required by the existing regulation is already too 1741

burdensome. Several farm bureaus opposed EPA ’s proposed expan sion of the content of records 1742
stating that EPA had not justified it with quantifiable benefits. A fe w state s , two farmworker 1743
advocacy organizations and other commenters suggested various combinations of records limited 1744

to three or fewer pieces of information. One grower organization argued that only a record of the 1745
active ingredient is needed for medical treatment, while another questioned how a record of the 1746

REI benefits the health and safety of workers. Lastly, these commenters maintained that 1747
recordkeeping of general use pesticide applications is not required by law
, the proposed 1748
requirement is duplicative of state and federal requirements
, and commercial applicators already 1749
keep records

. 1750
EPA Response . EPA agrees with the comments that adding more information to 1751
application records is a small burden compared to the b enefits of determining compliance and 1752
giving workers and handlers information to verify the location of treated areas. The crop or site 1753*** EO 12866 Review Draft

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– AJ22 ] treated, start and end times and date(s) of the application, and duration of the REI are important 1754

for protecting worker and handlers and useful for determining compliance. Agricultural 1755
employers, compliance officers , workers, handlers and others will be able to calculate the end 1756

date and time of the REI by having the end date and time of the application and the duration of 1757

the REI included in the pesticide application information

. The combined information will also 1758
help workers and handlers identify the areas where an REI is in effect . EPA did not propose 1759
requiring more information because the proposed content of applicatio n records fit s the needs of 1760
stakeholders to determine compliance and to give workers and handlers the ability to discern 1761

which area had been treated. An arbitrary limit of only three or fewer pieces of information may 1762

not achieve the same benefits. 1763

The WPS requires agricultural employers to maintain records because those records 1764
provide information that is important for the protection of their employees. While a significant 1765
number of agricultural employers may also be certified as private pesticide appl icator s, their 1766
status as private applicators does not exempt them from the WPS recordkeeping required of 1767
agricultural employers. T he WPS does not require private applicators to maintain records on 1768
account of their status as private applicators

. 1769

The risk s of concern under the WPS include both RUPs and non

- RUPs, while 1770
certification requirements at the federal level, including recordkeeping, only apply to those using 1771

RUPs. Neither the USDA application record requirements for private applicators of RUPs , nor 1772

state application record requirements for commercial applicator s fully cover the information 1773
needed under the WPS for the protection of workers and handlers

. T he USDA required 1774

information does not include the active ingredients, duration of the REI or th e start and end dates 1775
and times of applications , nor does it apply to applications of non

- RUP pesticides

. Commercial 1776
applicators would have to record the information required by the state pesticide regulatory 1777*** EO 12866 Review Draft

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– AJ22 ] agency , which must at a minimum include the kin ds, amounts, uses, dates and places of RUP 1778
applications. 40 CFR 171.7(b)(1)(iii)(E). Also, state pesticide regulatory agencies may or may 1779
not require records of non

- RUP applications. Therefore, it i s unlikely that all states’ commercial 1780
applicator RUP appl ication records will match exactly the record requirements of the WPS. 1781

Because the records required to be maintained by USDA and the states do not include all of the 1782
information needed for protection of workers and handlers, it is appropriate to require su ch 1783
recordkeeping through the WPS. 1784

D. Pesticide Application and Hazard Information

– When Information Must Be Made Available 1785

1. Current rule and proposal. In the existing rule, the agricultural employer must record 1786
and display the pesticide application information before the application takes place, if workers or 1787
handlers are present on the establishment before the application begins. Otherwise, the 1788
information must be recorded and displayed at the beginning of any worker’s or handler’s first 1789
work period

. If the employer posts warning signs for a treated area, the pesticide application 1790

information must be displayed at the same time as , or earlier than
, the warning signs. The 1791
information must remain on display when workers are on the establishment and from the time of 1792
the application until 30 days after the REI expires or until 30 days after the application end date 1793

if the REI is 0 hours (or in the rare instance wher e a label might not have an REI). 1794
EPA proposed to require the agricultural employer to pro vide the pesticide application 1795
information, the SDS and labeling upon request during normal work hours, no later than the end 1796
of the day. 1797

2. Final rule. The final rule requires the agricultural employer to display the pesticide 1798
application information an d the SDS (pesticide application and hazard information) at the central 1799
display no later than 24 hours after the application is complete

. Also, t he employer must display 1800
the pesticide application and hazard information for each treated area before any work er is 1801*** EO 12866 Review Draft

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– AJ22 ] permitted to enter the treated area , even if the applicable REI has expired . If workers will be in 1802
the area, they must be notified of the application before it starts, by posted signs or orally
, and 1803
warned not to enter the area. The application infor mation and SDS must remain posted for 30 1804
days from the expiration date of the REI or from the application end date if the REI is 0 hours (or 1805
in the rare instance where a label might not have an REI)

. EPA did not finalize the proposed 1806
requirement for the ag ricultural employer to make available the pesticide application information 1807
and the SDS no later than the end of the day of the application. The final rule eliminates the 1808
existing requirement to display the application information before or at the same time a warning 1809
sign is posted at a treated area. The final regulatory text for this requirement is available at 40 1810

CFR 170.311(b) (5) and 40 CFR 170.309(l)

. 1811
3. Comments and responses. 1812

Comments. Several farmworker advocacy organizations and one public heal th 1813
organization requested that EPA keep the existing requirement to make information available 1814
before the application so workers and handlers would be able to connect symptoms to an 1815
application if the exposure occurred during the application

. While many fa rm worker advocacy 1816
groups supported the display of information before an application, some expressed concern about 1817
the accuracy of the pesticide application information displayed when information about the 1818
application changed from what was planned and the d isplayed information was n o t updated. One 1819
farm bureau and one pesticide manufacturer organization requested that EPA require employers 1820

to ma k e the information available after the application. 1821
EPA Response . EPA agrees with the commenters that it is import ant to provide workers 1822
and handlers with accurate information about pesticide application s

. Displaying the information 1823
after the application is complete benefits workers and handlers because they can be confident the 1824
information is correct, and the employe r no longer has to change the information when 1825*** EO 12866 Review Draft

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– AJ22 ] application plans change. U nder the final rule, EPA expects all displays of pesticide application 1826

information will contain accurate information. The final rule retains the requirement for workers 1827

to receive or al notification, or to see posted warning signs, or both before an application begins, 1828
informing them to stay out of an area before an application begins. 1829

E. Pesticide Application and Hazard Information

– Retention of Records 1830

1. Current rule and proposal. The existing WPS requires employers to maintain pesticide 1831
application information at the central display from the time of application until 30 days after the 1832

REI expires. The re is no requirement for the employer to retain the pesticide applicatio n 1833

information in any form after that time. 1834
EPA proposed to require employers to retain, for each application of a WPS

- covered 1835
pesticide, the pesticide application information, label ing and SDS, for two years from the date of 1836

the end of the REI for each p roduct applied. 1837

2. Final rule. The final rule requires agricultural employers to retain the pesticide 1838
application information and the SDS for the product used (pesticide application and hazard 1839

information) for two years from the date of expiration of the REI applicable to the application 1840

conducted

. EPA has not included t he proposed requirement for the employer to retain the 1841
pesticide labeling in the final rule. The final regulatory text for this requirement is available at 40 1842

CFR 170.311(b)(6). 1843

3. Comments and responses. 1844

Comments . EPA received comments supporting a two year recordkeeping requirement 1845

from several state s and one grower organization. One state commented that it did not have a need 1846

for the information after one year, but that two years was not much more of a burden. Many 1847
farmworker advocacy and public health organizations requested EPA to require recordkeeping 1848
ranging from more than two years to as many as 30 years to help with the diagnosis of chronic 1849*** EO 12866 Review Draft

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– AJ22 ] health effects that could be relat ed to pesticide exposure. 1850
Commenters from some farm bureaus and grower associations opposed a two

- year 1851
recordkeeping requirement, in part because they asserted that EPA could not show quantifiable 1852
benefits. These commenters argued it would be a paperwork exercise without health and safety 1853
benefits driven based on the needs of enforcement, and instead should be replaced with a 1854

minimal, non

- intrusive requirement. One commenter suggested requiring employers to keep 1855
records only during the harvest season. 1856

E PA Response

. EPA has concluded that a two

- year record keeping requirement would be 1857
helpful for health diagnoses and investigation purposes. EPA considered requiring the retention 1858

of records for five years and asked state pesticide regulatory agencies about their needs for 1859

access to pesticide application records. These enforcement agencies informed EPA that they 1860
rarely need to rely on records beyond the two

- year timeframe. 1861
EPA notes that this recordkeeping requirement does not necessarily impose a duplicative 1862
burden on agricultural employers to obtain pesticide application information and SDSs twice

– 1863
once to satisfy the central display requirement and once to satisfy the recordkeeping requirement. 1864
Agricultural employers may satisfy this recordkeepi ng requirement by the removal of the 1865
pesticide application information and SDS from the central display 31 days from the expiration 1866

of the REI (or from the end of the pesticide application if there is no REI ) and retaining those 1867

records for two years from the date of application. EPA recognizes that some employers may 1868
choose to maintain electronic copies of pesticide application records and the product SDS. The 1869
WPS does not specify that records must be kept on paper, so an employer can maintain records 1870

elec tronically as long as the employer satisfies all related requirements of the WPS, such as 1871
being able to quickly access and provide the required materials in the event of a pesticide 1872

emergency. 1873*** EO 12866 Review Draft

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– AJ22 ] F. Costs and Benefits. 1874

1. Costs

. EPA estimates the cost for t hese final hazard communication requirements, 1875
implemented together, to be $ 9. 3 million annually , or $25 annually per establishment (Ref. 1)

. 1876
The cost of the hazard communication requirements differ s from the proposed requirements 1877

because EPA is maintaining and revising the existing central display requirement, allowing the 1878
agricultural employer to display information after the application negating the need to update 1879
information later, and requiring the agricultural employer to display and keep re cords of the 1880
pesticide application information and SDS but not the label ing

. 1881

2. Benefits. Although EPA cannot quantify benefits specific to any of these requirements
, 1882

the qualitative benefits from workers’ and handlers’ ready access to accurate informati on about 1883
areas under an REI, pesticides in use, and potential health impacts from those pesticides 1884
convinced EPA to adopt these requirements Ref. 1)

. The final rule retains the central posting 1885
requirement, and allows the employer some flexibility in postin g the information so accurate 1886

information is displayed. 1887

VIII. Information Exchange Between Handler and Agricultural Employers 1888

1. Current rule and proposal

. The existing WPS requires handler and agricultural 1889
employers to exchange information about pestici de applications. When handlers are employed by 1890
an employer other than the agricultural employer, the existing WPS requires the agricultural 1891
employer to provide the handler employer with information about treated areas on the 1892
agricultural establishment the handler may be in (or may walk within one

- quarter mile of), 1893
including specific location and description of any such areas and restrictions on entering those 1894

areas. The existing WPS requires handler employers to provide agricultural employers with the 1895

follo wing information prior to making a pesticide application on the agricultural establishment: 1896

• Location and description of the area to be treated. 1897*** EO 12866 Review Draft

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– AJ22 ] • Time and date of application. 1898

• Product name, active ingredient(s), and EPA registration number for the product. 1899

• REI for pesticide(s) applied. 1900

• Whether posted notification, oral notification, or both are required. 1901

• Any other product

- specific requirements on the product labeling concerning protection 1902
of workers or other persons during or after a pplication. 1903
The agricultural employer must display this information for workers and handlers 1904
employed by the establishment at the central location. The current WPS requires handler 1905
employers to inform agricultural employers before the application takes pl ace when there will be 1906
changes to scheduled pesticide applications, such as changes to scheduled pesticide application 1907
times, locations, and subsequent REIs

. 1908
In addition to maintaining the current requirements, EPA proposed to require the 1909
agricultural em ployer to also provide to the handler employer information about the location of 1910
“entry

- restricted areas” on the establishment. EPA also proposed to require the handler employer 1911
to communicate to the agricultural employer the start and end times of pestici de applications and 1912

the end date of the REI. EPA also proposed to relax existing WPS requirements by requir ing 1913
handler employers to provide information about any changes to pesticide application plans to the 1914
agricultural employer within two hours of the en d of the application rather than before the 1915
application. Changes to the estimated application end time of less than one hour would not 1916
require notification. 1917
Finally, in the proposal, EPA unintentionally omitted the provision in the existing WPS 1918

that the agricultural employer need not provide information to the handler employer about 1919

treated areas if the handler will not be in or walk within one

- quarter mile of those treated areas. 1920

2. F inal Rule. Information exchange from agricultural employer to handler employer. The 1921*** EO 12866 Review Draft

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Page 82 of 286 [RIN 2070

– AJ22 ] final rule requires the agricultural employer to notify the handler employer of any treated areas 1922
where an REI is in effect and any restrictions on entering those areas. EPA has not included in 1923

the final rule a requirement for the agricultur al employer to communicate to the handler 1924
employer information about the location of “entry

- restricted areas” on the establishment because 1925
of the changes to the requirement concerning entry

- restricted areas, as discussed in Unit IX.B

. 1926

EPA has also revised the final rule to correct the unintentional omission of the existing rule’s 1927
exception that the agricultural employer need not provide information to the commercial handler 1928
employer about treated areas if the handler will not be in, or walk within one

- quart er mile of 1929

those areas. The final regulatory text for these requirements is available at 40 CFR 170.309(k). 1930
Information exchange from handler employer to agricultural employer. EPA has finalized 1931
the proposal to expand and clarify the information the pest icide handler employer must provide 1932
to the agricultural employer with minor modifications. The final rule does not require the handler 1933
employer to convey the end date of the REI to the agricultural employer. The final regulatory 1934
text for these requirements is available at 40 CFR 170. 313(i). 1935
Timing of exchange of information from handler employer to agricultural employer . EPA 1936
has modified the final rule to specify those situations where the handler employer must notify the 1937
agricultural employer of changes t o the application information before the application takes 1938
place. EPA has also modified the rule to specify the timing for notifying agricultural employers 1939
if the notification is not required before the application. The final regulatory text for these 1940
requirements is available at 40 CFR 170.313 (j)

. 1941
3. Comments and responses. 1942

Comments . Many state s and a few farmworker advocacy organizations expressed general 1943
support for the proposal to expand the information to be exchanged. These commenters agreed 1944
the additional information would help agricultural employers protect workers, reduce pesticide

- 1945*** EO 12866 Review Draft

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– AJ22 ] related illnesses and exposure from drift during applications. Many farm bureaus, state s , 1946
applicators and applicator associations and an agricultural orga nization generally disagreed with 1947
the proposed expansion. Some of these commenters argued that the proposed requirements are 1948
unrealistic and impractical given the dynamics and unpredictable factors involved in a farming 1949
operation, such as pest infestations and weather changes. In addition, they argued that the 1950
proposal would require multiple parties to exchange information, resulting in the potential for 1951
miscommunication. Some commenters also opposed the proposed expansion of information 1952
exchange because EP A did not provide documented justification. Crop consultants, an applicator 1953
association and a farm bureau indicated the proposal is unnecessary because close coordination 1954
of information already exists between applicators, handlers, crop consultants, and gr owers. 1955
Furthermore, they state d that not only are handlers already required to keep workers out of areas 1956
during applications, applications are often scheduled to take place when workers are absent. A 1957

few state s , farm bureaus and a crop consultant opposed E PA ’s proposal to add to the information 1958
the agricultural employer is required to give the handler employer. One crop consultant indicated 1959
the information is already on purchase orders or sales agreements between growers and 1960

commercial handlers or their emp loyers

. One state requested that EPA omit the application start 1961

time because it is not used to calculate the REI

. 1962

EPA’s proposal on the timing to provide notice of a change in application plans elicited 1963
many comments. EPA proposed that this notice be pro vided within 2 hours of the end of the 1964
application, unless the only change was a difference of less than 1 hour between scheduled and 1965
actual application times. One state and several farmworker advocacy organizations endorsed the 1966
requirement because of the ease of providing the information in the timeframe by relying on 1967
existing electronic capabilities. One farmworker advocacy organization urged EPA to require 1968
that changes be communicated before the start of the application in order to enable employers to 1969*** EO 12866 Review Draft

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– AJ22 ] be able to keep workers out of the treated area. 1970
To prevent confusion about scheduled and actual start and end times and to avoid 1971
miscommunication, one state suggested that EPA require the handler employer to inform the 1972
agricultural employer of changes at any time on the application day. Two aerial applicators 1973
explained that a two

- hour window for notification of change sounds reasonable on paper, but not 1974
in practice. During long workdays of the busy season, applicators would have to make phone 1975
calls in the middle of the night and send text messages, usually from the airplane during or in 1976
between applications. Also, it can take more than one day to complete an application beca use of 1977
factors such as the weather, a change in wind direction, or verifying the presence of bystanders. 1978

These situations could require the handler to give several updates to multiple parties, resulting in 1979
a greater chance for errors and noncompliance. 1980

O ne commenter requested that EPA require notification of a change within 24 hours from 1981
the end of the actual application, while another advised EPA to require notification if the actual 1982
application completion time is two or more hours later than the scheduled application time. 1983
Several farm bureaus, a pesticide applicator and a crop consultant organization advised EPA to 1984
require that changes in application plans be communicated: B efore the scheduled date and times, 1985

if the a pplication is going to be made earlier than expected
, or before the end of the REI as 1986
scheduled, if the application is made later than expected

. One aerial applicator stated that if a n 1987

REI is greater than 24 hours, EPA should require an information update before the scheduled 1988

REI expires or within 24 hours of the scheduled application time. Another aerial applicator 1989
recommended the handler employer and handler give the agricultural employer a window of 1990
estimated start and completion date(s) and time(s). In this situation, the handler would not make 1991
the application outside of that window without the approval of the agricultural employer, who in 1992
turn must keep workers out of the area during that time, unless notified of a change in the 1993*** EO 12866 Review Draft

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Page 85 of 286 [RIN 2070

– AJ22 ] application start and co mpletion date(s) and time(s). 1994
Many commenters noted the absence of the existing provision that the agricultural 1995
employer need not provide information to the commercial handler employer if the handler will 1996

not be in or walk within one

- quarter mile of an area that may be treated with a pesticide or under 1997
an REI, and noted this could result in the need to provide excessive, unnecessary information. 1998
EPA Response

. The information exchange requirements ensure that agricultural 1999
employers and handler employers have the information they need to comply with the 2000
requirements for notifying workers and handlers of risks associated with pesticide applications 2001
and treated areas (i.e., agricultural employers are required to notify workers of treated areas and 2002
display pe sticide application and hazard information at the central location on the establishment 2003
for workers and handlers to see, and handler employers must inform their handler employees of 2004
treated areas on the agricultural establishment near where they work ). 2005

E PA has been convinced not to adopt the proposed change to expand the information 2006
required to be communicated by the agricultural employer to the handler employer to include 2007
information about the location of “entry

- restricted areas” on the establishment. Re quiring 2008
employers to exchange this information would not be practical given other changes in the rule 2009
related to the “entry

- restricted areas” ( replaced by “application exclusion zones” in the final rule) 2010
that make the tracking of such areas infeasible. EPA also agrees that it is not necessary for the 2011
handler employer to calculate the end time of the REI for each application and include it in the 2012
information conveyed to the agricultural employer. The requirement to provide this piece of 2013

information has been deleted from the final rule. 2014
Most of the other information required to be exchanged by the final rule is already 2015
required to be exchanged by the existing rule, and therefore EPA does not agree that this 2016
requirement presents a substantially increased or unreasonable burden. Agricultural and handler 2017*** EO 12866 Review Draft

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Page 86 of 286 [RIN 2070

– AJ22 ] employers are currently required to exchange information so agricultural employers may provide 2018
notification of application and treated areas under an REI to workers and handlers. Without this 2019

info rmation transfer, accurate and timely notification would be difficult to achieve, exposing 2020
workers and handlers to potential exposure to pesticides. It is critical that the agricultural 2021
employer know the start times of applications in order to be able to n otify workers and handlers 2022
(when they are on the establishment) so they may avoid treated areas. EPA recognizes that 2023
exchange of the expanded information may already occur on some establishments and expects 2024
those entities to experience less burden than in situations where such coordination has not 2025
already developed. 2026

EPA recognizes that much of the information required may be available on sales 2027
agreements and purchase orders between commercial pesticide handlers and agricultural 2028
employers, which will reduc e the burden for employers to gather it; however, without inclusion 2029
of the information exchange requirements in the WPS there is no assurance of timely exchange 2030

of all of the necessary information. 2031
EPA considered the range of options suggested for the ti ming of the information 2032
exchange. Several of the recommendations for notification of application changes from the 2033
commercial pesticide handler employer to the agricultural employer can be accommodated under 2034

the final rule. For example, the applicator and a gricultural employer can agree on a window of 2035
the estimated start and end times, with the understanding that the application would be made 2036
during that period, unless the two communicate and agree to a different timeframe. This would 2037
allow the agricultural employer to notify workers of the treatment, keep them from the area, and 2038
create and post the application information, satisfying the requirement. 2039
EPA did not identify any suggestions from commenters, apart from those that would be 2040
covered by the final r ule that would meet the needs for agricultural employer s to provide 2041*** EO 12866 Review Draft

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Page 87 of 286 [RIN 2070

– AJ22 ] employees notification of the application and inform them of treated areas under an REI
, and to 2042
record and display the pesticide application information

. A gricultural employer s must have 2043
information about the start time of the application before it begins to ensure they have the ability 2044
to notify workers of the application before it commences. A gricultural employer s must have the 2045
end time of the application to notify workers tha t although the application has ended, entry to the 2046
treated area remains prohibited because an REI is in effect

. Without these details being provided 2047
prior to the application, agricultural employer s are not able to fulfill their responsibilities to 2048

protect workers. 2049

EPA notes that the method for notification of changes to application information should 2050
be agreed upon between the handler employer and the agricultural employer to ensure receipt, 2051
and can be accomplished through electronic media, telephone, or other means. The agricultural 2052
employer must receive the information in sufficient time to record and display the information 2053

for workers and handlers

. 2054

4 . Costs and benefits

. EPA has estimated the cost of the information exchange 2055
requirements to be neglig ible because the existing rule already requires handler employers and 2056
agricultural employers to collect and exchange information

. The changes in the final rule are 2057
minor and offer flexibility for employers. The information the agricultural employer must gi ve 2058
the handler employer has been clarified. EPA has made minor changes to the information the 2059
handler employer must give the agricultural employer. The timing to notify the agricultural 2060
employer of most changes to the information has remained the same as t he existing regulation, 2061

i.e., before the application begins. In the final rule, two changes provide the handler employer 2062
flexibility . I f the product changes or the application is made later than originally scheduled, the 2063
handler employer must notify the ag ricultural employer within two hours of the end of the 2064
application. If the only change was a difference of less than one hour between the scheduled and 2065*** EO 12866 Review Draft

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Page 88 of 286 [RIN 2070

– AJ22 ] actual application times, notification is not required. 2066
EPA expects t hese changes will ensure that the agricultural employer provides workers 2067

and handlers with accurate application information , which was problematic under the existing 2068

rule, and maintains accurate application records. The information exchanged and the timing of 2069
notification of chang es of actual applications from scheduled applications remains essentially 2070
unchanged. Although notification can be given after the fact if a different pesticide product is 2071
applied or the application is completed after it was scheduled, this change does not make the 2072
WPS any less protective of workers, handlers and others. The agricultural employer will still 2073
have the essential information needed to know when and where to keep workers, handlers and 2074

others out of areas to be treated during and after treatment, and the revised information will be 2075
available in time for proper medical treatment if needed

. The cost of including additional details 2076
is reasonable compared to the improved ability of workers and handlers to identify areas where 2077
pesticides are being appli ed or have recently been applied. 2078

IX. Drift

- Related Requirements 2079
The requirements discussed in this section are intended to decrease the number of 2080
incidents in which workers and other persons are exposed to pesticides through unintentional 2081

contact durin g application. Drift is the off

- site movement through the air of pesticide droplets or 2082
particles originating from pesticides applied as liquids or dry materials. Workers errantly in the 2083

area being treated may be directly exposed to pesticides during applic ation. In addition
, 2084
bystanders (both workers and non

- workers) located outside a treated area may be exposed when 2085
pesticide droplets or particles move outside the area being treated through the air during and/or 2086
immediately after the pesticide application. As used here, t he term “drift” includes both of these 2087
modes of exposure, but does not include off

- site movement of pesticide

- imbedded soil

- borne 2088
particles by wind or vapor drift through volatilization of applied pesticide, although these are 2089*** EO 12866 Review Draft

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Page 89 of 286 [RIN 2070

– AJ22 ] often categori zed as “drift” in other contexts

. EPA has developed methodologies for assessing 2090
the risks to bystanders from exposure to pesticide s from drift and also from volatilization, and 2091

address es risks of concern and other issues via the registration review process

. The purpose of 2092
the requirements discussed in this section is to prevent workers and other persons from being 2093
exposed to pesticides by unintentional contact during application. The term “drift” is used as 2094

shorthand in this section to refer to unintentional exposure from both direct exposures to workers 2095

in the area being treated and drift exposures to workers and bystanders. 2096
A. Overarching Performance Standard 2097

1. Current rule and proposal. The existing WPS includes two related requirements tha t 2098
prohibit a pesticide from being applied in a way that contacts workers or other persons. 2099
Agricultural products subject to the WPS must have this statement on the label: “Do not apply 2100
this product in a way that will contact workers or other persons, eithe r directly or through drift. 2101
Only protected handlers may be in the area during application.” 40 CFR 156.206(a)

. Also, the 2102
existing WPS requires the handler employer and the handler to assure that no pesticide is applied 2103
so as to contact, either directly or through drift, any worker or other person, other than an 2104
appropriately trained and equipped handler. These requirements prohibit application in a way 2105

that contacts workers or other persons both on and off the agricultural establishment where the 2106
pesticide is being applied. 2107
EPA did not propose any changes to the label statement. EPA proposed several minor 2108
wording changes to the WPS requirement for the handler employer and the handler, but the 2109
impact of the proposed requirement would be the same as under th e existing WPS. 2110

2. Final rule. EPA has finalized the proposed changes to the requirement for the handler 2111
employer and handler with a minor change. The final rule changes the language from the 2112
proposed “handler located on the establishment” to “handler inv olved in the application.” As 2113*** EO 12866 Review Draft

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Page 90 of 286 [RIN 2070

– AJ22 ] with the existing rule, the final rule prohibits contact to workers and other persons regardless of 2114
whether or not they are on the agricultural establishment. The final regulatory text for this 2115
requirement is available at 40 C FR 170.505(a). There are no changes to the label statement at 40 2116

CFR 156.206(a). 2117
3. Comments and responses. 2118

Comments. Many commenters, including state s and their organizations, grower 2119
associations, farm bureaus and pesticide manufacturer associations, stated that the existing two 2120
requirements adequately protect workers and bystanders from exposure during applications. 2121
These commenters opposed the other drift

- related requirements that EPA proposed ( entry

2122
restricted areas for farms and forests and the req uirement to suspend applications under certain 2123

conditions ) as unnecessary, asserting the proposed requirements do not provide any additional 2124
protection. 2125
Many respondents from state s and their organizations, grower associations, farm bureaus 2126
and pesticide manufacturer associations commented that EPA’s risk assessments and pesticide 2127
labels include conservative protections for applicators, handlers, workers and bystanders. Some 2128
of these commenters argued that the existing restrictions on the labels, including REIs and 2129
pesticide

- specific buffers, provide sufficient protection to workers and bystanders. 2130
Many respondents from all commenter types commented on incidents where workers or 2131
bystanders reported being contacted by pesticides that were being applied. Som e of these 2132

incidents involve workers in the areas where pesticides were applied and other incidents involve 2133
workers or bystanders being exposed to pesticides that drifted off the target site. Many of the 2134

commenters cited three broad studies that looked at data from SENSOR

- Pesticides and 2135
California’s Pesticide Illness Surveillance Program (Ref s

. 10, 11 and 12 )

. Other commenters 2136
cited specific incidents of exposure from drift or workers in the area being treated being sprayed 2137*** EO 12866 Review Draft

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Page 91 of 286 [RIN 2070

– AJ22 ] directly. Some applicator and pe sticide manufacturer associations cited state data showing that 2138
there has been a decrease in drift complaints over time, dropping from an average of 333 2139
complaints per year nationwide (from 1996 through 1998) to an average of 247 complaints per 2140
year (from 2002 through 2004). 2141

EPA response

. EPA disagrees with the assertion that the “do not contact” requirements
, 2142
along with the other protections on pesticide labels
, are by themselves sufficient to protect 2143
workers and bystanders from being directly contacted by pesticides that are applied. First, many 2144
commenters cited incidents where people were directly exposed to pesticide applications, even if 2145
there was disagreement about how regularly these types of incidents happen. Second, EPA’s risk 2146

assessments and regi stration decisions are based on the premise that the WPS protections 2147
effectively prevent people (workers and bystanders) from being sprayed directly (Ref. 1 3 )

. In 2148
other words, incidents where workers or bystanders are sprayed directly result in people bein g 2149
exposed to pesticides in a way that is not considered in EPA’s risk assessments or registration 2150

decisions. T hese types of incidents are misuse violations but they continue to occur, as described 2151
in the following sections . Therefore, there is a need to su pplement the existing WPS protections 2152

to reduce exposures to workers and other persons from being directly sprayed with pesticides. 2153
There is no one solution that can prevent all drift incidents and it will take a 2154
comprehensive approach, including additio nal regulatory requirements, education, outreach, and 2155

some common

- sense voluntary measures to further reduce the number of people who are directly 2156
exposed to pesticide spray/applications. The additional regulatory requirements include revised 2157
requirements for entry restrictions during pesticide applications and for handlers to suspend 2158
applications in certain circumstances. Common

- sense voluntary measures include a grower 2159
talking to his/her neighbors to let them know when pesticides are being applied so the neighbors 2160
can keep workers and others away from the boundary of adjacent establishments during that 2161*** EO 12866 Review Draft

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– AJ22 ] time, and participating in voluntary communication programs such as Spray Safe 2162

( http://www.spraysafe.org/ ) and Drift Watch ( https://driftwatch.org/ )

. EPA in tends to include 2163
information about good management practices as well as the regulatory requirements during 2164

outreach for implementation of the final rule. It is also worth noting that EPA is working to 2165
assess and mitigate any product

- specific risks from exp osure to pesticide s from drift and from 2166
volatilization within the registration review process. 2167
B. Entry Restrictions to Protect Workers and Other Persons During Application 2168

1. Current rule and proposal. The existing WPS establishes entry

- restricted areas 2169
adjacent to treated areas that apply during pesticide application for nurseries and greenhouses 2170
only. The existing rule requir es that the agricultural employer must not allow or direct any 2171
person, other t han an appropriately trained and equipped handler, to enter or remain in the entry

2172
restricted area during a pesticide application in a nursery or greenhouse. The size of the entry

2173
restricted area depends on the type of product applied and the application m ethod. The entry 2174
restrictions for greenhouses also include ventilation requirements. The existing entry restriction 2175
requirement applies only within the boundaries of the agricultural establishment. The existing 2176
provisions at 40 CFR 170.110 regarding enteri ng entry

- restricted areas during application are 2177
different than the existing provisions at 40 CFR 170.112 regarding entry into treated areas after 2178
the application of a pesticide and before the REI specified on the pesticide labeling has expired. 2179
EPA prop osed to establish entry

- restricted areas during pesticide applications on farms 2180
and in forests, while slightly modifying the requirement for entry

- restricted areas for nurseries 2181
and greenhouses. EPA proposed two types of entry restrictions: O ne for enclose d space 2182
production
, which would apply to greenhouse s and other types of indoor production operations 2183
(e.g., mushroom houses, hoop houses, polyhouses)
, and one for outdoor production, which 2184
would apply to farms, forests and nurseries. In addition, EPA propo sed to define the entry

- 2185*** EO 12866 Review Draft

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Page 93 of 286 [RIN 2070

– AJ22 ] restricted area as the area from which workers or other persons must be excluded during and 2186

after the pesticide application. 2187

2. Final rule. In regard to enclosed space production ( i.e ., greenhouses , mushroom 2188
houses, hoop houses ), EPA has finalized the requirements for entry restrictions during pesticide 2189
applications with several minor changes. For the most part, the final rule incorporates the 2190
existing entry restriction and ventilation requirements for greenhouses as the requiremen ts for 2191
enclosed space production. The final rule deletes the term “entry

- restricted area” and adjusts the 2192
descriptions of the application types to be consistent with the changes to the description of 2193
application exclusion zones for outdoor production

. In addition, EPA changed the definition of 2194

“ enclosed space production ” to clarify that it applies only to areas with non

- porous covering, so 2195

structures with a covering made of fencing or fabric to provide shade on plants (no walls) such as 2196

shade houses
, ar e not considered enclosed spaces under the final rule

. See the discussion of 2197

definitions in Unit XVIII. C

. of this document for more information about the changes to this 2198

definition. 2199
In regard to outdoor production (e.g., farms, forests, nurseries, shade houses), the final 2200

rule differs substantially from EPA’s proposed requirements. The final rule makes the following 2201
changes from the proposal : 2202

• Replacing the phrase “entry

- restricted area” with “application exclusion zone” to make 2203
it more distinct from the requirements regarding REIs

. The final regulatory text for this 2204
requirement is available at 40 CFR 170.405(a). 2205

• Revising the corresponding definition to clarify that the applicatio n exclusion zone 2206
exists only during (not after) a pesticide application. The final regulatory text for this definition 2207

is available at 40 CFR 170.305. 2208

• Revising the corresponding definition and regulatory description of an application 2209*** EO 12866 Review Draft

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Page 94 of 286 [RIN 2070

– AJ22 ] exclusion zone so i t is a specified distance from the application equipment rather than from the 2210
edge of the treated area, and clarifying that the application exclusion zone moves with the 2211
application equipment. The final regulatory text for this requirement is available at 40 CFR 2212

170.405(a)(1). 2213

• Revising some of the application methods in the description of the application exclusion 2214

zone to reflect current application methods and to differentiate the distances based on the spray 2215
droplet size rather than pressure . The final regulatory text for this requirement is available at 40 2216

CFR 170.405(a)(1). 2217

• Adding a provision to the regulatory text to clarify that any label ing restrictions 2218
supersede the requirements of the WPS, including those related to application exclusion zones

. 2219
This was discussed in the preamble of the proposed rule ( Ref. 2 at 15490 ) but was inadvertently 2220
left out of the proposed reg ulatory text. The final regulatory text for this requirement is available 2221

at 40 CFR 170

. 303(c) and 170. 317(a). 2222

3. Comments and r esponses. 2223

Comments

– support ing the proposal or more stringent measures

. Many commenters, 2224
including farmworker advocacy organizations, public health organizations, and a state, generally 2225
supported the proposed requirement for entry

- restricted areas. The c ommenters stated that the 2226
proposed change should provide modest improvements in protecting workers from pesticide drift 2227
during application if there is enough training and education of applicators. One farmworker 2228

advoca cy organization described an incident where workers were in a field topping tobacco at 2229
the same time a plant growth regulator with a 24

- hour REI was being applied to the adjacent 2230

row. The workers were close enough to have to move out of the path of the tractor. However, 2231

because the treated are a was defined to be only the rows being treated, this was permissible 2232
under the existing WPS. Many commenters provided other examples of incidents where workers 2233*** EO 12866 Review Draft

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– AJ22 ] were unintentionally exposed directly to the pesticide spray. A few farmworker advocacy 2234
organiz ations commented that many workers say that they have felt the spray of pesticides from 2235
fields close to where they work. A farmworker advocacy organization commented that in 2012, 2236
about 20% of farmworkers in New Mexico reported to the organization that pesticides were 2237
applied to the fields at the same time that they were working. Another farmworker advocacy 2238
organization stated that about half of the child tobacco workers interviewed by the organization 2239
in 2013 reported that they saw tractors spraying pes ticides in the fields in or adjacent to the ones 2240

where they were working. 2241
Many farmworker advocacy organizations and several public health organizations argued 2242
that EPA should revise the approach for entry restrictions to protect workers on neighboring 2243

p roperty and to increase the length of the entry

- restricted area. The recommended distances 2244
ranged from 60 to 200 feet for ground application and 300 feet to a mile or more for aerial 2245
application. EPA responded to some of these suggestions in its response t o “ Pesticides in the Air 2246

– Kids at Risk: Petition to Protect Children from Pesticide Drift (2009) ” (Ref. 13 )

. 2247

Comments

– opposing the proposal

. Many state s and their organizations, grower 2248
organizations, farm bureaus, applicator organizations, agricultural producer organizations and 2249
pesticide manufacturer organizations opposed the proposed requirement to apply the entry

2250

restricted areas to farms and forests. Most of these commenters argued that the approach is too 2251
complicated because it establishes another area to be controlled that varies by application type, 2252
may include persons other than those employed by the agricultural establishment and may be 2253

different than label restrictions. (Note: Some of the comments appear to reflect a 2254
misunderstanding of the pro posal, i.e., that the entry

- restricted areas would be “buffer zones” 2255
that would remain in effect after the application was complete. ) Some state s and their 2256
organizations commented that the requirement to keep individuals out of varying widths of areas 2257*** EO 12866 Review Draft

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– AJ22 ] surr ounding treated areas would be difficult for an agricultural employer to implement and even 2258

more difficult for a state to enforce. 2259

Most of these commenters asserted that the proposed requirement to apply entry

2260

restricted areas to farms and forests would present some logistical issues that could effectively 2261
shut down parts of the establishment. For example, many ground and aerial pesticide 2262
applications occur along rural roads or near access points to the agricultural establishment. These 2263
roads and access p oints would be within the proposed entry

- restricted areas. On larger fields, 2264
pesticide applications could take several hours to complete. Commenters claimed that p rohibiting 2265
workers from using these roads or gaining access to farm buildings for long period s of time 2266

would be impractical and could have an adverse economic impact. Many of the commenters 2267

stated that EPA did not account for the cost of stopping business during some pesticide 2268
applications. As an example, one grower organization opposed the “worker buffers” because 2269
they could take a lot of area out of cultivation on smaller farms, farms with widely varied crop 2270
maturities and farms that are not laid out in large blocks. Instead of arbitrary buffers, this 2271
commenter argued to keep t he standard as it is

- do not apply where workers are present and do 2272
not allow spray (or drift) to contact workers. 2273
Comments on application types and distances . Some commenters addressed the specific 2274
application methods and the distances of 100 feet and 2 5 feet in the proposed entry

- restricted 2275
areas. Some states, grower organizations, agricultural organizations and pesticide manufacturer 2276
organizations commented that the distances of 25 to 100 feet are not supported by drift reduction 2277
technologies, applica tor standard operating procedures or incident data. A state commented that 2278
the table of application methods and distances is flawed because it does not account for all 2279
application scenarios and does not logically apply distances. 2280
EPA Response

. Based on t he comments, EPA has made some changes in the final rule 2281*** EO 12866 Review Draft

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– AJ22 ] from the proposed requirement to extend entry

- restricted areas to farms and forests. However, 2282
experiences such as those of workers having to move to get out of the way of the tractor that was 2283
applyin g pesticide (described previously ) and workers being directly sprayed confirm EPA’s 2284
position that additional protections are necessary during pesticide applications on farms and in 2285

forests. The existing WPS prohibits a farm or forest agricultural employer from allowing or 2286
directing any worker to enter or remain in a treated area, which is defined to include areas being 2287

treated. The existing regulations require oral notifications before pesticide applications to include 2288
the location and description of the tr eated area, the time during which entry is restricted and 2289
instructions not to enter the treated area until the REI has expired. The existing regulations 2290
require handler employers to ensure that pesticides are applied in a manner that will not contact a 2291

worker either directly or through drift. Inasmuch as these requirements

– clearly intended to 2292
prevent direct exposure of workers during pesticide applications

– have proven insufficient for 2293
that purpose, additional measures are needed. 2294

EPA has changed the f inal rule in several ways to address some of the concerns 2295
expressed in the comments about the logistical problems with the proposal

. First, in the final rule 2296
EPA replaced the term “entry

- restricted area” with “application exclusion zone
, ” which more 2297
clearly associates this restriction with the period during the pesticide application. This new term 2298
is also less likely to be confused with the term “restricted

- entry interval

. ” Second, EPA revised 2299
the requirements for the application exclusio n zone so that it is not based on the “ treated area ,” 2300

but instead a specified distance from the application equipment. The application exclusion zone 2301
is essentially a horizontal circle surrounding the application equipment that moves with the 2302
application e quipment. For example, if a pesticide is applied aerially, the border of the 2303
application exclusion zone is a horizontal circle that extends 100 feet from the place on the 2304
ground directly below the aircraft, and moves with the aircraft as the application pr oceeds. 2305*** EO 12866 Review Draft

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– AJ22 ] Because the application exclusion zone is based on the location of the application 2306
equipment, rather than the location of the treated area, the application exclusion zone could 2307
extend beyond the boundary of the agricultural establishment. However, in 40 CFR 2308

170.405(a)(2), the final rule limits the requirement for the agricultural employer to keep workers 2309
and other persons out of the treated area or the application exclusion zone during application to 2310
areas that are within the boundaries of the agri cultural establishment, as proposed. The existing 2311

entry

- restricted area requirement for nurseries is also limited to areas that are within the 2312
boundaries of the agricultural establishment. EPA retained the existing and proposed limitation 2313
because this requ irement applies to the agricultural employer. The agricultural employer can 2314
control what happens on the agricultural establishment but could have difficulty limiting access 2315
to roads or fields that are beyond his property. 2316
The comments reflected a general lack of understanding that the proposed entry

- restricted 2317
areas would exist only during application
, and many comments anticipated conflicts between no

2318
spray buffers on some pesticide labels and the proposed entry

- restricted area. However, these are 2319

two di fferent types of requirements. If a label specifies a “no

- spray” buffer, pesticide cannot be 2320
applied in that area at any time. Under the final rule, a pesticide can be applied in an application 2321
exclusion zone, and the requirement for agricultural employers is to keep workers and other 2322
people out of this zone during the pesticide application. These two types of requirements are 2323

distinct
, and as a result should not be problematic to implement. 2324
EPA reassessed the application methods and distances in the propo sed requirements for 2325

entry

- restricted areas for outdoor production and made some changes in the description of 2326
application exclusion zones in the final rule in § 170.405 (a)(1) . The final rule maintains the 2327
proposed distances of 100 feet and 25 feet but re vises the application methods associated with 2328

each distance. 2329*** EO 12866 Review Draft

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– AJ22 ] The application methods that have an application exclusion zone of 100 feet are the ones 2330
where pesticide is expected to move a longer distance from where they are applied. The changes 2331

include: 2332

• Adding air blast applications, to more accurately and more broadly describe current 2333
application methods

. 2334

• Deleting pesticides applied as an aerosol because it is unnecessary

. 2335

• Including pesticides applied as a spray using a spray quality (droplet spectrum) of 2336

smaller than medium (volume median diameter less than 294 microns). The volume median 2337
diameter refers to the midpoint droplet size or mean, where half of the volume of spr ay is in 2338
droplets smaller, and half of the volume is in droplets larger than the mean. EPA chose to 2339
establish this criteria based on the spray quality rather than just the pressure because the drop 2340
size depends on a number of variables, including the pres sure, the nozzle type, liquid properties, 2341
and the spray angle. Focusing on the spray quality, rather than pressure, is also consistent with 2342
EPA’s voluntary Drift Reduction Technology program and current models of drift used in EPA’s 2343

risk assessments. 2344

The application methods that have an application exclusion zone of 25 feet are the ones 2345
where pesticide is expected to move a shorter distance from where they are applied. The 2346
changes include: 2347

• Replacing several of the proposed criteria with pesticides app lied as a spray using a 2348
spray quality (droplet spectrum) of medium or larger (volume median diameter of 294 microns 2349
or larger)

. 2350

• Eliminating the criterion based on the product label requiring a respirator because it is 2351
intended to apply to enclosed space s like greenhouses and was accidentally included in the 2352
proposed criteria for outdoor production. 2353*** EO 12866 Review Draft

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– AJ22 ] The corresponding changes to application methods were made to the Table

– Entry 2354
Restrictions During Enclosed Space Production Pesticide Applications at 40 CF R 170.405(b) (4) 2355
for consistency. 2356
EPA acknowledges that some pesticide labels will have restrictions that apply during 2357
applications that are different than the application exclusion zones. For example, the restrictions 2358
on soil fumigant labels are more res trictive than the application exclusion zone of 100 feet 2359
specified in § 170.405(a)(1)(i)(D). In situations like this, pesticide users must follow the 2360
product

- specific instructions on the label ing . As stated in § § 170.303(c) and 170.317(a), when 40 2361

CFR Par t 170 is referenced on a pesticide label, pesticide users must comply with all of the 2362
requirements in 40 CFR Part 170, except those that are inconsistent with product

- specific 2363
instructions on the pesticide product labeling. 2364
C. Suspend Application 2365

1. Current rule and proposal

. As discussed in Unit IX .A

. , the existing WPS requires 2366
handler employers and handlers to assure that no pesticide is applied so as to contact, either 2367
directly or through drift, any worker or other person, other than an appropriately trained and 2368
equipped handler. However, the existing WPS does not include an explicit requirement for 2369
handlers to stop or suspend application. EPA proposed to add a provision to require a handler 2370
performing a pesticide application to immediate ly stop or suspend the pesticide application if any 2371
worker or other person, other than an appropriately trained and equipped handler, is in the treated 2372
area or the entry

- restricted area. Based on the description of entry

- restricted areas in the 2373
proposed ru le, the requirement for handlers to stop or suspend application in certain 2374
circumstances would apply only within the boundaries of the agricultural establishment. 2375

2. Final rule. In the final rule, EPA has made several changes to the proposed 2376
requirement t o suspend applications. First, EPA revised the language to require a handler to 2377*** EO 12866 Review Draft

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– AJ22 ] “immediately suspend a pesticide application” rather than to “immediately stop or suspend a 2378
pesticide application ” to clarify that the application must be suspended but can be restarted once 2379
workers or other persons are out of the zone

. Second, EPA changed the area that is covered by 2380
the requirement to suspend application in two ways. EPA replaced “entry

- restricted area” with 2381
“application exclusion zone,” decreasing the size of the area that is covered by the requirement

. 2382

See Unit IX.B. Also, EPA removed the treated area from the requirement. For outdoor 2383
production, the area covered by the requirement is much smaller than the area that would have 2384
been covered by the proposed rule , which would have been the treated area plus up to 100 feet 2385
beyond the edge of the treated area. Third, the application exclusion zone can extend beyond the 2386
boundaries of the agricultural establishment for the purposes of this requirement , i.e., the handl er 2387
must suspend application if any person other than another handler involved in the application is 2388
in the application exclusion zone, regardless of whether the application exclusion zone extends 2389
off of the employer’s property

. 2390

T he final rule requires th e handler performing the application to suspend application if 2391
people who should not be present are in the application exclusion zone (which ranges up to 100 2392
feet from the application equipment for outdoor production) or in the area identified for 2393

exclusio n for enclosed space production (which ranges from 25 feet to the entire enclosed space 2394
plus any adjacent structure that cannot be sealed off.) The final regulatory text for this 2395
requirement is available at 40 CFR 170.505(b). 2396
3. Comments and responses. 2397

Comments

. Some commenters, including farmworker advocacy organizations, public 2398
health organizations, academics, and a state generally supported the proposed requirement for 2399
applicators to stop or suspend pesticide applications under certain conditions. A f armworker 2400
advocacy organization supported the proposed requirement, stating that current rules do not 2401*** EO 12866 Review Draft

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– AJ22 ] provide meaningful guidance on how applicators can prevent human exposure during 2402
applications. Some other commenters from farmworker advocacy organization s, public health 2403
organizations and public health agencies supported the proposed requirement but urged EPA to 2404
extend the protections to workers at neighboring establishments. Many of these commenters 2405
provided information suggesting that workers may be more likely to be affected by drift from a 2406

different establishment. For example, commenters cited a Washington Department of Health 2407
report that documented 43 workers in Washington being affected by drift from another farm 2408
while only 13 workers reported being a ffected by drift from the farm where they were working in 2409

2010

- 2011

. In comments arguing against the need for entry

- restricted areas, some applicator 2410
organizations provided examples supporting the requirement to suspend applications, stating that 2411

it is sta ndard operating procedure for aerial applicators to temporarily avoid making passes 2412
adjacent to roads or other areas if workers happen to be passing by in vehicles or on foot. 2413

Many state s and their organizations, grower organizations, farm bureaus, applic ator 2414
organizations, agricultural producer organizations and pesticide manufacturer organizations 2415
opposed the proposed requirement for handlers to stop or suspend pesticide applications in 2416

certain circumstances. Most of these commenters argued that the prov ision is unnecessary 2417
because it would not offer any protections or prevent contact from pesticide applications beyond 2418
the existing “do not contact” requirement. Some commenters raised logistical concerns: 2419

A pplicators may not be aware that a person has ente red a treated area or entry

- restricted area in 2420
many situations, such as in a forest or an orchard in full leaf
, in a very large field
, or if there are 2421
restricted sight lines or rolling hills; the proposed requirement would impose unwarranted 2422
expectations f

or pilots, who would have to be fully aware of boundaries 100 feet on all sides of 2423
the target area while traveling at 150 mph; as proposed, an applicator would have to stop if a 2424
person is in an entry

- restricted area even if it is not possible for that pers on to encounter 2425*** EO 12866 Review Draft

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– AJ22 ] pesticides because of wind conditions. 2426
A few grower organizations and farm bureaus commented that there is a difference 2427
between stopping and suspending an application and asked whether this would require 2428
applicators to cease application al together or suspend the application until a person is no longer 2429

in the area. 2430
EPA Response

. As stated in the proposal, EPA has identified a need to supplement the 2431
“do not contact” performance standard because exposure to drift or direct spray events still 2432
happen despite the “do not contact” requirement
, and EPA’s risk assessments and registration 2433
decisions presume that no workers or other persons are being sprayed directly. Therefore, the 2434
final rule includes an explicit requirement for handlers to suspend p esticide applications under 2435

certain conditions, which mandates applicators to take specified action s to prevent exposing 2436
people to pesticide during applications. 2437

However, EPA revised the final rule in response to several points made by commenters. 2438
First, the final rule requires a handler to “immediately suspend a pesticide application” rather 2439
than to “immediately stop or suspend a pesticide application. ” This change was made to clarify 2440
that the application must be suspended immediately if workers or persons other than handlers are 2441
in the specified areas but can be restarted once workers or other persons are out of the specified 2442

area

. 2443
EPA was persuaded by the commenters who raised logistical concerns about the 2444
proposed requirement, which were related to the handler not being able to see the person or a 2445
person entering an edge of a large area that is not near the application equipment. EPA revised 2446
the requirement in the final rule to decrease the size of the area that the handler must monitor for 2447

worke rs or persons other than handlers by removing the treated area from the area covered by 2448
this requirement and by changing the “application exclusion zone” so it is measured from the 2449*** EO 12866 Review Draft

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– AJ22 ] application equipment rather than from the edge of the treated area. In the final rule, the handler 2450
performing the application must suspend application if any of the identified people are in the 2451
application exclusion zone (which ranges up to 100 feet from the application equipment) rather 2452
than if any of the people are in the enti re treated area plus that distance ( up to 100 feet) from the 2453
edge of the treated area. 2454
EPA was also persuaded by the comments and incident information about workers at 2455
neighboring establishments being directly contacted by drift. The incidents cited by co mmenters 2456
show that workers are directly exposed to pesticide applications from neighboring establishments 2457
as well as from the establishment where they are working. To reduce the number of incidents 2458
where workers are exposed to drift from neighboring establ ishments, the final rule extends the 2459
application exclusion zone beyond the boundaries of the agricultural establishment for this 2460
requirement, thus requiring applicators to immediately suspend applications if people other than 2461
a properly trained and equippe d handler are in the application exclusion zone. 2462

EPA has decided to extend the application exclusion zone beyond the boundaries of the 2463
agricultural establishment for the requirement to suspend applications for several reasons. First, 2464

this addresses more o f the worker drift cases, where workers are within 100 feet of the 2465
agricultural establishment to protect more workers. Out of 17 incidents identified in the 2466
comments, only one would have been prevented if the application exclusion zone was limited to 2467

the b oundaries of the agricultural establishment as provided in the proposed rule. The 2468
requirement in the final rule would have prevented at least four of the incidents reported in the 2469
comments, and possibly as many as 12, depending on the actual distances betw een the workers 2470
and application equipment, which were not specified in the comments. Second, the existing 2471
requirement that the handler must assure the pesticide is applied in a way that does not contact 2472
workers or other persons already extends beyond the b oundary of the agricultural establishment. 2473*** EO 12866 Review Draft

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– AJ22 ] The new, explicit requirement to suspend application if people other than handlers are in the 2474
application exclusion zone is intended to supplement the existing “do not contact” requirement 2475
by giving the applicator specific criteria for suspending application. These specific criteria 2476
should be equally useful to applicators attempting to comply with the existing “do not contact” 2477
requirement beyond the boundaries of the agricultural establishment. Third, the applicati on 2478
exclusion zone would extend a maximum of 100 feet beyond the boundary of an agricultural 2479
establishment only for the length of time it takes for the equipment applying the pesticide to pass 2480
by, so this should not shut down roads or access points to the e stablishment for long periods of 2481

time. To reiterate a point made in Unit IX .B

. , the final rule does not hold agricultural employers 2482
responsible for keeping workers and other persons out of portions of the application exclusion 2483
zone that extend beyond the b oundaries of the agricultural establishment. On the other hand, t his 2484
provision in § 170.505(b) of the final rule i mposes a requirement on the handler applying the 2485
pesticide to immediately suspend the application if workers or persons other than handlers 2486
involved in the application are in the application exclusion zone , whether on the establishment or 2487
beyond the boundaries of the establishment. 2488
D. Costs and benefits 2489

1. Costs . In the proposal, EPA estimated the cost for restricting entry to areas adjacent to 2490
an area being treated would be negligible. EPA assumed that employers could generally reassign 2491
workers to other tasks for the duration of the pesticide application in instances where worker 2492
tasks in the adjacent areas had to be stopped until the applica tion was complete. In the proposal, 2493
EPA estimated the cost of the requirement to suspend application would be negligible because it 2494
essentially clarifies an existing requirement. In the final rule, EPA estimates the costs of both 2495
requirements remains negli gible. 2496

2. Benefits

. EPA believes both of the drift

- related requirements discussed in this section 2497*** EO 12866 Review Draft

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– AJ22 ] of the preamble will help reduce the number of exposures of workers and other non

- handlers to 2498
unintentional contact to pesticide applications. Therefore, the benefits of these requirements 2499
outweigh the negligible costs. 2500
X. Establish Minimum Age for Handling Pesticides and Working in a Treated Area while 2501

an REI is in Effect 2502

A . Current R ule and P roposal

. 2503
The existing regulation does not establish a ny age restriction for handlers or early

- entry 2504

wo r k

. EPA proposed to prohibit persons younger than 16 years of age from handling pesticides, 2505
with an exception for handlers working on an establishment owned by an immediate family 2506

member. EPA requested comme nt on an alternative option of prohibiting any person under 18 2507
years old from handling pesticides. 2508
The existing WPS establishes conditions for when a worker may enter into a treated area 2509
under an REI. The conditions are related to the type of work perform ed (often referred to as 2510
“early

- entry” tasks) and the length of time the worker may be in the treated area. However, the 2511
existing WPS establishes no minimum age for workers entering a treated area under an REI to 2512
perform early

- entry tasks. EPA proposed to prohibit any worker under 16 years old from 2513
entering a treated area under an REI to perform early entry tasks, with an exemption from this 2514
prohibition for persons covered by the immediate family exemption. EPA requested comment on 2515
an alternative option of prohibiting any person under 18 years old from entering treated areas 2516
during the REI to perform early entry tasks. 2517

B . Final R ule

. 2518
The final rule prohibits persons younger than 18 years old from handling pesticides. EPA 2519
has retained the proposed exemption for handlers working on an establishment owned by an 2520
immediate family member. The final regulatory text for the prohibition is available at 40 CFR 2521*** EO 12866 Review Draft

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– AJ22 ] 170.309(c) and 170.313(c). The final regulatory text for the exemptio n is available at 40 CFR 2522

170.601(a)(1)(i). 2523
The final rule prohibits persons younger than 18 years old from entering treated areas 2524
during the REI to perform early entry tasks, and retains the proposed exemption for persons 2525
working on an establishment owne d by an immediate family member. The final regulatory text 2526
for this prohibition is available at 40 CFR 170.309(c) and 170.605(a). The final regulatory text 2527
for the exemption is available at 40 CFR 170.601(a)(1)(xii). 2528

C . Comments and R esponses. 2529

Comments . M any commenters requested that EPA establish a minimum age of 18 for 2530

handlers and early

- entry workers

. Commenters cited several reasons for their request. First, 2531
many commenters noted that adolescents’ bodies are still developing and they may be more 2532

suscep tible to the effects of pesticide exposure. Second, commenters noted that adolescents are 2533
less mature and their judgment is not as well developed as that of adults. This immaturity may 2534
mean that adolescents may be less consistently aware of risks associate d with handling pesticides 2535
or entering a treated area while an REI is in effect , that they may not adequately protect 2536
themselves or other workers from known risks, and that spills, splashes, and improper handling 2537
practices may be more likely. A few comment ers submitted studies related to development of 2538
maturity and decision

- making skills in adolescents in support of this assertion. Third, 2539
commenters asserted that restricting handling activities to persons at least 18 years old could 2540
result in higher potenti al economic benefit from avoiding exposure and any potentially related 2541
chronic effects to children, because they have a longer potential life span. Fourth, because 2542
information on the potential chronic effects of pesticide exposure on developing systems is not 2543
known, commenters recommended that EPA prohibit adolescents from handling pesticides and 2544
entering treated areas while an REI is in effect as a precaution until it can be shown that they 2545*** EO 12866 Review Draft

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– AJ22 ] would not suffer adverse chronic effects from potential exposure. Finally, a few commenters 2546
noted that persons under 18 years old are protected in other industries by OSHA and should 2547
receive similar protections under the WPS, and that some states have already prohibited handling 2548
of pesticides in agriculture by anyone und er 18 years old. 2549
Some commenters expressed support for a minimum age of 16. States primarily 2550
supported EPA’s proposal to establish a minimum age of 16, noting that establishing a minimum 2551
age of 18 would require them to change their state laws. Other comme nters supporting the 2552
proposed minimum age of 16 noted that this requirement would align with DOL’s restriction on 2553
handling pesticides in toxicity categories I and II in agriculture. 2554
A few commenters opposed establishing any minimum age. These commenters asserted 2555
that EPA should not take any action because the DOL’s hazardous orders under the Fair Labor 2556

Standards Act ( FLSA ) already prohibit adolescents under 16 years old from handling pesticides 2557
in toxicity categories I and II in agriculture with limited e xceptions. Some commenters also 2558
assert that establishing any minimum age for pesticide handlers is a matter that should be 2559
handled by the states, not EPA. 2560
Some commenters requested that EPA eliminate the exception from any minimum age 2561
requirement for mem bers of the owner’s immediate family. Commenters assert that adolescents’ 2562
developmental status does not differ if they are an employee on a farm owned by an immediate 2563
family member or by someone unrelated to them. Other commenters supported EPA’s proposal 2564
or requested that EPA establish a higher minimum age only if EPA also retains the exception for 2565
members of the owner’s immediate family. 2566
EPA Response . Based on the comments received and an evaluation of existing literature 2567
related to adolescents’ development of maturity and judgment, EPA has decided that the benefits 2568
of further reductions in adolescent pesticide exposures justify their cost ; the final rule generally 2569*** EO 12866 Review Draft

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– AJ22 ] prohibit s persons under 18 years old from handling pesticides or entering a treated area while an 2570

REI is in effect

. EPA recognizes that adolescents’ bodies and judgment are still developing. 2571

While studies have not demonstrated a clear cut of f point at which adolescents are fully 2572
developed, literature indicates that their development may continue until they reach their early to 2573

mid

- 20s. EPA also agrees that research has shown that adolescents may take more risks, be less 2574
aware of the potential consequences of their actions on themselves and others, and be less likely 2575
to protect themselves from known risks. All of this information supports establishing a higher 2576
minimum age than proposed in order to allow those handling pesticides to develop more fully 2577
before putting themselves, others, and the environment at risk , and to allow those performing 2578
early

- entry activities to develop more fully in order to adequately protect themselves from the 2579
risks of entering a treated area while an REI is in effect

. The final rule will reduce the potential 2580

for misuse by adolescent handlers who may less consistently exercise good judgment when 2581
handling agricultural pesticides. 2582

EPA notes commenters’ assertions that avoiding pesticide exposure in adolescents could 2583

resu lt in higher potential economic benefit because of adolescents’ longer potential lifespans. 2584
EPA agrees that it is appropriate to take reasonable precautions to protect adolescents from 2585
pesticide exposures, both because of the potential impact of pesticides on further development 2586
and because adolescents may not properly appreciate (and take appropriate steps to avoid) the 2587
risks of potential pesticide exposure. While statistical associations have been observed in studies 2588
that estimate the relation between pes ticide exposure and chronic health outcomes such as 2589
cancer, the causal nature of these associations has not yet been determined; thus quantifying the 2590
magnitude of the chronic health risk reduction expected as a result of pesticide exposure 2591

reduction is not possible. However, based on what is known about the potential for biologically 2592
active chemicals generally to disrupt developmental processes, it is reasonable to have 2593*** EO 12866 Review Draft

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– AJ22 ] heightened concern for adolescents under the age of 18 in situations where they face par ticularly 2594
high pesticide exposures. Prohibiting adolescents under the age of 18 from handling agricultural 2595
pesticides will protect them from any potential risks of pesticide use through handling activities, 2596
ensuring that adolescents do not suffer unreasona ble adverse effects from handling agricultural 2597
pesticides. Prohibiting adolescents under 18 years old from entering a treated area while an REI 2598

is in effec t will protect them by delaying their entry into treated areas until residues are at a level 2599

that sho uld not cause unreasonable adverse effects. 2600
EPA recognizes that OSHA prohibits persons under 18 years old from engaging in 2601
hazardous tasks in other industries, and that some states have taken action to prohibit certain 2602
adolescents from handling pesticides in agriculture (state minimum ages for pesticide handlers, 2603
where established, range from 16 years old to 18 years old). These examples of protections for 2604
adolescents in other industries or by states indicate a recognition that different standards for 2605

cert ain adolescents and adults are appropriate. 2606
EPA disagrees with commenters’ assertions that EPA should defer to the states or the 2607
FLSA and not establish any age

- related restrictions on pesticide handling or early

- entry 2608

activities

. EPA has the responsibili ty under FIFRA to regulate the use of pesticides to avoid 2609
unreasonable adverse effects, apart from any requirements established by other federal or state 2610
laws. The DOL’s actions under the FLSA limiting the use of certain pesticides to persons at least 2611
16 y ears old do not preclude EPA from taking actions to ensure that human health and the 2612
environment are protected from unreasonable adverse effects. While DOL’s hazardous order 2613
prohibiting those under 16 years old from handling certain pesticides satisfies th e purposes of the 2614
FLSA, those purposes are distinct from those of FIFRA. EPA has concluded that because, as 2615

discussed previously , adolescents’ bodies, maturity, and judgment are still developing, the 2616
handling of agricultural pesticides and entry into a trea ted area while an REI is in effect by 2617*** EO 12866 Review Draft

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– AJ22 ] persons under 18 years old presents an unreasonable likelihood of adverse effects. Therefore, the 2618

final rule generally limit s pesticide handling and early

- entry activities to persons who are at least 2619
18 years old. 2620

EP A agrees that adolescents’ developmental status does not differ if they are employee s 2621
on a farm owned by an immediate family or by someone unrelated to them. However, EPA 2622
recognizes that imposing a minimum age for handling agricultural pesticides or perfor ming 2623
early

- entry tasks could significantly disrupt some family farms. Given the high social cost of 2624
imposing a minimum age requirement on family farms, EPA has finalized the proposed 2625
exception to this requirement. 2626
4. Costs and benefits. EPA estimates the cost of requiring handlers and early

- entry 2627

workers to be at least 18 years old would be $ 3.1 million annually. EPA estimates that, on 2628
average, the cost would be about $ 8 per agricultural establishment per year. The cost per 2629
commercial pe sticide handling establishment per year is estimated to be over $ 360 . The 2630
estimated cost of the final requirement is likely to be overstated, particular ly for commercial 2631
pesticide handling establishments, because EPA made some very conservative assumptions 2632
regarding the amount of time an adolescent works. 2633
EPA cannot quantify the benefits associated with this specific proposal. However, this 2634
requirement would improve the health of adolescent handlers, as well as other workers and 2635

handlers on the establishme nt and the environment. It would also improve the health of 2636
adolescent workers by reducing their potential for exposure to pesticides in a treated area when 2637

an REI is in effect. As discussed in the preamble to the proposed rule, adolescents' judgment is 2638

no t fully developed. Restricting adolescents' ability to handle pesticides will lead to less 2639
exposure potential for the handlers themselves, and less potential for misapplication that could 2640
cause negative impacts on other handlers or workers on the establish ment, as well as the 2641*** EO 12866 Review Draft

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– AJ22 ] environment. 2642

XI. Restrictions on Worker Entry into Treated Areas 2643
A. Requirements for Entry During an REI 2644

1. Current rule and proposal. The existing WPS establishes specific exceptions to the 2645
general prohibition against sending worker s into a treated area while an REI is in effect. Workers 2646
who enter pesticide

- treated areas during an REI (known as “early

- entry workers”) without 2647
adequate protection may face an elevated risk from pesticide exposure. Under the existing rule, 2648
the employer m ust : E nsure that the worker has read or been informed of the human health 2649
hazards on the product labeling ; provide instruction on how to put on , use, and remove PPE ; 2650
stress the importance of washing after removing the PPE ; and instruct the worker on how to 2651
prevent, recognize, and treat heat

- related illness. The employer must also implement measures to 2652
prevent heat related illness when workers must wear PPE. 2653

In addition to these existing requirements, EPA proposed to require employers to inform 2654

workers sen t into a treated area while the REI is in effect of the specific exception under which 2655
they would enter, to describe the tasks permitted and any limitations required under that 2656
exception, and to identify the PPE required by the labeling. EPA also proposed to require the 2657
employer to create a record of the oral notification provided to early

- entry workers , to obtain the 2658
signature of each early

- entry worker acknowledging the oral notification prior to the early entr y, 2659

and to maintain the record for 2 years. 2660

2. Final Rule. EPA has finalized the proposed requirements for the employer to inform 2661
the worker of the type of exception which permits the entry into the area under an REI, to 2662

describe the tasks that the worker may perform and other limitations under the exception, and to 2663
identify the PPE that must be worn. However, EPA has decided not to require employers to 2664
create or maintain records of the oral notification. The final regulatory text for this requirement is 2665*** EO 12866 Review Draft

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– AJ22 ] av ailable at 40 CFR 170.605. 2666
3. Comments and responses. 2667

Comments on oral notification . Comments on the proposal to inform workers of the early 2668
entry exception and to explain the PPE were largely supportive, recognizing the reasonable 2669
nature of the proposed information. Commenters in support of the proposal included a pesticide 2670
manufacturer organization and farmworker advocacy organizations. One public health 2671
organization supported the proposal, but recommended that the requirement be modeled after 2672

OSHA’s co nfined space regulations, to include : S pecific training for early entry, a requirement 2673

for workers to be provided respirators and other necessary PPE, written emergency rescue 2674
procedures and resources in case of an overexposure or other mishap, on

- site mon itoring of the 2675
worker from outside the entry zone, and recordkeeping of each entry. 2676

Several agricultural producer organizations and pesticide manufacturer organizations 2677
supported the proposal, but expressed concern for the requirement for employers to man age heat 2678

stress. 2679
EPA Response . EPA has decided not to amend the final rule based on OSHA’s confined 2680
space regulations. OSHA’s definition of a confined space is one in which there is limited or 2681
restricted means for entry or exit. These characteristics exa cerbate any hazard to the employee, in 2682

that the employee could be overcome by a toxic atmosphere or by physical engulfment, such as 2683
in a grain storage bin, and be unable to quickly exit. EPA recognizes a similar potential for 2684
pesticide handlers making fumi gant applications in greenhouses to be overcome by the fumigant. 2685
The WPS provides protections for such scenarios by requiring PPE, including respirators where 2686
required by the label, and continuous monitoring by a handler outside of the treatment area. The 2687
handler entering the greenhouse would have specific instructions on the labeled hazards. The 2688
monitoring handler must have access to the PPE required by the product labeling in case they 2689*** EO 12866 Review Draft

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– AJ22 ] would need to enter the greenhouse for rescue of the applicator. Howev er, except for the use of 2690
fumigants, which have specific label requirements because of their increased potential for 2691
inhalation risk, the more common scenario of a worker entering a treated area on a farm, forest, 2692
or in a nursery during the REI would not p ose such risks from a toxic atmosphere. It is unlikely 2693

that there would be an environment that could concentrate the pesticide and produce a potentially 2694

life

- threatening environment. The predominant component of exposure during work in a treated 2695

area where an REI is in effect is dermal, with rare exceptions. Specific information about the 2696
entry must include the human health hazards on the pesticide labeling, explanation of the 2697
required PPE and the proper way to wear and remove PPE, description of the tasks that may be 2698
performed and any limitations on the time permitted in the area. Workers directed to enter a 2699
treated area during the REI must have had the pesticide safety training so they may protect 2700
themselves. Employers must provide the PPE required by the product label for early entry to 2701
minimize exposure. Employers must provide early entry workers with the decontamination 2702
supplies appropriate for pesticide handlers. 2703
EPA agrees with commenters that heat stress can be a problem for workers in warm, 2704

humid c limes and when employees must wear PPE. EPA notes that requirements related to heat 2705
stress for early entry workers are already included in the existing rule at 40 CFR 170.112(c)(6)(x) 2706

and 170.112(c)(7). 2707
Comments in opposition to the early

- entry exception s . A number of farmworker 2708
advocacy organizations voiced opposition, in general, to most or all of the early entry exceptions 2709
in the existing rule, suggesting that workers should not be required to enter treated areas under an 2710
REI, due to risk of exposure. 2711
EPA Response

. In deciding whether to allow workers to enter treated areas prior to the 2712
expiration of the REI, EPA considered the risk to the workers and the benefits from the early

- 2713*** EO 12866 Review Draft

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– AJ22 ] entry activities. In each case, EPA determined that the potential risks t o properly trained and 2714
equipped early

- entry workers are reasonable in comparison to the significant economic impacts 2715
from delaying necessary activities, provided that the required limitations to each exception are 2716

observed. 2717
Comments on recordkeeping of o ral notification . One farmworker advocacy organization 2718
supported the recordkeeping requirement, stating that the “proposed changes will ensure early 2719
entry workers are adequately informed about the risks of the work they are asked to do.” In 2720

contrast, sever al state s and their organizations expressed concern for the recordkeeping 2721
requirement, stating that it is not practical and would result in technical violations, such as 2722
failures to obtain the necessary signatures, without enhancing worker protection. 2723

EP A Response . EPA was convinced by the rationale provided by the state s that the 2724
requirement for records of notification to early

- entry workers was too burdensome for 2725
agriculture, while adding little or no protections for the worker s

. There is typically some urgency 2726

to the need for entry into a treated area while the REI is in effect ; the added burden to create 2727
records during this time could be unreasonable as it would not necessarily increase protection of 2728
early

- entry workers. EPA retained the requirement fo r employers to provide protective 2729
information to early

- entry workers, but did not include the proposed recordkeeping requirement 2730

because it is unclear that such record s would improve the transmission of information

. 2731
B. Clarify Conditions of the “No Contact” Exception 2732

1. Current rule and proposal . The existing WPS allows workers to enter areas while an 2733

REI is in effect for activities that do not result in contact with any treated surfaces. In the 2734
proposal, EPA sought to clarify the “no contact” requi rement of the exception by explaining that 2735
performing tasks while wearing PPE does not qualify as “no contact.” The proposal offered three 2736
examples of acceptable “no contact” activities. 2737*** EO 12866 Review Draft

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– AJ22 ] 2. Final rule . EPA has finalized the proposed clarification. The fi nal rule adds to the 2738
exception the following language: “This exception does not allow workers to perform any 2739
activities that involve contact with treated surfaces even if workers are wearing personal 2740
protective equipment.” The final regulatory text for thi s requirement is available at 40 CFR 2741

170.603(a)(1). 2742
3. Comments and responses

. 2743

Comments . One farm bureau stated that workers are prevented from having contact with 2744
pesticides and their residues through the medium of PPE. 2745
EPA Response

. Although PPE

– whe n properly fitted, worn, removed, cleaned and 2746

maintained

– can provide significant protection against pesticide exposures, it does not eliminate 2747

exposure. The variation in exposure reduction offered by various types of PPE can be seen in 2748
EPA’s “Exposure Su rrogate Reference Table” ( http://www.epa.gov/opp00001/science/handler

2749

exposure

- table.pdf ). Use of PPE for activities involving contact with pesticide

- treated surfaces 2750

does not reduce risks to the same level as no

- contact activities. EPA has finalized the “ no 2751
contact” exception as proposed because the PPE appropriate for early entry into treated areas 2752
under this exception is appropriate only for activities that do not involve contact with treated 2753

surfaces. 2754
C. Limit “Agricultural Emergency” Exception 2755

1. Current rule and proposal . The existing WPS permits entry into a treated area during 2756
an REI when a state, tribal, or federal agency having jurisdiction declares the existence of 2757
conditions that could cause an agricultural emergency. EPA proposed that only agricultural 2758
emergency determinations by EPA, state and tribal pesticide regulatory agencies, and state 2759
departments of agriculture, could authorize early entry under the agricultural emergency 2760
exception. 2761*** EO 12866 Review Draft

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– AJ22 ] In addition, EPA proposed to limit the time a worker may be in the treated area under the 2762
agricultural emergency exception when the label of the product used to treat the area requires 2763
both oral and written notification (“double notification”)

. Under the existing rule, there is no time 2764

limit; EPA pr oposed to establish allowing workers to be in a treated area under this exception fo r 2765

a maximum of 4 hours in any 24 hour period

. 2766

2. Final rule . EPA has finalized the proposal, with one change. The final rule does not 2767

include EPA as an agency with author ization to declare the existence of conditions that could 2768
cause an agricultural emergency because EPA decided that States and Tribes are best situated to 2769
decide what conditions in their respective jurisdictions could constitute an agricultural 2770

emergency

. T he final regulatory text for this requirement is available at 40 CFR 170.603(c)

. 2771
3. Comments and responses

. 2772
Comments on restricting the declaration of an agricultural emergency . One state 2773
supported the proposal, but recommended broadening it to include t he state governor

. Another 2774
state found the proposal satisfactory. One grower organization opposed the proposal, stating that 2775

pre

- approval to enter the treated area would be cumbersome and unnecessary if the criteria are 2776
clearly defined and documented. Anot her grower organization and a farm bureau from the same 2777
state expressed concern that this change would seriously impact growers’ ability to enter a 2778
treated area to manage fires , fix broken irrigation and chemigation pipes, and address other 2779
problems that c ould pose risks to adjacent public areas and cause crop loss. These commenters 2780
recommended that EPA develop guidance to instruct relevant municipal agencies such as local 2781
fire departments to declare agricultural emergencies. 2782
Commenters also suggested tha t there is a need for entities other than EPA, state 2783
departments of agriculture and the state pesticide regulatory agencies to declare agricultural 2784
emergencies. In the examples provided by commenters, fires and broken irrigation or 2785*** EO 12866 Review Draft

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– AJ22 ] chemigation pipes could pose risks to the public and the crop. 2786
EPA Response . As described in the preamble to the proposed rule, EPA noted that 2787
entities other than the state pesticide regulatory agencies, state departments of agriculture, and 2788

EPA might not have the background and technical expertise to assess the benefits and risks to 2789
workers from the entry while the REI is in effect
, and might not understand the statutory 2790
requirement to consider both risks and benefits when establishing conditions for early

- entry 2791

worker s

. EPA dec ided not to include state governors as an entity authorized to declare an 2792
agricultural emergency because it is not necessary; a state governor could direct the state 2793
department of agriculture or pesticide regulatory agency to determine whether conditions t hat 2794
could result in an agricultural emergency exist. 2795
The need for pre

- approval for conditions that may result in an agricultural emergency is a 2796
requirement in the existing rule. EPA has responded to the concern of the grower organization 2797
through its Inter

pretive Guidance Workgroup on the existing WPS, which clarified that state 2798
pesticide regulatory agencies may establish guidance or regulations describing the circumstances 2799

that could constitute an agricultural emergency and for which entry into areas under an REI is 2800
permitted. If a grower determines that such conditions exist at a site, then workers may enter the 2801
area while the REI is in effect under the agricultural emergency exception , consistent with 2802
applicable restrictions. 2803
EPA has decided not to expan d the declaring agencies to include municipal agencies such 2804
as local fire departments , but will work with state pesticide regulatory agencies and departments 2805
of agriculture to support identification of circumstances that could constitute an agricultural 2806

em ergency in their jurisdictions. EPA recommends that these entities identify, in their states, 2807

local conditions that could constitute such emergencies. Through state regulation or by policy, 2808
these agencies may pre

- approve entry when such conditions occur. 2809*** EO 12866 Review Draft

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Page 119 of 286 [RIN 2070

– AJ22 ] D. Codify “Limited Contact” and “Irrigation” Exceptions 2810

1. Current rule and proposal

. EPA established “limited contact” and “irrigation” 2811
exceptions as administrative exceptions in 1995. Although these exceptions are noted in the 2812
existing rule at 40 CFR 17 0.112(e)(7), the terms and conditions of these exceptions are not 2813
included in the existing rule . These exceptions permit entry into a treated area during the REI for 2814

certain non

- hand labor activities, including irrigation. The existing exception for irriga tion 2815
requires that the need for the early entry be unforeseen. 2816
EPA proposed to incorporate the terms and conditions for these exceptions into the final 2817
rule, and to eliminate the requirement for the need for irrigation to be unforeseen. 2818

2. Final rule

. EPA has finalized the rule as proposed. The final regulatory text for this 2819
requirement is available at 40 CFR 170.603(d)

. 2820

3. Comments . Two farm bureaus specifically supported the codification of the limited 2821
contact and irrigation exceptions. 2822

E. Eliminate the Option for an Exception Requiring Agency Approval 2823

1. Current rule and proposal

. Under the existing rule, an applicant may request approval 2824
from EPA for an exception to the prohibition on worker entry into a treated area during the REI 2825

for a specific need. EPA proposed to eliminate the process for requesting an exception from the 2826

rule. 2827

2. Final rule. EPA is finalizing the proposal to eliminate the provision for exceptions 2828
requiring Agency approval. 2829

3. Comments and responses

. 2830

Comment. One grower opposed the elimination of the provision, citing the evolution of 2831
farming practices and the potential for conflict between new practices and the rule. The 2832

commenter state d that there is no administrative burden to the EPA, except to evaluate reques ts if 2833*** EO 12866 Review Draft

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– AJ22 ] they are submitted. 2834
EPA Response

. EPA included the administrative exception process into the WPS in 1992 2835
in recognition that the general prohibition on routine early entry might significantly affect 2836
various agricultural entities or practices in ways that might only become apparent as the 1992 2837
WPS was put into effect. EPA created a small number of exceptions during the 1990s, but none 2838

since 1997. T he effects of reentry intervals on agricultural entities and practices are now 2839
sufficiently well understo od that the administrative exception process is no longer needed in the 2840

WPS. As explained in the preamble to the proposed rule, EPA finds the pesticide re

- evaluation 2841
process a more appropriate venue than the WPS for considering the economic impacts of REIs 2842
on particular agricultural entities and practices. Under EPA’s registration review process, 2843
applicants may request alternative REIs for specific needs for their crop. This process takes into 2844
account the potential increased risk to workers and the benefits to the production of the crop. In 2845

cases where EPA finds that the revision of an REI is warranted, the product label will be 2846

amended to specify the REI for that particular use

. 2847

F. Cost and B enefits 2848

1. Costs. EPA estimates the cost of implementing the requirement for oral notification 2849
prior to workers’ entry into a treated area under an REI to be about $706,000 per year, or about 2850
$2 per establishment annually. EPA estimates that the revisions to the exceptions allowing entry 2851

into a treated area before t he REI expires would have negligible cost, if any. 2852

2. Benefits. EPA concludes that the benefit of providing detailed information about the 2853
tasks they are to undertake and the limitations on their exposure to the worker prior to entry into 2854

an area under an REI is reasonable compared with the cost. 2855
XII. Display of Pesticide Safety Information 2856
A. Pesticide Safety Information Content 2857*** EO 12866 Review Draft

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– AJ22 ] 1. Current rule and proposal. The existing rule requires employers to display a pesticide 2858
safety poster containing the followin g information: 2859

• Avoid getting on your skin or into your body any pesticides that may be on plants and 2860
soil, in irrigation water, or drifting from nearby applications. 2861

• Wash before eating, drinking, using chewing gum or tobacco, or using the toilet. 2862

• Wear work clothing that protects the body from pesticide residues (long

- sleeved shirts, 2863
long pants, shoes and socks, and a hat or scarf). 2864

• Wash/shower with soap and water, shampoo hair, and put on clean clothes after work. 2865

• Wash work clothes separately from other clothes before wearing them again. 2866

• Wash immediately in the nearest clean water if pesticides are spilled or sprayed on the 2867
body. As soon as possible, shower, shampoo, and change into clean clothes. 2868

• Follow directions about keeping out of t reated or restricted areas. 2869

• There are federal rules to protect workers and handlers, including a requirement for 2870
safety training. 2871
The existing rule also requires the employer to provide contact information for the 2872
nearest emergency medical care facilit y and to promptly update the safety information poster 2873
when any of the required contact information changes. 2874
EPA proposed changing the term for what employers must display from “pesticide safety 2875
poster” to “pesticide safety information.” EPA proposed ret aining the existing content 2876
requirements of the existing rule, with one exception. EPA proposed removing the item 2877
regarding federal rules to allow the other information to be more prominent. EPA proposed 2878
retaining the requirement to display the contact inf ormation for the medical facility and 2879
amending the language from “nearest emergency medical care facility” to “a nearby operating 2880
medical facility.” Finally, EPA proposed requiring the employer to provide on the display the 2881*** EO 12866 Review Draft

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– AJ22 ] name, address, and telephone num ber of the state or tribal pesticide regulatory agency. 2882

2. Final rule. EPA has finalized the proposed requirements for content, and has added a 2883
point to the proposed display requirements that advises workers and handlers to seek medical 2884

attention as soon as possible if they believe they have been made ill from pesticides. EPA has 2885
also amended one of the existing required poin ts to clarify that if pesticides are spilled or sprayed 2886
on the body, workers and handlers should rinse immediately in the nearest clean water if more 2887
readily available than the decontamination supplies, and should wash with soap and water as 2888
soon as possib le. The final rule refer s to the requirement as “pesticide safety information” and 2889

allow s display of the information in any format that meets the requirements of the rule , rather 2890
than only as a pesticide safety poster. EPA has included a requirement in the final rule for the 2891
employer to update the pesticide information display within 24 hours of notice of any changes to 2892
the medical facility or pesticide regulatory agency contact information. Finally, EPA has 2893
provided an option in the regulatory text that al lows employers to comply by following the 2894
requirements at 40 CFR 170.311(a)(1)

- (4) before they are fully implemented. The final 2895
regulatory text for these requirements is available at 40 CFR 170.311(a) ( 1 )

- ( 4 )

. 2896
The final rule delays implementation of the c hanges to the required pesticide safety 2897

information until two years after the rule is made final , in order to allow time for model pesticide 2898
safety information display materials to be developed and distributed. 2899
3. Comments and responses. 2900

Comments. Farmw orker advocacy groups and public health organizations supported the 2901
emergency medical care change and inclusion of the state or tribal agency responsible for 2902
enforcement. However, they urged implementation sooner than the proposed two years from the 2903

effect ive date of the final rule. One commenter reported that a recent survey they conducted 2904
indicated that 25% of respondents did not complain about pesticide

- related health problems or 2905*** EO 12866 Review Draft

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– AJ22 ] pesticide application s to the fields while they were working because they d id not know to who m 2906
to complain and 62% feared losing their jobs if they were to complain

. 2907
In general, agricultural producer organizations did not object to the proposed changes for 2908
providing emergency medical information but two commenters were concerned about spurious 2909
reporting of alleged violations resulting from inclusion of the state or tribal regulatory agency in 2910
the pesticide safety information. Two commenters interpreted the proposal as requiring injured 2911
workers to contact state or tribal agencies responsible for enforcement for emergency medical 2912
attention. A grower organization pointed out that the nearest operating medical facility might 2913
change depending on the time of day and wondered if they needed to list hours of operation and 2914

addresses of all emergency medical care facilities in the area where the employer operates. 2915
One commenter suggested the safety poster should always be in a standardized format 2916
and requested that EPA not allow the information to be displayed in several different formats. 2917
EPA Response

. EPA has concluded that there was general support for the proposed 2918
requirement regarding the content of the safety information display. EPA has delayed 2919
implementation of the final requirements for two years after publication of the final rul e to allow 2920
time for display material to be updated, printed and distributed. However, EPA encourages 2921
employers to implement the new requirements prior to that date by allowing employers the 2922
option to use the new safety information content

. 2923

In response to concerns about the placement of the medical facility information and the 2924
inclusion of regulatory agency information in the display, EPA has revised the regulatory text to 2925
clarify that the contact information about the medical facility must be clearly ident ified as the 2926
emergency medical contact information on the display. Displaying the regulatory agency 2927
information is important for the ability of workers and handlers to report possible violations, and 2928
in those states where it is already required, it does no t appear to have generated spurious 2929*** EO 12866 Review Draft

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– AJ22 ] reporting of alleged violations. EPA appreciates that some states may already require employers 2930
to make such medical and regulatory information available and where state requirements meet or 2931
exceed the federal requiremen t, they do not need to be duplicated. However, EPA has added this 2932
requirement to the WPS to ensure the information is available to workers and handlers in all 2933

states. 2934
EPA is finalizing the proposed requirement to identify a nearby operating emergency 2935

med ical care facility to simplify the requirement i n situations where the nearest operating 2936
emergency medical facility varies with the location of workers and handlers. 2937
EPA disagrees with the comment requesting that the information be displayed in a 2938

standard ized format. As long as the information is provided in a way that workers and handlers 2939
can understand, EPA sees no need to mandate a specific format. 2940
B. Location of Pesticide Safety Information Display 2941

1. Current rule and proposal. The existing rule requi res agricultural and handler 2942
employers to display the pesticide safety poster at a central location on the establishment. EPA 2943
proposed to require that agricultural employers display the pesticide safety information at 2944
locations where decontamination suppli es must be provided, in addition to the existing 2945
requirement to display it at a central location. 2946

2. Final rule. In the final rule, EPA has amended the proposal to require that in addition 2947

to displaying pesticide safety information at a central location, employers must also display it at 2948
permanent decontamination supply locations and where decontamination supplies are provided 2949
in quantities to meet the needs of 11 or more workers or handlers. T he final regulatory text for 2950
this requirement is available at 40 CFR 170.311(a)( 5 ). 2951
3. Comments and responses

. 2952

Comments

. F armworker advocacy organizations and public health organizations 2953*** EO 12866 Review Draft

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– AJ22 ] supported requiring display of pesticide safety information where d econtamination supplies are 2954
provided for easy access to safety information for farm workers and families at strategic 2955

locations

. They asserted that this would improve the ability of farmworkers and their families to 2956
stay healthy. They maintain ed that due t o language barriers, immigration status, and fear of 2957
retaliation, farmworkers are often reluctant to ask their employers for information. Three 2958
individual farmworkers also commented on the proposed rule and echoed concerns expressed by 2959
farmworker advocacy groups and public health organizations . The commenters requested clear 2960

information in Spanish and English at a central location with easy access that includes telephone 2961
numbers, places to go for help, and hospitals in the area . They stated that it was impo rtant that 2962
employers give farmworkers the necessary information about the pesticide application without 2963
workers having to ask for information. About half of the grower organizations commenting had 2964
no objection to the additional mandate on employers and agr eed that the additional reminders at 2965

decontamination sites have potential benefits

. 2966
The remaining grower organizations believed that the proposed requirement would pose a 2967
significant burden. One commenter stated that duplicating the pesticide safety infor mation at 2968
multiple sites throughout an agricultural organization did not equate to a better training program 2969
and believed this requirement would likely result in additional fines for noncompliance without 2970
raising safety awareness. Some pointed out that wor kers are bu s ed in for a day in the field and 2971
irrigators are sent to different areas by phone; none of these congregate at a central location. 2972

Many state s opposed displaying the pesticide safety information at decontamination sites. 2973

Because of the mobile nature of many decontamination sites, such as the back of a pickup truck, 2974

some noted the proposed requirement would be burdensome. One indicated that it would be 2975
difficult for a grower owning fields across multiple counties to keep the pesticide safety 2976

inf

ormation accurate. They generally supported displaying the pesticide safety information at 2977*** EO 12866 Review Draft

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– AJ22 ] permanent decontamination sites and base of operation mix/load sites. Several state s asked for 2978

clarification about what types of decontamination sites would be requi red to display the pesticide 2979
safety information and suggested that portable toilet facilities and plumbed wash sites would be 2980
more appropriate locations. 2981
Others mentioned the lack of protection from the weather of the pesticide safety 2982

information at OSHA

- required restroom facilities and the lack of access to this information when 2983
the vehicles carrying decontamination supplies are locked up at night. Two state s recommended 2984
different sizes for the pesticides safety information. One state suggested that pest icide safety 2985
information displays be no larger than 11 x 17 inches and laminated to withstand at least one 2986
year’s worth of weather conditions for use at decontamination sites; this state also recommended 2987
resizing the existing pesticide safety information t o 8.5 x 11 inches or less and made of durable 2988
card stock or plastic for the agricultural workers to take home. 2989
EPA Response

. EPA agrees with the commenters who supported requiring safety 2990
information displays at a central location and anywhere decontamina tion supplies must be 2991
provided because the information is a useful reminder of the hygienic safety principles from their 2992
training. However, EPA was persuaded by arguments that the burden to display the information 2993

at mobile decontamination sites could be s ubstantial , based on concerns for their ability to 2994
display the information so that it could be easily seen by workers, such as by posting it on a 2995

vertical surface. The final rule requires employers to display the information at the central 2996
display and all permanent sites
, including a lavatory or bathroom
, where decontamination 2997
supplies are provided to meet the requirements of the rule . However, for other locations where 2998
decontamination supplies must be provided, the pesticide information display is require d only 2999

when the supplies are provided for 11 or more workers or handlers. This aligns with OSHA’s 3000
field sanitation standard that requires toilet facilities for 11 or more workers. EPA notes that 3001*** EO 12866 Review Draft

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– AJ22 ] employers may use these portable toilet facilities or permane nt wash sites to display the 3002
information, as recommended by some state s

. 3003

EPA does not agree with the contention that requiring the pesticide safety information 3004
display at multiple locations would result in fines for noncompliance, without greatly benefiti ng 3005
the employee. T he pesticide safety information display reinforces the hygienic training principles 3006
from the safety training, and when coupled with access to decontamination supplies, offers a 3007

hands

- on opportunity for workers and handlers to adopt these practices. Additionally, 3008

information about medical facilit ies available to workers where they may be exposed to 3009
pesticides may help them take steps to respond to an emergency. 3010
EPA appreciates the comments regarding display size and options for lamination. The 3011

final rule does not establish a specific size for the information or require it to be laminated. 3012
However, the final rule requires the information to be legible at all times while it is displayed, 3013
and EPA expects that employers will opt for the optimal size and protection from the elements 3014
for their specific needs. Because the final rule limits the type of decontamination sites covered by 3015
this requirement and includes flexibility for identifying the regulatory agency and a nearby 3016
operating em ergency medical care facility, it is possible but unlikely that some growers with 3017
larger establishments may need to provide different specific contact information about the 3018
regulatory agency and/or the medical facility, depending on the area where workers or handlers 3019
are working. 3020
Commenters suggested the information be available in English and Spanish

. EPA notes 3021

that the requirement is for the information to be provided in a manner that the workers and 3022

handlers can understand , which may include making it available in English and Spanish , or in 3023
other languages as appropriate

. 3024
EPA plans to develop and make available to agricultural and handler employers posters 3025*** EO 12866 Review Draft

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Page 128 of 286 [RIN 2070

– AJ22 ] bearing the pesticide safety information, in a bilingual and pictorial format and with space for 3026
employers to add the required regulatory agency and medical facility information. As discussed 3027
in the proposed rule, the information does not have to be displayed as a poster as long as the 3028
display includes the required information and meets the requirements of the section. 3029
C. Costs and Benefits. 3030

1. Costs. EPA estimates the cost of requiring additional pesticide safety information 3031
displays at permanent sites with decontamination supplies and at other locations where there are 3032

11 or more workers o r handlers and of requiring contact information on the display to be updated 3033

to be $ 390,000 annually, or about $1 annually per establishment per year

. 3034

2. Benefits. Workers and handlers will benefit from having access to information about 3035
basic pesticide safety at locations they are likely to visit. In addition, workers and handlers will 3036
benefit from having accurate information about nearby medical facilities and how to contact the 3037
state regulatory agency if necessary. EPA finds the costs from this requir ement are reasonable 3038
when compared to the benefits of reminding employees about basic pesticide safety and hygienic 3039
practices at the sites where they routinely wash. 3040

XIII. Decontamination 3041
A. Clarify the Q uantity of Water R equired for D econtamination 3042

1. Cu rrent rule and proposal . The existing rule requires employers to provide “enough 3043
water for routine washing and emergency eye flush” when workers are performing activities in 3044
areas where a pesticide was applied and the REI has expired . For early

- entry worke rs, the 3045
existing WPS requires employers to provide “a sufficient amount of water” for decontamination. 3046
The existing WPS requires employers to provide handlers with “enough water for routine 3047
washing, for emergency eye flushing and for washing the entire bod y in case of an emergency.” 3048
EPA proposed to require specific quantities of water for workers, early

- entry workers and 3049*** EO 12866 Review Draft

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– AJ22 ] handlers based on its 1993 guidance, “How to Comply with the Worker Protection Standard for 3050
Agricultural Pesticides; What Employers Need t o Know.” In the guidance, EPA recommended 3051

one gallon of water per worker for routine decontamination, three gallons of water for early

3052
entry workers for decontamination and three gallons of water per handler for routine 3053
handwashing and potential emergency decontamination. 3054
EPA requested comment on the proposed quantities of water and the use of waterless 3055
cleansing agents in place of soap, water, and single

- use towels. EPA also requested information 3056
on the efficacy of waterless cleansing agents for removing pesticide residues. 3057

2. Final rule . EPA has finalized the proposed decontamination water requirements . EPA 3058
has also clarified that employers must make the required quantities of water and other 3059
decontamination supplies available at the beginning of the work period

. The final rule does not 3060
allow waterless cleansing agents to be used in place of water, soap, and single

- use towels. The 3061
final regulatory text for these requirements is available at 40 CFR 170.411 (b) , 170.509 (b) and 3062

170.605 (h)

. 3063

3. Comments an d responses. 3064

Comments . A majority of commenters supported the proposal to require one gallon of 3065
water per worker for routine decontamination, three gallons of water for early

- entry workers for 3066

decontamination and three gallons of water per handler for rou tine washing and emergency 3067
decontamination but many requested clarification of the time frame associated with the supply; 3068
they wondered if the prescribed amounts were the maximum quantity per site or per number of 3069
workers, the minimum amount at the beginni ng of the day or at all times during the work period. 3070
Six commenters were in favor of replacing soap and water with a waterless cleansing agent. One 3071

commenter noted such a substitution would be effective for workers but not handlers; another 3072
suggested that these agents might be less bulky than the existing required supplies. One 3073*** EO 12866 Review Draft

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Page 130 of 286 [RIN 2070

– AJ22 ] commenter provided information on a specific waterless cleansing agent. 3074
EPA Response . EPA notes that the proposed quantities of water for decontamination are 3075
intended for agricultu ral settings that are not subject to the field standards of OSHA and the 3076

American National Standards Institute ( ANSI ) . Based on comments, EPA has clarified the final 3077
rule to require that the specified amount of supplies be available at the beginning of the work 3078
period and that they are to be calculated per worker and per handler. The final rule does not 3079
require the replenishment of used supplies until the beginning of the next work period

. The 3080
information supplied by commenters was insufficient to convince EPA to replace water, soap, 3081
and single

- use towels with a waterless cleansing agent. The one waterless cleansing agent 3082

discussed in the comments had limited use since the information indicated it could be used to 3083
remove only one family of pesticides; worker s and handlers are likely to encounter residues from 3084
various families of pesticides. 3085

B. Eliminate the Substitution of Natural Waters for Decontamination Supplies 3086
1. Current rule and proposal . For sites where worker or handler activities are farther than 3087

o ne

- quarter mile from the nearest vehicular access, the existing rule permits employers to allow 3088

workers and handlers to use clean water from springs, streams, lakes or other sources (“natural 3089
waters” for the purposes of this section) for decontamination, i f such water is more accessible 3090
than the employer

- provided water. The employer must ensure any water used for 3091
decontamination, including natural waters, is of a quality and temperature that will not cause 3092
illness or injury. EPA proposed to eliminate the pr ovision that allows employers to permit 3093

workers and handlers to substitute natural waters for the required decontamination supplies at 3094

remote sites. For remote sites, the proposal would have maintained the existing require ment for 3095
employers to provide all decontamination supplies (soap, single

- use towels, clean change of 3096
clothing and water) at the nearest point of vehicular access. However, the existing regulation 3097*** EO 12866 Review Draft

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Page 131 of 286 [RIN 2070

– AJ22 ] does not permit substitution of waters from natural sources for the decontamination water at the 3098
point of nearest vehicular acces s, and EPA’s proposed change mischaracterized the existing 3099
requirements

. 3100

2. Final rule . In the final rule, EPA has removed from the regulatory text the provision 3101
that allows employers to permit workers and handlers to use clean water from springs, streams, 3102

lakes or other sources if that water is more accessible in remote locations where the 3103
decontamination supplies are farther than one

- quarter mile from where workers and handlers are 3104
working. EPA is taking this approach to remove confusion about the employer’s responsibilities. 3105
The employer must always provide the decontamination supplies in quantities outlined in the 3106
regulation. When workers or handlers are performing tasks at remote sites more t han one

- quarter 3107
mile from the nearest point of vehicular access , employers must provide all required 3108
decontamination supplies (soap, single

- use towels, and water, plus clean change of clothing if 3109
required) at the nearest point of vehicular access . Under th e final rule, employers are required to 3110

make the decontamination supplies available as close as possible to the remote site (as 3111
determined by how close a vehicle can get) and employers do not have to check or confirm that 3112
water from springs, streams, lakes or other sources at remote site s meets the standard of being of 3113
a quality and temperature that will not cause illness or injury. EPA has amended the training 3114
requirements to cover the proper use of natural waters at remote sites by workers and handlers. 3115

E PA believes that workers and handlers in these remote areas should primarily rely on the 3116
decontamination water that is provided by the employer for routine washing and emergency 3117

decontamination because the quality of the natural waters at the remote site i s unknown. I n case 3118
of an overexposure, such as a spill, contact from drift, or direct spray, workers and handlers 3119

should always use the emergency decontamination supplies if they are more readily available. 3120
However, training will emphasize that workers or handlers should rinse immediately using the 3121*** EO 12866 Review Draft

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Page 132 of 286 [RIN 2070

– AJ22 ] nearest source of clean water to mitigate the exposure , and to use the nearest source of clean 3122

water, including springs, streams, lakes or other sources, if more readily available than the 3123
decontamination supplie s. W orkers and handlers will be advised through training that as soon as 3124
possible they should decontaminate thoroughly with the soap, water and towels provided by the 3125
employer and , if available, change into clean clothes. EPA plans to modify training materials to 3126
incorporate this information

. The final regulatory text for worker and handler decontamination is 3127

available at 40 CFR 170.411 (b)(1 )
, 170.509 (b)(1) , and 170.605(h)

- (j)

. 3128
3. Comments and responses. 3129

Comments . Many commenters supported not using natural waters to replace the required 3130
decontamination supplies. Two state s , a farmworker advocacy organization, and a grower 3131
organization supported the need for employees to access the nearest clean water in case of an 3132
exposure. Some farmworker advocacy organizations expressed concern that the quality of the 3133
natural waters might be questionable and not the best choice for decontamination. 3134
Finally, one farm bureau commenter stated that large scale planting activities can place 3135

workers more than one

- quarter mile from vehicular access, and retaining the existing 3136
requirement is more reasonable than expecting workers to carry washing water with them. 3137
EPA Response

. EPA maintains its position that the employer

- provided decontamination 3138
supplies, provid ed within one

- quarter mile of the workers and handlers

– or in remote areas
, at 3139
the nearest point of vehicular access to worker and handler work sites

– are the appropriate 3140
supplies for routine washing and emergency decontamination

. The employer must ensure this 3141
water meets the minimum criteria for quality. However, EPA agrees with commenters that 3142
prompt washing in clean water is an important step in reducing overexposure, for example, from 3143
a spill, contact from drift, or direct spray. EPA has identifi ed acute incidents that would have 3144
been mitigated if the exposed worker or handler had decontaminated promptly. EPA is 3145*** EO 12866 Review Draft

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Page 133 of 286 [RIN 2070

– AJ22 ] concerned that the existing requirement s for employers to ensure the quality of natural waters 3146
prior to its use and for them to permit it s use will prevent workers and handlers from using these 3147
waters to decontaminate in case of an emergency . Ensuring the quality of all natural waters on 3148

their establishment could be burdensome for employers , and as a result they might not evaluate 3149
the quali ty or permit the use of natural waters. 3150
To ensure that workers and handlers needing emergency decontamination can use water 3151

that is more accessible than the decontamination water provided by the employer , the employer 3152
no longer must predetermine that the quality of the water meets the criteria or permit their 3153
employees access. T he rule permit s the use of natural waters for emergency decontamination, but 3154
does not require it

. Workers and handlers seeking to mitigate an emergency exposure will be 3155

informed i n their training to use the nearest clean water to immediately rinse off if such water is 3156
more readily available than the employer

- provided decontamination supplies, and then go to 3157
where the employer

- provided supplies are to fully decontaminate

. EPA believ es the benefits of 3158
using natural clean waters to decontaminate immediately in an emergency pesticide exposure 3159
situation outweighs the potential risks of making workers or handlers wait until they can use 3160
supplied decontamination water that has been evaluat ed for quality but may be less available to 3161
immediately address the exposure. EPA thinks that washing in natural waters in any agricultural 3162
area is unlikely to pose risks comparable to a significant direct pesticide exposure

. 3163

C. Requirements for Ocular D e contamination in C ase of E xposed P esticide H

andlers 3164

1. Current rule and proposal . The existing rule requires employers to provide “enough” 3165
water to handlers for routine and emergency washing and emergency eye flushing. For handlers 3166
who use products that r equire eye protection, employers must provide each handler with at least 3167

one pint of water that they can carry for use in the event of an ocular pesticide exposure. EPA 3168
proposed to require employers to provide clean, running water at permanent (i.e., plumb ed and 3169*** EO 12866 Review Draft

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Page 134 of 286 [RIN 2070

– AJ22 ] not portable) mixing and loading sites for handlers to use in the event of an ocular pesticide 3170
exposure when using a pesticide with labeling that requires eye protection. 3171

2

. Final rule . Under the final rule, employers must provide water for ocular 3172

decontamination either through a system capable of delivering 0.4 gallons/minute for at least 15 3173

minutes or from six gallons of water able to flow gently for about 15 minutes. This water must 3174

be available at all mixing and loading sites where handlers are mixing or loading a product that 3175
requires eye protection or when closed systems, operating under pressure, are in use. The final 3176

rule amends the existing requirement for employers to provide a t least one pint of water per 3177
handler in portable containers that are immediately available to handlers applying the pesticide
, 3178
rather than to all handlers mixing, loading and applying pesticides, if the pesticide labeling 3179
requires protective eyewear. The final regulatory text for these requirements is available at 40 3180

CFR 170.509 ( d )

. 3181
The term “potable” in the preamble and regulatory text for the proposed rule was a 3182
typographical error and has been corrected to “portable” in the final rule. 3183

3. Comments a nd responses. 3184

Comments . There was general support for this proposal. Many commenters urged EPA to 3185
adopt or coordinate with American National Standards Institute (ANSI) standard Z358.1

- 2009 3186
and/or the OSHA requirements
, 29 CFR 1928.110
, as several states h ave done. Many requested a 3187
definition of “permanent mixing and loading site ” and “a system capable.” Some qualified their 3188
support based on the inclusion of “nurse rigs,” “nurse tanks” and “gravity

- fed tanks” in the final 3189

rule. Commenters also explained tha t much of the mixing and loading is done in the field rather 3190
than at a site with running water. Other commenters wondered if the water for decontamination 3191
needed to be potable. 3192
EPA Response . The OSHA standard at 29 CFR 1910.151(c) specifies that “... where the 3193*** EO 12866 Review Draft

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Page 135 of 286 [RIN 2070

– AJ22 ] eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for 3194
quick drenching or flushing of the eyes and body shall be provided ...”. The ANSI standa rd 3195
provides specifications for two types of eyewash stations, plumbed and gravity

- fed. The 3196
specifications describe a system with a precise rate of flow (0.4 gallons/minute for 15 minutes), 3197

that can activate in 1 second or less and does not require the user to control the flow of water. 3198
While the OSHA and ANSI standards are very protective, EPA believes that the final rule 3199
requirements provide handlers with mitigation appropriate to pesticide exposure in agricultural 3200
settings at significantly lower costs than the ANSI standards. Based on the comments, EPA 3201
realized that there might have been some confusion regarding the nature of permanent mixing 3202
and loading sites, the plumbing associated with non

- permanent mixing and loading sites, and the 3203

qua lity of the water required. In the final rule, EPA decided to apply the requirements to all 3204
mixing and loading sites where pesticides whose labeling requires protective eyewear are 3205

handled because the risk to handlers who mix and load these products is the same, regardless of 3206
where they perform the tasks . Rather than specify what types of water tanks or eye wash systems 3207

would comply with the requirement , EPA opted for flexibility . The final rule allows employers 3208
to provide either at least 6 gallons of water in containers suitable for providing a gentle eye flush 3209

for about 15 minutes, or a system capable of delivering gently running water at a rate of 0.4 3210
gallons per minute for at least 15 minutes to satisfy the requirement. One emergency eyewash 3211
system is re quired at a mixing/loading site when a handler is mixing or loading a product whose 3212
labeling requires protective eyewear for handlers, regardless of how many handlers are mixing or 3213
loading at that site. The final retains the existing requirement for water to be of “a quality and 3214
temperature that will not cause illness or injury.” 3215

D. Showers for H andler D econtamination 3216

1. Current rule and proposal . The existing rule establishes specific requirements for 3217*** EO 12866 Review Draft

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Page 136 of 286 [RIN 2070

– AJ22 ] routine and emergency handler decontamination supplie s, but these requirements do not include 3218
shower facilities. EPA considered but did not propose a requirement for handler employers to 3219
provide shower facilities. 3220

2. Final rule . EPA has not included in the final rule a requirement for e mployers to 3221
provide s hower facilities for handlers. 3222
3. Comments and responses. 3223

Comments. Many commenters supported the proposal for not providing shower facilities 3224

for handlers while others requested that EPA require employers to provid e shower facilities for 3225

handlers . Those against adding the shower requirement noted the provision would not 3226
necessarily guarantee use in order to reduce take

- home or handler exposure. Those supporting a 3227
requirement for shower facilities indicated that handlers would use them if they were provided. 3228
Both groups, however, agreed that better training and adequate information on reducing take

3229
home exposure, as suggested by EPA, would be a better approach. 3230
EPA Response

. EPA agrees that additional training for handlers and clarified 3231

decontamina tion provisions such as the provision of at least 3 gallons of water per handler for 3232
routine and emergency washing , available at the beginning of the day
, would help reduce take

3233
home exposure without requiring shower facilities. The estimate of the cost of installing showers 3234
as provided in the proposal, combined with the lack of confidence that most handlers would 3235
routinely use showers if provided, led to the conclusion that a shower requirement would be 3236
unlikely to reduce risks to an extent commensurate wi th the costs. 3237
E. Costs and Benefits. 3238

1. Costs. EPA estimates the total cost of the revisions to the decontamination 3239
requirements to be approximately $412,000 annually
, or about $1 per establishment per year, 3240
CPHEs $21 per establishment per year

. 3241*** EO 12866 Review Draft

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– AJ22 ] EPA doe s not believe there will be any cost associated with deleting the provision 3242
allowing employers to direct workers and handlers to use natural waters in addition to the 3243
decontamination supplies required by the rule. The final rule still allows workers and h andlers to 3244
use clean, natural waters, but removes employers’ obligation to ensure that the water is of a 3245
temperature and quality that will not cause harm. 3246
Because EPA is not imposing a requirement for employers to provide shower facilities 3247

for handlers, there is no estimated cost. Refer to the Economic Analysis of the proposed rule for 3248
details regarding the estimated cost of requiring showers for handlers (Ref. 14 )

. 3249

2. Benefits. EPA expects that workers and handlers will benefit from having access to 3250

suf

ficient supplies for routine washing and decontamination. In addition, handlers will benefit 3251
by having sufficient water available to rinse their eyes in the event of an accident while mixing 3252
or loading certain pesticides. Employers will benefit from cert ainty about the amount of water 3253
that they must supply and when that water must be available. 3254
XIV. Emergency Assistance 3255

A. Current rule and proposal

. 3256
The existing WPS requires employers of workers or handlers, including those handlers 3257
employed by the agricultural establishment or those working for a pesticide handling 3258
establishment, to provide prompt transportation to an emergency medical facility to employees 3259
who have been poisoned or injured by exposure to pesticides used on the establishment

. 3260

Emerge ncy medical assistance under the existing rule consists of the prompt provision of 3261
transportation to an emergency medical facility for the worker or handler and the provision of 3262
obtainable information about the exposure , including information about the pro duct(s) that may 3263

have been used, to emergency medical personnel or the exposed employee. 3264
EPA proposed to require agricultural and handler employers to provide emergency 3265*** EO 12866 Review Draft

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– AJ22 ] medical assistance within 30 minutes after learning that an employee may have been po isoned or 3266
injured by exposure to pesticides as a result of his or her employment, replacing the current 3267
standard of “prompt.” The proposed change was intended to ensure that the potentially injured 3268
party would be on route to a medical facility within 30 mi nutes. 3269
EPA also proposed that the employer provide a copy of the pesticide label, or specific 3270
information from the label, along with the SDS and circumstances of the pesticide use and 3271
potential exposure, to employees potentially injured by exposure to pes ticides and to treating 3272
medical personnel. 3273

B. Final rule. 3274

EPA has retained the existing requirement for providing transportation and information 3275
promptly. The final rule clarifies that the se requirement s appl y only to current or recently 3276
employed workers
, and that emergency assistance must be provided if there is reason to believe 3277

that a worker or handler has been potentially exposed to pesticides or shows symptoms of 3278
pesticide exposure

. 3279
EPA has amended the requirement for the information that the employ er must provide 3280
related to emergency assistance . The final rule requires the employer to provide to treating 3281
medical personnel a copy of the SDS, product name, EPA registration number and active 3282
ingredient for each pesticide product to which the person ma y have been exposed, as well as the 3283
circumstances of application or use of the pesticide on the agricultural establishment and the 3284
circumstances that could have resulted in exposure to the pesticide. This is a slight change to the 3285
existing rule which makes the information available to the worker or handler. In this final rule, 3286
the worker or handler has access to the information through the hazard communications 3287
requirement. This provision deals specifically with meeting the needs for medical assistance, an d 3288
requires that the information be provided to the medical personnel. 3289*** EO 12866 Review Draft

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Page 139 of 286 [RIN 2070

– AJ22 ] EPA has clarified in the final rule that the provision of the emergency assistance 3290
requirement for transportation and information applies only to current ly employed workers 3291
seeking emergency medical assistance or recently employed workers within 72 hours after their 3292
employment for acute exposures occurring on the agricultural establishment. 3293
The final regulatory text for these requirements is available at 40 CFR 170. 30 9(f) an d 3294

170. 3 13(k). 3295

C. Comments and responses. 3296

Comments. Many private citizens and farmworker advocacy organizations , some 3297

pest icide state regulatory agencies and several public health organizations supported the proposal 3298
to require agricultural employers and handler employers to provide emergency medical 3299

assistance within 30 minutes after learning that an employee may have been poisoned or injured 3300
by exposure to pesticides as a result of his or her employment, replacing the current standard of 3301
“prompt.” They s tated that the clarification of time for the provision of transportation and 3302
information would improve the safety of farmworkers. 3303
The Progressive Congressional Caucus, many farmworker advocacy organizations and 3304
public health organizations expressed conce rn that the proposed emergency response time of 30 3305
minutes is too long and recommended that it should be further reduced. Commenters reasoned 3306

that pesticide poisoning can be fatal or result in long

- term effects if not quickly treated. 3307

On the other hand, many commenters, mostly growers and farm bureaus, and some state s 3308
and agricultural producer organizations expressed opposition to the proposal and favored 3309
retaining “prompt “ to allow more flexibility due to geographical constraints. The Small Business 3310
Administration’s Office of Advocacy stated that small farms that are f a rther away from medical 3311
facilities would not be able to obtain emergency transportation within the timeframe. Those with 3312
few employees and limited transportation options would be overbu rdened in attempting to 3313*** EO 12866 Review Draft

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– AJ22 ] comply with a 30 minute timeframe. 3314
Commenters representing many states , several agricultural industries, many growers and 3315
farm bureaus, and the Small Business Administration’s Office of Advocacy recommended that 3316
emergency response requirements should apply only to current employees seeking emergency 3317

medical assistance for ac ute incidents. 3318

Additional comments from states and their organizations recommended that the 3319
agriculture emergency requirement address only acute exposures to current employees of the 3320
establishment. They raised concerns for the potential for former employe e s or those with 3321
exposures in the past to request emergency assistance . O ne commenter stated that allowing any 3322
person who was ever employed by the establishment the ability to demand emergency assistance 3323
could cause problems with compliance and enforcement . Some of these organizations requested 3324
clarification of the term “emergency medical facility.” 3325
Commenters also recommended that the requirement allow, similar to OSHA, trained 3326
first aid providers on the establishment to provide care , which could enabl e more timely 3327

treatment. 3328
Commenters noted that requiring the employer to provide the label to employees 3329
potentially injured by exposure to pesticides and to treating medical personnel could lead to 3330
further exposure, if the employee takes an open container of pesticides bearing the label. 3331
Further, commenters suggested that the information outlined in the proposal could be obtained 3332

from sources other than the label. 3333
EPA Response

. EPA was convinced by the concerns raised by members of the 3334
agricultural commun ity that geographical constraints, in some cases, would make the 30 minute 3335
response timeframe for transportation difficult or impossible to meet. Agricultural establishments 3336
can be very large and are often distant from population centers. Remote locations, including 3337*** EO 12866 Review Draft

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– AJ22 ] those in forestry, are common; and the distance to an emergency medical facility or to an 3338
ambulance service can be significant. 3339

T he final rule requires employers to comply with the emergency assistance requirements 3340
by promptly making transpor tation available to an emergency medical facility for potentially 3341
injured employees and providing the SDS, specific product information, and information about 3342
the exposure to the treating medical personnel. Because the information about the pesticide may 3343

b e critical to effectively manage the illness, EPA decided to focus the requirement to ensure that 3344
treating medical personnel receive the information. The agricultural employer must provide that 3345
information in a way that is reasonably expected to be access ible to the treating medical 3346
personnel. The requirement does not preclude the employer providing the information to injured 3347
employees and does not prevent injured employees from requesting this information. This 3348
requirement will allow continued flexibilit y for employers and encourage timely medical 3349
treatment for potentially injured employees. 3350
In deciding to retain the requirement for prompt provision of transportation, EPA also 3351
took into consideration OSHA’s standard for the provision of transportation t o persons in 3352
construction, which requires “Proper equipment for prompt transportation of the injured person 3353
to a physician or hospital.” 29 CFR 1926.50(e). 3354
EPA agrees with the recommendation to clarify that the requirement applies only to 3355

current or recen tly employed workers seeking emergency medical assistance for acute exposures 3356
occurred at the agricultural establishment, and has revised the final rule accordingly. 3357
EPA notes that for some cases of suspected pesticide injury, the attention of a trained first 3358
aid provider can mitigate the injury. Such treatment would not negate the obligations of the 3359
employer to provide transportation promptly to an injured employee, or to provide information 3360

about the pesticide and exposure to medical personnel , but is encouraged. Allowing a competent 3361*** EO 12866 Review Draft

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– AJ22 ] first aid provider to administer timely treatment to an injured employee could offset 3362
complications from longer exposures. 3363
EPA agrees with comments that a requirement to provide the label in the event of an 3364

emerg ency could be burdensome and place employees at risk for additional exposure if the label 3365
is attached to an open container of pesticides. EPA has not included the proposed requirement to 3366
provide the label or information from the label; rather, the final r ule requires the employer to 3367
provide the necessary information, but does not specify the source of the information. EPA has 3368
removed from the list of specific pieces of information the employer must provide information 3369

about antidote, first aid, and recomme nded treatment because the SDS contains this information. 3370
EPA notes that the information about the product and the SDS will be available as part of the 3371
pesticide application and hazard information. 3372
In response to the requests for clarification of what qu alifies as an emergency medical 3373
facility, EPA notes that a hospital, clinic, or infirmary offering emergency health services 3374
qualifies. 3375
Finally, the employer must provide information about the pesticide and the exposure to 3376
the treating medical personnel. 3377
D. Costs and benefits

. 3378
There are no incremental costs associated with the decision to retain the requirement of 3379
prompt provision of transportation in the existing rule. The cost associated with the SDS were 3380
included in the costs for the pesticide applic ation and hazard information. There are significant 3381
benefits to reducing damage from pesticide exposure by prompt medical attention. 3382
XV. Personal Protective Equipment 3383

A . Respirators: Fit Testing, Training and Medical Evaluation 3384
1. Current rule and propos al

. The existing regulation requires handler employers to 3385*** EO 12866 Review Draft

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– AJ22 ] ensure that each handler’s respirator fits correctly. However, the existing rule does not provide 3386
specific details on ensuring that a respirator fits properly, nor does it require employers to 3387

condu ct medical evaluations of the handler’s fitness for respirator use, provide training on the 3388
proper use of respirators, or retain fit test records. 3389
EPA proposed to require handler employers to comply with the respirator fit testing, 3390
training, and medical e valuation requirements set by OSHA at 29 CFR 1910.134 whenever a 3391
respirator other than a dust or mist filtering mask is required by the labeling. EPA did not 3392
propose any new requirements for filtering facepiece respirators (OSHA’s term for dust or mist 3393

fil tering masks). The OSHA standard includes a specific standard for fitting a user for respirator 3394
use, training on recognizing when the respirator seal may be broken, and what steps to take to 3395
properly use and maintain respirators. OSHA also requires respira tor users to be medically 3396
evaluated to ensure the respirator use does not cause undue stress on their bodies. EPA proposed 3397
to require that employers comply with the OSHA requirements for fit testing, training, and 3398

medical evaluation by cross

- referencing 29 CFR 1910.134, in order avoid creating a duplicative 3399
regulation and to ensure that if technology advances lead OSHA to amend its standard, the 3400
change would automatically apply to pesticide uses subject to the WPS as well. EPA also 3401
proposed to require handl er employers to maintain records of the fit test, training, and medical 3402
evaluation for two years. 3403

2. Final rule. EPA has retained the proposed elements in the final rule , with some 3404
changes and clarifications. Specifically, the final rule c ross references and requires compliance 3405
with the OSHA standards for fit testing, training, and medical evaluation when a respirator is 3406
required by the labeling. The final rule expands from the proposal the types of respirators 3407
covered by the requirement to include filter ing facepiece respirators. 3408

In the final rule, EPA has retained the proposed requirement for handler employers to 3409*** EO 12866 Review Draft

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– AJ22 ] maintain records of the fit testing, medical evaluation, and training. The final rule clarifies that 3410

the required training is limited to the c are and use of respirators, 29 CFR 1910.134(k)(1)(i)

- (vi), 3411
and does not include the training on the general requirements (i.e., 29 CFR 1930.134(k)(1)(vii)). 3412

The final regulatory text for these requirements is available at 40 CFR 170.507(b)( 10 ). 3413

3. Comme nts and responses. 3414

Comments. EPA received many comments in favor of requiring handler employers to 3415
comply with the respirator fit testing, training, and medical evaluation requirements established 3416

in the OSHA standard. Many farmworker advocacy organizatio ns and some PPE manufacturers 3417
asserted that EPA should also apply the proposed standards for fit testing, training, and medical 3418
monitoring to users of filtering facepiece respirators in addition to the other respirator types (e.g., 3419
tight fitting elastomeri c facepieces). Commenters suggested that filtering facepiece respirators 3420
are widely used and covered by OSHA’s respirator requirements, and that their exclusion would 3421
result in inadequate protection for many pesticide handlers. OSHA defines a filtering fac epiece 3422
as “a negative pressure particulate respirator with a filter as an integral part of the facepiece or 3423
with the entire facepiece composed of the filtering medium” in 29 CFR 1910.134(b). 3424
Furthermore, many farmworker advocacy organizations stated that EPA should require 3425
compliance with all elements of 29 CFR 1910.134, rather than the proposal to just include fit 3426
testing, training, and medical evaluation. Specifically, they urged EPA to adopt OSHA’s 3427
requirements for employers to develop a respiratory pr otection program (29 CFR 1910.134(c)) 3428
and conduct a workplace hazard evaluation ( 29 CFR 1910.134(d)(1)(iii)). 3429
Nearly all commenters expressed support for a general requirement related to proper 3430
respirator care and use, such as appears in the existing rule

. However, many pesticide 3431

manufacturers and their associations , state farm bureaus and agricultural producer organizations 3432
questioned the feasibility of the proposed requirement for medical evaluations because locating 3433*** EO 12866 Review Draft

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– AJ22 ] qualified physicians practicing in ru ral areas would be difficult. Other farm bureaus noted that 3434
the OSHA standard applies to general industries, shipyards, marine terminals, longshoring and 3435
construction, and it would not likely be easily adopted in agricultural settings. Some commenters 3436

also asserted that EPA’s cost estimates associated with the medical evaluations and fit testing 3437

were too low. 3438
Some commenters, including a state farm bureau, raised concerns that EPA ’s reference to 3439

OSHA ’s regulations could give OSHA legal grounds to pursue o versight of certain small 3440
farming operations, contrary to provisions of existing law. 3441
EPA Response. In the final rule, EPA has required that employers comply with the 3442
respirator fit testing, training, and medical evaluation requirements described in the proposed 3443
rule when the use of respirators is required by the labeling. The final rule also expands its 3444
coverage to include filtering face piece respirators (referred to as dust/mist filtering respirators in 3445
the proposal). EPA included filtering facepiece respirators in the final rule to ensure that handlers 3446
required to use any type of respirator are adequately protected. Filtering facepiece respirators 3447
need to be fit tested and used properly to provide the intended protection. In addition, this will 3448
ensure that respirators used under the WPS provide the same level of protection as comparable 3449
respirators used under OSHA’s respiratory protectio n requirements. 3450
EPA acknowledges that, if the final rule were to require handler employers to comply 3451
with the OSHA requirement to adopt a worksite

- specific respiratory protection program, such a 3452
requirement would address in detail the selection, cleaning , storing, repair and replacement of 3453
respirators, as well as worksite

- specific procedures when respirator use is required. EPA has 3454
decided not to expand the final rule to include the OSHA requirement to adopt a worksite

3455
specific respiratory protection prog ram because specific respirator requirements are described on 3456

EPA

- approved, product

- specific pesticide labeling. These product

- specific respirator 3457*** EO 12866 Review Draft

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– AJ22 ] requirements are based on the acute inhalation toxicity of the end

- use product or a 3458
comprehensive risk assess ment informed by incident data, or on extensive pesticide active 3459
ingredient toxicology data , exposure science and epidemiology data (if available) , or on both

. 3460
Therefore, requiring a general worksite

- specific respiratory protection program would duplicate 3461
the analysis underlying product

- specific respirator requirements included on pesticide labeling. 3462

EPA acknowledges that implementing respirator fit testing, training, and medical 3463
evaluation in agriculture will place additional burden on agricultural employ ers. However, the 3464
proper fit and use of respirators is essential in order to realize the protections respirators are 3465
intended to provide

. EPA’s pesticide risk assessment process relies on National Institute for 3466
Occupational Safety and Health (NIOSH) protec tion factors (i.e., respirators used according to 3467
OSHA’s standards) when deciding whether handler inhalation exposure can be mitigated by 3468
respirator use. If the handler inhalation exposure can be mitigated by a particular type of 3469
respirator, EPA may requir e the use of that respirator on the pesticide label , among other risk 3470
mitigation measures

. Without the protection provided by the respirators identified on the label, 3471
use of those pesticides would cause unreasonable adverse effects on the pesticide user, i .e., the 3472

handler. 3473
EPA is aware of several states, including California, Oregon and Washington, that have 3474
successfully incorporated all aspects of the OSHA standard for respirators in agriculture, 3475
demonstrating the feasibility of applying OSHA’s requireme nts in agriculture. North Carolina 3476
has incorporated many innovative ways to facilitate the medical evaluation and fit testing 3477
process, and helped farmers (including handler employers) locate reputable sources for online 3478
services for fit testing and medical evaluation, and sources for NIOSH

- approved respirators, 3479
filters, and cartridges. EPA plans to work with stakeholders such as state regulatory agencies, 3480
universities, and others to provide outreach assistance such as training programs and written 3481*** EO 12866 Review Draft

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– AJ22 ] materials and to encourage the dissemination of information about fit testing and medical 3482

evaluation resources. 3483
EPA has reviewed and revised its cost estimates for fit testing, training and medical 3484

evaluation. The cost estimate assumes that farms would designate one handler to be fit tested so 3485
the incremental costs for the filtering facepiece respirators reflects the need to fit test and train on 3486
multiple types of respirators. The increased costs also reflects the cost of the on

- line medical 3487
evaluation, which repl aces the estimated time of a medical technician reviewing the evaluation, 3488
and the cost of the employer’s time to arrange (if off

- site) or oversee (if on

- farm) the evaluation 3489
and fit test, which was previously omitted. EPA has also updated wages, price of m aterials and 3490

services such as the cost of the medical evaluation and the fit test materials. Details of the revised 3491
estimate are available in the Economic Analysis for this final rule (Ref. 1)

. 3492
EPA recognizes that some handlers may not be able to use a tight

- fitting respirator. EPA 3493
notes that the purpose of the medical evaluation is to ensure handlers are able to tolerate the 3494
physical burden caused by the use of respirators. Many medical conditions, such as 3495
cardiovascular diseases and the reduced pulmona ry function caused by smoking, could impede 3496
the ability of the handler to wear a respirator without adverse health impacts. The medical 3497
evaluation should identify these potential issues and disqualify the handler from using a tight

3498
fitting respirator. Tigh t fitting respirators include filtering facepiece respirators, full and half face 3499
elastomeric respirators and tight fitting powered air purifying respirators (PAPR). However, for 3500

these handlers, loose

- fitting PAPRs are an option for respiratory protection because they do not 3501
require medical evaluations or fit testing. EPA notes that many handler employers may be able to 3502
rely on online services where medical evaluations can be performed by relying on medical 3503
questionnaires. The employee would complete the me dical questionnaire, which would be 3504
provided to the licensed medical professional for review. If the employee is cleared by the 3505*** EO 12866 Review Draft

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– AJ22 ] review, he or she is approved to wear a respirator. If the employee is not cleared through the 3506
review of the questionnaire, the employer may send the employee for further medical review or 3507
the employer may identify a different employee to handle the pesticide. 3508
EPA does not believe that including in the WPS a requirement that employers must 3509
perform respirator fit testing, training , and medical evaluation in accordance with OSHA’s 3510
requirements by cross

- reference to 29 CFR 1910.134 affects the scope of OSHA’s jurisdiction. 3511
Today’s final rule changes only the FIFRA WPS, which is implemented and enforced by EPA
, 3512

the States and Tribes, and not by OSHA. 3513
4. Costs and benefits. EPA estimates the cost to employers of complying with the WPS 3514
respirator requirements t hat cross

- reference the OSHA standard would be $ 10. 6 million 3515
annually, or about $ 43 per year, on average, for agricultural esta blishments with handlers and 3516

about $ 8 for commercial pesticide handling establishments per year. On family farms, the 3517
estimated annual cost of the respirator requirements is approximately $9 per establishment per 3518

year. As explained previously , the estimate d cost increased in the final rule because the cost 3519
analysis was revised to account for handlers to be fit tested and trained to use multiple types of 3520
respirators, the cost of an on

- line medical evaluation, and the employer’s time to arrange for the 3521

fit te sting, evaluation and training. EPA assumes that about 30 percent of handlers working on 60 3522
percent of farms that employ handlers will be fit tested in any year ; the average cost per farm 3523
reflects this assumption. The cost to commercial pesticide handling establishments only reflects 3524
the cost of recordkeeping because EPA assumes that they already comply with OSHA's 3525
respirator requirements because they engage in activities outside of the scope of the WPS that are 3526
covered by OSHA. The cost estimates for agric ultural establishments are very conservative 3527

because of broad assumptions regarding the number of handlers and farms affected, and the fact 3528
that some establishment owners are already required to comply with OSHA requirements related 3529*** EO 12866 Review Draft

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– AJ22 ] to respirator use for o ther reasons. 3530
EPA cannot quantify the benefits associated with this specific requirement . However, 3531
ensuring that handlers can safely use respirators and that those respirators fit properly will 3532
increase the protections offered by respirators to the level s presumed in EPA’s pesticide 3533
registration decisions . This should lead to a reduction in occupational pesticide

- related illnesses. 3534
In comparison to these expected benefits of proper respirator use and reduced illnesses, the costs 3535

associated with the final rule requirements appear to be reasonable. 3536

B . Chemical

- Resistant PPE 3537
1. Current rule and proposal

. The definition for “chemical resistant” in the existing WPS 3538
is a “material that allows no measurable movement of the pesticide being used through the 3539
material during use.” Prior to the proposed rule, EPA received many comments from 3540
stakeholders suggesting that there was no way for agricultural employers, handlers, early

- entry 3541
workers, pesticide educators and inspection personnel to ensure the PPE being used was 3542

“chemical resistant.” EPA proposed requiring employers to provide PPE defined by its 3543

manufacturer as chemical resistant. 3544

2. Final rule

. EPA has rejected the proposed change. The final rule retains the existing 3545

definition of chemical resistance. The final regulatory text for this requirement is available at in 3546

40 CFR 170.507(b)(1). 3547
3. Comments and responses. 3548

Comments. While several commenters representing states and academia supported the 3549
idea of PPE manufacturers defining chemical resistant i n principle, many also questioned the 3550
feasibility of such an approach. Specifically, the commenters questioned whether manufacturers 3551
can reliably label PPE as chemical resistant in a permanent manner that would be easy for 3552
enforcement personnel to check du ring inspections. Several other commenters from pesticide 3553*** EO 12866 Review Draft

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– AJ22 ] manufacturers and PPE manufacturers suggested such claims may not be able to be made for the 3554
wide range of pesticide formulations and active ingredients. One PPE manufacturer asserted that 3555

the exist ing definition was purposefully worded to ensure worker protection and that EPA’s 3556
proposal over

- simplifies a very complex and critical issue. Many other commenters reiterated 3557
this latter comment regarding over

- simplification of the process for developing c hemical 3558

resistant PPE. 3559
EPA Response

. EPA recognizes the many comments highlighting the challenging issues 3560
involved with having PPE being defined as chemical resistant by the equipment manufacturer, 3561
who does not know the ingredients in every pesticide prod uct. EPA agrees with commenters that 3562

the proposed approach would create more problems than it would resolve. Therefore, EPA the 3563

final rule retains the existing chemical resistant definition. 3564
4. Costs and benefits

. Because EPA is retaining the current defi nition of chemical 3565

resistant, there are no estimated costs. 3566

C . Contaminated PPE 3567
1. Current rule and proposal

. The existing WPS requires employers to ensure that PPE is 3568
cleaned before each day of reuse. If the article cannot be properly cleaned, the employer must 3569
dispose of it in accordance with applicable Federal, State, and local regulations. EPA proposed to 3570
add a requirement for employers to render unusable contaminated PPE that cannot be properly 3571
cleaned before it is disposed. 3572

2

. Final rule. In t he final rule, the employer must ensure that contaminated PPE is made 3573
unusable as apparel or disposed of in such a way that it is unavailable for further use. EPA has 3574
also included in the final rule a requirement for the person who cleans, disposes, or oth erwise 3575
handles the contaminated PPE to wear the gloves required for mixing and loading the pesticide 3576

that contaminated the PPE. The final regulatory text for this requirement is available at 40 CFR 3577*** EO 12866 Review Draft

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– AJ22 ] 170.507(d)(2). 3578

3

. Comments and responses. 3579

Comments . Pri or to the proposed rulemaking, state pesticide regulatory agencies 3580
expressed concern that unless proper measures are taken , contaminated PPE might be reused 3581
either as PPE or simply as a garment, placing the person wearing it at risk from pesticide 3582

exposure

. In support of the proposal, one public health organization commented that rendering 3583
contaminated garments unusable would prevent adverse health effects. A state noted that the 3584
proposal was an effective method to reduce the potential for access to contami nated PPE. One 3585
grower organization noted that the potential for exposure exists when individuals cut or render 3586
contaminated PPE unusable, and suggested a requirement to seal the contaminated PPE in a 3587
disposal container and to dispose of the container in an appropriate manner. 3588
In contrast, some grower organizations stated that the current requirement is adequate and 3589
EPA should not adopt the proposal. Some farm bureaus opposed the proposal and thought the 3590
concern for individuals gaining access to contaminate d PPE was well meaning yet hypothetical. 3591
Some of these commenters suggested it could lead to confusing violation scenarios, specifically 3592
from the interpretation of “render unusable.” 3593
EPA Response

. The final rule clarifies that the requirement is to make the PPE “unusable 3594
as apparel.” EPA agrees that access to contaminated PPE might be prevented by sealing it in a 3595

container and entrusting it to a waste disposal system that effectively prevents diversion of 3596
waste, and that such an approach would reduce pest icide exposure to the person handling the 3597

contaminated article relative to many methods of rendering the PPE unusable

. EPA has included 3598

in the final rule a provision allowing the PPE to be “made unavailable for further use” as an 3599

alternative to the propose d requirement to render the contaminated PPE unusable. To reduce the 3600
potential exposure to a person handling contaminated PPE, the final rule requires that a person 3601*** EO 12866 Review Draft

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– AJ22 ] must wear gloves while handling PPE covered by 40 CFR 170.507(d)(2). 3602
EPA disagrees with co mments from farm bureaus suggesting that there is little likelihood 3603
of persons accessing contaminated PPE . A s mentioned in the preamble to the proposed 3604
rulemaking, state pesticide regulatory agencies have raised concerns for the potential reuse of 3605

contamin ated PPE to EPA

. EPA relies on state pesticide regulatory agencies to raise issues with 3606
implementation of the existing WPS that arise when they conduct inspections of WPS 3607
establishments. EPA has chosen to amend the existing rule in response to the input p rovided by 3608

the States. 3609
4. Costs and benefits. EPA has estimated that the cost of rendering the PPE unusable or 3610
unavailable is negligible. Although the benefits cannot be quantified, contact with contaminated 3611
PPE may result in significant exposure, especially if worn repeatedly. The negligible cost of this 3612
requirement compared to the benefit from ensuring that contaminated PPE cannot continue to 3613
cause exposure is reasonable. 3614

XVI. Decision not to Require Monitoring of Handler Exposure to Cholinestera se - Inhibiting 3615

Pesticides 3616

A. Current rule and proposal. 3617
The existing WPS does not have a requirement to monitor cholinesterase (ChE) levels in 3618

workers or handlers. In the proposal, EPA invited comment on whether to require routine ChE 3619
monitoring of handlers. However, because EPA’s initial judgement was that the benefits of 3620
routine ChE monitoring would not justify the cost, EPA did not propose to add a requirement for 3621
routine monitoring of ChE inhibition in handlers. 3622

B. Final rule. 3623
The final rule does not include a requirement for routine ChE monitoring for handlers

. 3624

C. Comments and responses. 3625*** EO 12866 Review Draft

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– AJ22 ] Comments. In response to the proposal, several grower organizations, state farm bureaus, 3626
crop consultants and their organizations, and state s and their organizations expressed support for 3627
EPA’s decision not to require a mandatory routine ChE monitoring program as part of the WPS. 3628
Several commenters stated that the most effective approach to prevent handler exposure to any 3629
pesticide product is to address the potential for exposure in advance of use, rather than after 3630
exposure has taken place. Many of these commenters agreed with EPA’s assessment in the 3631
proposal that EPA’s worker risk assessments and mitigation measures are sufficient to provide 3632
the necessary protection from pesticide exposure during handling. One commenter also 3633
suggested that requiring ChE monitoring may add to confusion and provide a false sense of 3634
safety to workers, health care providers, and regulators because it only measures exposure. These 3635
commenters suggested that the best approach that can be taken to mitigate exposure would be to 3636
address it through product

- specific risk assessments supporting the registration of pesticide 3637
products, robust handler training on specific pest icides, and effective enforcement of label 3638
requirements. 3639

In addition, some of the commenters objected that ChE monitoring is an invasive process, 3640
and that routine ChE monitoring would be extremely time

- consuming and costly and would 3641
provide information of questionable value. One commenter stated that a proper ChE monitoring 3642
program would require that a baseline be established for employees, and that it would be highly 3643
unlikely that a baseline could be obtained for many workers because of previous exposure to 3644
organophosphate insecticides, while another commenter suggested that exposure to other 3645
common materials can change the levels of ChE, especially in serum level measurements, 3646
making it difficult to establish a baseline. A nother commenter added that the t iming of meals, 3647
stress, physical activity, and changes in body mass can cause ChE levels to fluctuate within an 3648
individual, and that the baseline value should be taken on the day of handling a ChE

- inhibiting 3649*** EO 12866 Review Draft

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– AJ22 ] pesticide prior to exposure due to this intra

- in dividual variability. The commenter suggested that 3650
baselines established every 1 to 2 years, as currently recommended by Washington State and 3651
California, respectively, would not provide meaningful information concerning the degree of 3652
exposure due to these daily fluctuations. 3653
Conversely, several commenters, including some members of Congress, the California 3654
Department of Public Health, Washington State’s Department of Health and Department of 3655
Labor and Industries, several public health organizations, acade mics, and farmworker advocacy 3656
organizations supported the idea of adopting a routine ChE monitoring program as part of this 3657
rulemaking, particularly for handlers who use ChE

- inhibiting pesticides like organophosphates 3658

and N

- methyl

- carbamate pesticides. Man y of these commenters cited the existing ChE 3659
monitoring programs in California and Washington State in their arguments for why ChE 3660
monitoring should be expanded nationally. 3661
Some commenters stated that California and Washington have longstanding medical 3662

mo nitoring programs with proven track records in reducing exposure to, and illnesses from, 3663
highly neurotoxic chemicals. These commenters stated that the successful implementation of 3664
these monitoring programs has helped health professionals understand the eff ects of these classes 3665
of pesticides and prevent poisoning by identifying overexposure. Two commenters stated that 3666
Washington’s program is effective and protects workers as reflected by worksite field 3667
evaluations of action level ChE depressions, which have identified multiple pesticide WPS 3668
violations that are believed to contribute to worker exposure. A couple of commenters stated that 3669
the benefits realized by the state programs, which would expand nationally if monitoring were to 3670
be required, include: 3671

• Gr eater certainty about the frequency of pesticide overexposure

. 3672

• Avoidance of serious pesticide illness

. 3673*** EO 12866 Review Draft

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– AJ22 ] • Improved compliance with the WPS

. 3674

• Identification of any existing PPE, work practice, and engineering control requirements 3675

that are not sufficien t to protect pesticide handlers from exposure

. 3676

• Greater awareness of chemical and exposure hazards. 3677
Some commenters cited Washington State’s data that shows that the percentage of 3678
overexposed participating handlers who required remedial action fell from 20% when the 3679
program started in 2004 to 6% in 2013, for a reduction of 70%. These commenters stated that 3680
Washington’s Department of Labor and Industries found that ChE monitoring helped identify the 3681
causes of overexposure, which allowed for those causes t o be corrected by alerting employers 3682
and handlers to unsafe work practices, conditions, or equipment. Additionally, a couple of 3683
commenters stated that the percentages of handlers who actually reached the removal level from 3684
handling ChE

- inhibiting pesticide s remained consistently low after the implementation of the 3685
ChE monitoring program, with the percentages being 3.8% in 2004, 0% in 2010 and 2011, 2.3% 3686
in 2012, and 4% in 2013. These commenters believed that the sharp decline in the number of 3687

handlers needi ng remedial action, along with the consistently low percentage of handlers who 3688

exceeded 20% below their baseline (i.e., those who reach the evaluation level in the state 3689
programs), shows that the program has been effective in reducing exposure to OPs and 3690

c arbamates, and that monitoring should be implemented nationally so that all workers receive 3691

similar benefits. 3692

Some commenters in support of requiring ChE monitoring also discussed the costs 3693
associated with ChE monitoring. They stated that the cost of imp lementation should not deter 3694
EPA from requiring medical monitoring on a national level. A few commenters stated that 3695
EPA’s estimate that the cost of ChE monitoring would average $53 per year per agricultural 3696

establishment was a small cost when contrasted w ith the 70% reduction in overexposure 3697*** EO 12866 Review Draft

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– AJ22 ] according to Washington State’s data. A couple of commenters also stated that monitoring in 3698
California and Washington has led to substantially fewer pesticide poisonings and reduced use of 3699
these highly toxic pesticides , and can, in turn, reduce long

- term medical costs to farmworkers 3700
and the agricultural economy. Some commenters stated that EPA’s analysis did not include an 3701
estimation of the medical expenses that were saved, the lost wages prevented, and the pesticide

3702

re lated illnesses avoided as a result of early detection and intervention. As a result, the 3703
commenters believed that the benefits of a national ChE monitoring program would more than 3704
justify the costs given the severe effects of overexposure to ChE

- inhibitin g pesticides. 3705
Other commenters supporting ChE monitoring stated that employees who handle ChE

3706
inhibiting chemicals in non

- agricultural sectors routinely receive the protection of medical 3707
monitoring. For example, some commenters stated that OSHA requires m edical monitoring for 3708
workers who handle a wide range of toxic substances. They also stated that USDA requires 3709
monitoring of its employees who may be exposed to organophosphate or carbamate pesticides. 3710
These commenters stated that these safeguards should b e provided for all workers who handle 3711
these pesticides, and therefore should be included in the final rule. 3712
EPA Response

. After reviewing the comments, EPA continues to believe that the 3713
expected benefits of a routine ChE monitoring program for handlers a re not sufficient to justify 3714
the costs. As stated in the proposed rule, EPA believes that Washington State’s efforts have 3715
identified the primary reasons for ChE inhibition among pesticide handlers. In many cases, ChE 3716
depression was caused by handlers not f ollowing basic safety and hygiene procedures, e.g., not 3717
wearing the label

- required PPE and failing to wash before meals or bathroom breaks. 3718
Additionally, several handlers who did wear respirators as required by labeling had beards, 3719
which compromised the se al between the face and the respirator and reduced the protection 3720
intended to be afforded by the PPE . EPA believes that requiring expanded and more frequent 3721*** EO 12866 Review Draft

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– AJ22 ] handler training, in combination with requirements for fit testing and training on proper 3722
respirato r use for handlers, addresses the primary reasons for overexposure to ChE

- inhibiting 3723
pesticides. 3724

The revised labeling with increased protections and new mitigation measures resulting 3725

from the reregistration of organophosphates and carbamates will also res ult in lowered handler 3726
exposure. Reregistration has resulted in some uses of the most acutely toxic organophosphates 3727
being phased out. For the remaining uses, EPA has imposed additional PPE requirements, 3728
requirements for closed

- system mixing and loading, a nd reductions to rates of application and 3729
number of annual applications permitted. As labels with updated PPE requirements for handlers 3730

are seen and followed in the field, EPA expects to see reduced numbers of overexposures. 3731
Additionally, the organophospha tes and carbamates that are still registered are being used less 3732
frequently and being replaced by pesticides with lower risks, also reducing the potential for 3733

overexposure. 3734
While EPA estimated the costs of a national, routine ChE monitoring program to be at 3735
least $15.2 million annually, or about $53 per agricultural establishment per year and $120 per 3736
commercial pesticide handling establishment per year, this estimate does not include the full 3737
costs that would be expected of a national ChE monitoring prog ram. As stated in the proposed 3738
rule, a national, routine ChE monitoring program would likely include program components such 3739
as training, recordkeeping, clinical testing, and field investigations, which were not included in 3740

the estimated costs because the initial $15.2 million estimate appear ed by itself to be 3741
disproportionately high in comparison to the expected benefits. Additionally, the estimated costs 3742
do not include the states’ costs to build infrastructure to support ChE monitoring or to cover 3743

continu ed laboratory costs such as equipment maintenance and administrative support. If EPA 3744

were to calculate these additional costs, the estimated costs w ould be much higher than $15.2 3745*** EO 12866 Review Draft

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– AJ22 ] million annually. Therefore, EPA stands by its assessment in the proposed rule that the cost of 3746
implementing a national, routine ChE monitoring program is not justified by its limited benefits. 3747
EPA believes that the increased handler protections being fi nalized in this rulemaking, 3748
combined with the product

- specific risk mitigation measures, will appropriately address the 3749
elevated potential for ChE inhibition in handlers. Moreover, the training and PPE elements of the 3750

final rule will have the combined effe ct of providing important protective benefits to all pesticide 3751
handlers through increased knowledge of exposure risks and prevention strategies. This approach 3752
will lead to a reduction of pesticide exposures because it prevents handler exposure before it 3753

oc curs. 3754

D, Costs and Benefits. 3755
Since EPA is not requiring routine ChE monitoring, there are no costs associated with 3756

this decision. 3757
XVII. Exemptions and Exceptions 3758
A. Immediate Family 3759
1. Current rule and proposal . The WPS currently exempts the owners of agricultural 3760
establishments from requirements to provide certain WPS protections to themselves and their 3761
immediate family members. The definition of “immediate family” in the existing rule includes 3762
only the owner’s spouse, children, stepchildren , foster children, parents, stepparents, foster 3763
parents, brothers, and sisters. EPA proposed to expand the definition of “immediate family” to 3764

add father

- in

- law, mother

- in

- law , sons

- in

- law, daughters

- in

- law, grandparents, grandchildren, 3765

brothers

- in

- law, an d sisters

- in

- law. 3766
Note, too, that the existing WPS definitions of workers and handlers depend upon them 3767
being employed for compensation. Therefore, any person performing worker or handler tasks 3768
who does not receive a wage, salary or other compensation is not a worker or handler protected 3769*** EO 12866 Review Draft

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Page 159 of 286 [RIN 2070

– AJ22 ] by the WPS, regardless of familial relationship to the owner. 3770
EPA requested comment on but did not propose changes narrowing the immediate family 3771
exemption in two ways: (1) Limiting it only to immediate family members of an owner of an 3772
agricultural establishment who are at least 16 years old, and (2) eliminating the exemption from 3773
requirements regarding emergency assistance for workers and handlers and handler monitoring 3774
during fumigant application. 3775
As part of the proposa l to establish a minimum age for pesticide handlers and early

- entry 3776
workers, EPA proposed to add an exemption from the minimum age requirements to the 3777
immediate family exemption. 3778

2. Final rule . EPA has finalized the definition of “ immediate family” as lim ited to the 3779

owner’s spouse, parents, stepparents, foster parents, father

- in

- law, mother

- in

- law, children, 3780
stepchildren, foster children, sons

- in

- law, daughters

- in

- law, grandparents, grandchildren, 3781

brothers, sisters, brothers

- in

- law, and sisters

- in

- law. The final regulatory text for this definition is 3782

available at 40 CFR 170.305. 3783
EPA has amended the immediate family exemption to include exemptions from the 3784
minimum age requirements for handlers and early entry workers. The final regulatory text for 3785

this exemption is available at 40 CFR 170.601(a) (1) (i) and 170.601(a)(1) (xii)

. 3786
EPA has not included in the final rule any of the other changes to the immediate family 3787
exemption considered in the proposal. 3788
3. Comments and responses. 3789

Comments . Most of the commenters expressed general support for the proposed 3790
expansion to the definition of immediate family and the inclusion of an exemption from the 3791
minimum age requirement

. Some commenters asserted that the definition provides greater clarity 3792
about who qualif ies under the immediate family exemption and will assist both the regulated 3793*** EO 12866 Review Draft

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– AJ22 ] community and state regulatory agencies in ensuring compliance with the proposed rule. 3794
A few commenters requested that EPA expand the definition to include cousins. Several 3795

commen ters requested that EPA expand the definition further to include aunts, uncles, nieces, 3796
nephews, and cousins. Commenters requesting further expansion of the definition noted that an 3797
expansion of the family members considered immediate family under the WPS would better 3798
reflect the reality of the family farm in America. 3799
A few commenters requested that EPA delete the definition of immediate family and 3800
eliminate the exemption. These commenters noted that risks from pesticide exposure are the 3801
same for family a nd non

- family members, so all persons need the same level of protection 3802
regardless of their familial relationship to the owner. 3803
EPA Response . EPA is expanding the definition of immediate family as proposed and 3804
retaining the exemption in the WPS . EPA belie ves that the proposed definition of “immediate 3805
family” represents an appropriate accommodation to the social costs of the WPS to family farms 3806
relative to FIFRA’s requirement to prevent unreasonable adverse effects

. 3807
EPA considered commenters’ requests to e xpand the definition of “immediate family.” 3808
Commenters suggested that a definition that includes cousins, or cousins, aunts, uncles, nieces 3809
and nephews would better reflect the actual patterns of family farm ownership in the United 3810
States, but did not prov ide any support for this position. EPA reviewed definitions of “immediate 3811
family” in other rules related to agriculture and migrant workers. OSHA’s rule exempting 3812
immediate family members from minimum wage and overtime pay requirements is limited to 3813

parent , spouse, child, stepchildren, foster children, step

- parents and foster parents. 29 CFR 3814

780.308. DOL’s regulations related to the Migrant and Seasonal Agricultural Worker Protection 3815
Act define immediate family as spouse, children, stepchildren, foster chil dren, parents, 3816
stepparents, foster parents, brothers and sisters. 29 CFR 500.20. Neither of these definitions 3817*** EO 12866 Review Draft

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– AJ22 ] include cousins, aunts, uncles, nieces, or nephews. For relative consistency between definitions 3818
of immediate family, and because it is reasonable to expect that protective impulses generally 3819
diminish as relationships become more remote, EPA has chosen not to amend the definition to 3820
include family members beyond those included in the proposal. The relationships between the 3821

owner and those considered immediate family members under the WPS are more clearly defined, 3822
and easier to document and verify than other relationships, e.g., cousins. 3823
EPA agrees that the risks associated with pesticide exposure do not vary based on a 3824
person’s relationship to the owner of the establishment. However, EPA recognizes that family 3825
farms need flexibility and expects that those family members working on an establishment 3826
covered by the immediate family exception would be adequately prepared and supervised by 3827
family members

. Although owners and their immediate family members are exempted from 3828
certain provisions of the WPS (e.g., providing pesticide safety training and specific 3829
decontamination supplies for immediate family members), they are obligated to follow the 3830
pesticide labeling and other WPS provisions that are established to protect workers and handlers 3831
from risks associated with specific pesticides. For these reasons, EPA has chosen not to eliminate 3832
the definition of immediate family or the exemption from certain porti ons of the rule for the 3833
establishment owner and members of his or her immediate family. 3834
Although owners of establishments and members of their immediate family are exempt 3835
from some of the provisions of the rule, EPA expects that they will voluntarily foll ow the 3836
provisions from which they are exempt, or achieve equivalent risk mitigations through other 3837
means. EPA encourages owners and family members to carefully study the WPS requirements 3838
and assure themselves that they are not placing each other at risk of unreasonable adverse effects. 3839
4. Costs and benefits. EPA estimates changing the definition of immediate family and 3840
adding an exemption from the minimum age requirements would not substantially change the 3841*** EO 12866 Review Draft

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– AJ22 ] cost of the final rule. 3842
B. Crop Advisors and Emplo yees 3843
1. Current rule and proposal

. The existing rule exempts employer s from complying with 3844
certain handler requirements when the employee performs crop advising tasks in a treated area 3845

under an REI and is a certified or licensed crop advisor or directly supervised by a certified or 3846
licensed crop advisor. A certified or licensed crop advisor is one who has fulfilled the 3847
requirements of a program acknowledged as appropriate in writing by EPA or a state or tribal 3848
agency responsible for pesticide enforcement. The existing rule allows a certified or licensed 3849
crop advisor to make specific determinations regarding the appropriate PPE, decontamination 3850
and safe method of conduct for those working under his or her direct supervision. A person 3851
employed by a commercia l pesticide handling establishment performing crop advising tasks after 3852
expiration of an REI is not subject to any provisions of the WPS. The rule also exempts 3853
employers from complying with worker requirements such as providing decontamination 3854
supplies and emergency assistance for certified or licensed crop advisors and for persons they 3855
directly supervise. 3856
EPA proposed to eliminate the exemptions for employees directly supervised by certified 3857
or licensed crop advisors. EPA also proposed to eliminate the ex emption from the worker 3858
decontamination and emergency assistance provisions for certified or licensed crop advisors 3859
employed as workers on agricultural establishments. 3860

2. Final Rule

. EPA has eliminated both exemptions as proposed. However
, EPA has 3861

includ ed in the final rule added flexibility in the PPE requirements for crop advisors and their 3862
employees. Specifically, EPA has added language to the final regulation that allows crop 3863
advisors and their employees who perform crop advising tasks while an REI is in effect to 3864

substitute the label

- required handler PPE with either the label

- required PPE for early

- entry 3865*** EO 12866 Review Draft

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Page 163 of 286 [RIN 2070

– AJ22 ] activities or a standard set of crop advisor PPE. The standard set of PPE for crop advising tasks 3866

included in the final rule consists of coveralls, s hoes plus socks, chemical

- resistant gloves made 3867
of any waterproof material and eye protection if the labeling of the pesticide product applied 3868
requires protective eyewear for handlers. The final regulatory text for this requirement is 3869

available at 40 CFR 1 70.601(b) and 170.607(g). 3870
3. Comments and responses. 3871

Comments . In response to the proposal, crop consultant associations
, several states and 3872

other commenters objected to eliminating the exemption currently in place for employees 3873
working under the direct supervision of a certified or licensed crop advisor. They asserted that 3874
certified and licensed crop advisors often exceed the minimum safety training requireme nts when 3875
educating their employees and those employees are aware of the risks associated with their work. 3876

Some crop consultant associations and other commenters noted that they are not aware of any 3877
case of endangerment or harm that has occurred to any empl oyee under the direct supervision of 3878
a certified or licensed crop advisor. 3879
The crop advisor associations also expressed concern that EPA underestimated the 3880
economic impact to crop advisors, and in turn to farmers, of eliminating this exemption, citing 3881

sp ecifically the increased costs of additional PPE, the cost of work done by certified or licensed 3882
crop advisors instead of by their employees, and the cost of increased management time. Crop 3883

consultant associations and other commenters contended that these increased costs could 3884
discourage investment in integrated pest management (IPM) and result in increased pesticide use 3885
that might put workers at increased risk of pesticide exposure. Several states supported EPA’s 3886
proposal to eliminate the crop advisor exem ption. 3887
EPA Response

. After consideration of the comments submitted, EPA has concluded that 3888

the burdens associated with eliminating the exemption for employees of crop advisors are 3889*** EO 12866 Review Draft

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– AJ22 ] justified by the additional protections provided to workers performing crop advising tasks who 3890
are not certified or licensed crop advisors. EPA has retained the exemption to the WPS for 3891
certified or licensed crop advisors because these individuals are highly trained about pesticide 3892
risks and how to protect themselves. EPA elimina ted the exemption for crop advisors’ employees 3893
because pest scouting tasks may result in substantial contact with a pesticide on treated surfaces 3894
in pesticide

- treated areas. The amount of contact with pesticides during scouting depends on 3895

variables such as the height and density of the crop, the nature of the activity, the surface that 3896
contains the pesticide residue, and whether residues are dry or wet. W hile EPA recognizes that 3897
the crop consulting industry has implemented a training program for employees, the program is 3898
not required and can vary in content and quality from employer to employer. Additionally, crop 3899
scouts and assistant crop advisors are generally entry

- level employees who may not feel 3900
empowered to ask an employer for PPE or other protections and may not understand the complex 3901
factors influencing risk well enough to take appropriate protective measures for themselves. 3902
Incident monitoring programs do not capture illness data specifically associated with crop 3903
advising tasks because cases are cat egorized under a general “field worker” label. However, 3904
EPA’s risk assessments indicate that people doing crop advising tasks during an REI are at risk 3905

of chronic, low

- level pesticide exposure over time. PPE requirements and availability of 3906

decontamination supplies during and after an REI are fundamental to mitigat ing risks of concern 3907

for workers. Allowing workers who are supervised by certified or licensed crop advisors to 3908
conduct crop advising tasks without the same basic protections provided for other wo rkers would 3909
establish a lesser standard of protection for similar types of work. EPA understands that IPM 3910
programs require post

- application entry and the timing is critical to efficacy. By retaining the 3911
exemption for certified or licensed crop advisors to conduct crop advising tasks during an REI 3912
and allowing flexibility for employers to substitute the label required PPE for handlers with 3913*** EO 12866 Review Draft

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– AJ22 ] either PPE for early

- entry workers or a standard set of PPE, the increased costs noted in 3914

comments are reduced

. 3915

4. Cos ts and Benefits

. EPA estimates the cost of amending the exemption for crop 3916

advisors would be negligible . EPA finds that the incremental cost of employers providing 3917
decontamination supplies and PPE for crop advisor employees are reasonable compared to the 3918

c ost. EPA is allowing flexibility in the choice of PPE for crop advisor employees who must enter 3919
treated areas under an REI to accommodate entry into multiple fields with the same attire. 3920
Benefits from reduced exposure to pesticides as a result of requiring the standard protections for 3921
all workers, including those supervised by certified or licensed crop advisors, are reasonable 3922
when compared to their cost. 3923
C. Closed Systems 3924
1. Current rule and proposal . The existing WPS permits exceptions to the label

- specified 3925
PPE when using a closed system for certain pesticide handling activities. The existing rule does 3926
not adequately describe the specific characteristics of an acceptable closed system. EPA 3927
proposed to establish specific design criteria and operating standards for closed systems based on 3928
California's existing standards in the 1998 Closed Systems Director’s Memo 3929
(http://www.cdpr.ca.gov/docs/whs/cac/cacwhs98

- 01.pdf ). 3930

2. Final Rule . EPA has modified the proposed approach regarding closed systems. 3931
Specifically, in the final rule EPA has adopted a broad definition, a performance

- based standard, 3932
and basic operating standards. The operating standards require the handler employer to ensure 3933
that written operat ing instructions for the closed system are available, that the handler receives 3934
training on use of the closed system, and that the system is maintained according to the written 3935
instructions. Specific design criteria and recordkeeping requirements that EPA proposed are not 3936

included in the final rule. 3937*** EO 12866 Review Draft

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– AJ22 ] The final rule retains the existing requirements for PPE when a closed system is used: 3938

Label ing

- mandated PPE must be immediately available for use in an emergency and handlers 3939
must use protective eyewear for c losed systems that operate under pressure. 3940
The final regulatory text for the definition of closed systems is available at 40 CFR 3941
170.305. The final regulatory text for the closed system exception is available at 40 CFR 3942

170.607(d)(3). 3943
3. Comments and resp onses. 3944

Comments . Most comments that addressed closed systems supported the goal of 3945
encouraging their use as an engineering control through a WPS exception; however, very few 3946
individuals, states or organizations supported the proposal as written. Several f armworker 3947
advocacy organizations and public health organizations suggested that EPA require closed 3948
systems for all Toxicity Category I pesticide products rather than continuing the voluntary 3949
system. Comments from states and grower and industry associations supported the existing 3950
voluntary, performance

- based system and objected to the proposed specific design criteria, 3951
noting a number of weaknesses in the criteria. Specifically, they noted that the pressure 3952
requirements were too prescriptive and would not al low effective mixing, that the proposal did 3953
not address water soluble packaging or lock and load systems used for dry formulations, and that 3954
the complicated requirements would be a deterrent to increased adoption of closed systems. A 3955

number of commenters a lso noted that the design standards are too restrictive to accommodate 3956
future innovation. States commented that assessing compliance with the design standard would 3957
require extensive inspector training and could result in technical violations without provid ing 3958
additional handler protection. 3959
EPA Response . EPA considered the comments submitted and was convinced that the 3960
prescriptive requirements in the proposal would be a disincentive to the voluntary adoption of 3961*** EO 12866 Review Draft

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– AJ22 ] closed systems. In response, EPA has finalized a closed system performance standard that will 3962
permit flexibility for the system while meeting the protection goals. 3963
In response to comments advocating that EPA require closed systems for all Toxicity 3964
Catego ry I pesticides under the rulemaking, EPA reminds the commenters that worker risk 3965
assessments and the risk management processes establish the required protections that appear on 3966
product labels. EPA identifies the basic protections, often PPE, to protect ha ndlers from risks of 3967
concern. If handler exposure during mixing and loading is above the established level of concern, 3968
and if PPE does not reduce exposure to below the level of concern, the pesticide label may 3969
require a closed system for mixing and loading . EPA has required the use of closed systems on 3970
some product labeling. 3971
EPA recognizes that the reduction in handler PPE alone is not likely to be enough 3972
incentive for an employer to use closed systems. However, EPA is convinced that on larger 3973

establishmen ts, the efficiency and comparative protection value of a closed system, combined 3974
with the reduction in PPE that must be worn by the handler, may induce users to adopt closed 3975
systems. Establishing requirements for such closed systems

– whether required or u sed 3976
voluntarily

– is necessary to protect handlers, who could be exposed to concentrated pesticides if 3977
they use poorly designed or constructed closed systems. 3978
EPA agrees with the comments that a broad definition of “closed system” will encourage 3979
industry innovation better than the proposed prescriptive rule and will allow flexibility for 3980
employers to design systems specific to their needs. A broad performance standard, along with 3981
requirements concerning operating instructions, training and maintenance, wil l enable 3982
employers, handlers and regulatory personnel to determine whether a closed system qualifies for 3983
the exemption. The operating standards will ensure that the closed systems are used as intended 3984
and are adequately maintained. 3985*** EO 12866 Review Draft

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– AJ22 ] EPA notes that the Cali fornia Department of Pesticide Regulation (CDPR) no longer 3986
supports use of the prescriptive

- based criteria upon which EPA modeled the proposal outlined in 3987
the NRPM. In December 2014, CDPR published proposed regulations outlining a simplified, 3988
performance

- b ased criteria for closed system design. California is the only state with specific 3989
closed system standards, and has required their use with certain chemicals since the 1970s. 3990
CDPR developed their revised closed systems standard and discussed the proposal w ith 3991
representatives from groups that will be directly affected including agricultural producer 3992
organizations, manufacturers, applicators, and growers, as well as at CDPR’s Pesticide 3993
Registration and Evaluation Committee and the Agricultural Pest Control Ad visory Committee 3994
and Pest Management Advisory Committee meetings. EPA considered CDPR’s proposed rule in 3995
the development of the final closed systems standard. EPA’s final closed system requirements 3996
were developed using CDPR’s proposal as a model and do not conflict with CDPR’s proposed 3997
closed system requirements. 3998
Section 170.607(d)(2)(i) establishes a performance standard for closed systems. 3999
Specifically, a closed system must remove the pesticide from its original container and transfer 4000
the pesticide prod uct through connecting hoses, pipes and couplings that are sufficiently tight to 4001
prevent exposure of handlers to the p esticide product , except for the negligible escape associated 4002
with normal operation of the system. This closed system performance standar d is based on the 4003
criteria for closed systems in section 6746(f)(1) of CDPR’s proposed regulations with a few 4004
changes, partly to accommodate the different terminology in the two sets of regulations. Also, 4005
EPA adjusted the requirement to apply to transferr ing a ny pesticide product rather than a 4006
pesticide concentrate so the WPS criterion would apply to transferring liquid formulations and 4007
dry formulations whereas California’s proposed requirements would only apply to liquid 4008
formulations. Lastly, EPA added t he phrase “except for the negligible escape associated with 4009*** EO 12866 Review Draft

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– AJ22 ] normal operation of the system” to provide the flexibility intended in the proposed rule. The 4010
existing WPS describes a closed system as preventing the pesticide from contacting handlers or 4011

other persons, which is a very high standard because it does not allow any exposure. The phrase 4012
“except for the negligible escape associated with normal operation of the system” is intended to 4013
account for the expected or predictable small release of pesticides from existing closed systems 4014
when hoses, pipes and couplings are disconnected. EPA recognizes that there will often be a 4015
small amount of material in the hoses, pipes and couplings to which the handler possibly could 4016
be exposed. EPA has not quantified the maximum amount of pesticide escape that is acceptable, 4017

but notes that it should be consistent with the intent of a closed system, which is to prevent 4018
contact to the handlers or other persons. 4019
EPA also adjusted the final regulatory text for closed systems to address the comments 4020
about water soluble packaging. The regulatory text in the final rule was revised to state clearly 4021
that the closed system exception from PPE applies when intact, sealed water soluble packaging is 4022
loaded into a mixing tank or system . The regulation also clarifies that water soluble packaging is 4023
no longer a closed system if the integrity of the packaging is compromised. This language in the 4024
final rule incorporates EPA’s current position about water soluble packaging and closed system s, 4025

as established in the Interpretive Guidance on the WPS : 4026
http://www.epa.gov/pesticides/safety/workers/wpsinterpolicy.htm

. 4027
While the final rule includes only a performance standard, EPA recognizes that it may be 4028
helpful to have guidance on how to constru ct a system to meet that standard. As part of 4029
California’s proposed rulemaking, CDPR and the University of California, Davis (UC Davis) 4030
developed plans for building a closed system to release along with the proposal. The “Overview 4031
of Closed Systems Compone nts and User Designs” document includes lists of component parts 4032
(and costs) for three levels of systems (basic, medium and high). The design plans developed by 4033*** EO 12866 Review Draft

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– AJ22 ] CDPR and UC Davis will provide users with examples of representative closed systems 4034

components so they can identify or develop acceptable closed systems. 4035
4. Costs and benefits. EPA estimates the cost of the final closed system requirements will 4036

be $ 2 .1 million annually. EPA estimates that cost per agricultural establishment will range from 4037

$5

- $30 p er year, and the cost per commercial pesticide handling establishment will be about $21 4038
per year. EPA estimates that on family establishments, the cost would range from $1

- $30 per 4039

year. Many commenters from the pesticide industry and grower associations stated that EPA 4040
underestimated the costs of closed systems in the proposed rule partly because existing closed 4041
systems would need to be upgraded to meet the proposed standards. The change s to replace the 4042
proposed specific design standards with a broad performance standard in the final rule address 4043
these comments, because employers will be able to continue using most existing closed systems 4044
with minimal adjustments. For details refer to the Economic Analysis accompanying this rule 4045

(Ref. 1)

. In addition, EPA notes that the WPS does not require use of closed systems, so 4046
commenters who assumed many pesticide users would have to purchase expensive closed 4047
systems were incorrect. 4048
EPA adjusted the closed system cost estimates from the proposed rule in several ways to 4049
reflect changes in the final rule. The cost estimate in the proposed rule assumed that some users 4050
of closed systems would purchase new systems while others would revert to using PPE. I n light 4051
of the revised definition, the final cost estimate assumes that most users would simply purchase 4052
an adapter to connect their existing closed system to the pesticide container, which is the part 4053
that most likely needs to be added to convert existing mechanical transfer systems to be closed 4054
systems that meet EPA’s criteria. These changes and costs are based on the CDPR and UC Davis 4055
document “Overview of Closed Systems Components and User Designs,” which includes lists of 4056
component parts and their cost s for three levels of systems. In addition, the cost of developing 4057*** EO 12866 Review Draft

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– AJ22 ] operating instructions was added, assuming that most closed systems are custom

- made systems 4058
that would require the employer to develop operating instructions, while the costs of keeping 4059

rec ords of maintenance was deleted. EPA reduced the estimated number of farms using closed 4060
systems based on information from the Agricultural Handler Exposure Task Force, which 4061
showed that the limited number of pesticide users who use closed systems are prima rily larger 4062
establishments and commercial pesticide handling establishments. Therefore, the estimated costs 4063
of the closed system criteria decreased from the proposed rule to the final rule. 4064
Using closed systems is preferred to wearing PPE as an approach for managing chemical 4065
exposure in the “hierarchy of controls” established under standard industrial hygiene principles. 4066
Enclosing the chemical and substantially reducing the potential for exposure at the source 4067
reduces the potential for subsequent exposure to handlers, other people, and the environment. 4068
D. Aerial Applications

- Eyewear Protection for Open Cockpits 4069

1. Current rule and proposal . Under the existing WPS, where labeling requires eye 4070
protection, the requirement may be satisfied by goggles, safe ty glasses with front, brow and 4071
temple protection, or a full face respirator. The existing WPS allows aerial applicators applying 4072
pesticides from open cockpit aircraft to substitute a visor for label

- required eye protection. 4073

Because the term “visor” can be used to refer to the brim of a cap that provides only shade and 4074
offers little eye protection from pesticide sprays, EPA proposed to clarify the requirement by 4075
removing the term. EPA proposed to allow aerial applicators to substitute for the label

- required 4076
eyewear a helmet with the face shield lowered, because this more clearly indicates EPA’s 4077
expectation of a clear visor that covers and adequately protects the eyes. 4078

2. Final rule. In the final rule, EPA has removed the term “visor.” The final rule allow s 4079
the substitution of a helmet with face shield lowered for labeled protective eyewear for aerial 4080
applicators in aircraft with open cockpits. The final regulatory text for this requirement is 4081*** EO 12866 Review Draft

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– AJ22 ] available at 40 CFR 170.607(f)(2). 4082
3. Comments and responses. 4083

Comments . There were very few comments addressing this proposal. One state suggested 4084
EPA consult with relevant aerial agencies responsible for overseeing the use of open cockpits for 4085
making pesticide applications to see if the proposal is feasible. 4086

An ae rial applicators association asserted that aerial applications of pesticides using open 4087
cockpit aircraft are very rare and that EPA is solving a problem that does not exist. They 4088
objected to handlers operating open cockpit aircraft being required to wear t he same PPE as 4089
handlers operating open cab ground equipment. They did not highlight any specific issue with 4090
the helmet and visor being lowered when protective eyewear are required. 4091
EPA Response . EPA acknowledges that while open cockpit aircraft may be ra re, 4092
available exposure data indicate that even pilots in enclosed cab aircraft are exposed to the 4093
pesticides they apply. Ensuring that the eye is protected from pesticides is required by the 4094
product labeling. Helmets with face shields in the lowered positi on provide acceptable eye 4095
protection, but many items referred to as “visors” offer no eye protection from pesticide sprays. 4096
4. Costs and benefits . This provision does not represent a substantive change to the 4097
existing rule. EPA expects t he cost to aerial applicators to be negligible. 4098
E. Aerial Applications

– Use of Gloves 4099
1. Current rule and proposal . In the existing rule, aerial applicators have the option of 4100
whether to wear chemical resistant gloves to enter and exit the aircraft unless gloves are requ ired 4101
by the product labeling. In the proposal, EPA inadvertently inserted the regulatory language that 4102
existed prior to the 2004 rule revision that required pilots to wear chemical resistant gloves. 4103

2. Final rule . The final rule retains the exception in the existing WPS that offers aerial 4104
applicators the option of wearing chemical

- resistant gloves when entering and exiting the 4105*** EO 12866 Review Draft

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– AJ22 ] aircraft, except when the product label ing requires that chemical

- resistant gloves be worn when 4106
entering and exiting the aircraft. The final regulatory text for this requirement is available at 40 4107

CFR 170.607(f)(1). 4108
3. Comments and responses. 4109

Comments . Many applicators and their associations and pesticide manufacturers noted 4110
this error. The commenters also asserted the use of glo ves presents a hazard to pilots who may 4111
fall when entering and exiting the aircraft when wearing gloves. They also suggested 4112

contamination from contact with the exterior of the aircraft is minimized due to advances in 4113
application techniques (e.g., GPS) tha t help pilots avoid flying through their spray. 4114
EPA Response . The final rule retains the exception in the existing regulation that offers 4115
aerial applicators the option of wearing chemical

- resistant gloves when entering and exiting the 4116
aircraft, except whe n the product label ing require s that chemical resistant gloves be worn 4117
entering and exiting the aircraft. 4118
4. Costs and benefits

. There is no cost associated with including the existing exception in 4119
the final regulation. 4120

F

. Enclosed Cabs

– Changes to Exceptions to PPE Requirements when Applying Pesticides from 4121

Inside an Enclosed Cab 4122
1. Current rule and proposal . The existing WPS permits exceptions to the labeling

4123
specified PPE when handling tasks are performed from inside an enclosed cab that meets th e 4124
specifications defined in the rule based on the dermal protection provided by the enclosed cab, 4125
which prevents pesticides from contacting the body. The existing rule also permits person s 4126
occupying an enclosed cab to forego certain labeling

- required resp iratory protection if the cab 4127
has been certified by the manufacturer to provide respiratory protection equivalent to the handler 4128
respiratory protection required by the pesticide labeling. 4129*** EO 12866 Review Draft

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– AJ22 ] EPA proposed to eliminate the requirement for any labeling

- specified respiratory 4130
protection PPE when applying pesticides from inside an enclosed cab. This would have allowed 4131

handlers to substitute a long

- sleeved shirt, long pants, shoes, and socks for the labeling

- specified 4132
PPE in all cases no matter what type of respiratory protection PPE was required by the labeling. 4133

2. Final Rule . In the final rule, EPA requires h andlers in enclosed cabs to wear the 4134
labeling

- specified respiratory protection except whe n the only labeling

- specified respiratory 4135
protection is a filtering facepiece respirator (NIOSH approval number prefix TC

- 84A) or 4136
dust/mist filtering respirator. In the final rule, handlers in enclosed cabs may substitute a long

4137
sleeved shirt, long pants, shoes and socks for the labeling

- specified PPE for skin and eye 4138
protection. If a filtering facepiece respirator (NIOSH approval number prefix TC

- 84A) or 4139
dust/mist filtering respirator is required by the pesticide product labeling for applicators, then 4140

han dlers do not need to wear the respirator inside the enclosed cab if the enclosed cab has a 4141
properly functioning air ventilation system that is used and maintained in accordance with the 4142
manufacturer’s written operating instructions. If any other type of re spirator is required by the 4143
pesticide labeling for applicators, then the handler must wear the respirator inside the enclosed 4144
cab during handling activities. 4145
EPA has retained other exceptions to PPE requirements for handlers using enclosed cabs. 4146
Specifi cally, all of the PPE required by the pesticide product labeling for applicators must be 4147
immediately available to handlers in an enclosed cab and be stored in a sealed container to 4148
prevent contamination. Handlers must wear the applicator PPE if they exit t he cab within a 4149
treated area during application or when a REI is in effect. Once PPE has been worn in a treated 4150
area, handlers must remove it before reentering the cab to prevent contamination of the cab. 4151
The final regulatory text for the enclosed cab ex ception is available at 40 CFR 4152

170.607(e). 4153*** EO 12866 Review Draft

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– AJ22 ] 3. Comments and responses. 4154

Comments . EPA did not receive any comments in opposition to the proposed changes to 4155
the enclosed cab exception. One grower noted that the enclosed cab ex c eption is an excellent 4156

compone nt of the proposal. Another commenter noted that respirator use is infrequent since the 4157
spraying operation takes place from inside an enclosed, climate

- controlled tractor cab. 4158
EPA Response . EPA considered the comments submitted and is convinced that the 4159
enclosed cab exception should be retained since it provides an important option to reduce 4160
potential pesticide exposure through engineering controls rather than PPE, and such cabs can be 4161
an important tool for addressing heat stress issues for handlers. Alt hough EPA considered a more 4162
expansive exception under its proposal, after reevaluation of the potential exposure risks for 4163
handlers and the protections afforded by enclosed cabs, EPA determined that enclosed cabs may 4164

not universally provide respiratory pro tection necessary to mitigate inhalation risks for any 4165
pesticide product that required respiratory protection greater than a filtering facepiece respirator 4166
(NIOSH approval number prefix TC

- 84A) or dust/mist filtering respirator. EPA determined that 4167

enclos ed cabs may not provide adequate protection from inhalation exposure hazards when the 4168
inhalation exposure risk arises from vapors or other non

- particulate inhalation hazards. 4169
Additionally, EPA has learned that there are no longer any enclosed cab manufactu rers certifying 4170
cabs to provide respiratory protection and the American Society of Agricultural and Biological 4171
Engineers has withdrawn their enclosed cab standard. Based on this information, EPA has 4172

removed provisions under the enclosed cab exception that permit person s occupying an enclosed 4173
cab to eliminate certain labeling

- required respiratory protection PPE if the cab has been certified 4174
by the manufacturer to provide respiratory protection equivalent to the respiratory protection 4175
required by the pesticid e labeling. 4176
4. Costs and benefits. EPA does not estimate that the change to the exception to PPE 4177*** EO 12866 Review Draft

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– AJ22 ] requirements for handlers using a tractor with an enclosed cab to apply pesticides will have a 4178
significant cost. Handlers will benefit by using adequate respiratory protection when applying 4179
pesticides from an enclosed cab. 4180

X VIII . General Revisions 4181
A. Label vs. Labeling 4182
1. Current rule and proposal. FIFRA defines the label as “the written, printed, or graphic 4183
matter on, or attached to, the pesticide or dev ice or any of its containers or wrappers.” 7 U.S.C. 4184
136(p)(1) For reasons of space and user convenience, detailed use instructions and precautions 4185
often appear in labeling provided with the pesticide product upon sale. As defined in FIFRA, 4186
“labeling” inclu des “all labels and all other written, printed, or graphic matter accompanying the 4187
pesticide or device at any time; or to which reference is made on the label or in literature 4188
accompanying the pe sticide or device...” 7 U.S.C. 136(p)(2). 4189
Labeling may inclu de booklets distributed with the product when such documentation is 4190
too long to be included on the label that is securely attached to the container. For example, some 4191
products have labeling that is 60 or more pages long. FIFRA and EPA regulations require c ertain 4192
information to appear on the label

– on or attached to the pesticide container. Other information 4193
necessary to use the product safely, such as directions for use, may be included in a booklet 4194
distributed with, but not securely attached to, the conta iner (40 CFR 156.10(i)(1)(ii)); this 4195
information could also be available on the Internet if the producer has decided to provide web

4196
distributed labeling for the product ( Ref. 21 ). In either format, the information would be 4197
considered labeling. Labeling sometimes includes enforceable reference s to other documents that 4198
do not physically accompany the container, such as the WP S

. 4199
The existing rule discusses employers’ responsibilities related to pesticide labels and 4200
labeling in several places. The existing rule requires agricultural and handler employers to ensure 4201*** EO 12866 Review Draft

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– AJ22 ] that pesticides are used in a manner consistent with the labeling. When the emergency assistance 4202
provisions of the WPS are triggered, the existing rule requires employers to provide infor mation 4203
from the product labeling to affected workers, handlers, and/or treating medical personnel. 4204
Handlers must receive training on the format and meaning of information contained on pesticide 4205
labels and in labeling. Finally, employers must ensure that ha ndlers have either read or have been 4206
informed in a manner they understand of all labeling requirements related to safe use of the 4207
pesticide, and that the handler has access to the product labeling during handling activities. 4208
Although the proposal reorgani zed the rule, some of the requirements for the existing rule 4209

outlined in the previous paragraph remained essentially unchanged in the proposed rule, e.g., 4210
agricultural and handler employers’ responsibility to ensure that pesticides are used in a manner 4211

con sistent with the labeling. The proposal included a requirement for employers to maintain 4212
copies of the pesticide labeling for each pesticide used on the establishment for 2 years from the 4213
date of application. The proposal also would have required the emplo yer to provide a copy of the 4214
label and the product’s SDS when the emergency assistance provisions are triggered, rather than 4215
to provide information from the pesticide labeling. 4216

2. Final rule . Where the proposed rule would have required the employer to pro vide a 4217
copy of the pesticide label, or specific information from the labeling, and the SDS under the 4218
emergency assistance provisions, the final rule only requires the employer to provide the SDS 4219
and specific information, which can be obtained from the pest icide application and hazard 4220
information display, rather than the label or labeling. See Unit X I V. for other comments, EPA’s 4221
responses and the final regulatory text related to emergency assistance. The final rule eliminates 4222
the proposed requirement for emp loyers to maintain copies of the labeling, rather than the label, 4223
for each product bearing a WPS requirement on the labeling, and replaces it with a requirement 4224
for the employer to retain specific information about the product used and the application, as 4225*** EO 12866 Review Draft

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– AJ22 ] well as the SDS. See Unit VII. for other comments, EPA’s responses and the final regulatory text 4226
related to this requirement. 4227
For handler training requirements, EPA has amended the language in the final rule to 4228
delete the word “all” related to labeling. T he final rule requires handlers to receive training on 4229
following the portions of the labeling applicable to the safe use of the pesticide and on the 4230
format and meaning of information contained on pesticide labels and in labeling applicable to 4231
the safe use of the pesticide . The final regulatory text for these provisions is available at 40 CFR 4232

170.501(c)( 3 )(iii)

- (iv). 4233
For labeling and application

- specific information the employer must provide to the 4234
handler, EPA has amended the final rule to require the employer to provide the handler with 4235

information on all portions of the labeling applicable to the safe use of the pes ticide , rather than 4236
on all labeling requirements. The final regulatory text for this provision is available at 40 CFR 4237

170.503(a). 4238
3. Comments and responses. 4239

Comments . Commenters raised issues with EPA’s use of the term “labeling” in the 4240
proposed rule. C ommenters raised specific concerns with the use of the broader “labeling” in 4241
various requirements instead of limiting those requirements to just the label. These concerns 4242
arose in regard to agricultural and commercial pesticide handler employer duties, eme rgency 4243
assistance, hazard communication, and handler training and establishment

- specific information. 4244
Some commenters generally disagreed with EPA’s use of “labeling” and requested that 4245
EPA use “label” instead throughout the rule. They asserted that label ing is too broad and that 4246
labeling includes materials not attached to the container, such as advertisements, brochures and 4247
pamphlets. Commenters assert that the broadness of “labeling” applied to requirements to 4248
provide or retain this information could res ult in a requirement on employers to track down many 4249*** EO 12866 Review Draft

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– AJ22 ] ancillary pieces of information for a complete record, or to face a technical violation for failure 4250
to retain all elements of the labeling. 4251
Under the agricultural and commercial pesticide handler employ er duties, at 40 CFR 4252

170.9(a) and 170.13(a) of the proposal , commenters said that EPA’s use of labeling was too 4253

broad. They asserted that employers’ liability should be only to comply with the WPS rather than 4254
with the label or all relevant labeling because making the employer responsible for complying 4255
with all labeling exceeds the scope and intent of the WPS. They also noted that certified 4256
applicators, those competent to use pesticides according to the labeling instructions and who 4257
make the actual applicati ons, should be required to comply with the labeling, but that the 4258
agricultural employer should not. 4259
In regard to emergency assistance, commenters requested that EPA delete the reference 4260
to labeling and replace it with a requirement to provide the label a nd EPA registration number of 4261
the product. Commenters note that this requirement would be sufficient to provide appropriate 4262
information for emergencies. 4263
Commenters also requested that in the section on pesticide application and hazard 4264

information, EPA de lete the requirement for the employer to maintain copies of the labeling for 4265

all WPS

- labeled pesticides used on the establishment, and instead to require the employer to 4266
maintain a copy of the label and EPA

- registration number. Again, commenters noted that such a 4267
requirement would likely result in technical violations without providing benefit to workers or 4268

handlers. 4269
In the sections on handler training and establishment

- specific information, commenters 4270
took issue with requirements to train handlers on all labeling and to ensure that for specific 4271
applications handlers have read the labeling or have been informed of all labeling requirements. 4272
Commenters noted that a requirement for handlers to be trained on all labeling requirements, 4273*** EO 12866 Review Draft

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– AJ22 ] rather than those pertine nt to their specific tasks, would be overly broad and unnecessary. 4274
Commenters requested that EPA replace “labeling” with “label” in these sections. 4275
EPA Response . EPA disagrees with commenters’ request to replace “labeling” with 4276
“label” throughout the regu lation because the broader term is appropriate in many provisions of 4277

the WPS. The FIFRA scheme for managing the risks of pesticide products rests primarily on 4278
mandatory use directions and precautionary statements approved by EPA in the registration 4279

process and communicated to users through labels and labeling. Although in the case of lower 4280
risk products intended for general consumer use, this information typically fits on the label, this 4281
is not the case for many agricultural and commercial

- use pesticides. 4282
Labeling does not include advertisements, pamphlets or brochures unless they 4283
accompany the product when sold or are referenced on the labeling. For instance, EPA has 4284
indicated that documents such as marketing brochures used to sell the product and to provide 4285
information to customers and is not labeling as defined by FIFRA section 2(p). 4286

( http://www.epa.gov/pesticides/regulating/labels/labels_faq/lr_faq_10.html ) If a document of 4287

this type does not accompany the product when sold and there is no reference to the bulletin on 4288
the product label , it is not “labeling

. ” Note though, that non

- labeling documentation related to a 4289
product must not have claims that differ from the product label. 7 U

. S

. C

. 136j(a)(1)(B). 4290
Because mandatory use directions often appear i n the labeling of agricultural pesticides, 4291
rather than the label, some provisions of the WPS appropriately use the word “labeling.” Where 4292
the word “labeling” appears in the WPS, employers are responsible for following or providing 4293
labeling as defined in FI FRA. This does not require employers to find, retain, or provide 4294
advertisements, pamphlets or marketing brochures that do not meet the definition of “labeling.” 4295
For example, it is appropriate that agricultural and handler employers’ duties under the 4296

fina l rule include ensuring compliance with “labeling” rather than just the label

. The existing 4297*** EO 12866 Review Draft

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– AJ22 ] regulation has the same requirement under general duties and prohibited actions. 40 CFR 4298

170.7(a)(2). The labeling may include directions for use or other informatio n essential to the safe 4299
and effective application of the pesticide, or specific information related to WPS protections, 4300
such as the REI. For these reasons, EPA has decided not to replace “labeling” with “label” 4301
throughout the final rule as suggested by the commenters. 4302
Furthermore, the obligation of certified applicators (or any other person legally applying 4303
a pesticide) to follow the labeling does not negate the obligation of agricultural and handler 4304
employers to comply with the labeling. Requirements related to the WPS are found both in the 4305
regulation (e.g., training, application

- specific information) and on specific product labeling (e.g., 4306

directions for use, REI, PPE). In addition, other non

- WPS elements of the labeling, such as 4307
application rates and maximum number of applications to a crop, are relevant to protecting 4308
workers and handlers from occupational exposure to pesticides. When employers choose to use a 4309
pesticide that references the WPS on the labeling on their establishment (either as the appl icator 4310
or by directing another person to apply the pesticide on their behalf ), they are obligated to ensure 4311
that all requirements of the labeling are followed, not only those related to the WPS, to ensure 4312
that workers and handlers are adequately protected. 4313
However, EPA agrees that certain WPS requirements could be limited to the information 4314
on the label or specific information from the label, and has specified “label” instead of “labeling” 4315
or specific information from the label where appropriate. For exam ple, EPA agrees with 4316
commenters that employers need not provide all labeling in the event of the emergency. In the 4317
current rule, EPA lists specific information that must be provided to a potentially injured worker 4318
or handler, or to treating medical personn el: P roduct name, EPA registration number, active 4319
ingredients, antidote, and first aid and medical treatment information. Since all of this 4320
information is required on the label (40 CFR 156.10(a)(1)), the final rule allows the employer to 4321*** EO 12866 Review Draft

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– AJ22 ] provide a copy of the label or this specific information from the label, in addition to providing a 4322
copy of the SDS , when emergency assistance is required. 4323

EPA also agrees with commenters’ request to eliminate the requirement for employers to 4324
maintain copies of the labeli ng for all pesticides with a WPS reference statement used on the 4325

establishment

. EPA agrees that if workers, handlers, or other persons need information on a 4326
specific product that was used on the establishment, such information can be obtained using the 4327

EPA registration number and product name. In response to comments received, EPA has 4328
replaced the proposal with a requirement for the employer to retain only the EPA registration 4329

number , active ingredient(s), product name, and other application

- specific inform ation for such 4330
products , in addition to the SDS

. 4331
Similarly, EPA agrees that requiring handler employers to ensure that handlers have been 4332
trained generally on, and for specific applications have read or been informed of all labeling 4333
requirements may be unnecessary if they are only using a product for a single type of 4334
application. The labeling could include directions for use covering multiple application methods 4335
and multiple crop sites, which may be of no relevance to a particular handler. Although the f inal 4336
rule continues to refer to “labeling” in this context, it now requires employers to ensure that for 4337
specific applications, handlers have read the portions of the labeling applicable to the safe use of 4338
the pesticide or have been informed in a manner th ey understand of all portions of the labeling 4339
applicable to the safe use of the pesticide. Further, EPA has amended handler training to require 4340
that handlers are instructed on their duty to follow the portions of the labeling applicable to the 4341

safe use of the pesticide, and on the format and meaning of information contained on pesticide 4342
labels and in labeling. 4343
4. Costs and benefits . Where requirements related to labeling have imposed a cost, e.g., 4344
the requirement for the employer to retain product labelin g, the cost is discussed in the U nit 4345*** EO 12866 Review Draft

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– AJ22 ] related to the overall requirement. EPA does not estimate any additional costs with the se 4346
requirements. 4347
B. Regulating Other Persons 4348
1. Current rule and proposal. Some provisions in the existing WPS provide protections 4349
to persons other than workers and handlers ( “other persons ”). For example, an existing 4350
requirement on the label and in § 170.210(a) specifies that the applicator must apply the pesticide 4351
in a way that will not contact workers or other persons. The existi ng requirement for entry

4352

restricted areas on nurseries in § 170.110 specifies that an agricultural employer must not allow 4353
or direct any person, other than an appropriately trained and equipped handler, to enter or remain 4354

in the restricted area. The exist ing immediate family exemption in § 170.104(a)(2) states that the 4355
owner of the agricultural establishment must provide protections to other workers and other 4356
persons who are not part of his immediate family. The description of closed systems in § 4357

170.240( d)(4) of the existing rule describes closed systems as systems that enclose the pesticide 4358
to prevent it from contacting handlers or other persons. Also, the scope and purpose in § 170.1 4359
of the existing rule explains that the WPS is intended, in part, to r educe the risks of illness or 4360
injury resulting from the accidental exposure of workers and other persons to pesticides. 4361
The proposed rule included these same protections for persons other than workers and 4362
handlers and added several additional provisions t hat would affect “other persons.” The 4363
proposed requirement for a handler to cease or suspend application if a worker or other person is 4364
in the treated area or entry

- restricted area was intended to supplement the existing “do not 4365
contact” requirements, whi ch already protect persons other than workers or handlers. In 4366
addition, EPA proposed to include “other persons involved in the use of a pesticide to which this 4367
part applies” in the proposed anti

- retaliation provision in § 170.15. 4368

2. Final rule . The final rule includes the protections and references to “other persons” 4369*** EO 12866 Review Draft

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– AJ22 ] that were proposed, except that EPA removed the reference to other persons from the definition 4370
of closed systems. The final rule’s prohibition against “other persons involved in the use of a 4371
pesticide” retaliat ing against workers or handlers in § 170.315 of the final rule is consistent with 4372

OSHA’s non

- retaliation provision. The other sections that provide protections to other persons 4373
continue existing requirements or supplement existing requ irements and are discussed in detail in 4374

Unit IX. and Unit XVII.C. 4375
3. Comments and responses. 4376
Comments. Some grower organizations, states and their organizations, a retailer 4377
organization, and a commercial applicator opposed including protections for “oth er persons” in 4378
the WPS. These commenters argued that the proposal would extend the WPS to persons not 4379
currently covered and would result in an unwarranted expansion of scope beyond workers, 4380
handlers and employee/employer relationships. The grower, retail er and applicator commenters 4381
stated that including “other persons” could create the potential for frivolous legal challenges by 4382

anti

- chemical activists seeking to prevent pesticide applications. 4383
EPA Response . EPA disagrees with the comments on including protections for “other 4384
persons” in the WPS. EPA already protects “other persons” in addition to workers and handlers 4385
in the existing WPS. EPA notes that anti

- chemical activists are not using the current pro tections 4386
to prevent pesticide applications and the final rule does not appear significantly more likely to be 4387

used in that manner. 4388
4. Costs and benefits. The final rule generally continues or supplements existing 4389
protections so there are no incremental c osts or benefits to the protections for other persons. 4390

C . Definitions 4391

1. General 4392

i. Current rule and proposal

. The existing WPS provides definitions for certain terms for 4393*** EO 12866 Review Draft

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– AJ22 ] use in the rule. In addition to the specific definitions for the twenty terms list ed in 40 CFR 170.3, 4394
the WPS defines the terms “closed system,” “enclosed cab,” “entry

- restricted area,” “personal 4395
protective equipment,” and “use” in other sections of the rule where those terms are used. EPA 4396
proposed to revise certain existing definitions to provide greater clarity, to add several new 4397
definitions for terms used in the rule, including definitions for the terms that had previously been 4398
defined elsewhere, and to eliminate two unnecessary existing definitions for “greenhouse” and 4399

“forest

. ” 4400

i i. Final rule . In the final rule, EPA has adopted the revisions to the definitions as 4401
proposed except for the definitions of the terms “agricultural establishment,” “agricultural plant,” 4402
“authorized representative,” “closed system,” “commercial pesticide handler employer,” 4403
“commercial production,” “employ,” “enclosed space production,” “entry

- restricted area,” 4404
“farm,” “forest operation,” “hand labor,” “immediate family,” ”labor contractor” “outdoor 4405
production,” ”nursery,” and “use.” I n the final rule, EPA has deleted the definitions for the terms 4406
“greenhouse” and “forest” as proposed. EPA has also deleted the existing definitions for the 4407
terms “farm,” “forest operation,” and “nursery,” as well as the proposed definition for 4408

“commercia l production.” Additionally, in the final rule EPA has added a new definition for the 4409
term “application exclusion zone.” The discussions of the existing definitions and proposal, final 4410
rule, comments and EPA response for these terms are contained in Units X VIII

. C .2

– X VIII

. C .8. 4411
The final regulatory text for these definitions is available at 40 CFR 170.305. 4412
iii. Comments and responses. 4413

Comments

. EPA received comments on the proposed definitions of the terms “authorized 4414
representative,” “closed system,” “e nclosed space production,” “entry

- restricted area,” “hand 4415
labor,” “immediate family,” “outdoor production,” and “use”. EPA did not receive any 4416
substantive comments opposed to the other proposed revisions related to definitions. EPA 4417*** EO 12866 Review Draft

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– AJ22 ] received several genera l comments from state, grower and agricultural producer associations that 4418
supported developing improved definitions because it would reduce the likelihood of alternative 4419
interpretations, while improving compliance and enforceability. Many farmworker advoca cy 4420
organizations and public health organizations also supported EPA’s proposed revisions to 4421
improve definitions, commenting that it is important to have clear and understandable language 4422
in order to avoid ambiguity. 4423
During USDA’s FIFRA section 25 review o f the final rule, USDA commented that the 4424
definition for “agricultural plant” depends on the definition for “commercial production,” and the 4425
definition for “commercial production” depends on the definition for “agricultural plant” (Ref. 4426

1 5 ). USDA said simi lar issues exist in the definitions of “agricultural establishment” and “farm,” 4427
“forest operation,” and “nursery.” USDA recommended resolving these circular dependencies. 4428
USDA also commented that the proposed definitions of “employ,” “labor contractor,” an d 4429
“commercial pesticide handler employer” contained problematic language that could confusion 4430
as to who is ultimately responsible for providing the handler protections in Subpart F of the 4431
proposed rule. 4432
EPA Response

. EPA agrees that improved definitions will reduce the likelihood of 4433
ambiguity and alternative interpretations, while improving compliance and enforceability. EPA 4434
believes these proposed revisions to the definitions adopt more widely used and commonly 4435
accepted “plain English” language, and wil l add clarity and consistency to the rule. The proposed 4436
revisions to the definitions will also help address regulatory or policy issues with the existing 4437
rule raised by state regulatory partners and other program stakeholders. 4438
In response to comments fro m USDA made during their FIFRA section 25 review of the 4439
final WPS rule, EPA agrees that the definitions for “agricultural plant” and “commercial 4440
production,” and the definitions for “agricultural establishment” and “farm,” “forest operation,” 4441*** EO 12866 Review Draft

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– AJ22 ] and “nursery” are circular (Ref. 1 5 ) . While EPA is not convinced that serious confusion would 4442

result, EPA has eliminated some definitions and revised others to address USDA’s concern. The 4443
terms “commercial production,” “farm,” “nursery,” and “forest operation” appear only in the 4444
definition section and are not used elsewhere in the regulation. Accordingly, EPA has deleted 4445
these definitions and merged their substantive content into the definitions of “agricultural 4446
establishment” and “agricultural plant.” EPA also agrees that the current definitions of labor 4447
contractor and commercial pesticide handler employer contain some problematic language that 4448
could result in potential confusion and/or conflict regarding agricultural employer and 4449
commercial pesticide handler employer duties under the rule. In the final rule, EPA has adopted 4450

revised definitions for “employ,” “labor contractor,” and “commercial pesticide handler 4451
employer” to address the potential confusion that could result from conflicting language in the 4452
existing prop osed definitions. EPA believes the revised regulatory text clarifies that CPHEs are 4453
responsible for the handlers they employ and agricultural employers would no longer be 4454
considered employers of CPHE handlers for the purposes of the WPS, without overlookin g the 4455
fact that some handlers are hired by agricultural employers through labor contractors and not 4456

CPHEs. A copy of USDA’s comments and EPA’s responses is available in the docket for this 4457
rulemaking. (Ref. 4458

iv. Costs and benefits . EPA estimates the prop osed changes to the definitions will not 4459
substantially change the cost of the final rule. 4460
2. Authorized Representative. 4461

i. Current rule and proposal

. The existing WPS does not contain a definition for 4462
“authorized representative

. ” EPA proposed to add the term “authorized representative” to the 4463

rule and defined it as “a person designated by the worker or handler, orally or in writing, to 4464
request and obtain any information that the employer is required to provide upon request to the 4465*** EO 12866 Review Draft

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– AJ22 ] worker or handler.” 4466

ii. Final rule. The rule finalizes the proposed definition with changes . EPA has re titled 4467
the term “authorized representative” to “designated representative” to better describe the 4468
relationship between the representa tive and the worker or handler, and t he definition narrows the 4469
information that is required to be provided by the employer to the designated representative

. In 4470

the final rule, “ d esignated representative ” means “ a ny person s designated in writing by a worker 4471
or handler to exercise a right of acces s on behalf of the worker or handler to request and obtain a 4472
copy of the pesticide application and hazard information required by § 170.309(h) in accordance 4473

with § 170.311(b) of this part. ” 4474
iii. Comments and responses. 4475

Comments . EPA received many comments from state s , growers, agricultural associations 4476

and pesticide manufacturer associations objecting to the definition of “authorized 4477
representative.” Most commenters objected to the proposed requirement for employers to make 4478
certain pesticide inform ation available to an “authorized representative” of their workers or 4479
handlers rather than the actual definition of authorized representative. Several farm bureau 4480
commenters and grower groups stated that oral designation of the representative could result in 4481

abuse, and would be unenforceable. O ne comment from a farmworker advocacy organization 4482

stated that EPA should keep the definition for authorized representative and clarify the range of 4483
representatives that could legitimately be asked to receive information on behalf of a worker or 4484
handler (e.g., medical care provider, legal advocate, family member, etc.). 4485
EPA Response

. EPA has been convinced by comments that designation of the 4486
representative must be in written form to protect employers from fr audulent claims. A written 4487
request that identifies the worker or handler can be verified against employment records, and 4488
information about the dates of their employ can be used to narrow the information needed to be 4489*** EO 12866 Review Draft

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– AJ22 ] provided. The final rule requires employ ers to respond to written requests. 4490
EPA disagrees with the recommendation to limit the definition to certain persons that 4491
could be asked to request the information on behalf of the worker or handler . EPA believes that 4492
specifying classes of persons permit ted to serve as designated representative would unnecessarily 4493
limit worker and handler access to needed information. The final rule requires employers to 4494
respond to such requests within 15 days. However, to ensure that medical personnel treating a 4495

worker o r handler have timely access to information necessary for purposes of diagnosis or 4496

treatment, EPA has included a separate requirement for employers to promptly provide the 4497
information to treating medical personnel or those working under their direction
, at 4498

170.311(b)(8)

. 4499

iv. Costs and benefits . EPA estimates that including the definition of authorized 4500
representative will not change the cost of the final rule. Costs associa ted with the requirement for 4501
employer s to respond to written requests for pesticide application and hazard information are 4502

included in the discussion in Unit VII.A. 4503
3. Closed System 4504

i. Current rule and proposal. The existing WPS defines the term “closed system” as “a 4505
system that encloses the pesticide to prevent it from contacting handlers or other persons.” EPA 4506
proposed to move the definition of closed system to the definition section of the rule and to 4507

redefine a closed system as “a system for mixing or loading pesticides that encloses the pesticide 4508
during removal of the pesticide from its original container and transfer, mixing, or loading of the 4509
pesticide product, mixtures or dilutions, and any rinse solution, if applicable, into a new 4510
container or application equipment, in such a manner that prevents the pesticide and any 4511
pesticide mixture or use dilution from contacting handlers or other persons before, during and 4512
after the transfer, except for negligible rele ase associated with normal operation of the system. ” 4513*** EO 12866 Review Draft

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– AJ22 ] ii. Final rule. In the final rule, EPA has defined “closed system” as “an engineering 4514
control used to protect handlers from pesticide exposure hazards when mixing and loading 4515
pesticides.” The final reg ulatory text for this definition is available at 40 CFR 170.305

. 4516
iii. Comments and responses. 4517

Comments . EPA did not receive any specific comments on the definition of closed 4518

system. However, EPA received a number of comments related to EPA’s proposal on closed 4519
systems that indicated the proposed requirements may be too prescriptive or limiting, could 4520
eliminate desired flexibility for growers, and could discourage innovation and the adoption of 4521
closed systems. 4522
EPA Response . EPA agreed with the comments t hat the proposed requirements related to 4523
closed systems may be too prescriptive or limiting, could eliminate desired flexibility for 4524
growers, and could discourage innovation and the adoption of closed systems. Although the 4525
comments did not specifically men tion the closed system definition, EPA reconsidered the 4526
proposed definition of closed system in light of the overall comments on closed system 4527
requirements. EPA believes that a broader definition of “closed system” will encourage industry 4528

innovation better than the proposed prescriptive definition, and will retain flexibility for handler 4529
employers to design systems specific to their needs. In the final rule, EPA has adopted a new 4530
definition of closed system that more accurately defines the nature and intent of a closed system 4531
without inadvertently prescribing specific requirements and operational components for such 4532
closed systems. 4533

iv. Costs and benefits . EPA estimates that revising the definition of closed system will not 4534
change the cost of the final rule. 4535
4. Enclosed Space Production and Outdoor Production. 4536

i. Current rule and proposal. The existing WPS does not contain definitions for the terms 4537*** EO 12866 Review Draft

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– AJ22 ] “enclosed space production” or “outdoor production.” Instead, the existing WPS defines the term 4538
“greenhouse” to describe the type of WPS

- covered agricultural establishments that produce 4539
agricultural plants inside enclosed structures. The existing rule uses the terms “f arm, ” “ forest ” 4540

and “ nurser y” for WPS

- cov ered agricultural establishments that produce agricultural plants 4541
outdoors. Greenhouse is defined in the existing WPS as “any operation engaged in the 4542
production of agricultural plants inside any structure or space that is enclosed with nonporous 4543
covering and that is of sufficient size to permit worker entry. This term includes, but is not 4544
limited to, polyhouses, mushroom houses, rhubarb houses, and similar structures. It does not 4545

include such structures as malls, atriums, conservatories, arboretums, or off ice buildings where 4546
agricultural plants are present primarily for aesthetic or climatic modification.” EPA proposed to 4547
delete the definition of “greenhouse” because it would no longer be necessary as a result of the 4548
proposed addition of a new definition fo r “enclosed space production.” EPA proposed to define 4549
enclosed space production as “production of an agricultural plant in a structure or space that is 4550
covered in whole or in part and that is large enough to permit a person to enter.” EPA also 4551
proposed to add a new definition for the term “outdoor production” and defined it as “production 4552
of an agricultural plant in an outside open space or area that is not enclosed or covered in any 4553
way.” 4554

ii. Final rule. In the final rule, EPA has deleted the definition o f the term “greenhouse” as 4555
proposed, and has adopted the definitions for “enclosed space production” and “outdoor 4556
production” with modifications. The final rule defines “enclosed space production” as 4557
“production of an agricultural plant indoors or in a str ucture or space that is covered in whole or 4558
in part by any nonporous covering and that is large enough to permit a person to enter,” and 4559
defines “outdoor production” as “production of an agricultural plant in an outside area that is not 4560

enclosed or covered in any way that would obstruct the natural air flow.” The final regulatory 4561*** EO 12866 Review Draft

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– AJ22 ] text for these definitions is available at 40 CFR 170.305

. 4562
iii. Comments and responses. 4563

Comments . EPA received several comments from state s and their organizations opposing 4564

the d efinition of “enclosed space production” as written. A few other commenters also expressed 4565
concerns with the definition of “outdoor production.” A state association noted that the proposed 4566
definition could greatly expand areas covered under certain entry restrictions to include any 4567
covered area such as fields or groves with shade covers and/or screen houses. The commenter 4568
expressed concerns that entry restrictions currently applicable to greenhouses would be extended 4569

to these establishments, and is not awa re of any need for such an extension of these restrictions. 4570

State s generally echoed these comments. One state requested clarification of whether the term 4571
“spaces covered in part” includes structures such as “hoop houses,” and another state noted that 4572
the p roposed rule did not define or reference high tunnels and requested clarification of whether 4573
“high tunnels” are considered a greenhouse for the purposes of WPS (i.e., would “high tunnels” 4574
be considered a type of enclosed space production?). One state comme nted that the proposed 4575
definition expands areas covered under certain entry restrictions to include shade houses and 4576
screen houses and this would have a major impact in on the state’s nursery industry. Another 4577
state also expressed concerns that the propose d definition of enclosed space production would 4578
expand restrictions beyond greenhouses, and suggested that EPA add the phase “where the 4579
production of agricultural plants for research or commercial purposes occurs” to the definitions 4580
of enclosed space produ ction and outdoor production so that only those operations engaged in 4581
the production of agricultural plants for commercial purposes would be covered by the WPS. 4582

Another state commented that the term “outdoor production” is too broad and by 4583
misinterpretatio n, could encompass a number of non

- farm activities. 4584
During USDA’s FIFRA section 25 review of the final rule, USDA commented that the 4585*** EO 12866 Review Draft

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– AJ22 ] inclusion of the term “natural forest” in the definition of “outdoor production” creates confusion 4586

and is not needed (Ref . 1 5 )

. 4587
EPA Response

. EPA considered the comments submitted and agrees with the comments 4588
that said the proposed definition of “enclosed space production” could expand areas covered 4589
under certain entry restrictions to include any covered area such as field s or groves with porous 4590

shade covers and/or screen houses where such restrictions are not necessary. EPA noted the 4591
potential impact of the proposed definition on the nursery industry as raised by commenters

. 4592
EPA also agrees that the proposed definition of “outdoor production” could lead to some outdoor 4593
production being considered enclosed space production because of the phrase “that is not 4594
enclosed or covered in any way.” EPA is convinced that the definition of enclosed space 4595
production and outdoor producti on should be revised so that operations that use non

- porous 4596
coverings in their plant production operations , such as screen houses and shade houses, are not 4597
covered by the entry restrictions deemed necessary for the protection of workers and handlers 4598

that a re working with pesticides or in pesticide treated areas in enclosed space production 4599
operations. Therefore, EPA revised the definitions of enclosed space production and outdoor 4600
production to clarify that enclosed space production only includes areas cover ed in whole or in 4601
part “by any nonporous covering,” rather than “any covering” as in the proposed definition; and 4602
that outdoor production will include areas that are covered only with coverings that are 4603
sufficiently porous that they do not obstruct the nat ural air flow typical of open fields, or in the 4604
case of forest operations, a natural forest. It is intended that these definitions of enclosed space 4605
production and outdoor production be complementary, such that all production agriculture is 4606

either enclosed space production or outdoor production. 4607
EPA does not agree with the request to add the phrase “where the production of 4608
agricultural plants for research or commercial purposes occurs” to the definitions of enclosed 4609*** EO 12866 Review Draft

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– AJ22 ] space production and outdoor production so that only those operations engaged in the production 4610
of agricultural plants for commercial purposes would be covered by the WPS. EPA believes 4611
other definitions and language in the rule already clearly limit the scope of the WPS to 4612

establishments where t he production of agricultural plants for research or commercial purposes 4613
occurs, so the addition of such language to these definitions would be redundant and would not 4614
serve to further limit the scope of the rule in any way not already accomplished through other 4615

means

. 4616
Some commenters requested clarification of whether structures such as “hoop houses,” 4617
and “high tunnels” are considered a type of enclosed space production. The term “greenhouse” in 4618
the WPS has resulted in enforcement problems, because of th e extreme variability in the types of 4619
structures that might be considered greenhouses. This problem is compounded when considering 4620
the many greenhouse

- type structures (e.g., polyhouses, mushroom houses, hoop houses, high 4621

tunnels and similar structures) tha t have come into use. This is why EPA has replaced the term 4622
greenhouse with enclosed space production. EPA believes the new terms correspond more 4623
accurately to the nature of the risk that EPA is concerned about mitigating (i.e., use of pesticides 4624
in enclosed spaces that could affect pesticide inhalation exposure potential). Therefore, if a 4625

structure or spac e is covered in whole or in part by any nonporous covering and is large enough 4626
to permit a person to enter, then the structure or space would fall under the definition of enclosed 4627
space production in the final rule. EPA anticipates that most greenhouses, h oop houses, high 4628
tunnels and similar structures will fall within the definition of enclosed space production , but a 4629

final determination will be made on a case

- by

- case basis applying the parameters of the 4630

definition to each situation

. 4631
EPA agrees with USDA that the inclusion of the term “natural forest” in the definition of 4632
“outdoor production” creates confusion and is not needed. In response, EPA has revised the final 4633*** EO 12866 Review Draft

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– AJ22 ] definition of outdoor production accordingly (Ref. 1 5 )

. 4634

iv. Costs and benefits . EPA estim ates adding and changing the definition of enclosed 4635
space production and outdoor production will not substantially change the cost of the final rule. 4636

5. Entry

- Restricted Area and Application Exclusion Zone. 4637

i. Current rule and proposal. The existing WPS does not contain a definition for the 4638

term s “entry

- restricted area” or “application exclusion zone.” Under the existing rule, the term 4639
“entry

- restricted area” is used to refer to areas on an establishment from which workers and other 4640
persons must be excluded during, and/or immediately after, an ongoing pesticide application to 4641
protect the workers or other persons from being contacted by the pesticide (either directly or 4642
through drift). EPA proposed to define the term “entry

- restricted area” as “the ar ea from which 4643
workers or other persons must be excluded during and after the pesticide application.” 4644

ii. Final rule. In the final rule, EPA has added the term “application exclusion zone” 4645
instead of the proposed term “entry

- restricted area

. ” EPA has defin ed the term “application 4646

exclusion zone” as “ the area surrounding the application equipment which must be free of all 4647
persons, other than appropriately trained and equipped handlers, during pesticide applications.” 4648
The final regulatory text for this defini tion is available at 40 CFR 170.305. 4649
iii. Comments and responses. 4650

Comments . EPA received several comments from state s regarding the term “entry

4651

restricted area.” One commenter said the term was linguistically awkward and said EPA should 4652

instead use the t erm “restricted area buffer.” 4653
EPA Response

. EPA considered the comments submitted and agrees with the comments 4654
that the term “entry

- restricted area” was not clear and would be likely to cause confusion. I n the 4655

final rule, EPA has eliminated the use of that term and has therefore deleted the proposed 4656

definition. The final rule adopts the term “application exclusion zone” to refer to the area from 4657*** EO 12866 Review Draft

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– AJ22 ] which persons must be excluded during applications. See Unit IX. for EPA’s response to the 4658

comments on the WP S requirements related to entry

- restricted areas. 4659

iv. Costs and benefits . EPA estimates that not including the proposed definition of the 4660
term “entry

- restricted area” in the final rule and adding the new definition for “application 4661
exclusion zone” will not substantially change the cost of the final rule. 4662

6. Hand labor 4663

i. Current rule and proposal. The existing WPS defines hand labor as “any agricultural 4664
activity performed by hand or with hand tools that causes a worker to have substantial contact 4665
with surfaces (such as plants, plant parts, or soil) that may contain pesticide residues. These 4666

activities include, but are not limited to, harvesting, detasseling, thinning, weeding, topping, 4667
planting, sucker removal, pruning, disbudding, roguing, and packing produce into containers in 4668
the field. Hand labor does not include operating, moving, or repairing irrigation or watering 4669
equipment or performing the tasks of crop advisors.” In the proposal, EPA intended to revise the 4670
definition by deleting the following sentence from the existing definition, “These activities 4671
include, but are not limited to, harvesting, detasselin g, thinning, weeding, topping, planting, 4672
sucker removal, pruning, disbudding, roguing, and packing produce into containers in the field.” 4673
In the proposed regulatory text for the definition of term “hand labor,” EPA inadvertently deleted 4674
the phrase “ except that hand labor does not include operating, moving, or repairing irrigation or 4675
watering equipment or performing crop advisor tasks” from the end of the definition. The 4676
erroneously proposed definition for the term “hand labor” was “ any agricultural activity 4677
performed by hand or with hand tools that cause a worker to have substantial contact with plants, 4678
plant parts, or soil and other surfaces that may contain pesticide residues .” 4679

ii

. Final rule. EPA has corrected the unintentional omission from the proposed definition 4680

of “hand labor.” The final rule defines “hand labor” as “ any agricultural activity performed by 4681*** EO 12866 Review Draft

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– AJ22 ] hand or with hand tools that cause a worker to have substantial contact with plants, plant parts, or 4682
soil and other surfaces that may contain pestic ide residues, except that hand labor does not 4683
include operating, moving, or repairing irrigation or watering equipment or performing crop 4684

advisor tasks.” The final regulatory text for this definition is available at 40 CFR 170.305 for the 4685
final regulatory language for definitions. 4686
iii. Comments and responses. 4687

Comments . One commenter objected to the proposed change to the definition of hand 4688
labor that deleted the phrase “ except that hand labor does not include operating, moving, or 4689
repairing irrigation or watering equipment or performing crop advisor tasks” from the end of the 4690

definition. The commenter indicated that removing this exception from the definition of hand 4691
labor would make the irrigation exception for early entry unworkable and would disrupt 4692

irr igation operations. 4693
EPA Response . EPA agrees with the comment on the definition of “hand labor.” In the 4694

final
, rule EPA has deleted the sentence listing hand labor activities as proposed, but has retained 4695
the clause excluding “operating, moving, or repairing irrigation or watering equipment or 4696
performing crop advisor tasks” from being considered hand labor tasks 4697

iv. Costs and benefits . EPA estimates that revising the definition of hand labor will not 4698
change the cost of the final rule. 4699
7. Immediate Family. See Unit XVII.A. for a complete discussion of EPA’s consideration 4700
of the definition of “immediate family” i n conjunction with the exemption from certain 4701
provisions of the WPS for owners and members of their immediate families. 4702

8. Use 4703

i. Existing definitions and proposal. The existing WPS provides a definition of the term 4704
“use” (as in “to use any registered p esticide in a manner inconsistent with its labeling”) for the 4705*** EO 12866 Review Draft

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– AJ22 ] purposes of the rule at 40 CFR 170.9, “Violations of this part.” For the purposes of the WPS, 4706
EPA has interpreted the term “use” to cover a broad range of pesticide

- related activities that are 4707

l isted at 40 CFR 170.9. EPA proposed to move the existing definition for “use” found at 40 CFR 4708

170.9 into the definitions section of the rule. 4709

ii. Final rule. In the final rule, EPA has adopted the definition for “use” as proposed. The 4710
final regulatory tex t for this definition is available at 40 CFR 170.305

. 4711
iii. Comments and responses. 4712

Comments . EPA received several comments from state s , growers, agricultural 4713
associations and pesticide manufacturer associations objecting to the proposed definition of 4714

“us e.” Most commenters objected to the definition of use because they did not support inclusion 4715
of “arranging for application of the pesticide” as part of the definition of “use.” Some 4716
commenters said they believed that this language would greatly expand the scope of the WPS 4717

and would be unreasonable and unnecessary. Some commenters noted that they could not see 4718
how “arranging for application of the pesticide” could be considered use. 4719
EPA Response

. EPA disagrees with comments that say the proposed definition for the 4720
term “use” could or will expand the scope of the WPS because this interpretation has been in the 4721

WPS since the rule first became effective. Moreover, EPA has not been made aware of any 4722
instances where this interpretation of “use” has resulted in an unreasonable or inappropriate 4723
outcome. EPA believes that “arranging for application of the pesticide” is appropriately part of 4724
the definition of “use” for the purposes of the WPS because in production agriculture, the 4725
individual who physically “uses” a pe sticide almost always does so at the direction of another 4726
person who has substantially greater control over the circumstances of the use. Thus the WPS is 4727
designed so that when an agricultural or handler employer arranges for the application of a 4728
pesticide by a handler employee , it triggers certain WPS duties that are properly the 4729*** EO 12866 Review Draft

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– AJ22 ] responsibility of the agricultural or handler employer. For instance, once the agricultural 4730
employer arranges for a pesticide application by a commercial p esticide handling establi shment
, 4731
the commercial pesticide handler employer must provide the agricultural employer with certain 4732
information about the intended application before the application takes place (so the employer 4733
will be able to fulfill WPS notification requirements and p rotect workers during application, 4734

etc.). In such circumstances, it is reasonable and appropriate that the handler employer should be 4735
held responsible for the pre

- application information exchange even though the application has 4736
not commenced and even thoug h the handler employer personally never physically “uses” the 4737
pesticide. Therefore, since EPA has not been made aware of any instances where the existing 4738
interpretation of the term use has resulted in any problems for growers, state s or the agricultural 4739

in dustry, EPA has moved the definition for the term “use” into the definitions section of the rule 4740
without any change from the proposal. 4741

iv. Costs and benefits. Moving the definition of use will not change the cost of the final 4742

rule. 4743

D . Restructuring 40 CF R part 170 4744

1. Current rule and proposal. The existing WPS is organized into three subparts: 4745

“General Provisions,” “Standard for Workers,” and “Standard for Handlers.” Content that applies 4746
to both workers and handlers is repeated creating redundancy throug hout the rule. 4747

EPA discussed renaming the regulation “Requirements for Protection of Agricultural 4748

Workers and Pesticide Handlers” in the preamble of the proposal and proposed reorganiz ing the 4749
rule into four subparts: “General Provisions,” “Requirements for Protection of Agricultural 4750
Workers,” “Requirements for Protection of Pesticide Handlers,” and “Exemptions and 4751
Exceptions.” EPA proposed creating t he “General Provisions” subpart to descr ibe certain 4752
obligations for agricultural employers, handler employers, and those requirements that apply to 4753*** EO 12866 Review Draft

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– AJ22 ] both. The proposal included subparts “Requirements for Protection of Agricultural Workers” and 4754
“Requirements for Protection of Pesticide Handlers” t o provide information that supplements the 4755
general duties and obligations for employers and to outline the content of the training and 4756
decontamination supplies that the employer must provide for workers and handlers respectively. 4757

EPA proposed to consolidat e most of the exceptions and exemptions into a separate subpart titled 4758
“Exemptions and Exceptions” to make them easier to find and reference. 4759

2. Final Rule

. In t he final rule , EPA has retain ed the existing name of the regulation, 4760

“Worker Protection Standa rd,” and has adopted the proposed restructuring of the rule with minor 4761

modifications. 4762

EPA has determined that it is appropriate to allow one year for employers, trainers, and 4763
state and tribal regulators to prepare for the changes to the WPS

. See Unit X I X

. In order t o allow 4764
the existing WPS to remain in effect for one year and to make available the revised regulatory 4765
language in advance of the implementation date, both the existing WPS and the revised WPS 4766

must appear in the Code of Federal Regulations. Thu s the final rule provides that Subparts A, B 4767
and C of part 170 will remain in effect until one year after the effective date of this final rule. 4768
Subparts D, E, F and G of part 170 contain the full text of the revised WPS; however, these 4769
subparts will not b e implemented until one year after the effective date of this final rule. Some 4770
provisions of subparts D, E, F and G , such as pesticide safety training and the pesticide 4771
information display, will not be implemented until two years after the effective date of this final 4772

rule. One year after the effective date of this final rule, subparts A, B and C will no longer be 4773

effective. At that time
, EPA intends to delete subparts A, B and C from part 170. 4774
In addition to finalizing the proposed st ructuring of the rule, EPA has added a new 4775
section providing a process for allowing states and tribes to request equivalency determinations 4776
from EPA for existing state or tribal laws or regulations that may provide protections equivalent 4777*** EO 12866 Review Draft

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Page 201 of 286 [RIN 2070

– AJ22 ] to the WPS. EPA ha s added this to a retitled subpart: “Exemptions, Exceptions and 4778
Equivalency

. ” 4779
3. Comments and responses. 4780

Comments . EPA did not receive any comments opposed to the proposal to restructure the 4781

WPS. One commenter noted that the proposed restructuring of th e rule increased the clarity of 4782
the rule and the relationship among the components. Another commenter asserted that there was 4783
no need to change the name of the regulation, and noted that if EPA was going to change the 4784

name of the rule, it should more accur ately represent the full scope of the rule and the impacted 4785

establishments. 4786
EPA Response

. EPA agrees with the comment that it is unnecessary to change the name 4787

of the rule. “Worker Protection Standard ” and the abbreviation WPS are commonly used and 4788

assoc iated with the rule. Upon further consideration, EPA agrees that the existing name of the 4789
rule is very widely recognized and that it will facilitate more effective communications on the 4790

rule to retain the current name of the rule

. 4791
EPA also agrees with the commenter that the proposed restructuring of the rule increases 4792
the clarity of the rule and the relationship among the components. EPA is adopting the proposed 4793
restructuring of the WPS in the final rule with the minor modifications noted. EPA expects the 4794
revised part 170 will be easier to read and understand, thereby improving compliance by worker 4795
and handler employers

. 4796

4. Costs and benefits. EPA does not estimate any c osts associated with the restructuring 4797

of the rule. The benefits of the restructuring will be increased clarity and understanding of the 4798
rule which should result in improved compliance and more consistent enforcement. 4799
E. Equivalency provisions 4800
1. Current rule and proposal. The current WPS does not contain equivalency provisions 4801*** EO 12866 Review Draft

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Page 202 of 286 [RIN 2070

– AJ22 ] that would permit EPA to potentially recognize, through a WPS

- established regulatory 4802

mechanism, state or tr ibal worker protection laws and/ or regulations that may provide equivalent 4803
or significantly greater protection in comparison to the provisions of the exis ting WPS, or 4804
provide equivalent protection at a significantly lower cost. EPA did not propose to add 4805
equivalency provisions to the rule because it did not receive information from states or tribes that 4806
such provisions were necessary , and had not been infor med by growers that WPS requirements 4807
conflicted with existing state or tribal worker protection laws or regulations. 4808

2. Final rule. In the final rule, EPA has included a section on equivalency because of 4809
comments received that indicate provisions may be needed to address certain issues with the 4810
WPS potentially conflicting with existing state worker protection laws or regulations. EPA 4811
recognizes that some states have existing worker protection provisions in their own laws and 4812
regulations that may be equiv alent to the provisio ns of the existing WPS, tha t may provide 4813
significantly greater protection, or may provide equivalent protection at a significantly lower 4814
cost, and decided it would be more practical and efficient to establish a mechanism to evaluate 4815

sp ecific state or tribal requirements and to make equivalency determinations rather than relying 4816
on other EPA enforcement mechanisms or policies to be able to allow such determinations. The 4817
final regulatory text for this requirement is available at 40 CFR 17 0.609. 4818
3. Comments and responses. 4819

Comments. Although EPA did not propose equivalency provisions, EPA received 4820
comments from the California Department of Pesticide Regulation (CDPR) that indicated it 4821
would be beneficial if states could be granted ‘equivalency’ as was done for the current WPS. 4822
The CDPR comment refers to an independent enforcement discretion decision that was granted 4823
under the current WPS to recognize CDPR’s requiremen t for the content of their field posting 4824
sign to be equivalent to the existing requirement at 40 CFR 170.120

. Comments from some 4825*** EO 12866 Review Draft

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Page 203 of 286 [RIN 2070

– AJ22 ] other state pesticide regulatory agencies indicate there may be issues of equivalency between 4826
their regulations and the final WPS requirements. Although these commenters did not 4827
specifically raise the need for equivalency provision, they indicated a need for EPA to be aware 4828
of the issue and potentially identify solutions. 4829
EPA Response. Based on the comments received and EPA’s experience with the current 4830
WPS and requests from CDPR for equivalency on certain regulatory requirements, EPA agrees 4831
that there are potential situations where states or tribes may request EPA to consider equivalency 4832
under the WPS for their laws or regulat ions. Therefore, EPA believes it is prudent to consider an 4833
equivalency process under the WPS, and feel s strongly that it is more efficient and advantageous 4834
to establish a mechanism for considering equivalency in the WPS rule rather than relying on 4835

other me chanisms. EPA has provided a general equivalency process in the rule that is modeled 4836

on the provisions that were developed and implemented for substantially the same reason and 4837

purpose un d er the pesticide containment regulations in 40 CFR 165.97. ( 71 FR 47 330, August 4838

16, 2006)

. 4839
4. Costs and benefits. EPA does not estimate any costs associated with adding the 4840
equivalency provisions to the rule. The benefits of allowing equivalency under the provisions 4841
being included in the final rule will be that EPA will be able to more easily consider and permit 4842
equivalency for some states that have provisions in their own laws and regulations equivalent to 4843
the provisions of the WPS or that may provide significantly greater protections or equivalent 4844
protection at a lower cost. 4845

F

. Clarifications 4846
1. Scope and Purpose. In the final rule, EPA has clarified who the rule protects and that 4847
agricultural and commercial pesticide handler employers are responsible for carrying out the 4848
requirements of the rule. EPA has also clarified that handlers have responsibilities under the rule 4849*** EO 12866 Review Draft

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Page 204 of 286 [RIN 2070

– AJ22 ] to protect workers and other persons during pesticide applications. Refer to 40 CFR 170.301 for 4850
the revised language. 4851
2. Applicability. In the final rule, EPA has clarified in 40 CFR 170.303(c) that users must 4852
comply with product labeling re quirements where the labeling requirements differ from the rule, 4853
except as provided in 40 CFR 170.601, 170.603, and 170.607, where the WPS provides 4854
exceptions to label

- required PPE and REIs. 4855

3. Prohibited Actions. In the proposed rule EPA propos ed modifications to the retaliation 4856
provisions of the rule to clarify the actions that are prohibited under the rule. In the final rule 4857
EPA has further modified the retaliation provisions based on comments provided from DO L on 4858
how EPA could improve its re taliation provisions by modeling it after language used in similar 4859
provisions in D O L regulations. Refer to 40 CFR 170.315 for the regulatory text. 4860

X I X . Implementation 4861

A. P roposal. EPA proposed to make the final rule effective 60 days after the date of 4862
pub lication in the Federal Register ; however, compliance with certain provisions, including the 4863
additional content of pesticide safety training and pesticide safety information, and new signs for 4864
posting, would not be required until 2 years after the effectiv e date of the final rule. EPA 4865
proposed the 2

- year delay between effective date of the final rule and the implementation date to 4866
allow time for new training materials to be developed and made available, and to give 4867
employers, trainers, and other affected stakeholders time to make the necessary changes to their 4868
practices and operations to comply with the new training and pest icide safety information 4869
requirements. EPA also linked the implementation date for the revised pesticide safety training 4870
requirements for workers and handlers to the availability of new revised training materials that 4871
satisfy the new rule requirements. Und er the proposal, if EPA announced the availability of such 4872
materials sooner than 18 months after the effective date of the final rule, then the new training 4873*** EO 12866 Review Draft

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– AJ22 ] requirements would go into effect 2 years after the effective date of the final rule. If EPA 4874

announ ced the availability of materials that comply with the requirements more than 18 months 4875
after the effective date of the final rule, then the new training requirements would not take effect 4876
until 180 days after the announcement of availability of complying training materials published 4877

in the Federal Register

. 4878

B. Final rule. EPA ha s included in the final rule a one

- year delay from the effective date 4879
of the final rule before employers must comply with any of the new WPS requirements

. Thus, on 4880

[ in sert date one year and 60 days after the date of publication in the Federal Register ]
, 4881
employers will be required to comply with almost all of the new and revised WPS requirements

. 4882
However, employers will not be required to comply with ce rtain new WPS provisions until two 4883
years after the effective date of the final rule. This two year delay applies to the new 4884
requirements for pesticide safety training for workers and handlers, pesticide safety information 4885
and handlers to suspend applications when workers or other person s are in the application 4886

exclusion zone. As proposed, the final rule provides that compliance with certain new training 4887
requirements will not be required until the later of two years after the effective date of the final 4888
rule, or 180 days after EPA publish es in the Federal Register a notice of availability of new 4889
revised training materials that satisfy the new rule requirements. 4890
The final regulatory text for these provisions is available at 40 CFR 170.2
, 170.311(a)( 3 ), 4891

170.401(c)(3), 170.501(c)(3) and 170.505(b). 4892

C . Comments and responses. 4893

Comments . Most comments that addressed implementation focused on three main areas: 4894

1) T he need for better and more effective enforcement of the revised rule once the new 4895
requirements are effective; 2) the need for a ppropriate supporting communication, education, 4896
training and compliance assistance materials to facilitate effective implementation; and 3) the 4897*** EO 12866 Review Draft

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– AJ22 ] need for additional time before the final rule becomes effective to give regulators and the 4898
regulated community time to prepare for compliance with new requirements. 4899
Many comments from s tate s , pesticide safety educators, trainers
, grower associations and 4900
pesticide manufacturer associations pointed out a need for appropriate training and compliance 4901

assistance materi als to support effective implementation. Commenters indicated that it was 4902
essential for EPA to have updated communications and compliance assistance materials, such as 4903
fact sheets and the “WPS How to Comply” manual, developed and available to all affected 4904
parties in order for the regulated community to be able to learn and understand new 4905
requirements. Several state s , grower associations and pesticide manufacturer associations 4906
commented that EPA should provide more time before the new rule requirements becom e 4907
effective so that regulators and the regulated community can more adequately prepare for 4908
compliance with new requirements. However, several farmworker advocacy organizations urged 4909
EPA to implement the proposed training requirements for workers and handle rs sooner than the 4910
proposal of 2 years from the effective date of the final rule. 4911
EPA Response

. EPA considered the comments submitted and agrees that after 4912
publication of the final rule, some time is needed before the new WPS requirements are 4913
implemented. EPA understands that State, tribal and federal regulators need time to become 4914
familiar with the new regulation, provide training to pesticide inspectors, develop the capacity 4915
for enforcing the new rule requirements, establish appropriate WPS inspection an d enforcement 4916
policies
, and conduct outreach to the regulated and protected communities. In addition, 4917
agricultural employers will need time to become familiar with the new requirements and 4918
implement any necessary changes. In the final rule, EPA has delayed the implementation of the 4919
new WPS requirements for one year so that EPA can work with state and tribal pesticide 4920
regulators and the regulated community to better prepare for compliance with new rule 4921*** EO 12866 Review Draft

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Page 207 of 286 [RIN 2070

– AJ22 ] requirements. The existing rule will remain in effect and be enforced during this time, as 4922
provided in 40 CFR 170.2

. 4923
EPA disagrees with comments that the compliance dates for the new worker and handler 4924
training requirements should be implemented sooner t han 2 years from the effective date of the 4925
final rule as outlined in the proposal. EPA believes that up to 18 months could be needed in order 4926
to develop and disseminate new, high quality, multi

- lingual worker and handler training 4927

materials in multimedia fo rmats that comply with the new requirements. Additionally trainers 4928
will have to obtain the new training materials, become familiar with the new training content and 4929
ensure that they continue to meet any eligibility requirements to train. Therefore, EPA has 4930

decided to retain the proposed requirement to delay the new training requirements for 2 years 4931
from the effective date of the final rule (or 180 days after the announcement that training 4932

materials are available , whichever is later ) to allow adequate time f or development and 4933
widespread distribution of the materials to trainers and employers. While EPA agrees that it is 4934
important for workers and handlers to have the new safety training information as soon as 4935
possible, time will be needed to create and distrib ute new training materials and to allow existing 4936

trainers to familiarize themselves with t hose new materials. In order to maximize compliance 4937
with the final rule, and in the interests of consistency and efficiency, EPA intends to develop and 4938

make available suitable training materials. EPA intends to have new training materials 4939
developed and disseminated as soon as practical and will encourage employers to begin using the 4940
new materials as soon as they become available so that many workers and handlers will begin 4941
receiving the benefits of the new training before the required date. 4942
EPA is committed to a robust outreach, communications and training effort to 4943

communicate the new rule requirements to affected WPS stakeholders. To facilitate 4944
implementation, EPA p lans to issue plain language “how to comply” fact sheets and guidance 4945*** EO 12866 Review Draft

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Page 208 of 286 [RIN 2070

– AJ22 ] materials once the final rule is published. EPA plans to develop compliance assistance materials 4946
that are targeted to specific agricultural sectors and rule requirements such as respirat or 4947
requirements or the WPS exemptions and exceptions. EPA also intends to develop and 4948
disseminate new worker and handler training materials, conduct outreach to potentially affected 4949
parties, and provide assistance and resources to States and Tribes for WPS implementation. EPA 4950
plans to hold Pesticide Regulatory Education Program courses for State and Tribal pesticide 4951
program staff that will focus on WPS implementation, and Pesticide Inspector Residential 4952
Training courses for State and Tribal pesticide inspec tors that will focus on WPS inspection 4953
requirements. 4954

D. Costs and benefits. The discussion of the overall expected costs and benefits for 4955
implementation are discussed in Unit II. C

. EPA believes that delaying the dates for compliance 4956

with the final rule for one year after the effective date will allow regulators and the regulated 4957
community to better prepare for compliance with the rule while delaying immediate costs and 4958
allowing time for employers to explore ways to minimize implementation costs. 4959

XX . References 4960
The following is a listing of the documents that are specifically referenced in this 4961

document

. The docket includes these documents and other information considered by EPA, 4962

in cluding documents that are referenced within the documents that are included in the docket, 4963
even if the referenced document is not physically located in the docket. For assistance in locating 4964
these other documents, please consult the person listed under FO R FURTHER 4965

INFORMATION CONTACT

. 4966

1. EPA. Economic Analysis of the Agricultural Worker Protection Standard Revisions

. 4967
Washington, D.C. 2015. 4968

2. EPA. Pesticides; Agricultural Worker Protection Standard Revisions; Proposed Rule. 4969*** EO 12866 Review Draft

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Page 209 of 286 [RIN 2070

– AJ22 ] Federal Register ( 79 FR 15444, March 19, 2014) (FRL

- 9395

- 8). 4970

3 . EPA. Final Report : Small Business Advocacy Review Panel on EPA Planned Revisions 4971
to Two Related Rules: Worker Protection Standard for Agricultural Pesticides (RIN 2070

- AJ22); 4972
and Certification of Pesticide Applicators (RIN 2070

- AJ20). November 3, 2008. 4973

4

. EPA. Response to Comments on Proposed Changes to the Worker Protection 4974

Standard. 2015. 4975

5 . U.S. Senate. S. Rep. No. 92

- 883 (Part II), 92nd Congress, 2nd Session at 43

- 46 (1972). 4976
U.S. Code Congressional and Administrative News 1972, p. 4063. 4977

6 . DOL. 2011

- 2012 NAWS data

- p ublic set. 4978
http://www.doleta.gov/agworker/naws.cfm#d

- files. Retrieved April 24 2015. 4979

7 . USDA Economic Research Service. Kandel, W. Profile of Hired Farmworkers, A 2008 4980
Update. Economic Research Report No. 60. U.S. Department of Agriculture. Economic Res earch 4981

Service. 2008. 4982

8

. EPA. Worker Protection Standard: A Summary of the Public's Comments and the 4983

Agency's Response. 1992

. 4984

9 . Burke, L., Hutchins, H. " A Study of Best Practices in Training Transfer and Proposed 4985
Model of Transfer." Human Resource Development Quarterly. V ol. 19 no. 2, Summer 2008. 4986

10 . Calvert, et al, 2008. “Acute pesticide poisoning among agricultural workers in the 4987

United States, 1998

- 20 05.”American J Ind Med 51, no. 12: 883

- 898. December 2008. 4988

1 1

. Kasner, et al . "Gender differences in acute pesticide

- related illnesses and injuries 4989
among farmworkers in the Un i ted States, 1998

- 2007. American J Ind Med 55, no. 7: 571

- 583

. 4990
July 2012

. http:/ /onlinelibrary.wiley.com/doi/10.1002/ajim.22052/full. Retrieved April 24
, 2015. 4991

1 2

. Lee, S

- J, Mehler, L, Beckman, J, Diebolt

- Brown, B, Prado, J, Lackovic, M, et al. 4992
“Acute Pesticide Illnesses Associated with Off

- Target Pesticide Drift from Agricultural 4993*** EO 12866 Review Draft

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Page 210 of 286 [RIN 2070

– AJ22 ] Applications.” Environ Health Perspect 119:1162

- 1169. 2011. 4994

1 3

. EPA. Response to “Pesticides in the Air

– Kids at Risk: Petition to Protect Childr en 4995
from Pesticide Drift (2009)." 2014. 4996

1 4

. EPA. Economic Analysis of the Proposed Agricultural Worker Prote ction Standard 4997

Revisions . Washington, D.C. 2014. 4998

1 5

. EPA. USDA Comments on the Draft Final Agricultural Worker Protection Standard 4999

Revision Rule and EPA Responses. 2015. 5000

1 6

. EPA. Pesticides; Procedural Regulations for Registration Review; Final Rule. 5001

Fe deral Register (71 FR 45720, August 9, 2006) (FRL

- 8080

- 4)

. 5002

17. OSHA. Hazard Communication; Final Rule. Federal Register (77 FR 1757 4
, March 5003

26, 2012). 5004

1 8 . EPA. Worker Protection Standards for Agricultural Pesticides; Proposed Rule. 5005
Federal Register (53 FR 25970, July 8, 1988) (FRL 3314

- 4). 5006

19 . OSHA. Hazard Communications Standard; Proposed Rule. Federal Register (53 FR 5007
29822, August 8, 1988). 5008

20 . EPA. Worker Protection Standard; Hazard Information; Proposed Rule. Federal 5009
Register (57 FR 38167, Au gust 21, 1992) (FRL

- 3793

- 1). 5010

2 1 . EPA. Pesticides; Final Guidance for Pesticide Registrants on Web

- Distributed 5011
Labeling; Notice of Availability. Federal Register (79 FR 18908, April 4, 2014) (FRL

- 9905

- 5012

60). 5013

2 2 . EPA. Pesticide Management and Disposal; Stand ards for Pesticide Containers and 5014

Containment ; Final Rule. Federal Register (71 FR 47330
, August 16, 2006) (FRL

- 8076

- 2). 5015

23. EPA. Information Collection Request Supporting Statement: Agricultural Worker 5016
Protection Standard Training and Notification ( Final Rule)

. EPA ICR No. 2491.0 2 and OMB 5017*** EO 12866 Review Draft

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Page 211 of 286 [RIN 2070

– AJ22 ] Control No. 2070

- 0190 . 201 5

. 5018

XXI . Statutory and Executive Order Reviews 5019
A. Executive Order 12866: Regulatory Planning and Review; and, Executive Order 13563: 5020
Improving Regulation and Regulatory Review 5021

This action is a significant regulatory action because it may raise novel legal or policy 5022
issues arising out of legal mandates, the President’s priorities, or the principles set forth in 5023
Executive Order 12866 (58 FR 51735, October 4, 1993). Accordingly, EPA submitted the a ction 5024
to the Office of Management and Budget (OMB) for review under Executive Order 12866 and 5025
Executive Order 13563 (76 FR 3821, January 21, 2011), and a ny changes made in response to 5026

OMB recommendations have been documented in the do cket. EPA prepared an economic 5027
analysis of the potential costs and benefits associated with this action, which is available in the 5028

docket and summarized in Unit II.C. (Ref. 1)

. 5029

B. Paperwork Reduction Act (PRA) 5030

The information collection activities contained in this final rule have been approved by 5031

OMB under the PRA, 44 U.S.C. 3501 et seq

. , and assigned OMB Control No. 2070

- 0190. In 5032

accordance with the procedures at 5 CFR 1320.11, EPA sought comment on the Information 5033
Collection Request (ICR) documen t that was submitted to OMB in conjunction with the 5034
proposed rule (identified under EPA ICR No. 2491.01 ). Revised to reflect the provisions in this 5035

final rule, the ICR document (identified under EPA ICR No. 2491 .02) was prepared and 5036

submitted to OMB and se rves as the basis for OMB’s approval (Ref. 23) . A copy of this ICR 5037
document has been placed in the docket for this final rule and it is briefly summarized here

. 5038
The information collection activities related to the existing Worker P rotection S tandard 5039
are already approved by OMB in an ICR titled “Worker Protection Standard Training and 5040
Notification” (EPA ICR No. 1759; OMB Control No. 2070

- 0148). The final rule ICR addresses 5041*** EO 12866 Review Draft

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Page 212 of 286 [RIN 2070

– AJ22 ] adjustments to the estimated number of respondents, time for activities, and wage rates related to 5042
the current regulatory requirements as approved under OMB Control No. 2070

- 0148. In addition, 5043

the final rule ICR addresses program changes related to the amendments, including 5044
modifications to restrictions in field entry activiti es during REIs ; increased hazard 5045
communications; increased training (for both workers and handlers); provisions for information 5046
during emergency assistance; and recordkeeping for respirator and training requirements. 5047
Respondents/affected entities: Agricul tural establishments . The number of agricultural 5048

establishments is b ased on the 2012 Census of Agriculture data, special tabulation, by the USDA 5049
National Agricultural Statistics Service (NASS)

. Based on that information, there are about 5050

870 ,000 crop produc ing establishments covered by the rule. 5051
Commercial pesticide handling establishments. Based on information f rom Hoover’s Dun 5052

and Bradstreet, EPA estimates there are about 2 ,000 commercial pesticide handling 5053

establishments. Based on EPA’s data on certified applicators, there are more than 40,000 5054
commercial applicators in plant agriculture. 5055
Agricultural workers and handlers

. EPA estimates that there are about 1.9 million 5056

workers, based on the 2012 Census of Agriculture data, special tabulation, by USDA ’s NASS

. 5057
Respondent’s obligation to respond: Mandatory ( 7 U.S.C. 136

– 136y, particularly section 5058

136w(a))

. 5059
Estimated number of respondents: 985,000 5060

Frequency of response: Rule familiarization will occur annually for the first 3 years. 5061
Training of w orkers and handlers will occur annually. Posting of the hazard communications 5062

information will occur
, on average , 20 times a year . Recordkeeping of training will occur 1.5 5063
times per year. 5064

Total estimated burden: 10,448,160 hours (per year). Burden is de fined at 5 CFR 5065*** EO 12866 Review Draft

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Page 213 of 286 [RIN 2070

– AJ22 ] 1320.3(b). 5066

Total estimated cost: $ 424,166,295 annualized capital or operation and maintenance 5067

costs. 5068
An agency may not conduct or sponsor, and a person is not required to respond to, a 5069
collection of information unless it displays a curre ntly valid OMB control number. The OMB 5070
control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9, and on 5071
applicable collection instruments. For this ICR activity, in addition to displaying the applicable 5072

OMB control number in this uni t, the Agency is amending the table in 40 CFR 9.1 to list the 5073
OMB control number assigned to this ICR activity. Due to the technical nature of the table, EPA 5074
finds that further notice and comment about amending the table is unnecessary. As a result, EPA 5075

fi nds that there is ‘‘good cause’’ under section 553(b)(B) of the Administrative Procedures Act 5076

(APA), 5 U.S.C. 553(b)(B), to amend this table without further notice and comment. 5077
C. Regulatory Flexibility Act (RFA) 5078
I certify that this action will not have a significant economic impact on a substantial 5079

number of small entities under RFA, 5 U.S.C. 601 et seq . The small entities subject to the 5080
requirements of this action are agricultural and handler employers, and comme rcial pesticide 5081
handler employers. EPA expects the impacts to be less than 0.1% of the annual value of sales or 5082
revenues for the average small entity. EPA calculates the impact of the rule as the percent of 5083
sales revenue. Only the very smallest farms, with average sales of less than $ 10,0 00 per year, 5084
may face impacts above one percent of sales. The number of entities that may be impacted in 5085
excess of one percent of sales could be about 12,000 farms, nurseries, and greenhouses or about 5086

6% of all small farms impacted by the WPS with revenues less than $10,000 per year. However, 5087
this is likely an overestimate of the number of farms impacted as it d oes not account for the 5088
nearly 2 ,000 such farms in California that would face impacts well below the national avera ge. 5089*** EO 12866 Review Draft

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Page 214 of 286 [RIN 2070

– AJ22 ] Additionally, there are nearly 23,000 such farms that produce only oil crops or forage whose 5090
employees are not likely to engage in hand labor activities and would not be covered by worker 5091
requirements

. Please refer to the Economic Assessment, Table 5.4

- 3. “Small Business Impacts, 5092
WPS Farms making pesticide applications” for further details of the assessment. 5093
Although EPA was not required by the RFA to convene a Small Business Advocacy 5094
Review (SBAR) Panel because this rule would not have a significant economic impact on a 5095
substantial number of small entities, EPA nevertheless convened a panel to obtain advice and 5096
recommendations from small entity representatives potentially subject to this rule’s 5097
requirements. A copy of the SBAR Panel Report is included in the docket for this rulemaking 5098

(Ref. 3 )

. 5099
D. Unfunded Mandates Reform Act (UMRA) 5100

This action does not contain an unfunded mandate of $100 million or more as described 5101

in UMRA, 2 U.S.C. 1531

– 1538, and does not significantly or uniquely affect small gove rnments. 5102
The rule requirements would primarily affect agricultural employers and handler employers . The 5103

total estimated annualized cost of the final rule is $ 60.2

– 66.9 million. 5104

E. Executive Order 13132: Federalism 5105

This action does not have federalism i mplications, as specified in Executive Order 13132 5106
(64 FR 43255, August 10, 1999). It will not have substantial direct effects on the States, on the 5107
relationship between the national government and the States, or on the distribution of power and 5108
responsibi lities among the various levels of government. However, this action may be of 5109
significant interest to state governments, because states provide enforcement for pesticide laws. 5110
EPA solicited and received comments from state partners on the proposed revision s, which are 5111
addressed in this final rule preamble and the response to comments document. 5112

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments 5113*** EO 12866 Review Draft

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Page 215 of 286 [RIN 2070

– AJ22 ] This action does not have Tribal implications, as specified in Executive Orde r 13175 (65 5114
FR 67249, November 9, 2000). The proposed rule would not regulate tribal governments 5115
directly; agricultural employers and pesticide handler employers are the directly affected entities. 5116
Thus, Executive Order 13175 does not apply to this action. 5117
G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety 5118

Risks 5119
This final rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) 5120
because it is not an economically significant regulatory action as defined by Executive Order 5121
12866. However, it is reasonable to expect that the environmental health or safety risks 5122
addressed in this rule may have a disproportionate effect on children. As such, EPA considered 5123
the best available science in order to protect children against environmental health risks and this 5124

final rule is consistent with EPA's 1995 Policy on Evaluating Health Risks to 5125

Children ( http://www2.epa.gov/sites/production/files/2014

- 05/documents/1995_ 5126
childrens_health_policy_statement.pdf ), reaffirmed in 2013 5127

( http://www2.epa.gov/sites/production/files/2014

- 5128
05/documents/reaffirmation_memorandum.pdf ). 5129
Protections include improved training on reducing pesticide residues brought from treated 5130
areas to the home on workers and handlers’ clothing and bodies and establishing a minimum age 5131
of 18 for handlers and early entry workers. With regard to establis hing an age restriction, while 5132
studies have not demonstrated a clear cut off point at which adolescents are fully developed, 5133
literature indicates that their development may continue until they reach their early to mid

- 20s. 5134
Additionally, research has shown that adolescents may take more risks, be less aware of the 5135
potential consequences of their actions on themselves and others, and be less likely to protect 5136
themselves from known risks. All of this information supports establishing a minimum age to 5137*** EO 12866 Review Draft

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Page 216 of 286 [RIN 2070

– AJ22 ] allow tho se handling pesticides to develop more fully before putting themselves, others, and the 5138
environment at risk, and to allow those performing early

- entry activities to develop more fully in 5139
order to adequately protect themselves from the risks of entering a t reated area while an REI is in 5140
effect. The final rule will reduce the potential for misuse by adolescent handlers who may less 5141
consistently exercise good judgment when handling agricultural pesticides. 5142
Children face the risk of pesticide exposure from work in pesticide

- treated areas, from the 5143
use of pesticides near their homes, and from residues of pesticides brought home by family 5144
members after a day of working with pesticides or in pesticide

- treated areas. The final rule is 5145
expected to reduce these exposu res and risks. By establishing a minimum age for certain 5146
pesticide

- related activities in agriculture, children would receive less exposure to pesticides that 5147
may lead to chronic or acute pesticide

- related illness. Another requirement to reduce risk to 5148

chil dren is training for workers and handlers on the risks presented by take

- home pesticide 5149
exposure and how best to reduce it. 5150
Like DOL’s regulations that implement the FLSA, the rule regulates the ages at which 5151
children can work in certain agricultural acti vities. The rule establishes a minimum age of 18 for 5152
pesticide handlers and for early

- entry workers, except those working on an establishment owned 5153
by an immediate family member. Since children in agriculture may face elevated risks of 5154
pesticide exposure d ue to their immaturity, failure to exercise good judgment, and developing 5155
bodies, EPA feels that they warrant special consideration in light of the Executive Order on 5156
children’s health. EPA expects that the final rule will mitigate or eliminate many agricu ltural 5157
pesticide risks faced by youths. 5158
Additional information on EPA’s consideration of the risks to children in development of 5159
this action can be found in the Economic Analysis for this action (Ref. 1)

. 5160
H. Executive Order 13211: Actions Concerning Regul ations that Significantly Affect Energy 5161*** EO 12866 Review Draft

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Page 217 of 286 [RIN 2070

– AJ22 ] Supply, Distribution, or Use 5162

This action is not a “ significant energy action ” under Executive Order 13211 (66 FR 5163
28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, 5164
distribution or use of energy

. 5165
I. National Technology Transfer and Advancement Act (NTTAA) 5166
This rulemaking does not involve technical standards that would require Agency 5167

consideration under NTTAA section 12(d), 15 U.S.C. 272. 5168

J. Executive Order 12898: Fe deral Actions to Address Environmental Justice in Minority 5169
Populations and Low

- Income Populations 5170
EPA believes that this rule would not have disproportionately high and adverse human 5171
health or environmental effects on minority, low

- income, or indigenous p opulations, as specified 5172
in Executive Order 12898 (59 FR 7629, February 16, 1994), because it increases the level of 5173
environmental protection for all affected populations without having any disproportionately high 5174

and adverse human health or environmental effects on any population, including any minority or 5175

low

- income population. In fact, the population of agricultural workers and handlers that the rule 5176
seeks to protect is comprised primarily of minority and low

- income individuals. As reviewed in 5177

Unit IV.B. 3., the farmworker community, due to occupation, economic status, health, language 5178
and other sociodemographic characteristics, faces an increased risk of pesticide exposure which 5179
this rulemaking seeks to reduce through improving communication and protectio ns. 5180
EPA engaged with stakeholders from affected communities extensively in the 5181
development of this rulemaking, in order to obtain meaningful involvement of all parties. EPA 5182
believes that the rule would improve the health of agricultural workers and handl ers by, among 5183
other things, increasing the frequency of training, enhancing training content to include ways to 5184
minimize pesticide exposure to children and in the home, adding posting of treated areas near 5185*** EO 12866 Review Draft

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Page 218 of 286 [RIN 2070

– AJ22 ] worker and handler housing to prevent accidental e ntry, and establishing a minimum age for 5186
pesticide handlers and early

- entry workers. 5187

K

. Congressional Review Act (CRA) 5188

Th is action is subject to the CRA , 5 U.S.C. 801 et seq ., and EPA submit ted a report 5189
containing this rule and other required information to the U.S. Senate, the U.S. House of 5190
Representatives, and the Comptroller General of the United States prior to publication of the rule 5191

in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). 5192

5193*** EO 12866 Review Draft

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Page 219 of 286 [RIN 2070

– AJ22 ] List of Subjects in 40 CFR Part 9 5194
Environmental protection, Reporting and recordkeeping requirements. 5195
List of Subjects in 40 CFR Part 170 5196
Environmental protection, A gricultural worker, E mployer, F arms, F orests, G reenhouses, 5197

N urseries, P esticide handler, P esticides, W orker protection standard. 5198

5199

Dated:

______________ _______ 5200

5201

5202

5203

______________________ ______________ 5204
Gina McCarthy, 5205

Administrator. 5206

5207*** EO 12866 Review Draft

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Page 220 of 286 [RIN 2070

– AJ22 ] Therefore, 40 CFR C hapter I is amend ed as follows: 5208

1. Part 9 is amended as follows: 5209

PART 9

— [AMENDED] 5210
a. The authority citation for part 9 continues to read as follows: 5211
Authority: 7 U.S.C. 135 et seq ., 136

- 136y; 15 U.S.C. 2001, 2003, 2005, 2006, 2601

- 5212
2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq ., 1311, 1313d, 1314, 5213

1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 5214

1971

- 1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g

- 1, 300g

- 2, 300g

- 3, 5215
300g

- 4, 300g

- 5, 300g

- 6, 300j

- 1, 300j

- 2, 300j

- 3, 300 j

- 4, 300j

- 9, 1857 et seq ., 6901

- 6992k, 7401

- 5216
7671q, 7542, 9601

- 9657, 11023, 11048. 5217
b. In § 9.1 the table is amended by revising the entry under the heading ‘‘ Worker 5218
Protection Standards for Agricultural Pesticides ’’ to read as follows: 5219

§ 9.1 OMB approvals u nder the Paperwork Reduction Act. 5220

* * * * * 5221

40 CFR citation OMB control No.

* * * * *

Worker Protec tion Standards for Agricultural Pesticides part 170 2070

- 0 148, 2070

- 0190

* * * * *
5222

* * * * * 5223

PART 1 70

- - [AMENDED] 5224

3 . The authority citation for part 1 70 continues to read as follows: 5225
Authority: 7 U.S.C. 136w

. 5226*** EO 12866 Review Draft

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Page 221 of 286 [RIN 2070

– AJ22 ] 4

. Section 170.2 is added to subpart A to read as follows 5227
§ 170.2 Implementation and expiration dates. 5228

(a) Implementation date. Beginning [ i nsert date one year and 60 days after date of 5229
publication in the Federal Register ] , the requirements of § 170.301 through § 170.609 of this 5230
part shall apply to any pesticide product that bears the statement “Use this product only in 5231

accordance with its lab eling and with the Worker Protection Standard, 40 CFR part 170”. 5232

(b) Expiration date. Sections 170.1 through 170.260 of this part shall expire on, and will 5233
no longer be effective after [ i nsert date one year and 60 days after date of publication in the 5234
Federal Register ]

. 5235

5 . In § 170.135 revis e paragraph s (b) and (c)(1) to read as follows: 5236
§ 170.135 Posted p esticide safety information. 5237

* * * * * 5238

(b) Pesticide safety poster. A safety poster must be displayed that conveys, at a 5239
minimum, the pesticide safety concepts listed in paragraphs (b)(1)(i)

- (vii) and (b)(2) of this 5240
section. Displays conforming to § 170.311(a)(3) meet the requirements of this paragraph. 5241

* * * 5242

(c) Emerge ncy medical care information. (1) The name, address, and telephone number 5243
of the nearest emergency medical care facility shall be on the safety poster or displayed close to 5244
the safety poster. Displays conforming to § 170.311(a)(3)(ix) meet the requirements of this 5245
paragraph. 5246

* * * * * 5247

6 . In § 170.235 revis e paragraphs (b) and (c)(1) to read as follows: 5248
§ 170.235 Posted pesticide safety information. 5249

* * * * * 5250*** EO 12866 Review Draft

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Page 222 of 286 [RIN 2070

– AJ22 ] (b) Pesticide safety poster. A safety poster must be displayed that conveys, at a 5251
minimum, the pesticide safety concepts listed in paragraphs (b)(1)(i)

- (vii) and (b)(2) of this 5252
section. Displays conforming to § 170.3 11(a)(3) meet the requirements of this paragraph. 5253

* * * 5254

(c) Emergency medical care information. (1) The name, address, and telephone number 5255
of the nearest emergency medical care facility shall be on the safety poster or displayed close to 5256
the safety post er. Displays conforming to § 170.311(a)(3)(ix) meet the requirements of this 5257
paragraph. 5258

* * * * * 5259

7 . Subpart D is added to part 170 to read as follows: 5260
Subpart D

– General Provisions 5261

Sec. 5262 § 170.301 Scope and purpose. 5263 § 170.303 Applicability of this part. 5264 § 170.305 Definitions. 5265 § 170.309 Agricultural employer duties. 5266 § 170.311 Display requirements for pesticide safety information and pesticide application and 5267 hazard information. 5268 § 170. 313 Commercial pesticide handler employer duties. 5269 § 170.315 Prohibited actions. 5270 § 170.317 Violations of this part. 5271

§ 170.301 Scope and purpose. 5272
This regulation is intended to reduce the risks of illness or injury to workers and handlers 5273
resulting from occupational exposures to pesticides used in the production of agricultural plants 5274
on agricultural establishments. It requires agricultural employers and commercial pesticide 5275
handler employers to provide specific information and protections to workers, han dlers and other 5276
persons when pesticides are used on agricultural establishments in the production of agricultural 5277
plants. It also requires handlers to wear the labeling

- specified clothing and personal protective 5278*** EO 12866 Review Draft

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Page 223 of 286 [RIN 2070

– AJ22 ] equipment when performing handler activities , and to take measures to protect workers and other 5279
persons during pesticide applications. 5280

§ 170.303 Applicability of this part. 5281
(a) This regulation applies whenever a pesticide product bearing a label requiring 5282
compliance with this part is used in the production of agricultural plants on an agricultural 5283
establishment, except as provided in paragraphs (b) and (c) of this section. 5284
(b) This regulation does not apply when a pesticide product bearing a label requiring 5285
compliance with this part is used on an agricultural establishment in any of the following 5286

circumstances: 5287
(1) As part of government

- sponsored public pest control programs over which the owner, 5288
agricultural employer and handler employer have no control, such as mosquito abatement and 5289

Mediterra nean fruit fly eradication programs. 5290
(2) On plants other than agricultural plants, which may include plants in home fruit and 5291
vegetable gardens and home greenhouses, and permanent plantings for ornamental purposes, 5292
such as plants that are in ornamental g ardens, parks, public or private landscaping, lawns or other 5293
grounds that are intended only for aesthetic purposes or climatic modification. 5294
(3) For control of vertebrate pests, unless directly related to the production of an 5295
agricultural plant. 5296

(4) As a ttractants or repellents in traps. 5297
(5) On the harvested portions of agricultural plants or on harvested timber. 5298
(6) For research uses of unregistered pesticides. 5299
(7) On pasture and rangeland where the forage will not be harvested for hay. 5300

(8) In a m anner not directly related to the production of agricultural plants, including, but 5301
not limited to structural pest control and control of vegetation in non

- crop areas. 5302*** EO 12866 Review Draft

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Page 224 of 286 [RIN 2070

– AJ22 ] (c) Where a pesticide product’s labeling

- specific directions for use or other labeling 5303
requirements are inconsistent with requirements of this part, users must comply with the 5304
pesticide product labeling, except as provided for in § § 170.601, 170.603 and 170.607. 5305

§ 170.305 Definitions. 5306
Terms used in this part have the same meanings they have in the Federal Insecticide, 5307
Fungicide, and Rodenticide Act, as amended. In addition, the following terms, when used in this 5308
part, shall have the following meanings: 5309
Agricultural employer means any person who is an owner of, or is responsible for the 5310
management or condition of, an agricultural establishment, and who employs any worker or 5311

handler. 5312
Agricultural establishment means any farm, forest operation, or nursery engaged in the 5313

outdoor or enclos ed space production of agricultural plants. An establishment that is not 5314
primarily agricultural is an agricultural establishment if it produces agricultural plants for 5315
transplant or use (in part or their entirety) in another location instead of purchasing the 5316
agricultural plants. 5317
Agricultural plant means any plant, or part thereof, grown, maintained, or otherwise 5318
produced for commercial purposes, including growing, maintaining or otherwise producing 5319
plants for sale or trade, for research or experimental pu rposes, or for use in part or their entirety 5320
in another location. Agricultural plant includes, but is not limited to, grains, fruits and 5321
vegetables; wood fiber or timber products; flowering and foliage plants and trees; seedlings and 5322
transplants; and turf grass produced for sod. Agricultural plant does not include pasture or 5323
rangeland used for grazing. 5324
Application exclusion zone means the area surrounding the application equipment that 5325
must be free of all persons other than appropriately trained and equi pped handlers during 5326*** EO 12866 Review Draft

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Page 225 of 286 [RIN 2070

– AJ22 ] pesticide applications. 5327
Chemigation means the application of pesticides through irrigation systems. 5328
Closed system means an engineering control used to protect handlers from pesticide 5329
exposure hazards when mixing and loading pesticide s. 5330
Commercial pesticide handler employer means any person, other than an agricultural 5331
employer, who employs any handler to perform handler activities on an agricultural 5332

establishment. A labor contractor who does not provide pesticide application services or 5333
supervise the performance of handler activities, but merely employs laborers who perform 5334
handler activities at the direction of an agricultural or handler employer, is not a commercial 5335
pesticide handler employer. 5336
Commercial pesticide handling establis hment means any enterprise, other than an 5337
agricultural establishment, that provides pesticide handler or crop advising services to 5338
agricultural establishments. 5339
Crop advisor means any person who is assessing pest numbers, damage, pesticide 5340

distribution, or the status or requirements of agricultural plants. 5341
Designated representative means a ny person s designated in writing by a worker or 5342
handler to exercise a right of access on behalf of the worker or handler to request and obtain a 5343
copy of the pesticide app lication and hazard i nformati on required by § 170.309(h) in accordance 5344

with § 170.311(b) of this part. 5345
Early entry means entry by a worker into a treated area on the agricultural establishment 5346
after a pesticide application is complete, but before any rest ricted

- entry interval for the pesticide 5347
has expired. 5348
Employ means to obtain, directly or through a labor contractor, the services of a person in 5349
exchange for a salary or wages, including piece

- rate wages, without regard to who may pay or 5350*** EO 12866 Review Draft

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Page 226 of 286 [RIN 2070

– AJ22 ] who may receive t he salary or wages. It includes obtaining the services of a self

- employed 5351
person, an independent contractor, or a person compensated by a third party
, except that it does 5352
not include an agricultural employer obtaining the services of a handler through a co mmercial 5353
pesticide handler employer or a commercial pesticide handling establishment. 5354

Enclosed cab means a cab with a nonporous barrier that totally surrounds the occupant(s) 5355
of the cab and prevents dermal contact with pesticides that are being applied outside of the cab. 5356
Enclosed space production means production of an agricultural plant indoors or in a 5357
structure or space that is covered in whole or in part by any nonporous covering and that is large 5358
enough to permit a person to enter. 5359

Fumigant means any pesticide product that is a vapor or gas, or forms a vapor or gas 5360
upon application, and whose pesticidal action is achieved through the gaseous or vapor state. 5361

Hand labor means any agricultural activity performed by hand or with hand tools that 5362
causes a worker to have substantial contact with plants, plant parts, or soil and other surfaces that 5363
may contain pesticide residues, except that hand labor does not include operating, moving, or 5364
repairing irrigation or watering equipment or pe rforming crop advisor tasks. 5365

Handler means any person, including a self

- employed person, who is employed by an 5366
agricultural employer or commercial pesticide handler employer and performs any of the 5367
following activities: 5368
(1) Mixing, loading, or applying pesticides. 5369
(2) Disposing of pesticides. 5370
(3) Handling opened containers of pesticides, emptying, triple

- rinsing, or cleaning 5371
pesticide containers according to pesticide product labeling instructions, or disposing of pesticide 5372

containers that have not bee n cleaned. The term does not include any person who is only 5373
handling unopened pesticide containers or pesticide containers that have been emptied or cleaned 5374*** EO 12866 Review Draft

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Page 227 of 286 [RIN 2070

– AJ22 ] according to pesticide product labeling instructions. 5375
(4) Acting as a flagger. 5376
(5) Cleaning, adju sting, handling, or repairing the parts of mixing, loading, or application 5377
equipment that may contain pesticide residues. 5378
(6) Assisting with the application of pesticides. 5379
(7) Entering an enclosed space after the application of a pesticide and before the 5380
inhalation exposure level listed in the labeling has been reached or one of the ventilation criteria 5381
established by § 170.405(b)(3) or the labeling has been met to operate ventilation equipment, 5382
monitor air levels, or adjust or remove coverings used in fu migation. 5383
(8) Entering a treated area outdoors after application of any soil fumigant during the 5384
labeling

- specified entry

- restricted period to adjust or remove coverings used in fumigation. 5385
(9) Performing tasks as a crop advisor during any pesticide application or restricted

- entry 5386
interval, or before the inhalation exposure level listed in the pesticide product labeling has been 5387
reached or one of the ventilation criteria established by § 170. 405(b)(3) or the pesticide product 5388
labeling has been met. 5389
Handler employer means any person who is self

- employed as a handler or who employs 5390
any handler. 5391
Immediate family is limited to the spouse, parents, stepparents, foster parents, father

- in

5392

law, moth er

- in

- law, children, stepchildren, foster children, sons

- in

- law, daughters

- in

- law, 5393
grandparents, grandchildren, brothers, sisters, brothers

- in

- law, and sisters

- in

- law. 5394

Labor contractor means a person , other than a commercial pesticide handler, who 5395
employ s workers or handlers to perform tasks on an agricultural establishment for an agricultural 5396
employer or a commercial pesticide handler employer. 5397
Outdoor production means production of an agricultural plant in an outside area that is 5398*** EO 12866 Review Draft

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Page 228 of 286 [RIN 2070

– AJ22 ] not enclosed or covere d in any way that would obstruct the natural air flow

. 5399

Owner means any person who has a present possessory interest (e.g., fee, leasehold, 5400
rental, or other) in an agricultural establishment. A person who has both leased such agricultural 5401

establishment to another person and granted that same person the right and full authority to 5402
manage and govern the use of such agricultural establishment is not an owner for purposes of 5403
this part. 5404
Personal protective equipment means devices and apparel that are worn to p rotect the 5405
body from contact with pesticides or pesticide residues, including, but not limited to, coveralls, 5406

chemical

- resistant suits, chemical

- resistant gloves, chemical

- resistant footwear, respirators, 5407

chemical

- resistant aprons, chemical

- resistant headg ear, and protective eyewear. 5408

Restricted

- entry interval means the time after the end of a pesticide application during 5409
which entry into the treated area is restricted. 5410
Safety data sheet has the same meaning as the definition at 29 CFR 1900.1200(c). 5411

Treated area means any area to which a pesticide is being directed or has been directed. 5412
Use, as in “to use a pesticide” means any of the following: 5413

(1) Pre

- application activities, including, but not limited to: 5414
(i) Arranging for the application of t he pesticide. 5415
(ii) Mixing and loading the pesticide. 5416
(iii) Making necessary preparations for the application of the pesticide, including 5417
responsibilities related to worker notification, training of workers or handlers, providing 5418
decontamination supplies, providing pesticide safety information and pesticide application and 5419
hazard information, use and care of personal protective equipment, providing emergency 5420
assistance, and heat stress management. 5421
(2) Application of the pesticide. 5422*** EO 12866 Review Draft

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Page 229 of 286 [RIN 2070

– AJ22 ] (3) Post

- application activities intended to reduce the risks of illness and injury resulting 5423
from handlers' and workers' occupational exposures to pesticide residues during and after the 5424

restricted

- entry interval, including responsibilities related to worker notification, trai ning of 5425
workers or early

- entry workers, providing decontamination supplies, providing pesticide safety 5426
information and pesticide application and hazard information, use and care of personal protective 5427
equipment, providing emergency assistance, and heat str ess management. 5428
(4) Other pesticide

- related activities, including, but not limited to, transporting or storing 5429
pesticides that have been opened, cleaning equipment, and disposing of excess pesticides, spray 5430
mix, equipment wash waters, pesticide container s, and other pesticide

- containing materials. 5431

Worker means any person, including a self

- employed person, who is employed and 5432
performs activities directly relating to the production of agricultural plants on an agricultural 5433

establishment. 5434
Worker housing ar ea means any place or area of land on or near an agricultural 5435
establishment where housing or space for housing is provided for workers or handlers by an 5436
agricultural employer, owner, labor contractor, or any other person responsible for the 5437

recruitment or employment of agricultural workers. 5438

§ 170.309 Agricultural employer duties. 5439
Agricultural employers must: 5440
(a) Ensure that any pesticide is used in a manner consistent with the pesticide product 5441
labeling, including the requirements of this part, when appl ied on the agricultural establishment. 5442
(b) Ensure that each worker and handler subject to this part receives the protections 5443
required by this part. 5444
(c) Ensure that any handler and any early entry worker is at least 18 years old. 5445
(d) Provide to each pe rson, including labor contractors, who supervises any workers or 5446*** EO 12866 Review Draft

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Page 230 of 286 [RIN 2070

– AJ22 ] handlers information and directions sufficient to ensure that each worker and handler receives 5447
the protections required by this part. Such information and directions must specify the tasks fo r 5448
which the supervisor is responsible in order to comply with the provisions of this part. 5449
(e) Require each person, including labor contractors, who supervises any workers or 5450
handlers to provide sufficient information and directions to each worker and ha ndler to ensure 5451
that they can comply with the provisions of this part. 5452
(f) Provide emergency assistance in accordance with this paragraph. If there is reason to 5453
believe that a worker or handler has experienced a potential pesticide exposure during his or her 5454
employment on the agricultural establishment or shows symptoms similar to those associated 5455
with acute exposure to pesticides during or within 72 hours after his or her employment on the 5456
agricultural establishment, and needs emergency medical treatment, the agricultural employer 5457
must do all of the following promptly after learning of the possible poisoning or injury: 5458
(1) Make available to that person transportation from the agricultural establishment, 5459
including any worker housing area on the establishment, to an operating medical care facility 5460
capable of providing emergency medical treatment to a person exposed to pest icides

. 5461
(2) Provide all of the following information to the treating medical personnel: 5462
(i) Copies of the applicable safety data sheet(s) and the product name(s), EPA registration 5463
number(s) and active ingredient(s) for each pesticide product to which the person may have been 5464
exposed. 5465
(ii) The circumstances of application or use of the pesticide on the agricultural 5466

establishment. 5467
(iii) The circumstances that could have resulted in exposure to the pesticide. 5468
(g) Ensure that workers or other persons emp loyed by the agricultural establishment do 5469

not clean, repair, or adjust pesticide application equipment, unless trained as a handler under § 5470*** EO 12866 Review Draft

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Page 231 of 286 [RIN 2070

– AJ22 ] 170.501. Before allowing any person not directly employed by the agricultural establishment to 5471
clean, repair, or adjust equipment that has been used to mix, load, transfer, or apply pesticides, 5472
the agricultural employer must provide all of the following information to such person: 5473
(1) Pesticide application equipment may be contaminated with pesticides. 5474
(2) The pot entially harmful effects of exposure to pesticides. 5475
(3) Procedures for handling pesticide application equipment and for limiting exposure to 5476
pesticide residues. 5477
(4) Personal hygiene practices and decontamination procedures for preventing pesticide 5478

expo sures and removing pesticide residues. 5479
(h) Display , maintain, and provide access to pesticide safety information and pesticide 5480
application and hazard information in accordance with § 170.311 if workers or handlers are on 5481

the establishment and within the l ast 30 days a pesticide product has been used or a restricted

5482
entry interval for such pesticide has been in effect on the establishment. 5483
(i) Ensure that before a handler uses any equipment for mixing, loading, transferring, or 5484
applying pesticides, the ha ndler is instructed in the safe operation of such equipment. 5485
(j) Ensure that before each day of use, equipment used for mixing, loading, transferring, 5486
or applying pesticides is inspected for leaks, clogging, and worn or damaged parts, and any 5487
damaged equ ipment is repaired or replaced. 5488

(k) Ensure that whenever handlers employed by a commercial pesticide handling 5489
establishment will be on an agricultural establishment, the handler employer is provided 5490
information about, or is aware of, the specific locatio n and description of any treated areas on the 5491
agricultural establishment where a restricted

- entry interval is in effect that the handler may be in 5492
(or may walk within 1 ⁄ 4 mile of), and any restrictions on entering those areas. 5493

(l) Ensure that w orkers do not enter any area on the agricultural establishment where a 5494*** EO 12866 Review Draft

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Page 232 of 286 [RIN 2070

– AJ22 ] pesticide has been applied until the applicable pesticide application and hazard information for 5495
each pesticide product applied to that area is displayed in accordance with § 170.311(b), and 5496

unti l after the restricted

- entry interval has expired and all treated area warning signs have been 5497
removed or covered, except for entry permitted by § 170.603 of this part. 5498
(m) Provide any records or other information required by this part for inspection and 5499
copying upon request by an employee of EPA or any duly authorized representative of a Federal, 5500
State or Tribal government agency responsible for pesticide enforcement. 5501

§ 170.311 Display requirements for pesticide safety information and pesticide applicat ion 5502

and hazard information. 5503

(a) Display of Pesticide Safety Information . Whenever pesticide safety information and 5504
pesticide application and hazard information are required to be provided under § 170.309(h), 5505
pesticide safety information must be displayed in accordance with this paragraph. 5506

(1) General. The pesticide safety information must be conveyed in a manner that workers 5507

and handlers can understand. 5508

(2) Content prior to [ i nsert date two years and 60 days from date of publication in the 5509

Federal Register ]

. Prior to [ i nsert date two years and 60 days from date of publication in the 5510
Federal Register ]
, the safety information must include all of the following points: 5511
(i) Help keep pesticides from entering your body. Avoid getting on your skin or int o your 5512
body any pesticides that may be on plants and soil, in irrigation water, or drifting from nearby 5513
applications. 5514
(ii) Wash before eating, drinking, using chewing gum or tobacco, or using the toilet. 5515
(iii) Wear work clothing that protects the body f rom pesticide residues (long

- sleeved 5516
shirts, long pants, shoes and socks, and a hat or scarf). 5517
(iv) Wash or shower with soap and water, shampoo hair, and put on clean clothes after 5518*** EO 12866 Review Draft

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Page 233 of 286 [RIN 2070

– AJ22 ] work. 5519
(v) Wash work clothes separately from other clothes before wearin g them again. 5520
(vi) Wash immediately in the nearest clean water if pesticides are spilled or sprayed on 5521
the body. As soon as possible, shower, shampoo, and change into clean clothes. 5522
(vii) Follow directions about keeping out of treated or restricted areas. 5523
(viii) The name, address, and telephone number of a nearby operating medical care 5524
facility capable of providing emergency medical treatment. This information must be clearly 5525
identified as emergency medical contact information on the display. 5526

(ix) There are Federal rules to protect workers and handlers, including a requirement for 5527
safety training. 5528

(3) Content after [ i nsert date two years and 60 days from date of publication in the 5529
Federal Register ]

. After [ i nsert date two years and 60 days from dat e of publication in the 5530
Federal Register ] , the pesticide safety information must include all of the points in § 5531

170.311(a)(3)(i)

- (x) instead of the points listed in § 170.311(a)(2)(i)

- (ix). 5532

(i ) Avoid getting on the skin or into the body any pesticides that may be on or in plants, 5533
soil, irrigation water, tractors, and other equipment, on used personal protective equipment, or 5534
drifting from nearby applications. 5535
(ii) Wash before eating, drinking , using chewing gum or tobacco, or using the toilet. 5536
(iii) Wear work clothing that protects the body from pesticide residues (long

- sleeved 5537
shirts, long pants, shoes and socks, and a hat or scarf). 5538
(iv) Wash or shower with soap and water, shampoo hair, and put on clean clothes after 5539

work. 5540
(v) Wash work clothes separately from other clothes before wearing them again. 5541
(vi) If pesticides are spilled or sprayed on the body use decontamination supplies to wash 5542*** EO 12866 Review Draft

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Page 234 of 286 [RIN 2070

– AJ22 ] immediately, or rinse off in the nearest clea n water, including springs, streams, lake s or other 5543
sources if more readily available than decontamination supplies, and as soon as possible, wash or 5544
shower with soap and water, shampoo hair, and change into clean clothes. 5545

(vii) Follow directions about k eeping out of treated areas and application exclusion 5546

zones. 5547
(viii) Instructions to employees to seek medical attention as soon as possible if they 5548
believe they have been poisoned, injured or made ill by pesticides. 5549
(ix) The name, address, and telephone number of a nearby operating medical care facility 5550
capable of providing emergency medical treatment. This information must be clearly identified 5551
as emergency medical contact information on the display. 5552
(x) The name, address and telephone number of the St ate or Tribal pesticide regulatory 5553

agency. 5554

(4) Changes to pesticide safety information. The agricultural employer must update the 5555
pesticide safety information display within 24 hours of notice of any changes to the information 5556
required in § § 170.311(a)(2 )(viii) or 170.311(a)(3)(ix). 5557

(5) Location . The pesticide safety information must be displayed at each of the following 5558
sites on the agricultural establishment: 5559
(i) The site selected pursuant to § 170.311(b)(2) for display of pesticide application and 5560

ha zard information. 5561
(ii) Anywhere that decontamination supplies must be provided on the agricultural 5562
establishment pursuant to §§ 170.411, 170.509 or 170.605, but only when the decontamination 5563
supplies are located at permanent sites or being provided at loc ations and in quantities to meet 5564
the requirements for 11 or more workers or handlers. 5565

(6) Accessibility . When pesticide safety information is required to be displayed, workers 5566*** EO 12866 Review Draft

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Page 235 of 286 [RIN 2070

– AJ22 ] and handlers must be allowed access to the pesticide safety information at all times during 5567

normal work hours. 5568

(7) Legibility . The pesticide safety information must remain legible at all times when the 5569
information is required to be displayed. 5570

(b) Keeping and displaying pesticide application and hazard information. Whenever 5571
pesti cide safety information and pesticide application and hazard information is required to be 5572
provided under § 170.309(h), pesticide application and hazard information for any pesticides that 5573
are used on the agricultural establishment must be displayed
, re tai ned, and made accessible in 5574
accordance with this paragraph. 5575

(1) Content. The pesticide application and hazard information must include all of the 5576
following information for each pesticide product applied: 5577
(i) A copy of the safety data sheet. 5578

(ii) The n ame, EPA registration number, and active ingredient(s) of the pesticide product. 5579
(iii) The crop or site treated and the location and description of the treated area. 5580
(iv) The date(s) and times the application started and ended. 5581
(v) The duration of the applicable labeling

- specified restricted

- entry interval for that 5582
application. 5583

(2) Location . The pesticide application and hazard information must be displayed at a 5584
place on the agricultural establishment where workers and handlers are likely to pass by or 5585
congregate and where it can be readily seen and read. 5586

(3) Accessibility . When the pesticide application and hazard information is required to be 5587
displayed, workers and handlers must be allowed access to the location of the inform ation at all 5588
times during normal work hours. 5589

(4) Legibility . The pesticide application and hazard information must remain legible at all 5590*** EO 12866 Review Draft

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Page 236 of 286 [RIN 2070

– AJ22 ] times when the information is required to be displayed. 5591

(5) Timing . The pesticide application and hazard information for each pesticide product 5592
applied must be displayed no later than 24 hours after the end of the application of the pesticide. 5593
The pesticide application and hazard information must be displayed continuously from the 5594
beginning of the display period until at least 30 days after the end of the last applicable 5595

restricted

- entry interval, or until workers or handlers are no longer on the establishment, 5596

whichever is earlier. 5597

(6) Record retention. Whenever pesticide safety information and pesticide application 5598
and hazard information is required to be displayed in accordance with this paragraph (b), the 5599
agricultural employer must re tain the pesticide application and hazard information described in § 5600
170.311(b)(1) on the agricultural establishment for two years af ter the date of expiration of the 5601

restricted

- entry interval applicable to the pesticide application conducted

. 5602

(7 ) Access to pesticide application and hazard information by a worker or handler. If a 5603
person is or was employed as a worker or handler by an establishment during the period that 5604
particular pesticide application and hazard information was required to be displayed and retained 5605
for two years in accordance with § § 170.311(b)(5) and 170.311(b)(6), and the person requests a 5606
copy of such application and/or hazard information, or request s access to such application and/or 5607

hazard information after it is no longer required to be displayed, the agricultural employer must 5608
provide the worker or handler with a copy of or access to all of the requested inform ation within 5609
15 days of the receipt of any such request. The worker or handler may make the request orally or 5610
in writing. 5611

(8) Access to pesticide application and hazard information by treating medical personnel. 5612

A ny treating medical personnel, or any pe rson acting under the supervision of treati ng medical 5613
personnel, may request, orally or in writing, access to or a copy of any information required to be 5614*** EO 12866 Review Draft

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Page 237 of 286 [RIN 2070

– AJ22 ] re tained for two years by § 170.311(b)(6) in order to inform diagnosis or treatment of a worker 5615
or handler who was employed on the establishment during the period that the information was 5616
required to be displayed

. T he agricultural employer must promptly provide a copy of or access to 5617
all of the requested information applicable to the worker ’s or handler’s time of employment on 5618

the establishment after receipt of the request

. 5619

(9) Access to pesticide application and hazard information by a designated 5620

representative. 5621

(i) A ny worker’s or handler’s designated representative may request access t o or a copy 5622
of any information required to be re tained for two years by § 170.311(b)(6) on behalf of a worker 5623

or handler employed on the establishment during the period that the information was required to 5624
be display ed. T he agricultural employer must provi de access to or a copy of the requested 5625
information applicable to the worker’s or handler’s time of employment on the establishment 5626
within 15 days after receiving any such request , provided the request meets the requirements 5627
specified in § 170.311(b)(9)(ii )

. 5628
(ii) A request by a designated representative for access to or a copy of any pesticide 5629
application and/or hazard information must be in writing and must contain all of the following: 5630
(A) The name of the worker or handler being represented. 5631
(B) A description of the specific information being requested. The description should 5632
include the dates of employment of the worker or handler, the date or dates for which the records 5633
are requested, type of work conducted by the worker or handler (e.g., pl anting, harvesting, 5634
applying pesticides, mixing or loading pesticides) during the period for which the records are 5635
requested , and the specific application and/or hazard information requested. 5636
(C) A written statement clearly designating the representative t o request pesticide 5637
application and hazard information on the worker’s or handler’s behalf, bearing the worker’s or 5638*** EO 12866 Review Draft

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Page 238 of 286 [RIN 2070

– AJ22 ] handler’s printed name and signature, the date of the designation, and the printed name and 5639
contact information for the designated represent ative. 5640
(D) If the worker or handler requests that the pesticide application and/or the hazard 5641
information be sent, direction for where to send the information (e.g., mailing address or email 5642

address). 5643
(iii) If the written request from a designated repres entative contains all of the necessary 5644
information specified in § 170.313(b)(9)(ii), the employer must provide a copy of or access to all 5645
of the requested information applicable to the worker’s or handler’s time of employment on the 5646

establishment to the de signated representative within 15 days of receiving the request. 5647

§ 170.313 Commercial pesticide handler employer duties. 5648
Commercial pesticide handler employers must: 5649
(a) Ensure that any pesticide is used in a manner consistent with the pesticide product 5650
labeling, including the requirements of this part, when applied on an agricultural establishment 5651
by a handler employed by the commercial pesticide handling establishment

. 5652

(b) Ensure each handler employed by the commercial pesticide handling establishmen t 5653

and subject to this part receives the protections required by this part. 5654
(c) Ensure that any handler employed by the commercial pesticide handling 5655

establishment is at least 18 years old. 5656
(d) Provide to each person, including labor contractors, who sup ervises any handlers 5657
employed by the commercial pesticide handling establishment, information and directions 5658
sufficient to ensure that each handler receives the protections required by this part. Such 5659
information and directions must specify the tasks for w hich the supervisor is responsible in order 5660
to comply with the provisions of this part. 5661
(e) Require each person, including labor contractors, who supervises any handlers 5662*** EO 12866 Review Draft

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Page 239 of 286 [RIN 2070

– AJ22 ] employed by the commercial pesticide handling establishment, to provide sufficient in formation 5663
and directions to each handler to ensure that the handler can comply with the provisions of this 5664

part. 5665
(f) Ensure that before any handler employed by the commercial pesticide handling 5666

establishment uses any equipment for mixing, loading, transfe rring, or applying pesticides, the 5667
handler is instructed in the safe operation of such equipment. 5668
(g) Ensure that, before each day of use, equipment used by their employees for mixing, 5669
loading, transferring, or applying pesticides is inspected for leaks, obstructions, and worn or 5670
damaged parts, and any damaged equipment is repaired or is replaced. 5671

(h) Ensure that whenever a handler who is employed by a commercial pesticide handling 5672
establishment will be on an agricultural establishment, the handler is provided information about, 5673
or is aware of, the specific location and description of any treated areas where a restricted

- entry 5674
interval is in effect, and the restrictions on entering those areas. 5675
(i) Provide the agricultural employer all of the following information before the 5676
application of any pesticide on an agricultural establishment: 5677
(1) Specific location(s) and description of the area(s) to be treated. 5678
(2) The date(s) and start and estimated end times of application. 5679
(3) Product name, EPA registration number, and active ingredient(s). 5680
(4) The labeling

- specified restricted

- entry interval applica ble for the application. 5681
(5) Whether posting, oral notification or both are required under § 170.409. 5682
(6) Any restrictions or use directions on the pesticide product labeling that must be 5683
followed for protection of workers, handlers, or other persons dur ing or after application. 5684
(j) If there are any changes to the information provided in § 170.313(i)(1), § 5685

170.313(i)(4), § 170.313(i)(5), § 170.313(i)(6) or if the start time for the application will be 5686*** EO 12866 Review Draft

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Page 240 of 286 [RIN 2070

– AJ22 ] earlier than originally forecasted or scheduled, ensu re that the agricultural employer is provided 5687
updated information prior to the application. If there are any changes to any other information 5688
provided pursuant to § 170.313(i), the commercial pesticide handler employer must provide 5689
updated information to t he agricultural employer within two hours after completing the 5690
application. Changes to the estimated application end time of less than one hour need not be 5691
reported to the agricultural employer. 5692
(k) Provide emergency assistance in accordance with this par agraph. If there is reason to 5693

believe that a handler employed by the commercial pesticide handling establishment has 5694
experienced a potential pesticide exposure during his or her employment by the commercial 5695
pesticide handling establishment or shows symptom s similar to those associated with acute 5696
exposure to pesticides during or within 72 hours after his or her employment by the commercial 5697
pesticide handling establishment, and needs emergency medical treatment, the commercial 5698
pesticide handler employer must do all of the following promptly after learning of the possible 5699
poisoning or injury: 5700
(1) Make available to that person transportation from the commercial pesticide handling 5701
establishment, or any agricultural establishment on which that handler may be work ing on behalf 5702
of the commercial pesticide handling establishment, to an operating medical care facility capable 5703
of providing emergency medical treatment to a person exposed to pesticides

. 5704
(2) Provide all of the following information to the treating medica l personnel: 5705
(i) Copies of the applicable safety data sheet(s) and the product name(s), EPA registration 5706
number(s) and active ingredient(s) for each pesticide product to which the person may have been 5707
exposed. 5708
(ii) The circumstances of application or u se of the pesticide. 5709
(iii) The circumstances that could have resulted in exposure to the pesticide. 5710*** EO 12866 Review Draft

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Page 241 of 286 [RIN 2070

– AJ22 ] (l) Ensure that persons directly employed by the commercial pesticide handling 5711

establishment do not clean, repair, or adjust pesticide application equipme nt, unless trained as a 5712

handler under § 170.501. Before allowing any person not directly employed by the commercial 5713
pesticide handling establishment to clean, repair, or adjust equipment that has been used to mix, 5714
load, transfer, or apply pesticides, the c ommercial pesticide handler employer must provide all of 5715
the following information to such persons: 5716
(1) Notice that the pesticide application equipment may be contaminated with pesticides. 5717
(2) The potentially harmful effects of exposure to pesticides. 5718
(3) Procedures for handling pesticide application equipment and for limiting exposure to 5719
pesticide residues. 5720
(4) Personal hygiene practices and decontamination procedures for preventing pesticide 5721
exposures and removing pesticide residues. 5722

(m) Provide a ny records or other information required by this part for inspection and 5723
copying upon request by an employee of EPA or any duly authorized representative of a Federal, 5724
State or Tribal government agency responsible for pesticide enforcement. 5725

§ 170.315 Proh ibited actions. 5726
No agricultural employer, commercial pesticide handler employer, or other person 5727
involved in the use of a pesticide to which this part applies, shall intimidate, threaten, coerce, or 5728
discriminate against any worker or handler for complyin g with or attempting to comply with this 5729
part, or because the worker or handler provided, caused to be provided or is about to provide 5730
information to the employer or the EPA or any duly authorized representative of a Federal, State 5731
or Tribal government reg arding conduct that the worker or handler reasonably believes violates 5732
this part, has made a complaint, testified, assisted, or participated in any manner in an 5733
investigation, proceeding, or hearing concerning compliance with this part, or has objected to, or 5734*** EO 12866 Review Draft

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Page 242 of 286 [RIN 2070

– AJ22 ] refused to participate in, any activity, policy, practice, or assigned task that the worker or handler 5735
reasonably believed to be in violation of this part. Any such intimidation, threat, coercion, or 5736

discrimination violates FIFRA section 12(a)(2)(G), 7 U.S.C. 136j(a)(2)(G). 5737

§ 170.317 Violations of this part. 5738
(a) Under FIFRA section 12(a)(2)(G), it is unlawful for any person “to use any registered 5739
pesticide in a manner inconsistent with its labeling.’’ When this part is referenced on a label, 5740

users mus t comply with all of its requirements, except those that are inconsistent with product

5741
specific instructions on the pesticide product labeling, except as provided for in § § 170.601, 5742

170.603 and 170.607. 5743
(b) A person who has a duty under this part, as ref erenced on the pesticide product 5744
labeling, and who fails to perform that duty, violates FIFRA section 12(a)(2)(G) and is subject to 5745
a civil penalty under section 14. A person who knowingly violates section 12(a)(2)(G) is subject 5746

to section 14 criminal sanc tions. 5747
(c) FIFRA section 14(b)(4) provides that a person is liable for a penalty under FIFRA if 5748
another person employed by or acting for that person violates any provision of FIFRA. The term 5749
"acting for" includes both employment and contractual relations hips, including, but not limited 5750

to, labor contractors. 5751
(d) The requirements of this part, including the decontamination requirements, must not, 5752
for the purposes of section 653(b)(1) of Title 29 of the U.S. Code, be deemed to be the exercise 5753
of statutory authority to prescribe or enforce standards or regulations affecting the general 5754
sanitary hazards addressed by the OSHA Field Sanitation Standard, 29 CFR 1928.110, or other 5755
agricultural non

- pesticide hazards. 5756
8. Subpart E is added to part 170 to read as follows: 5757
Subpart E

– Requirements for Protection of Agricultural Workers 5758*** EO 12866 Review Draft

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Page 243 of 286 [RIN 2070

– AJ22 ] Sec. 5759 § 170.401 Training requirements for workers. 5760 § 170.403 Establishment

- specific information for workers. 5761 § 170.405 Entry restrictions associated with pesticide applications. 5762 § 170.407 Worker entry restrictions after pesticide applications. 5763 § 170.409 Oral and posted notification of worker entry restrictions. 5764 § 170.411 Decontamination supplies for workers. 5765

§ 170.401 Training requirements for workers. 5766

(a) General requirement

. Befo re any worker performs any task in a treated area on an 5767
agricultural establishment where within the last 30 days a pesticide product has been used or a 5768

restricted

- entry interval for such pesticide has been in effect, the agricultural employer must 5769

ensure t hat each worker has been trained in accordance with this section within the last 12 5770
months, except as provided in paragraph (b) of this section. 5771

(b) Exceptions. The following workers need not be trained under this section: 5772
(1) A worker who is currently c ertified as an applicator of restricted use pesticides under 5773
part 171 of this chapter. 5774
(2) A worker who has satisfied the handler training requirements in § 170.501. 5775
(3) A worker who is certified or licensed as a crop advisor by a program acknowledged as 5776
appropriate in writing by EPA or the State or Tribal agency responsible for pesticide 5777
enforcement, provided that such certification or licensing requires pesticide safety training that 5778
includes all the topics in § 170.501(c)(2) or § 170.501(c)(3) as appli cable depending on the date 5779
of training. 5780

(c) T

raining programs. (1) Pesticide safety training must be presented to workers either 5781
orally from written materials or audio

- visually, at a location that is reasonably free from 5782

distraction and conducive to trai ning. All training materials must be EPA

- approved. The training 5783
must be presented in a manner that the workers can understand, such as through a translator. The 5784
training must be conducted by a person who meets the worker trainer requirements of paragraph 5785*** EO 12866 Review Draft

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Page 244 of 286 [RIN 2070

– AJ22 ] ( c)(4) of this section, and who must be present during the entire training program and must 5786
respond to workers’ questions. 5787
(2) The training must include, at a minimum, all of the following topics: 5788
(i) Where and in what form pesticides may be encountered during work activities. 5789
(ii) Hazards of pesticides resulting from toxicity and exposure, including acute and 5790
chronic effects, delayed effects, and sensitization. 5791
(iii) Routes through which pesticides can enter the body. 5792
(iv) Signs and symptoms of common types of pesticide poisoning. 5793
(v) Emergency first aid for pesticide injuries or poisonings. 5794
(vi) How to obtain emergency medical care. 5795
(vii) Routine and emergency decontamination procedures, including emergency eye 5796
flushing techniques. 5797

(viii) Hazards from chemigation and drift. 5798
(ix) Hazards from pesticide residues on clothing. 5799
(x) Warnings about taking pesticides or pesticide containers home. 5800
(xi) Requirements of this subpart designed to reduce the risks of illness or injury resulting 5801

from workers' occupational exposure to pesticides, including application and entry restrictions, 5802
the design of the warning sign, posting of warning signs, oral warnings, the availability of 5803
specific information about applications, and the protection against retaliatory acts. 5804

(3) EPA intends to make available to the public training materials that may be used to 5805
conduct training conforming to the requirements of this section. Within 180 days after a notice 5806
of availability of such training materials appears in the Federal Register , but no earlier than 5807

[ i nsert date two years and 60 days after the date of publication in the Federal Register ] , training 5808
programs required under this section must include, at a minimum, all of the topics listed in § 5809*** EO 12866 Review Draft

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Page 245 of 286 [RIN 2070

– AJ22 ] 170.401(c)(3)(i)

- (x xii i) instead of the topic s listed in § 170.401(c)(2)(i)

- (xi). 5810

(i) The responsibility of a gricultural employers to provide workers and handlers with 5811
information and protections designed to reduce work

- related pesticide exposures and illnesses. 5812

This includes ens uring workers and handlers have been trained on pesticide safety, providing 5813
pesticide safety and application and hazard information, decontamination supplies and 5814
emergency medical assistance, and notifying workers of restrictions during applications and on 5815
entering pesticide treated areas. A worker or handler may designate in writing a representative to 5816
request access to pesticide application and hazard information. 5817
(ii) How to recognize and understand the meaning of the posted warning signs used for 5818

notif

ying workers of restrictions on entering pesticide treated areas on the establishment. 5819
(iii) How to follow directions and/or signs about keeping out of pesticide treated areas 5820
subject to a restricted

- entry interval and application exclusion zones. 5821

(iv) Where and in what forms pesticides may be encountered during work activities, and 5822
potential sources of pesticide exposure on the agricultural establishment. This includes exposure 5823
to pesticide residues that may be on or in plants, soil, tractors, applicati on and chemigation 5824
equipment, or used personal protective equipment, and that pesticides may drift through the air 5825
from nearby applications or be in irrigation water. 5826
(v) Potential hazards from toxicity and exposure that pesticides present to workers and 5827
their families, including acute and chronic effects, delayed effects, and sensitization. 5828
(vi) Routes through which pesticides can enter the body. 5829
(vii) Signs and symptoms of common types of pesticide poisoning. 5830
(viii) Emergency first aid for pesticide injuries or poisonings. 5831
(ix) Routine and emergency decontamination procedures, including emergency eye 5832
flushing techniques, and if pesticides are spilled or sprayed on the body to use decontamination 5833*** EO 12866 Review Draft

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Page 246 of 286 [RIN 2070

– AJ22 ] supplies to wash immediately or rinse off in the neare st clean water, including springs, streams, 5834

lake s or other sources if more readily available than decontamination supplies, and as soon as 5835
possible, wash or shower with soap and water, shampoo hair, and change into clean clothes. 5836

(x) How and when to obtai n emergency medical care. 5837
(xi) When working in pesticide treated areas, wear work clothing that protects the body 5838
from pesticide residues and wash hands before eating, drinking, using chewing gum or tobacco, 5839
or using the toilet. 5840

(xii) Wash or shower with soap and water, shampoo hair, and change into clean clothes 5841
as soon as possible after working in pesticide treated areas. 5842
(xiii) Potential hazards from pesticide residues on clothing. 5843
(xiv) Wash work clothes before wearing them again and wash them separ ately from other 5844

clothes. 5845
(xv) Do not take pesticides or pesticide containers used at work to your home. 5846
(xvi) Safety data sheets provide hazard, emergency medical treatment and other 5847
information about the pesticides used on the establishment they may c ome in contact with. 5848
The responsibility of a gricultural employers to do all of the following: 5849
(A) Display safety data sheets for all pesticides used on the establishment. 5850

(B) Provide workers and handlers information about the location of the safety data sheets 5851

on the establishment. 5852

(C) Provide workers and handlers unimpeded access to safety data sheets during normal 5853

work hours. 5854

(xvii) The rule prohibits a gricultural employers from allow ing or direct ing any worker to 5855
mix, load or apply pesticides or assist in the application of pesticides unless the worker has been 5856

trained as a handler. 5857*** EO 12866 Review Draft

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Page 247 of 286 [RIN 2070

– AJ22 ] (xviii) The responsibility of a gricultural employers to provide specific information to 5858
workers before directing them to perform early

- entry activities. Workers must be 18 years old to 5859
perform early

- entry activities. 5860
(xix) Potential hazards to children and pregnant women from pesticide exposure. 5861
(xx) Keep children and nonworking family members away from pesticide treat ed areas. 5862
(xxi) After working in pesticide treated areas, remove work boots or shoes before 5863
entering your home, and remove work clothes and wash or shower before physical contact with 5864
children or family members. 5865
(xxii) How to report suspected pesticide use violations to the State or Tribal agency 5866
responsible for pesticide enforcement. 5867

(xxiii) The rule prohibits a gricultural employers from intimidating, threatening, coercing, 5868
or discriminating against any worker or handler for complying with or attempting to comply with 5869
the requirements of this rule, or because the worker or handler provided, caused to be provided 5870
or is about to provide information to the employer or the EPA or its agents regarding conduct 5871

that th e employee reasonably believes violates this part, and/or made a complaint, testified, 5872
assisted, or participated in any manner in an investigation, proceeding, or hearing concerning 5873
compliance with this rule. 5874

(4) The person who conducts the training must meet one of the following criteria: 5875

(i) Be designated as a trainer of certified applicators, handlers or workers by EPA or the 5876
State or Tribal agency responsible for pesticide enforcement. 5877

(ii) Have completed an EPA

- approved pesticide safety train

- the

- trainer program for 5878

trainers of workers. 5879
(iii) Be currently certified as an applicator of restricted use pesticides under part 171 of 5880
this chapter. 5881*** EO 12866 Review Draft

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Page 248 of 286 [RIN 2070

– AJ22 ] (d) Recordkeeping . (1) For each worker required to be trained under paragraph (a), the 5882
agricultural empl oyer must maintain on the agricultural establishment, for two years from the 5883
date of the training, a record documenting each worker’s training including all of the following: 5884
(i) The trained worker’s printed name and signature. 5885

(ii) The date of the train ing. 5886
(iii) Information identifying which EPA

- approved training materials were used. 5887
(iv) The trainer’s name and documentation showing that the trainer met the requirements 5888

of § 170.401(c)(4) at the time of training. 5889
(v) The agricultural employer’s name

. 5890
(2) An agricultural employer who provides, directly or indirectly, training required under 5891
paragraph (a) must provide to the worker upon request a copy of the record of the training that 5892
contains the information required under § 170.401(d)(1). 5893

§ 170.403 Establishment

- specific information for workers. 5894
Before any worker performs any activity in a treated area on an agricultural establishment 5895
where within the last 30 days a pesticide product has been used, or a restricted

- entry interval for 5896
such pesticide has been in effect
, the agricultural employer must ensure that the worker has been 5897

informed of, in a manner the worker can understand, all of the following establishment

- specific 5898

information: 5899
(a) The location of pesticide safety information required by § 170.311(a). 5900

(b) The location of pesticide application and hazard information required by § 5901

170.311(b). 5902
(c) The location of decontamination supplies required by § 170.411. 5903

§ 170.405 Entry restrictions associated with pesticide applications. 5904

(a) Outdoor production pesticide applications . (1) The application exclusion zone is 5905*** EO 12866 Review Draft

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Page 249 of 286 [RIN 2070

– AJ22 ] defined as follows: 5906
(i) The application exclusion zone is the area that extends 100 feet horizontally from the 5907
application equipment in all directions during application when the pe sticide is applied by any of 5908
the following methods: 5909
(A) Aerially. 5910
(B) Air blast application. 5911
(C) As a spray using a spray quality (droplet spectrum) of smaller than medium (volume 5912

median diameter of less than 294 microns). 5913
(D) As a fumigant, smoke, mi st, or fog. 5914
(ii) The application exclusion zone is the area that extends 25 feet horizontally from the 5915
application equipment in all directions during application when the pesticide is applied not as in 5916

§ 170.405(a)(1)(i)(A )

- ( D) and is sprayed from a heigh t of greater than 12 inches from the 5917
planting medium using a spray quality (droplet spectrum) of medium or larger (volume median 5918
diameter of 294 microns or greater). 5919
(iii) There is no application exclusion zone when the pesticide is applied in a manner 5920

ot her than those covered in paragraphs (a)(1)(i) and (a)(1)(ii) of this section. 5921
(2) During any outdoor production pesticide application, the agricultural employer must 5922
not allow or direct any worker or other person, other than an appropriately trained and equipped 5923
handler involved in the application, to enter or to remain in the treated area or an application 5924
exclusion zone that is within the boundaries of the establishment until the application is 5925
complete. 5926
(3) After the application is complete, the area subject to the labeling

- specified restricted

5927
entry interval and the post

- application entry restrictions specified in § 170.407 is the treated area. 5928

(b) Enclosed space production pesticide applications. (1) During any enclosed space 5929*** EO 12866 Review Draft

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Page 250 of 286 [RIN 2070

– AJ22 ] production pesticide a pplication described in column A of the Table under paragraph (b)(4) of 5930
this section, the agricultural employer must not allow or direct any worker or other person, other 5931
than an appropriately trained and equipped handler involved in the application, to en ter or to 5932
remain in the area specified in column B of the Table under paragraph (b)(4) of this section 5933
during the application and until the time specified in column C of the Table under paragraph 5934

(b)(4) of this section has expired. 5935
(2) After the time specified in column C of the Table under paragraph (b)(4) of this 5936
section has expired, the area subject to the labeling

- specified restricted

- entry interval and the 5937

post

- application entry restrictions specified in § 170.407 is the area sp ecified in column D of the 5938
Table under paragraph (b)(4) of this section. 5939

(3) When column C of the Table under paragraph (b)(4) of this section specifies that 5940

ventilation criteria must be met, ventilation must continue until the air concentration is measur ed 5941
to be equal to or less than the inhalation exposure level required by the labeling. If no inhalation 5942
exposure level is listed on the labeling, ventilation must continue until after one of the following 5943

conditions is met: 5944
(i) Ten air exchanges are comp leted. 5945
(ii) Two hours of ventilation using fans or other mechanical ventilating systems. 5946
(iii) Four hours of ventilation using vents, windows, or other passive ventilation. 5947
(iv) Eleven hours with no ventilation followed by one hour of mechanical ventil ation. 5948
(v) Eleven hours with no ventilation followed by two hours of passive ventilation. 5949
(vi) Twenty

- four hours with no ventilation. 5950
(4) The following Table applies to paragraphs (b)(1), (2), and (3) of this section. 5951

Table

– Entry Restrictions During Enclosed Space Production Pesticide Applications 5952

A. When a B. Workers and C. Until: D. After the expiration*** EO 12866 Review Draft

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Page 251 of 286 [RIN 2070

– AJ22 ] pesticide is applied: other persons, other

than appropriately trained and equipped handlers, are prohibited in: of time specified in column C, the area subject to the restricted

- entry interval is: (1) As a fumigant. Entire enclosed space

plus any adjacent structure or area that cannot be sealed off from the treated area. The ventilation criteria of paragraph (b)(3) of this section are met. No post

- application

entry restrictions required by § 170.407 after criteria in column C are met. (2) As a (i) Smoke, or (ii) Mist, or (iii) Fog, or (iv) As a spray using a spray quality (droplet spectrum) of smaller than medium (volume median diameter of less than 294 micro ns). Entire enclosed space. The ventilation criteria of paragraph (b)(3) of this section are met. Entire enclosed space.

(3) Not as in (1) or (2), and for which a respiratory protection device is required for application by the pesticid e product labeling. Entire enclosed space. The ventilation criteria of paragraph (b)(3) of this section are met. Treated area.

(4) Not as in (1), (2) or (3), and: (i) From a height of greater than 12 inches from the planting medium, or (ii) As a spray using a spray quality (droplet spectrum) of medium or larger (volume median diameter of 294 microns or greater)

. Treated area plus 25

feet in all directions of the treated area, but not outside the enclosed space. Application is complete. Treated area.

( 5) Otherwise. Treated area. Application is complete. Treated area.

5953*** EO 12866 Review Draft

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Page 252 of 286 [RIN 2070

– AJ22 ] § 170.407 Worker entry restrictions after pesticide applications. 5954
(a) After the application of any pesticide to an area of outdoor production, the agricultural 5955
employer must not allow or direct any worker to enter or to remain in the treated area before the 5956

restricted

- entry interval specified on the pesticide product lab eling has expired and all treated 5957
area warning signs have been removed or covered, except for early

- entry activities permitted by 5958

§ 170.603

. 5959
(b) After the application of any pesticide to an area of enclosed space production, the 5960
agricultural employer must not allow or direct any worker to enter or to remain in the areas 5961
specified in column D in Table one under § 170.405(b)(4), before the restricted

- entry interval 5962
specified on the pesticide product labeling has expired and all treated area warning signs hav e 5963

been removed or covered , except for early

- entry activities permitted by § 170.603. 5964
(c) When two or more pesticides are applied to a treated area at the same time, the 5965
applicable restricted

- entry interval is the longest of all applicable restricted

- entry intervals. 5966

§ 170.409 Oral and posted notification of worker entry restrictions. 5967

(a) General Requirement. The agricultural employer must notify workers of all entry 5968
restrictions required by § § 170.405 and 170.407 in accordance with this section. 5969

(1 ) Type of notification required

-- (i) Double notification . If the pesticide product 5970
labeling has a statement requiring both the posting of treated areas and oral notification to 5971
workers, the agricultural employer must post signs in accordance with paragra ph (b) of this 5972
section and must also provide oral notification of the application to workers in accordance with 5973
paragraph (c) of this section. 5974

(ii) Outdoor production areas subject to restricted

- entry intervals greater than 48 hours

. 5975
If a pesticide with product labeling that requires a restricted

- entry interval greater than 48 hours 5976
is applied to an outdoor production area, the agricultural employer must notify workers of the 5977*** EO 12866 Review Draft

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Page 253 of 286 [RIN 2070

– AJ22 ] application by posting warning signs in accordance with paragraph (b) of this se ction. 5978

(iii) Outdoor production areas subject to restricted

- entry intervals equal to or less than 5979

48 hours . If a pesticide with product labeling that requires a restricted

- entry interval equal to or 5980

less than 48 hours is applied to an outdoor production a rea, the agricultural employer must notify 5981
workers of the application either by posting warning signs in accordance with paragraph (b) of 5982
this section or by providing workers with an oral warning in accordance with paragraph (c) of 5983

this section. 5984

(iv) Enc losed space production areas subject to restricted

- entry intervals greater than 5985
four hours . If a pesticide with product labeling that requires a restricted

- entry interval greater 5986
than four hours is applied to an enclosed space production area, the agricult ural employer must 5987
notify workers of the application by posting warning signs in accordance with paragraph (b) of 5988

this section. 5989

(v) Enclosed space production areas subject to restricted

- entry intervals equal to or less 5990
than four hours . If a pesticide wit h product labeling that requires a restricted

- entry interval equal 5991
to or less than four hours is applied to an enclosed space production area, the agricultural 5992
employer must notify workers of the application either by posting warning signs in accordance 5993

wi th paragraph (b) of this section or by providing workers with an oral warning in accordance 5994
with paragraph (c) of this section. 5995

(2) Exceptions. Notification does not need to be given to a worker if the agricultural 5996
employer can ensure that one of the fol lowing is met: 5997
(i) From the start of the application in an enclosed space production area until the end of 5998
any restricted

- entry interval, the worker will not enter any part of the entire enclosed structure or 5999

space. 6000
(ii) From the start of the applicati on to an outdoor production area until the end of any 6001*** EO 12866 Review Draft

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Page 254 of 286 [RIN 2070

– AJ22 ] restricted

- entry interval, the worker will not enter, work in, remain in, or pass on foot through the 6002
treated area or any area within 1/4 mile of the treated area on the agricultural establishment. 6003
(iii) The worker was involved in the application of the pesticide as a handler, and is 6004
aware of all information required by paragraph (c)(1) of this section. 6005

(b) Requirements for posted warning signs

. If notification by posted warning signs is 6006
required pu rsuant to paragraph (a) of this section, the agricultural employer must, unless 6007
otherwise prescribed by the label, ensure that all warning signs meet the requirements of this 6008
paragraph. When several contiguous areas are to be treated with pesticides on a r otating or 6009
sequential basis, the entire area may be posted. Worker entry is prohibited for the entire area 6010
while the signs are posted, except for entry permitted by § 170.603 of this part. 6011

(1) General. The warning signs must meet all of the following req uirements: 6012
(i) Be one of the three sizes specified in paragraph (b)(3) of this section and comply with 6013
the posting placement and spacing requirements applicable to that sign size. 6014
(ii) Be posted prior to but no earlier than 24 hours before the scheduled application of the 6015
pesticide. 6016
(iii) Remain posted throughout the application and any restricted

- entry interval. 6017
(iv) Be removed or covered within three days after the end of the application or any 6018

restricted

- entry interval, whichever is later, except that signs may remain posted after the 6019

restricted

- entry interval has expired as long as all of the following conditions are met: 6020
(A) The agricultural employer instructs any workers on the establishment that may come 6021

within 1/4 mile of the treated area no t to enter that treated area while the signs are posted. 6022
(B) The agricultural employer ensures that workers do not enter the treated area while the 6023
signs remain posted, other than entry permitted by § 170.603 of this part. 6024
(v) Remain visible and legible during the time they are required to be posted. 6025*** EO 12866 Review Draft

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Page 255 of 286 [RIN 2070

– AJ22 ] (2) Content . (i) The warning sign must have a white background. The words "DANGER" 6026
and "PELIGRO," plus "PESTICIDES" and "PESTICIDAS," must be at the top of the sign, and 6027

the words “KEEP OUT” and “NO ENTRE” must be at the bottom of the sign. Letters for all 6028
words must be clearly legible. A circle containing an upraised hand on the left and a stern face 6029
on the right must be near the center of the sign. The inside of the circle must be red, except that 6030

the han d and a large portion of the face must be in white. The length of the hand must be at least 6031
twice the height of the smallest letters. The length of the face must be only slightly smaller than 6032
the hand. Additional information such as the name of the pestici de and the date of application 6033
may appear on the warning sign if it does not detract from the size and appearance of the sign or 6034
change the meaning of the required information. An example of a warning sign meeting these 6035
requirements, other than the size an d color requirements, follows: 6036

6037
(ii) The agricultural employer may replace the Spanish language portion of the warning 6038
sign with equivalent terms in an alternative non

- English language if that alternative language is 6039
the language read by the largest gr oup of workers at that agricultural establishment who do not 6040*** EO 12866 Review Draft

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Page 256 of 286 [RIN 2070

– AJ22 ] read English. The alternative language sign must be in the same format as the original sign and 6041
conform to all other requirements of paragraph (b)(2)(i) of this section. 6042

(3) Size and posting . (i ) The standard sign must be at least 14 inches by 16 inches with 6043
letters at least one inch in height. 6044
(ii) When posting an outdoor production area using the standard sign, the signs must be 6045
visible from all reasonably expected points of worker entry to t he treated area, including at least 6046
each access road, each border with any worker housing area within 100 feet of the treated area 6047
and each footpath and other walking route that enters the treated area. Where there are no 6048
reasonably expected points of work er entry, signs must be posted in the corners of the treated 6049
area or in any other location affording maximum visibility. 6050
(iii) When posting an enclosed space production area using the standard sign and the 6051
entire structure or space is subject to the labe ling

- specified restricted

- entry interval and the post

6052
application entry restrictions specified in § 170.407, the signs must be posted so they are visible 6053
from all reasonably expected points of worker entry to the structure or space. When posting 6054

treated ar eas in enclosed space production using the standard sign and the treated area only 6055
comprises a subsection of the structure or space, the signs must be posted so they are visible 6056
from all reasonably expected points of worker entry to the treated area includ ing each aisle or 6057
other walking route that enters the treated area. Where there are no reasonably expected points of 6058
worker entry to the treated area, signs must be posted in the corners of the treated area or in any 6059
other location affording maximum visibi lity. 6060
(iv) If a smaller warning sign is used with “DANGER” and “PELIGRO” in letters at least 6061
7/8 inch in height and the remaining letters at least 1/2 inch in height and a red circle at least 6062
three inches in diameter containing an upraised hand and a ste rn face, the signs must be posted 6063
no farther than 50 feet apart around the perimeter of the treated area in addition to the locations 6064*** EO 12866 Review Draft

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Page 257 of 286 [RIN 2070

– AJ22 ] specified in paragraphs (b)(3)(ii) or (b)(3)(iii) of this section. 6065
(v) If a smaller sign is used with “DANGER” and “PELIG RO” in letters at least 7/16 6066
inch in height and the remaining letters at least 1/4 inch in height and a red circle at least one and 6067
a half inches in diameter containing an upraised hand and a stern face, the signs must be posted 6068
no farther than 25 feet apa rt around the perimeter of the treated area in addition to the locations 6069
specified in paragraphs (b)(3)(ii) or (b)(3)(iii) of this section. 6070
(vi) A sign with “DANGER” and “PELIGRO” in letters less than 7/16 inch in height or 6071
with any words in letters less than 1/4 inch in height or a red circle smaller than one and a half 6072
inches in diameter containing an upraised hand and a stern face will not satisfy the requirements 6073

of the rule. 6074

(c) Oral warnings

-- (1) Requirement. If oral notification is required pur suant to 6075
paragraph (a) of this section, the agricultural employer must provide oral warnings to workers in 6076

a manner that the workers can understand. If a worker will be on the establishment when an 6077
application begins, the warning must be given before the a pplication begins. If a worker arrives 6078
on the establishment while an application is taking place or a restricted

- entry interval for a 6079
pesticide application is in effect, the warning must be given at the beginning of the worker's 6080
work period. The warning mu st include all of the following: 6081
(i) The location(s) and description of any treated area(s) subject to the entry restrictions 6082
during and after application specified in § § 170.405 and 170.407. 6083
(ii) The dates and times during which entry is restricted in any treated area(s) subject to 6084
the entry restrictions during and after application specified in § § 170.405 and 170.407. 6085
(iii) Instructions not to enter the treated area or an application exclusion zone during 6086
application, and that entry to the treated are a is not allowed until the restricted

- entry interval has 6087
expired and all treated area warning signs have been removed or covered, except for entry 6088*** EO 12866 Review Draft

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Page 258 of 286 [RIN 2070

– AJ22 ] permitted by § 170.603 of this part. 6089

§ 170.411 Decontamination supplies for workers. 6090

(a) Requirement . The a gricultural employer must provide decontamination supplies for 6091
routine washing and emergency decontamination in accordance with this section for any worker 6092
on an agricultural establishment who is performing an activity in an area where a pesticide was 6093
appl ied and who contacts anything that has been treated with the pesticide, including, but not 6094
limited to, soil, water, and plants. 6095

(b) Materials and quantities. The decontamination supplies required in paragraph (a) of 6096
this section must include at least 1gal lon of water per worker at the beginning of each worker’s 6097
work period for routine washing and emergency decontamination, soap, and single

- use towels. 6098
The supplies must meet all of the following requirements: 6099

(1) Water. At all times when this part requires agricultural employers to make water 6100
available to workers, the agricultural employer must ensure that it is of a quality and temperature 6101
that will not cause illness or injury when it contacts the skin or eyes or if it is swallowed. If a 6102

water source is us ed for mixing pesticides, it must not be used for decontamination, unless 6103
equipped with properly functioning valves or other mechanisms that prevent contamination of 6104
the water with pesticides, such as anti

- backflow siphons, one

- way or check valves, or an a ir gap 6105
sufficient to prevent contamination. 6106

(2) Soap and single

- use towels . The agricultural employer must provide soap and single

6107
use towels for drying in quantities sufficient to meet the workers' reasonable needs. Hand 6108
sanitizing gels and liquids or we t towelettes do not meet the requirement for soap. Wet towelettes 6109
do not meet the requirement for single

- use towels. 6110

(c) Timing. (1) If any pesticide with a restricted

- entry interval greater than four hours was 6111
applied, the decontamination supplies must be provided from the time workers first enter the 6112*** EO 12866 Review Draft

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Page 259 of 286 [RIN 2070

– AJ22 ] treated area until at least 30 days after the restricted

- entry interval expires. 6113
(2) If the only pesticides applied in the treated area are products with restricted

- entry 6114
intervals of four hours or less, the decontamination supplies must be provided from the time 6115

workers first enter the treated area until at least seven days after th e restricted

- entry interval 6116
expires. 6117

(d) Location. The decontamination supplies must be located together outside any treated 6118
area or area subject to a restricted

- entry interval, and must be reasonably accessible to the 6119
workers. The decontamination suppli es must not be more than 1/4 mile from where workers are 6120
working, except that w here workers are working more than 1/4 mile from the nearest place of 6121
vehicular access or more than 1/4 mile from any non

- treated area, the decontamination supplies 6122
may be at th e nearest place of vehicular access outside any treated area or area subject to a 6123

restricted

- entry interval. 6124
9. Subpart F is added to part 170 to read as follows: 6125
Subpart F

– Requirements for Protection of Agricultural Pesticide Handlers 6126

Sec. 6127 § 170.501 Tr aining requirements for handlers. 6128 § 170.503 Knowledge of labeling, application

- specific, and establishment

- specific information 6129 for handlers. 6130 § 170.505 Requirements during applications to protect handlers, workers, and other persons. 6131 § 170.507 Personal p rotective equipment. 6132 § 170.509 Decontamination and eye flushing supplies for handlers. 6133

§ 170.501 Training requirements for handlers. 6134

(a) General r equirement . Before any handler performs any handler activity involving a 6135
pesticide product, the handler employer must ensure that the handler has been trained in 6136
accordance with this section within the last 12 months, except as provided in paragraph (b) of 6137

this section. 6138

(b) Exceptions. The following handlers need not be trained under this section: 6139*** EO 12866 Review Draft

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Page 260 of 286 [RIN 2070

– AJ22 ] (1) A h andler who is currently certified as an applicator of restricted use pesticides under 6140
part 171 of this chapter. 6141
(2) A handler who is certified or licensed as a crop advisor by a program acknowledged 6142
as appropriate in writing by EPA or the State or Tribal agency responsible for pesticide 6143
enforcement, provided that a requirement for such certification or licensing is pesticide safety 6144
training that includes all the topics set out in § 170.501(c)(2) or § 170.501(c)(3) as applicable 6145
depending on the date of tr aining. 6146

(c) Training programs . (1) Pesticide safety training must be presented to handlers either 6147
orally from written materials or audio

- visually , at a location that is reasonably free from 6148
distraction and conducive to training . All training materials mu st be EPA

- approved. The training 6149
must be presented in a manner that the handlers can understand, such as through a translator. The 6150
training must be conducted by a person who meets the handler trainer requirements of paragraph 6151

(c)(4) of this section, and wh o must be present during the entire training program and must 6152
respond to handlers’ questions. 6153
(2) The pesticide safety training materials must include, at a minimum, all of the 6154
following topics: 6155
(i) Format and meaning of information contained on pestici de labels and in labeling, 6156
including safety information such as precautionary statements about human health hazards. 6157
(ii) Hazards of pesticides resulting from toxicity and exposure, including acute and 6158
chronic effects, delayed effects, and sensitization. 6159
(iii) Routes by which pesticides can enter the body. 6160
(iv) Signs and symptoms of common types of pesticide poisoning. 6161
(v) Emergency first aid for pesticide injuries or poisonings. 6162
(vi) How to obtain emergency medical care. 6163*** EO 12866 Review Draft

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Page 261 of 286 [RIN 2070

– AJ22 ] (vii) Routine and emergency decontamination procedures. 6164
(viii) Need for and appropriate use of personal protective equipment. 6165
(ix) Prevention, recognition, and first aid treatment of heat

- related illness. 6166
(x) Safety requirements for handling, transporting, storing, and disposing o f pesticides, 6167
including general procedures for spill cleanup. 6168

(xi) Environmental concerns such as drift, runoff, and wildlife hazards. 6169
(xii) Warnings about taking pesticides or pesticide containers home. 6170
(xiii) Requirements of this subpart that must be followed by handler employers for the 6171
protection of handlers and other persons, including the prohibition against applying pesticides in 6172
a manner that will cause contact with workers or other persons, the requirement to use personal 6173
protective equipment, t he provisions for training and decontamination, and the protection against 6174
retaliatory acts. 6175

(3) EPA intends to make available to the public training materials that may be used to 6176
conduct training conforming to the requirements of this section. Within 18 0 days after a notice 6177
of availability of such training materials appears in the Federal Register , but no earlier than 6178

[ i nsert date two years and 60 days after date of publication in the Federal Register ] , training 6179
programs required under this section must include, at a minimum, all of the topics listed in § 6180

170.501(c)(3)(i)

- (xiv) instead of the points listed in § 170.501(c)(2)(i)

- (xiii). 6181
(i) All the topics required by § 170.401(c)(3). 6182

(ii) Information o n proper application and use of pesticides. 6183
(iii) Handlers must follow the portions of the labeling applicable to the safe use of the 6184
pesticide. 6185
(iv) Format and meaning of information contained on pesticide labels and in labeling 6186
applicable to the safe u se of the pesticide. 6187*** EO 12866 Review Draft

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Page 262 of 286 [RIN 2070

– AJ22 ] (v) Need for and appropriate use and removal of all personal protective equipment. 6188
(vi) How to recognize, prevent, and provide first aid treatment for heat

- related illness. 6189
(vii) Safety requirements for handling, transporting, st oring, and disposing of pesticides, 6190
including general procedures for spill cleanup. 6191

(viii) Environmental concerns, such as drift, runoff, and wildlife hazards. 6192
(ix) Handlers must not apply pesticides in a manner that results in contact with workers 6193

or other persons. 6194

(x) The responsibility of h andler employers to provide handlers with information and 6195
protections designed to reduce work

- related pesticide exposures and illnesses. This includes 6196
providing, cleaning, maintaining, storing, and ensuring proper use of all required personal 6197
protective equipment; providing decontamination supplies; and providing specific information 6198
about pesticide use and labeling information. 6199
(xi) Handlers must suspend a pesticide application if workers or other persons are in the 6200
application exclusion zone. 6201
(xii) Handlers must be at least 18 years old. 6202

(xiii) The responsibility of h andler employers to ensure handlers have received respirator 6203

fit

- testing, training and medical evaluation if they are required to wear a respirato r by the product 6204
labeling. 6205

(xiv) The responsibility of agricultural employers to post treated areas as required by this 6206

rule. 6207
(4) The person who conducts the training must have one of the following qualifications: 6208
(i) Be designated as a trainer of cert ified applicators or pesticide handlers by EPA or the 6209
State or Tribal agency responsible for pesticide enforcement. 6210
(ii) Have completed an EPA

- approved pesticide safety train

- the

- trainer program for 6211*** EO 12866 Review Draft

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Page 263 of 286 [RIN 2070

– AJ22 ] trainers of handlers. 6212
(iii) Be currently certified as an applicator of restricted use pesticides under part 171 of 6213
this chapter. 6214

(d) Recordkeeping . (1) Handler employers must maintain records of training for handlers 6215
employed by their establishment for two years after the date of the training. The records m ust be 6216
maintained on the establishment and must include all of the following information: 6217
(i) The trained handler’s printed name and signature. 6218
(ii) The date of the training. 6219
(iii) Information identifying which EPA

- approved training materials were used. 6220
(iv) The trainer’s name and documentation showing that the trainer met the requirements 6221

of § 170.501(c)(4) at the time of training. 6222
(v) The handler employer’s name. 6223
(2) The handler employer must, upon request by a handler trained on the establishment, 6224
provide to the handler a copy of the record of the training that contains the information required 6225

under § 170.501(d)(1). 6226

§ 170.503 Knowledge of labeling, application

- specific, and establishment

- specific 6227

information for handlers. 6228

(a) Knowledge of labeling and application

- specific information. (1) The handler 6229
employer must ensure that before any handler performs any handler activity involving a pesticide 6230
product, the handler either has read the portions of the labeling applicable to the safe use of the 6231
pesticide or has been informed in a manner the handler can understand of all labeling 6232
requirements and use directions applicable to the safe use of the pesticide. 6233
(2) The handler employer must ensure that the handler has access to the applicable 6234
prod uct labeling at all times during handler activities. 6235*** EO 12866 Review Draft

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Page 264 of 286 [RIN 2070

– AJ22 ] (3) The handler employer must ensure that the handler is aware of requirements for any 6236
entry restrictions, application exclusion zones and restricted

- entry intervals as described in § § 6237

170.405 and 170. 407 that may apply based on the handler’s activity. 6238

(b) Knowledge of establishment

- specific information

. Before any handler performs any 6239
handler activity on an agricultural establishment where within the last 30 days a pesticide 6240
product has been used, or a restricted

- entry interval for such pesticide has been in effect , the 6241
handler employer must ensure that the handler has been informed, in a manner the handler can 6242
understand, all of the following establishment

- specific information: 6243
(1) The location of pe sticide safety information required by § 170.311(a). 6244

(2) The location of pesticide application and hazard information required by § 6245

170.311(b). 6246
(3) The location of decontamination supplies required by § 170.509. 6247

§ 170.505 Requirements during applications to protect handlers, workers, and other 6248

persons. 6249

(a) Prohibition from contacting workers and other persons with pesticides during 6250
application . The handler employer and the handler must ensure that no pesticide is applied so as 6251
to contact, directly or thr ough drift, any worker or other person, other than an appropriately 6252
trained and equipped handler involved in the application. 6253

(b) Suspending applications. After [ i nsert date two years and 60 days after the date of 6254
publication in the Federal Register ] , t he handler performing the application must immediately 6255
suspend a pesticide application if any worker or other person, other than an appropriately trained 6256
and equipped handler involved in the application, is in the application exclusion zone described 6257

in § 170.405(a)(1) or the area specified in column B of the Table in § 170.405(b) (4)

. 6258

(c) Handlers using highly toxic pesticides . The handler employer must ensure that any 6259*** EO 12866 Review Draft

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Page 265 of 286 [RIN 2070

– AJ22 ] handler who is performing any handler activity with a pesticide product that has the sk ull

- and

6260
crossbones symbol on the front panel of the pesticide product label is monitored visually or by 6261
voice communication at least every two hours. 6262

(d) Fumigant applications in enclosed space production . The handler employer must 6263

ensure all of the follo wing: 6264
(1) Any handler in an enclosed space production area during a fumigant application 6265
maintains continuous visual or voice contact with another handler stationed immediately outside 6266
of the enclosed space. 6267

(2) The handler stationed outside the enclose d space has immediate access to and uses the 6268
personal protective equipment required by the fumigant labeling for applicators in the event that 6269
entry becomes necessary for rescue. 6270

§ 170.507 Personal protective equipment. 6271

(a) Handler responsibilities . Any person who performs handler activities involving a 6272
pesticide product must use the clothing and personal protective equipment specified on the 6273
pesticide product labeling for use of the product, except as provided in § 170.607 of this part. 6274

(b) Employer re sponsibilities for providing personal protective equipment. The handler 6275
employer must provide to the handler the personal protective equipment required by the pesticide 6276
product labeling in accordance with this section. The handler employer must ensure that the 6277
personal protective equipment is clean and in proper operating condition. For the purposes of this 6278
section, long

- sleeved shirts, short

- sleeved shirts, long pants, short pants, shoes, and socks are not 6279
considered personal protective equipment, although such work clothing must be worn if required 6280
by the pesticide product labeling. 6281
(1) If the pesticide product labeling requires that "chemical

- resistant" personal protective 6282
equipment be worn, it must be made of material that allows no measurable movement of the 6283*** EO 12866 Review Draft

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Page 266 of 286 [RIN 2070

– AJ22 ] pesticide being used through the material during use

. 6284
(2) If the pesticide product labeling requires that "waterproof" personal protective 6285
equipment be worn, it must be made of material that allows no measurable movement of water or 6286
aqueous solut ions through the material during use. 6287
(3) If the pesticide product labeling requires that a "chemical

- resistant suit" be worn, it 6288

must be a loose

- fitting, one

- or two

- piece chemical

- resistant garment that covers, at a minimum, 6289
the entire body except head, hands, and feet. 6290
(4) If the pesticide product labeling requires that "coveralls" be worn, they must be loose

6291
fitting, one

- or two

- piece garments that cover, at a minimum, the entire body except head, hands, 6292

and feet. 6293
(5) Gloves must be the type specified on the pesticide product labeling. 6294
(i) Gloves made of leather, cotton, or other absorbent materials may not be worn while 6295
performing handler activities unless gloves made of these materials are listed as acceptable for 6296
such use on the pesticide product labeling. 6297
(ii) Separable glove liners may be worn beneath chemical

- resistant gloves, unless the 6298
pesticide product labeling specifically prohibits their use. Separable glove liners are defined as 6299
separate glove

- like hand coverings, made of lightwei ght material, with or without fingers. Work 6300
gloves made from lightweight cotton or poly

- type material are considered to be glove liners if 6301

worn beneath chemical

- resistant gloves. Separable glove liners may not extend outside the 6302

chemical

- resistant gloves u nder which they are worn. Chemical

- resistant gloves with non

6303
separable absorbent lining materials are prohibited. 6304
(iii) If used, separable glove liners must be discarded immediately after a total of no more 6305

than 10 hours of use or within 24 hours of when first put on, whichever comes first. The liners 6306
must be replaced immediately if directly contacted by pesticide. Used glove liners must not be 6307*** EO 12866 Review Draft

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Page 267 of 286 [RIN 2070

– AJ22 ] reused. Contaminated liners must be disposed of in accordance with any Federal, State, or local 6308
regulations. 6309
(6) If the pesticide product labeling requires that "chemical

- resistant footwear" be worn, 6310
one of the following types of footwear must be worn: 6311

(i) Chemical

- resistant shoes. 6312

(ii) Chemical

- resistant boots. 6313

(iii) Chemical

- resistant shoe coverings worn over shoes or boots. 6314
(7) If the pesticide product labeling requires that "protective eyewear" be worn, one of the 6315
following types of eyewear must be worn: 6316
(i) Goggles. 6317

(ii) Face shield. 6318
(iii) Safety glasses with front, brow, and temple protection. 6319

(iv) Full

- face respirator. 6320
(8) If the pesticide product labeling requires that a "chemical

- resistant apron" be worn, a 6321

chemical

- resistant apron that covers the front of the body from mid

- chest to the knees must be 6322

worn. 6323
(9) If the pesticide product l abeling requires that "chemical

- resistant headgear" be worn, 6324

it must be either a chemical

- resistant hood or a chemical

- resistant hat with a wide brim. 6325

(10 ) The respirator specified by the pesticide product labeling must be used. Whenever a 6326
respirator is required by the pesticide product labeling, the handler employer must ensure that the 6327
requirements of paragraphs (b)(10)(i) through (iii) of this section are met before the handler 6328
performs any handler activity where the respirator is required to be worn. The handler employer 6329
must maintain for two years, on the establishment, records documenting the completion of t he 6330
requirements of paragraphs (b)(10)(i) through (iii) of this section

. 6331*** EO 12866 Review Draft

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Page 268 of 286 [RIN 2070

– AJ22 ] (i) Handler employers must provide handlers with fit testing using the r espirator specified 6332
on the pesticide product labeling in a manner that conforms to the provisions of 29 CFR 6333

1910.134. 6334
(ii) Handler employers must provide handlers with training in the use of the respirator 6335
specified on the pesticide product labeling in a manner that conforms to the provisions of 29 6336

CFR 1910.134(k)(1)(i)

- (vi). 6337
(iii) Handler employers must provide handlers with a medical evaluation by a physician 6338
or other licensed health care professional that conforms to the provisions of 29 CFR 1910.134 t o 6339
ensure the handler’s physical ability to safely wear the respirator specified on the pesticide 6340
product labeling. 6341

(c) Use of personal protective equipment . (1) The handler employer must ensure that 6342
personal protective equipment is used correctly for its intended purpose and is used according to 6343

the manufacturer's instructions. 6344
(2) The handler employer must ensure that, before each day of use, all personal protective 6345
equipment is inspected for leaks, holes, tears, or worn places, and any damaged equipmen t is 6346
repaired or discarded. 6347

(d) Cleaning and maintenance . (1) The handler employer must ensure that all personal 6348
protective equipment is cleaned according to the manufacturer's instructions or pesticide product 6349
labeling instructions before each day of re use. In the absence of any such instructions, it must be 6350
washed thoroughly in detergent and hot water. 6351
(2) If any personal protective equipment cannot or will not be cleaned properly, the 6352
handler employer must ensure the contaminated personal protective equipment is made unusable 6353
as apparel or is made unavailable for further use by employees or third parties . The 6354
contaminated personal protective equipment must be disposed of in accordance with any 6355*** EO 12866 Review Draft

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Page 269 of 286 [RIN 2070

– AJ22 ] applicable laws or regulations. Coveralls or other absorb ent materials that have been drenched or 6356
heavily contaminated with a pesticide that has the signal word “DANGER” or “WARNING” on 6357
the label must not be reused and must be disposed of as specified in this paragraph. Handler 6358
employers must ensure that any per son who handles contaminated personal protective equipment 6359
described in this paragraph wears the gloves specified on the pesticide product labeling for 6360
mixing and loading the product(s) comprising the contaminant(s) on the equipment. If two or 6361
more pestici des are included in the contaminants, the gloves worn must meet the requirements 6362
for mixing and loading all of the pesticide products. 6363
(3) The handler employer must ensure that contaminated personal protective equipment is 6364
kept separate from non

- conta minated personal protective equipment, other clothing or laundry 6365
and washed separately from any other clothing or laundry. 6366
(4) The handler employer must ensure that all washed personal protective equipment is 6367
dried thoroughly before being stored or reused

. 6368
(5) The handler employer must ensure that all clean personal protective equipment is 6369
stored separately from personal clothing and apart from pesticide

- contaminated areas. 6370
(6) The handler employer must ensure that when filtering facepiece respirators a re used, 6371
they are replaced when one of the following conditions is met: 6372
(i) When breathing resistance becomes excessive. 6373
(ii) When the filter element has physical damage or tears. 6374
(iii) According to manufacturer's recommendations or pesticide product labeling, 6375
whichever is more frequent. 6376
(iv) In the absence of any other instructions or indications of service life, at the end of 6377
eight hours of cumulative use. 6378
(7) The handler employer must ensure that when gas

- or vapor

- removing respirators are 6379*** EO 12866 Review Draft

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Page 270 of 286 [RIN 2070

– AJ22 ] used, the gas

- or vapor

- removing canisters or cartridges are replaced before further respirator use 6380
when one of the following conditions is met: 6381

(i) At the first indication of odor, taste, or irritation. 6382
(ii) When breathing resistance becomes excessive. 6383

( iii) When required according to manufacturer's recommendations or pesticide product 6384
labeling instructions, whichever is more frequent. 6385
(iv) In the absence of any other instructions or indications of service life, at the end of 6386
eight hours of cumulative us e. 6387
(8) The handler employer must inform any person who cleans or launders personal 6388
protective equipment of all the following: 6389
(i) That such equipment may be contaminated with pesticides and there are potentially 6390
harmful effects from exposure to pestici des. 6391
(ii) The correct way(s) to clean personal protective equipment and how to protect 6392
themselves when handling such equipment. 6393
(iii) Proper decontamination procedures that should be followed after handling 6394
contaminated personal protective equipment. 6395
(9) The handler employer must ensure that handlers have a place(s) away from pesticide 6396
storage and pesticide use areas where they may do all of the following: 6397
(i) Store personal clothing not worn during handling activities. 6398
(ii) Put on personal protect ive equipment at the start of any exposure period. 6399
(iii) Remove personal protective equipment at the end of any exposure period. 6400
(10) The handler employer must not allow or direct any handler to wear home or to take 6401
home employer

- provided personal prot ective equipment contaminated with pesticides. 6402

(e) Heat

- related illness . Where a pesticide’s labeling requires the use of personal 6403*** EO 12866 Review Draft

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Page 271 of 286 [RIN 2070

– AJ22 ] protective equipment for a handler activity, the handler employer must take appropriate measures 6404
to prevent heat

- related il lness. 6405

§ 170.509 Decontamination and eye flushing supplies for handlers. 6406

(a) Requirement . The handler employer must provide decontamination and eye flushing 6407
supplies in accordance with this section for any handler that is performing any handler activity o r 6408
removing personal protective equipment at the place for changing required by § 170.507(d)(9). 6409

(b) General conditions. The decontamination supplies required in paragraph (a) of this 6410
section must include: at least three gallons of water per handler at th e beginning of each 6411
handler’s work period for routine washing and potential emergency decontamination; soap; 6412
single

- use towels; and clean clothing for use in an emergency. The decontamination and eye 6413
flushing supplies required in paragraph (a) of this sect ion must meet all of the following 6414
requirements: 6415

(1) Water. At all times when this section requires handler employers to make water 6416
available to handlers for routine washing, emergency decontamination or eye flushing, the 6417
handler employer must ensure that it is of a quality and temperature that will not cause illness or 6418
injury when it contacts the skin or eyes or if it is swallowed. If a water source is used for mixing 6419
pesticides, it must not be used for decontamination or eye flushing supplies, unless equ ipped 6420
with properly functioning valves or other mechanisms that prevent contamination of the water 6421
with pesticides, such as anti

- backflow siphons, one

- way or check valves, or an air gap sufficient 6422
to prevent contamination. 6423

(2) Soap and single

- use towels

. The handler employer must provide soap and single

- use 6424
towels for drying in quantities sufficient to meet the handlers' needs. Hand sanitizing gels and 6425
liquids or wet towelettes do not meet the requirement for soap. Wet towelettes do not meet the 6426
requireme nt for single

- use towels. 6427*** EO 12866 Review Draft

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Page 272 of 286 [RIN 2070

– AJ22 ] (3) Clean change of clothing. The handler employer must provide one clean change of 6428
clothing, such as coveralls, for use in an emergency. 6429

(c) Location. The decontamination supplies must be located together outside any treated 6430

ar ea or area subject to a restricted

- entry interval, and must be reasonably accessible to each 6431
handler during the handler activity. The decontamination supplies must not be more than 1/4 6432
mile from the handler, except that w here the handler activity is more than 1/4 mile from the 6433
nearest place of vehicular access or more than 1/4 mile from any non

- treated area, the 6434
decontamination supplies may be at the nearest place of vehicular access outside any treated area 6435
or area subject to a restricted

- entry interval. 6436

(1) Mixing sites. Decontamination supplies must be provided at any mixing site. 6437

(2) Exception for pilots. Decontamination supplies for a pilot who is applying pesticides 6438
aerially must be in the aircraft or at the aircraft loading site. 6439

(3) Exception for treated areas. The decontamination supplies must be outside any 6440
treated area or area subject to a restricted

- entry interval, unless the soap, single

- use towels, water 6441
and clean change of clothing are protected from pesticide contamination in closed contai ners. 6442

(d) Emergency eye

- flushing . (1) Whenever a handler is mixing or loading a pesticide 6443
product whose labeling requires protective eyewear for handlers, or is mixing or loading any 6444
pesticide using a closed system operating under pressure, the handler em ployer must provide at 6445
the mixing/loading site immediately available to the handler, a system capable of delivering 6446
gently running water at a rate of least 0.4 gallons per minute for at least 15 minutes, or at least 6447
six gallons of water in containers suita ble for providing a gentle eye

- flush for about 15 minutes. 6448
(2) Whenever a handler is applying a pesticide product whose labeling requires protective 6449
eyewear for handlers, the handler employer must provide at least one pint of water per handler in 6450
portable containers that are immediately available to each handler. 6451*** EO 12866 Review Draft

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Page 273 of 286 [RIN 2070

– AJ22 ] 10. Subpart G is added to part 170 to read as follows: 6452
Subpart G

– Exemptions, Exceptions and Equivalency 6453

Sec. 6454 § 170.601 Exemptions. 6455 § 170.603 Exceptions for entry by workers during restricted

- entry intervals. 6456 § 170.605 Agricultural employer responsibilities to protect workers entering treated areas during 6457 a restricted

- entry interval. 6458 § 170.607 Exceptions to personal protective equipment requirements specified on pesticide 6459 product lab eling. 6460 § 170.609 Equivalency requests. 6461

§ 170.601 Exemptions. 6462

(a) Exemption for o wners of agricultural establishments and their immediate families . (1) 6463
On any agricultural establishment that is wholly owned by an individual, or where all of the 6464

owners of the establishment are members of the same immediate family, the owner(s) of the 6465
establishment are not required to provide the protections of the following provisions to 6466
themselves or members of their immediate family when they are performing handling activ ities 6467
or tasks related to the production of agricultural plants that would otherwise be covered by this 6468
part on their own agricultural establishment. 6469

(i) § 170.309(c). 6470

(ii) § 170.309(f) through (j). 6471

(iii) § 170.311. 6472

(iv) § 170.401. 6473

(v) § 170.403. 6474

(vi) § 170.409. 6475

(vii) § 170.411 and 170.509. 6476

(viii) § 170.501. 6477

(ix) § 170.503. 6478*** EO 12866 Review Draft

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Page 274 of 286 [RIN 2070

– AJ22 ] (x) § 170.505(c) and (d). 6479

(xi) § 170.507(c) through (e). 6480

(xii) § 170.605(a) through (c) and (e) through ( j ). 6481
(2) The owners of agricultural establishments must provide all of the applicable 6482
protections required by this part for any employees or other persons on the establishment that are 6483
not members of their immediate family. 6484

(b) Exemption for certified crop advisors . Certified crop advisors may make their own 6485

determina tion for the appropriate personal protective equipment for entry into a treated area 6486
during a restricted

- entry interval and substitute their self

- determined set of personal protective 6487
equipment for the labeling

- required personal protective equipment, and t he requirements of § § 6488

170.309(e), 170.503(a), 170.507 and 170.509 of this part do not apply to certified crop advisors 6489
provided the application is complete and all of the following conditions are met: 6490
(1) The crop advisor is certified or licensed as a cro p advisor by a program acknowledged 6491
as appropriate in writing by EPA or a State or Tribal agency responsible for pesticide 6492

enforcement. 6493
(2) The certification or licensing program requires pesticide safety training that includes 6494

all the information in § 17 0.501(c)(2) or § 170.501(c)(3) as applicable depending on the date of 6495
training. 6496
(3) The crop advisor who enters a treated area during a restricted

- entry interval only 6497
performs crop advising tasks while in the treated area. 6498

§ 170.603 Exceptions for entry by workers during restricted

- entry intervals. 6499
An agricultural employer may direct workers to enter treated areas where a restricted

6500
entry interval is in effect to perform certain activities as provided in this section, provided that 6501
the agricultural emplo yer ensures all of the applicable conditions of this section and § 170.605 of 6502*** EO 12866 Review Draft

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Page 275 of 286 [RIN 2070

– AJ22 ] this part are met. 6503

(a) Exception for activities with no contact . A worker may enter a treated area during a 6504

restricted

- entry interval if the agricultural employer ensures that all of the following conditions 6505

are met: 6506
(1) The worker will have no contact with anything that has been treated with the pesticide 6507

to which the restricted

- entry interval applies, including, but not limited to, soil, water, air, or 6508
surfaces of plants. Th is exception does not allow workers to perform any activities that involve 6509
contact with treated surfaces even if workers are wearing personal protective equipment. 6510
(2) No such entry is allowed until any inhalation exposure level listed in the pesticide 6511
product labeling has been reached or any ventilation criteria required by § 170.405(b)(3) or the 6512
pesticide product labeling have been met. 6513

(b) Exception for short

- ter m activities. A worker may enter a treated area during a 6514

restricted

- entry interval for short

- term activities, if the agricultural employer ensures that all of 6515
the following requirements are met: 6516
(1) No hand labor activity is performed. 6517

(2) The time in treated areas where a restricted

- entry interval is in effect does not exceed 6518
one hour in any 24

- hour period for any worker. 6519
(3) No such entry is allowed during the first 4 hours after the application ends. 6520
(4) No such entry is allowed until any inhalati on exposure level listed in the pesticide 6521
product labeling has been reached or any ventilation criteria required by § 170.405(b)(3) or the 6522
pesticide product labeling have been met. 6523

(c) Exception for an agricultural emergency. (1) An agricultural emergenc y means a 6524
sudden occurrence or set of circumstances that the agricultural employer could not have 6525
anticipated and over which the agricultural employer has no control, that requires entry into a 6526*** EO 12866 Review Draft

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Page 276 of 286 [RIN 2070

– AJ22 ] treated area during a restricted

- entry interval, and when no a lternative practices would prevent or 6527
mitigate a substantial economic loss. A substantial economic loss means a loss in profitability 6528
greater than that which would be expected based on the experience and fluctuations of crop 6529
yields in previous years. Only losses caused by the agricultural emergency specific to the 6530
affected site and geographic area are considered. Losses resulting from mismanagement cannot 6531
be included when determining whether a loss is substantial. 6532
(2) A worker may enter a treated area whe re a restricted

- entry interval is in effect in an 6533
agricultural emergency to perform tasks necessary to mitigate the effects of the agricultural 6534
emergency, including hand labor tasks, if the agricultural employer ensures that all the following 6535

criteria are met: 6536
(i) The State department of agriculture, or the State or Tribal agency responsible for 6537
pesticide enforcement declares an agricultural emergency that applies to the treated area, or 6538
agricultural employer has determined that the circumstances within t he treated area are the same 6539
as circumstances the State department of agriculture, or the State or Tribal agency responsible 6540
for pesticide enforcement has previously determined would constitute an agricultural emergency. 6541
(ii) The agricultural employer de termines that the agricultural establishment is subject to 6542
the circumstances that result in an agricultural emergency meeting the criteria of paragraph (c)(1) 6543

of this section. 6544
(iii) If the labeling of any pesticide product applied to the treated area req uires workers to 6545
be notified of the location of treated areas by both posting and oral notification, then the 6546
agricultural employer must ensure that no individual worker spends more than four hours out of 6547
any 24

- hour period in treated areas where such a re stricted

- entry interval is in effect. 6548
(iv) No such entry is allowed during the first 4 hours after the application ends. 6549
(v) No such entry is allowed until any inhalation exposure level listed in the pesticide 6550*** EO 12866 Review Draft

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Page 277 of 286 [RIN 2070

– AJ22 ] product labeling has been reached or any ve ntilation criteria required by § 170.405(b)(3) or the 6551
pesticide product labeling have been met. 6552

(d) Exceptions for limited contact and irrigation activities . A worker may enter a treated 6553
area during a restricted

- entry interval for limited contact or irrig ation activities, if the agricultural 6554
employer ensures that all of the following requirements are met: 6555
(1) No hand labor activity is performed. 6556
(2) No worker is allowed in the treated area for more than eight hours in a 24

- hour 6557
period. 6558

(3) No such entr y is allowed during the first 4 hours after the application ends. 6559
(4) No such entry is allowed until any inhalation exposure level listed in the pesticide 6560
product labeling has been reached or any ventilation criteria required by § 170.405(b)(3) or the 6561

pe sticide product labeling have been met. 6562
(5) The task is one that, if not performed before the restricted

- entry interval expires, 6563
would cause substantial economic loss, and there are no alternative tasks that would prevent 6564

substantial loss. 6565

(6) With the exception of irrigation tasks, the need for the task could not have been 6566

foreseen. 6567
(7) The worker has no contact with pesticide

- treated surfaces other than minimal contact 6568
with feet, lower legs, hands, and forearms. 6569

(8) The labeling of the pesticide pro duct that was applied does not require that workers be 6570
notified of the location of treated areas by both posting and oral notification. 6571

§ 170.605 Agricultural employer responsibilities to protect workers entering treated areas 6572
during a restricted

- entry int erval

. 6573
If an agricultural employer directs a worker to perform activities in a treated area where a 6574*** EO 12866 Review Draft

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Page 278 of 286 [RIN 2070

– AJ22 ] restricted

- entry interval is in effect, all of the following requirements must be met: 6575

(a) The agricultural employer must ensure that the worker is at least 18 years old. 6576

(b) Prior to early entry, the agricultural employer must provide to each early

- entry worker 6577
the information described in paragraphs (b)(1) through (8) of this section. The in formation must 6578
be provided orally in a manner that the worker can understand. 6579
(1) Location of early

- entry area where work activities are to be performed. 6580
(2) Pesticide(s) applied. 6581

(3) Dates and times that the restricted

- entry interval begins and ends. 6582
(4) Which exception in § 170.603 is the basis for the early entry, and a description of 6583
tasks that may be performed under the exception. 6584
(5) Whether contact with treated surfaces is permitted under the exception. 6585

(6) Amount of time the worker is allowed to remain in the treated area. 6586
(7) Personal protective equipment required by the pesticide product labeling for early 6587

entry. 6588
(8) Location of the pesticide safety information required by § 170.311(a) and the location 6589
of the decontamination supplies requi red by § 170.605(h). 6590
(c) Prior to early entry, the agricultural employer must ensure that each worker either has 6591
read the applicable pesticide product labeling or has been informed, in a manner that the worker 6592
can understand, of all labeling requirements and statements related to human hazards or 6593
precautions, first aid, and user safety. 6594
(d) The agricultural employer must ensure that each worker who enters a treated area 6595
during a restricted

- entry interval is provided the personal protective equipment spec ified in the 6596
pesticide product labeling for early entry. The agricultural employer must ensure that the worker 6597
uses the personal protective equipment as intended according to manufacturer’s instructions and 6598*** EO 12866 Review Draft

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Page 279 of 286 [RIN 2070

– AJ22 ] follows any other applicable requirements on the pesticide product labeling. Personal protective 6599
equipment must conform to the standards in § 170.507(b)(1) through (9). 6600
(e) The agricultural employer must maintain the personal protective equipment in 6601

accordance with § 170.507(c) and (d). 6602
(f) The agricu ltural employer must ensure that no worker is allowed or directed to wear 6603
personal protective equipment without implementing measures sufficient to prevent heat

- related 6604
illness and that each worker is instructed in the prevention, recognition, and first ai d treatment of 6605

heat

- related illness. 6606
(g) The agricultural employer must instruct each worker on the proper use and removal of 6607
the personal protective equipment, and as appropriate, on its cleaning, maintenance and disposal. 6608
The agricultural employer must not allow or direct any worker to wear home or to take home 6609
employer

- provided personal protective equipment contaminated with pesticides. 6610
(h) During any early

- entry activity, the agricultural employer must provide 6611
decontamination supplies in accordance with § 170.509, except t he decontamination supplies 6612
must be outside any area being treated with pesticides or subject to a restricted

- entry interval, 6613
unless the decontamination supplies would otherwise not be reasonably accessible to workers 6614
performing ear ly

- entry tasks. 6615
(i) If the pesticide product labeling of the product applied requires protective eyewear, the 6616
agricultural employer must provide at least one pint of water per worker in portable containers 6617
for eyeflushing that is immediately available to each worker who is performing early

- entry 6618

activities. 6619
(j) At the end of any early

- entry activities the agricultural employer must provide, at the 6620
site where the workers remove personal protective equipment, soap, single

- use towels and at 6621
least three gall ons of water per worker so that the workers may wash thoroughly. 6622*** EO 12866 Review Draft

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Page 280 of 286 [RIN 2070

– AJ22 ] § 170.607 Exceptions to personal protective equipment requirements specified on pesticide 6623
product labeling. 6624

(a) Body protection . (1) A chemical

- resistant suit may be substituted for coverall s. If a 6625

chemical

- resistant suit is substituted for coveralls, any labeling requirement for an additional 6626
layer of clothing beneath the coveralls is waived. 6627

(2) A chemical

- resistant suit may be substituted for coveralls and a chemical

- resistant 6628

apron. 6629

(b) Boots . If chemical

- resistant footwear with sufficient durability and a tread appropriate 6630
for wear in rough terrain is not obtainable, then leather boots may be worn in such terrain. 6631

(c) Gloves . If chemical

- resistant gloves with sufficient durability and suppleness are not 6632
obtainable, then during activities with plants with sharp thorns, leather gloves may be worn over 6633

chemical

- resistant glove liners. However, once leather gloves are worn for this use, thereafter 6634
they must be worn only with chemical

- re sistant liners and they must not be worn for any other 6635

use. 6636

(d) Closed systems. (1) When pesticides are being mixed or loaded using a closed system 6637
that meets all of the requirements in paragraph (d)(2) of this section, and the handler employer 6638

meets the requirements of paragraph (d)(3) of this section, the following exceptions to labeling

6639
specified personal protective equipment are permitted: 6640

(i) Handlers using a closed system to mix or load pesticides with a signal word of 6641
“DANGER” or “WARNING” may substitute a long

- sleeved shirt, long pants, shoes and socks, 6642

chemical

- resistant apron, protective eyewear, and any protective gloves specified on the labeling 6643
for handlers for the labeling

- specified personal protective equipment. 6644

(ii) Handlers using a closed system to mix or load pesticides other than those specified in 6645
paragraph (d)(1)(i) of this section may substitute protective eyewear, long

- sleeved shirt, long 6646*** EO 12866 Review Draft

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Page 281 of 286 [RIN 2070

– AJ22 ] pants, and shoes and socks for the labeling

- specified personal protective equipment. 6647
(2) The exceptions of paragraph (d)(1) of this section apply only in the following 6648

situations: 6649
(i) Where the closed system removes the pesticide from its original container and 6650
transfers the pesticide product through connecting hoses, pipes and couplings that are sufficiently 6651
tight to prevent exposure of handlers to the pesticide product , except for the negligible escape 6652
associated with normal operation of the syste m. 6653
(ii) When loading intact, sealed, water soluble packaging into a mixing tank or system. If 6654
the integrity of a water soluble packaging is compromised (for example, if the packaging is 6655
dissolved, broken, punctured, torn, or in any way allows its conten ts to escape), it is no longer a 6656
closed system and the labeling

- specified personal protective equipment must be worn. 6657
(3) The exceptions of paragraph (d)(1) of this section apply only where the handler 6658
employer has satisfied the requirements of § 170.313 and all of the following conditions: 6659
(i) Each closed system must have written operating instructions that are clearly legible 6660
and include: operating procedures for use, including the safe removal of a probe; maintenance, 6661
cleaning and repair; known restric tions or limitations relating to the system, such as incompatible 6662
pesticides, sizes (or types) of containers or closures that cannot be handled by the system; any 6663
limits on the ability to measure a pesticide; and special procedures or limitations regarding 6664
partially

- filled containers. 6665
(ii) The written operating instructions for the closed system must be available at the 6666
mixing or loading site and must be made available to any handlers who use the system. 6667
(iii) Any handler operating the closed system must be trained in its use and operate the 6668
closed system in accordance with its written operating instructions. 6669
(iv) The closed system must be cleaned and maintained as specified in the written 6670*** EO 12866 Review Draft

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Page 282 of 286 [RIN 2070

– AJ22 ] operating instructions and as needed to make sure the system funct ions properly. 6671
(v) All personal protective equipment specified in the pesticide product labeling is 6672
immediately available to the handler for use in an emergency. 6673
(vi) Protective eyewear must be worn when using closed systems operating under 6674

pressure. 6675

( e) Enclosed cabs . (1) If a handler applies a pesticide from inside a vehicle’s enclosed 6676
cab, and if the conditions listed in paragraph (e)(2) of this section are met, exceptions to the 6677
personal protective equipment requirements specified on the product lab eling for applicators are 6678
permitted as provided in paragraph (e)(3) of this section. 6679
(2) All of the personal protective equipment required by the pesticide product labeling for 6680
applicators must be immediately available and stored in a sealed container to prevent 6681
contamination. Handlers must wear the applicator personal protective equipment required by the 6682
pesticide product labeling if they exit the cab within a treated area during application or when a 6683

restricted

- entry interval is in effect. Once personal protective equipment is worn in a treated area, 6684
it must be removed before reentering the cab to prevent contamination of the cab. 6685
(3) Handlers may substitute a long

- sleeved shirt, long pants, shoes and socks for the 6686
labeling

- specified personal protective equipment for skin and eye protection. If a filtering 6687
facepiece respirator (NIOSH approval number prefix TC

- 84A) or dust/mist filtering respirator is 6688
required by the pesticide product labeling for applicators, then that respirator need not be worn 6689

inside the enclosed cab if the enclosed cab has a properly functioning air ventilation system 6690
which is used and maintained in accordance with the manufacture’s written operating 6691
instructions. If any other type of respirator is required by the pesticide labeling f or applicators, 6692
then that respirator must be worn. 6693

(f) Aerial applications

-- (1 ) Use of gloves

. The wearing of chemical

- resistant gloves 6694*** EO 12866 Review Draft

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Page 283 of 286 [RIN 2070

– AJ22 ] when entering or leaving an aircraft used to apply pesticides is optional, unless such gloves are 6695
required on the p esticide product labeling. If gloves are brought into the cockpit of an aircraft 6696
that has been used to apply pesticides, the gloves shall be kept in an enclosed container to 6697
prevent contamination of the inside of the cockpit. 6698

(2 ) Open cockpit . Handlers ap plying pesticides from an open cockpit aircraft must use the 6699
personal protective equipment specified in the pesticide product labeling for use during 6700
application, except that chemical

- resistant footwear need not be worn. A helmet may be 6701

substituted for che mical

- resistant headgear. A helmet with a face shield lowered to cover the face 6702
may be substituted for protective eyewear

. 6703

(3 ) Enclosed cockpit. Persons occupying an enclosed cockpit may substitute a long

6704
sleeved shirt, long pants, shoes, and socks for labeling

- specified personal protective equipment. 6705
(g) Crop advisors . (1) Provided the conditions of paragraphs (g)(2) through (g)(4) of this 6706

sect ion are met, crop advisors and their employees entering treated areas to perform crop 6707
advising tasks while a restricted

- entry interval is in effect may substitute either of the following 6708
sets of personal protective equipment for the personal protective equ ipment specified on the 6709
pesticide labeling for handler activities: 6710
(i) The personal protective equipment specified on the pesticide product labeling for early 6711

entry. 6712
(ii) Coveralls, shoes plus socks and chemical

- resistant gloves made of any waterproof 6713

ma terial, and eye protection if the pesticide product labeling applied requires protective eyewear 6714

for handlers. 6715
(2) The application has been complete for at least four hours. 6716
(3) No such entry is allowed until any inhalation exposure level listed in the pesticide 6717
product labeling has been reached or any ventilation criteria required by § 170.405(b)(3) or the 6718*** EO 12866 Review Draft

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Page 284 of 286 [RIN 2070

– AJ22 ] pesticide product labeling have been met. 6719
(4) The crop advisor or crop advisor employee who enters a treated area during a 6720

restricted

- entry interv al only performs crop advising tasks while in the treated area. 6721
§ 170.609 Equivalency requests. 6722
(a) States and Tribes that have promulgated worker protection regulations to protect 6723
agricultural workers and pesticide handlers from occupational pesticide exposure effective prior 6724

to [ i nsert date 60 days after date of publication in the Federal Register ] , have the option of 6725
requesting authority to continue implementing any provision(s) of the State’s or Tribe’s existing 6726
regulations that provides equivalent or greater protection in lieu of implementing any similar 6727
provision(s) in this part. 6728

(b) States or Tribes must submit requests for the authority to continue implementing State 6729
or Tribal regulation provision(s) in lieu of any similar provision(s) in this part by [ i nsert date 240 6730
days after date of publication in the Federal Register ]. The request must b e in the form of a 6731
letter from the State or Tribe to EPA that includes all of the following : 6732
(1) Identification of the provision(s) of this part for which the State or Tribe is requesting 6733
regulatory equivalency. 6734
(2) Appropriate documentation establishing that the pertinent State or Tribal worker 6735
protection provision(s) provides environmental and human health protection that meets or 6736
exceeds the protections provided by the identified provision(s) in this part. 6737
(3) Identification of any additional modific ations to existing State or Tribal regulations 6738
that would be necessary in order to provide environmental and human health protection that 6739
meets or exceeds the similar provisions of this part, and an estimated timetable for the State or 6740

Tribe to effect thes e changes. 6741
(4) The expected economic impact of requiring compliance with the requirement(s) of 6742*** EO 12866 Review Draft

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Page 285 of 286 [RIN 2070

– AJ22 ] this part in comparison with compliance with the State or Tribal requirement(s), and an 6743
explanation of why it is important that employers subject to the State o r Tribal authority comply 6744
with the State or Tribal requirement(s) in lieu of similar provision(s) in this part. 6745
(5) The signature of the designated representative of the State or Tribal agency 6746
responsible for pesticide enforcement. 6747
(c) EPA’s Office of P esticide Programs will review the State’s or Tribe’s letter and 6748
supporting materials and determine whether the State or Tribal provision(s) provide 6749
environmental and human health protection that meets or exceeds the comparable provision(s) of 6750
this part. 6751
(d) EPA’s Office of Pesticide Programs will inform the State or Tribe of its determination 6752
through a letter. The letter will either: 6753
(1) Authorize the State or Tribe to continue implementing its worker protection 6754
regulatory provision(s) in lieu of the c omparable provision(s) of this part; or 6755
(2) Deny the State or Tribe authorization to continue implementing its worker protection 6756
regulatory provision(s) in lieu of the comparable provision(s) of this part and detail any reasons 6757
for declining authorization

. 6758

(e) Subsequent revisions . Any State or Tribe that has received authorization from EPA 6759
through the process outlined in this section to continue implementing its State or Tribal worker 6760
protection regulatory provision(s) must inform EPA by letter within six months of any revision 6761

to the State or Tribal worker protection laws or regulations. The letter must contain the same 6762
information outlined in paragraph (b) of this section. The State or Tribe may continue 6763
implementing provisions of its worker protection regulations identified un der paragraph (b) of 6764
this section unless and until EPA informs the State or Tribe through a letter that EPA has 6765
determined that the State’s or Tribe’s worker protection regulations no longer provide 6766*** EO 12866 Review Draft

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Page 286 of 286 [RIN 2070

– AJ22 ] environmental and human health protection that meets or e xceeds the comparable provision(s) of 6767
this part based on the revisions. 6768