*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

RIN2070-AJ22_EO12866_AgWPS_FRM_FIFRA Review_EPA Response_2015-07-23.docx

Draft document as submitted for review under EO 12866

USDA Comments on Draft Final WPS rule – submitted July 8, 2015

EPA has formatted USDA’s comments by numbering and breaking them down into separate units, for 

ease of reference. 

1 USDA Background

2 A healthy and strong agricultural workforce is one of the key factors in the success of American 

3 agriculture. The labor force, whether employed in greenhouses, fields, orchards, nurseries, or other 

4 productive agricultural enterprises, like employees in other industries, should be aware of all activities in 

5 their workplace, particularly when there is potential occupational exposure directly to pesticides or their 

6 residues, so that they can take appropriate measures to minimize those risks. Agricultural employers have 

7 a responsibility to ensure that people working at an agricultural enterprise have the protections of a safe 

8 workplace. The accountability of worker protection is not one-sided. To be successful, the labor force 

9 and the employer share equally in the responsibility. USDA supports strong agricultural worker 

10 protection standards as they are essential to successful, modern agriculture.

11

12 Comments on EPA Worker Protection Standard Final Rule

13

14 USDA did not reference its comments by page number and line, because changing the display settings 

15 for the tracked changes in the draft final rule USDA received from EPA resulted in varying page and 

16 line number alignments. To prevent confusion, USDA is referencing its comments by unit and subunit 

17 number for the preamble, and by section and subsection for the draft final rule.

18

19 Comments on the Preamble

20 1. USDA. The draft final rule has an overall weakness in a number of places in the document in the 

21 manner in which EPA justifies positions it takes in the document. This weakness is a lack of evidenced22 based scientific data. In these cases, the positions presented by EPA could have be greatly strengthened 

23 to make the draft final rule more compelling in its justification for their proposed changes to the 1992 

24 Worker Protection Standards. With the lack of evidenced-based scientific data, some of EPA’s positions 

25 tend to appear as opinions rather than factual determinations. Examples of language in the draft final 

26 rule that demonstrate this lack of evidenced-based scientific data are listed below:

27 a) II.D.: “Even if the lack of quantitative data impairs the reliability of estimates of the total 

28 number of chronic illnesses avoided, it is reasonable to expect that the proposed changes to the WPS 

29 will reduce pesticide exposure, and thereby reduce the incidence of chronic disease resulting from 

30 pesticide exposure.”

31 b) IV.B.2.: “Although EPA cannot quantify the specific reduction in incidents from any single 

32 change to the regulation, taken together, EPA estimates that the final rule will result in an annual 

33 reduction of between 540 and 1,620 acute, health-related incidents.”

34 c) V.H.2.: “2. Benefits. While EPA can estimate the costs of the changes to pesticide safety 

35 training for workers and handlers, quantifying the benefits is more difficult. Nonetheless, as explained in 
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36 the NPRM, it is reasonable to expect that more frequent training would lead to better retention of 

37 information by workers and handlers, ultimately resulting in fewer incidents of pesticide exposure and 

38 illness in workers and handlers, improved decontamination procedures, reduced take-home exposure, 

39 and better protection of children.”

40

41 EPA Response. The preamble discusses the best evidence and data that are available, including a 

42 detailed analysis of occupational pesticide incidents for the four most recent years in the SENSOR43 Pesticides database. EPA believes the statements in the preamble -- including the ones USDA cited --

44 are accurate, and that the evidence and data adequately support these revisions to the WPS. EPA is not 

45 aware of any additional data sources that address the specific scenarios covered by the regulations and is

46 interested in learning about any evidence-based scientific data that USDA has seen. EPA’s decisions on 

47 training were based partially on the widely accepted idea that training people on worker safety decreases 

48 the number of incidents even though there is little research in how the training quantitatively translates 

49 to fewer incidents. As stated in Unit IV.B.2 of the preamble, EPA has seen a significant reduction in the 

50 number of estimated incidents since the 1992 rule even though EPA cannot determine the impact of each 

51 individual requirement in the rule, as well as other changes in agriculture, on that reduction in incidents.

52

53 2. Unit IV.B.2. (“Surveillance data”)

54 USDA. Consider rewriting to improve clarity. The original statement is “Another example of 

55 potentially avoidable exposure is spray drift; labeling prohibits application that contacts other persons 

56 and handlers should be instructed to apply pesticides in a manner that does not contact other persons, but 

57 incidents continue to occur.” 

58 Consider revising to say: “Another example of potentially avoidable exposure is spray drift. 

59 Labeling instructs handlers to apply pesticides in a manner that does not contact other persons, but 

60 incidents continue to occur.”

61

62 EPA Response. EPA has made this change to the preamble by revising it as follows: “...Another 

63 example of potentially avoidable exposure is spray drift. l Labeling prohibits application that contacts 

64 other persons and instructs handlers must to apply pesticides in a manner that does not contact other 

65 persons, but pesticide drift continues to cause exposure incidents.” 

66

67 3. Unit V.D. (“Expand the Content of Worker and Handler Pesticide Safety Training”)

68 USDA. USDA is concerned that the draft final rule does not include any estimate for how much 

69 additional time, if any, will be required to teach the expanded content of Worker and Handler Pesticide 

70 Safety Training. Without these time estimates, one cannot compare the training times for the expanded 

71 content for workers or handlers versus the typical time needed to teach the current pesticide safety 

72 training covering specific content. The time required for training is a significant driver of costs to 

73 effectively implement the draft final rule. This apparent increase in training time needed to provide the 

74 expanded content appears to put in question EPA’s marginal costs estimates of Impact on Jobs (page 10) 

75 of a typical farmworker to increase only $5/year and the marginal cost for a more skilled pesticide 

76 handler to increase only $50 per year. The “Economic Analysis of the Agricultural Worker Protection 

77 Standard Revisions” did not dispel this concern, because the analysis was based on the current training 
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78 time of 30 minutes per sessions without an analysis of how long the “expanded” training sessions will 

79 require. This would also put into question EPA’s estimate (Costs and Benefits of Revisions to Pesticide 

80 Safety Training, page 53) of $62 to $80 per agricultural establishment per year.

81

82 EPA Response. In the Economic Assessment, Unit 3.3.1 Pesticide Safety Training, Step 1 

83 Calculate Baseline Costs, EPA provides an estimate of 30 minutes for a full training session for workers 

84 under the current rule. In the second paragraph on page 57, and under Table 3.3-7 on page 57, EPA 

85 provides the estimate of 45 minutes for worker safety training with the expanded content, an increase of 

86 15 minutes of training time.

87 For the handler training baseline, please refer to Table 3.3-3 for the estimate of 45 minutes. 

88 Handler safety training covers more material than worker safety training. EPA estimated that the 

89 additional content in the final rule will result in an additional 15 minutes for handler training, and EPA 

90 includes that estimate in the narrative in the economic analysis. 

91 The 15 minute estimate for the increases in worker and handler training time is based on the 

92 length and content of current training videos. 

93

94 4. Unit V.H.1. (“Costs and Benefits of Revisions to Pesticide Safety Training: Costs”)

95 The expanded training is good from a safety standpoint and is necessary. However, it does not 

96 appear that the economic analysis addresses the impact of the time spent for training on worker/handler 

97 income particularly if the training is performed at the field prior to a work day. For many laborers, 

98 wages are earn based on their volume of work and not on the hours worked. Are they paid for the time 

99 spent training or does the time spent training significantly impact their earned wages for that day?

100

101 EPA Response. EPA does not require employers to pay workers for their time spent in training, 

102 although some employers do pay workers for that time. This is addressed in the EA as follows: 

103 Training, Step 1 Calculate Baseline Costs: “Action is required by two actors, the WPS farm, which 

104 provides or arranges the training, and the workers, who take the training. We consider these actors 

105 separately, although we assume the WPS farm incurs the training costs and implicitly pays the 

106 worker to take the training at the same wage he or she earns doing field work. However, some 

107 workers may bear the opportunity cost of taking the training. Workers who are hired to harvest 

108 fruits and vegetables are often paid by the quantity harvested; thus, time spent in training is time 

109 they are not earning pay.” 

110 Because EPA estimates that under the final rule worker training will last 45 minutes, workers who are 

111 not paid for by the hour would incur an average opportunity cost of less than $10 annually due to the 

112 training requirement.

113

114 5. Unit VII.A.2. (“Hazard Information – Location and Accessibility: Final rule”)

115 USDA. Please define the term “valid” in this context and describe how an employer will be able 

116 to determine that the request and employee’s signature is authentic. [In regards to the following 

117 sentence: “When the employer is presented a valid request, the employer must provide a copy of, or 

118 access to, all of the requested information that is applicable within 15 working days from the receipt of 

119 the request.”]
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120

121 EPA Response. In this context, the term “valid” was used to mean the request contains all of the 

122 required information. The agricultural employer is required to provide the information only when the 

123 designated representative presents a complete request. However, for clarity, EPA will replace “valid” 

124 with more descriptive language. Specifically, the sentence in Unit VII.A.2 has been revised as follows: 

125 “When the employer is presented a valid request that contains all of the necessary information specified 

126 in the regulations, the employer must provide a copy of, or access to, all of the requested information 

127 that is applicable within 15 working days from the receipt of the request.”

128 The employer will have access to the employee’s signature in training records. The pesticide use 

129 information is not confidential Personally Identifiable Information, and it should be readily provided to 

130 anyone with a plausible claim to be a designated representative. See §170.401(d)(1) for details.

131

132 6. Unit VII.B.3. (Paragraph on “Comments on inconsistencies in information between labels and 

133 SDSs”)

134 It is surprising that EPA is not acknowledging that it is common for SDSs to show PPE 

135 requirements that are different from the pesticide labels, since the two documents are intended for 

136 different audiences. EPA states here that since the label is not required to be posted, they do not “expect 

137 issues with a perception of conflict between labeling and SDSs.” USDA questions whether this is 

138 correct. Many Forest Service employees have reported finding differences between the PPE listed in the 

139 SDSs compared to the label. At a minimum, EPA should address this issue in the preamble.

140

141 EPA Response. EPA’s intention with requiring agricultural employers to display the Safety Data 

142 Sheets (SDSs) is to provide farm workers and handlers with information regarding chronic,

143 developmental and reproductive toxicity that is usually found on SDSs and not the label. Much of the 

144 technical information on SDSs, such as the chemical and physical properties of the pesticide, is designed 

145 for use by multiple professionals such as manufacturers, transporters, medical personnel and firefighters. 

146 EPA maintains our position that we do not anticipate issues with a perception of conflict between 

147 labeling and SDSs. First, many SDSs include a reference to the pesticide label in the section on 

148 exposure controls and personal protection. Second, the persons who would wear PPE are handlers who 

149 are trained that they must follow labeling instructions, including those regarding PPE. However, EPA 

150 has amended the preamble to clarify that pesticide applicators and handlers must always follow the 

151 instructions on the labeling regardless of any differences between information on the labeling and the 

152 SDS, and will make a point of including in future training materials warnings against reliance on SDS 

153 provisions regarding PPE. 

154 EPA has adjusted the response to this comment in Unit VII.B.3 of the preamble as follows: 

155 “...The SDS provides succinct information about the known health hazards of the product that typically 

156 is not presented as part of the product label or labeling. Such information can be invaluable to medical 

157 professionals for the diagnosis and treatment of certain pesticide-related illnesses and injuries. Because 

158 EPA is not requiring the employer to display the labeling, EPA does not expect issues with a perception 

159 of conflict between labeling and SDSs. The persons who would wear PPE are handlers who receive 

160 more thorough training than ordinary workers. If pesticide handlers encounter conflicting information 

161 on labeling and SDSs, such as the PPE identified, they should know that they must follow the 
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162 instructions on the pesticide labeling, as they are trained to do. For information on OSHA’s adoption of 

163 the Globally Harmonized System of Classification and Labeling of Chemicals for SDSs and the 

164 pesticide product labeling ...” 

165

166 7. Unit XVIII.E. (“Equivalency provisions” and “Clarifications”)

167 There are two subsections labeled “E.” The second one, “E. Clarifications” should be relabeled 

168 “F. Clarifications”.

169

170 EPA Response. The correction has been made. 

171

172 Comments on the Rule

173

174 8. §170.305

175

176 a. USDA. The definition for “agricultural plant” depends on the definition for “commercial 

177 production,” and the definition for “commercial production” depends on the definition for “agricultural 

178 plant.” Similar issues exist in the definitions of “agricultural establishment” and “farm,” “forest 

179 operation,” and “nursery.” USDA recommends resolving these circular dependencies by defining at least 

180 one of the terms in each pair independently.

181

182 EPA Response. EPA agrees that these definitions are somewhat circular, and while EPA is not 

183 convinced that serious confusion would result, EPA has eliminated some definitions and revised others 

184 to address USDA’s concern. The terms “commercial production,” “farm,” “nursery,” and “forest 

185 operation” appear only in the definition section and are not used elsewhere in the regulation. 

186 Accordingly, EPA will delete these definitions and merge their substantive content into the definitions 

187 of “agricultural establishment” and “agricultural plant,” as follows:

188

189 “Agricultural establishment” means any farm, forest operation, or nursery engaged in the outdoor 

190 or enclosed space production of agricultural plants. An establishment that is not primarily 

191 agricultural is an agricultural establishment if it produces agricultural plants for transplant or use 

192 (in part or their entirety) in another location instead of purchasing the agricultural plants. 

193 “Agricultural plant” means any plant, or part thereof, grown, maintained, or otherwise produced 

194 for commercial purposes, including growing, maintaining or otherwise producing plants for sale 

195 or trade, for research or experimental purposes, or for use in part or their entirety in another 

196 location. “Agricultural plant” includes, but is not limited to, grains, fruits and vegetables; wood 

197 fiber or timber products; flowering and foliage plants and trees; seedlings and transplants; and 

198 turf grass produced for sod. “Agricultural plant” does not include pasture or rangeland used for 

199 grazing.

200

201 b. USDA. The definition of “handler employer” is very broad, because it includes both

202 agricultural employers and commercial pesticide handler employers (CPHEs), even in a situation where 

203 both are simultaneously present on the agricultural establishment. This causes significant concerns and 
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204 confusion as to who is ultimately responsible for providing the protections in Subpart F (see additional 

205 comments on Subpart F below).

206 As currently written, a “handler employer” is anyone who employs any handler, as well as self207 employed handlers. The definition of “handler employer” uses the verb “to employ,” which is also 

208 defined in §170.305, as “to obtain, directly or through a labor contractor, the services of a person in 

209 exchange for a salary or wages . . . without regard to who may pay or who may receive the salary or 

210 wages” (emphasis added). This definition in turn uses the term “labor contractor,” whose definition

211 would include any CPHE hired by an agricultural employer to provide handlers. Reading these 

212 definitions together, it becomes clear that agricultural employers can be “handler employers” even when 

213 they do not directly employ a single handler, because they are employing handlers through a labor 

214 contractor/CPHE.

215 In a situation where an agricultural employer hires a CPHE, who in turn hires handlers, both the 

216 agricultural employer and the CPHE meet the definition of “handler employer,” since both employ 

217 handlers under the WPS definition of “employ”: the CPHE does so “directly,” while the agricultural 

218 employer does so “through a labor contractor” (i.e., the CPHE). In other words, a handler that is directly

219 employed by a commercial pesticide employer handler is simultaneously “employed” by both the CPHE

220 and the agricultural employer, leading to confusion over who has ultimate responsibility.

221 A solution to this problem would be to change the definition of “labor contractor” to explicitly 

222 exclude CPHEs: “Labor contractor means a person, other than a commercial pesticide handler 

223 employer, who employs workers and handlers to perform tasks . . .” [The reference to handlers in the 

224 definition for “labor contractor” could then be eliminated, since any person employing handlers is a 

225 CPHE, and no longer a labor contractor.] For handlers, this change would have the practical effect of 

226 limiting the meaning of the word “employ” to just a direct employment relationship. As a result, each 

227 handler would only have a single handler employer (i.e. his or her direct employer). For workers who 

228 are not handlers, agricultural employers would still “employ” anyone engaged directly or through a 

229 labor contractor.

230

231 EPA Response. EPA agrees that the current definitions of labor contractor and commercial 

232 pesticide handler employer contain some problematic language that could result in potential confusion 

233 and/or conflict regarding agricultural employer and commercial pesticide handler employer duties under 

234 the rule. EPA has made the suggested changes to the final rule with minor modifications to address the 

235 fact that some labor contractors do bring handlers on to agricultural establishments. EPA believes the 

236 revised text below clarifies that CPHEs are responsible for the handlers they employ and agricultural 

237 employers would no longer be considered employers of CPHE handlers for the purposes of the WPS, 

238 without overlooking the fact that some handlers are hired by agricultural employers through labor 

239 contractors and not CPHEs.

240 Commercial pesticide handler employer means any person, other than an agricultural employer, 

241 who employs any handler to perform handler activities on an agricultural establishment. A labor 

242 contractor who does not provide pesticide application services or supervise the performance of handler 

243 activities, but merely employs laborers who perform handler activities at the direction of an agricultural 

244 or handler employer, is not a commercial pesticide handler employer. 
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245 Employ means to obtain, directly or through a labor contractor, the services of a person in 

246 exchange for a salary or wages, including piece-rate wages, without regard to who may pay or who may 

247 receive the salary or wages. It includes obtaining the services of a self-employed person, an independent 

248 contractor, or a person compensated by a third party, except that it does not include an agricultural 

249 employer obtaining the services of a handler through a commercial pesticide handler employer or a 

250 commercial pesticide handling establishment. 

251 Labor contractor means a person, other than a commercial pesticide handler employer, who 

252 employs workers or handlers to perform tasks on an agricultural establishment for an agricultural 

253 employer.

254

255 c. USDA. USDA is further concerned that EPA’s definitions of “employ” and “agricultural 

256 employer” are not consistent with common legal definitions of these terms. Common law, tax law, and 

257 certain court decisions interpreting related statutes such as the Fair Labor Standards Act and the 

258 Seasonal Agricultural Worker protection Act, Aimable v. Long and Scott Farms, 20 F.3d 434 (1994), 

259 make a clear distinction between an employer/employee relationship and other, less direct working 

260 arrangements, such as independent contractors. USDA encourages EPA to assign WPS responsibilities 

261 in accordance with these more traditional and accepted definitions of “employer” and “to employ”.

262

263 EPA Response. EPA disagrees. EPA acknowledges that its use of the term “employ” in the WPS 

264 is more aligned with popular usage than with the common law and tax law uses of the term, but notes 

265 that the definition of “agricultural employer” in the existing WPS has been used since 1992 without 

266 significant conflict or confusion with similar terms. USDA’s objection pertains to the existing WPS 

267 definition of “agricultural employer” to the same degree as it does to the draft final rule’s definitions of 

268 “employ” and “agricultural employer,” and EPA declines to change this fundamental and longstanding 

269 WPS principle.

270

271 d. USDA. EPA included in the definition of “outdoor production” the phrase “. . . or in the case 

272 of forest operations, a natural forest”. Ignoring the question of what an “unnatural” forest would be, 

273 USDA is unsure why this phrase is needed at all. As this is written one could say that any planted forest 

274 is then not subject to WPS. There are other occurrences in the preamble (pages 202, 204, and perhaps 

275 others).

276

277 EPA Response. EPA agrees that the inclusion of the term “natural forest” in the definition of 

278 “outdoor production” creates confusion and is not needed. EPA has made the following change to the 

279 definition of “outdoor production” to address USDA’s comments:

280 Outdoor production means production of an agricultural plant in an outside area that is not 

281 enclosed or covered in any way that would obstruct the natural air flow.

282

283 e. USDA. In addition, most golf courses have nursery greens located next to, or near, the golf 

284 course. Posting agricultural exclusion zones, etc. could disrupt golfing activities. USDA requests 

285 clarification of how nursery greens are considered. If they are covered by this rule, did EPA consider 

286 the costs to golf courses which may have nurseries?
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287

288 EPA Response. Golf courses that have operations considered nurseries on their establishment 

289 (e.g., they are growing turf/greens in a nursery area for use in replacing turf on the playing areas of the 

290 golf course, or they are growing ornamentals in a greenhouse for planting on the golf course) have 

291 always been covered by the WPS, and compared to the existing WPS, the coverage of golf courses that 

292 have nurseries on their establishment is not changed by the amendments in this final rule. EPA has

293 included an excerpt from the 1995 WPS guidance which clarifies this coverage below. Since there are 

294 no posting requirements associated with application exclusion zones, EPA does not see this as an issue. 

295 Additionally, EPA understands that most golf course pesticide applications are conducted when the 

296 public is not using the course, and this should be similar with applications to a nursery operation on the 

297 golf course. EPA expects this practice should minimize any potential impact to golf course operations 

298 due to WPS requirements. EPA considered the cost to golf courses that operate nurseries; the costs 

299 would be accounted for under the costs of the WPS revisions on nursery operations.

300

301 14-24 Production of agricultural plants for other than direct sale

302 IGW Question: What is the scope of the WPS with respect to establishments producing 

303 agricultural plants for other than direct sale, i.e., in-house use? 

304 IGW Answer: There is no exception for agricultural plants produced for other than 

305 direct sale, i.e., in-house use. The WPS covers an agricultural establishment if (1) a WPS-labeled 

306 agricultural pesticide is used on the establishment, (2) workers or handlers are employed by or on 

307 the agricultural establishment, (3) the establishment is a farm, forest, nursery, or greenhouse, as 

308 defined in the WPS, and (4) the establishment or the activity is not covered by one of the 

309 exceptions specifically described in the rule, Section 170.102 (b). 

310 For instance, the following operations are covered by the WPS: Production of hay or feed 

311 grown for livestock on dairy farms, cattle ranches, or other livestock operations; sod farms, 

312 greenhouses, or nurseries operated by golf courses; and greenhouses and nurseries operated by 

313 theme parks, hotel chains, botanical gardens, and state and local governments. (Note: Pasture and 

314 rangeland used for grazing are excluded.) (March 15, 1995)

315

316 f. USDA. Including "arranging for the application of the pesticide” in the definition of “use, as in 

317 ‘to use a pesticide’” is superfluous and gives the impression of expanding the WPS – and the related 

318 state enforcement actions – far beyond the actual agricultural establishment to reach off-site 

319 administrators involved only in pre-application tasks. USDA recommends removing the reference to 

320 “arranging for the application of the pesticide.”

321

322 EPA Response. EPA also received several similar comments from states, growers, agricultural 

323 associations and pesticide manufacturer associations objecting to the proposed definition of “use.” Most 

324 commenters objected to the definition of use because they did not support inclusion of “arranging for 

325 application of the pesticide” as part of the definition of “use,” and they said they believed that this 

326 language would greatly expand the scope of the WPS and would be unreasonable and unnecessary. EPA 

327 disagrees with comments that say the proposed definition for the term “use” could or will expand the 

328 scope of the WPS because this language has been in §170.9(a) of the WPS since the rule first became 
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329 effective in 1992. Moreover, EPA has not been made aware of any instances where this definition of 

330 “use” has resulted in an unreasonable or inappropriate outcome. EPA believes that “arranging for 

331 application of the pesticide” is appropriately part of the definition of “use” for the purposes of the WPS 

332 because in production agriculture, the individual who physically “uses” a pesticide almost always does 

333 so at the direction of another person who has substantially greater control over the circumstances of the 

334 use. Thus the WPS is designed so that when an agricultural or handler employer arranges for the 

335 application of a pesticide by a handler employee, it triggers certain WPS duties that are properly the 

336 responsibility of the agricultural or handler employer. For instance, once the agricultural employer 

337 arranges for a pesticide application by a commercial pesticide handling establishment, the commercial 

338 pesticide handler employer must provide the agricultural employer with certain information about the 

339 intended application before the application takes place (so the employer will be able to fulfill WPS 

340 notification requirements and protect workers during application, etc.). In such circumstances, it is 

341 reasonable and appropriate that the handler employer should be held responsible for the pre-application 

342 information exchange even though the application has not commenced and even though the handler 

343 employer personally never physically applies the pesticide. Therefore, since EPA has not been made 

344 aware of any instances where the existing interpretation of the term “use” has resulted in unreasonable 

345 difficulties for growers, states or the agricultural industry, EPA has moved the definition for the term 

346 “use” into the definitions section of the rule without any changes from the proposal. 

347

348 8.1 "Administration of Conservation Programs" was not included in the proposed rule. This 

349 NAICS code includes the administration of recreational areas and weather forecasting administration, 

350 geologic survey program administration, preservation of natural resources, recreational areas, erosion 

351 control, etc. USDA would like an expansion on the rationale for their inclusion into the worker 

352 protection standard. Furthermore, the entirety of this NAICS code's government population, appears not 

353 to be addressed in the Economic Analysis and, therefore, the impact on this sector may not have been 

354 included.

355

356 EPA Response. EPA did not receive comments from the entities listed under this NAICS code, 

357 and does not believe that the WPS applies to them. EPA has removed the reference from the preamble, 

358 per USDA’s request.

359

360 9. §170.309(c) and §170.313(c) minimum age

361 USDA. As in previous reviews, USDA opposes changing the minimum age for handlers and 

362 early-entry workers proposed by EPA and defer this decision to the States. U.S. agricultural workers 

363 operate under a variety of federal requirements, including those of the Environmental Protection Agency 

364 and the U.S. Department of Labor. States also have minimum age requirements for users of pesticides. 

365 The U.S. Department of Labor has already set federal minimum age limits for people who are 18 years 

366 old or younger when working with pesticides. The current regulatory system allows for States to 

367 increase age requirements and most states have already exercised this right based on their unique 

368 circumstances. USDA believes the current federal-state system is working in this regard. The need for 

369 added regulation is not apparent and should be weighed against state discretion and current state and 

370 federal laws.
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371 Please see the following as posted by the Department of Labor at 

372 http://www.dol.gov/elaws/esa/flsa/docs/hazag.asp. (Italics added for emphasis.)

373 Prohibited Occupations for Agricultural Employees 

374 The child labor rules that apply to agricultural employment depend on the age of the young 

375 worker and the kind of job to be performed. The rules are the same for all youth, migrant 

376 children as well as local resident children. In addition to restrictions on hours, the Secretary of 

377 Labor has found that certain jobs in agriculture are too hazardous for anyone under 16 to 

378 perform. 

379  Once a young person turns 16 years old, he or she can do any job in agriculture. 

380  A youth 14 or 15 years old can work in agriculture, on any farm, but only in non381 hazardous jobs.

382  A youth 12 or 13 years of age can only work in agriculture on a farm if a parent has 

383 given written permission or if a parent is working on the same farm as his or her child, 

384 and only in non-hazardous jobs. 

385  If the youth is younger than 12, he or she can only work in agriculture on a farm if the 

386 farm is not required to pay the Federal minimum wage. Under the FLSA, "small" farms 

387 are exempt from the minimum wage requirements. "Small" farm means any farm that did 

388 not use more than 500 "man-days" of agricultural labor in any calendar quarter (3-month 

389 period) during the preceding calendar year. "Man-day" means any day during which an 

390 employee works at least one hour. If the farm is "small," workers under 12 years of age 

391 can only be employed with a parent's permission and only in non-hazardous jobs. 

392 Hazardous Occupations 

393  The Secretary of Labor has found that the following agricultural occupations are 

394 hazardous for youths under 16 years of age. No youth under 16 years of age may be 

395 employed at any time in any of these hazardous occupations in agriculture (HO/A) unless 

396 specifically exempt. Exemptions (*) will apply to HO/A #1 through #6 under limited 

397 circumstances. (None of the exemptions apply to pesticides.)

398  HO/A #9 Handling or applying agricultural chemicals if the chemicals are 

399 classified under the Federal Insecticide, Fungicide and Rodenticide Act as Toxicity 

400 Category I -- identified by the word "Danger" and/or "Poison" with skull and 

401 crossbones; or Toxicity Category II -- identified by the word "Warning" on the label.

402 (Handling includes cleaning or decontaminating equipment, disposing of or returning 

403 empty containers, or serving as a flagman for aircraft applying agricultural 

404 chemicals.) 

405 USDA requests that EPA work with DOL to unify their regulations so that those working in agriculture 

406 have clear guidance as to federal minimum age requirements for agricultural workers. The States have 

407 regulations in place that are consistent with DOL – or more restrictive – based on the needs of individual 

408 States. 

409
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410 EPA Response. EPA notes that a majority of the comments received encouraged the Agency to 

411 implement a minimum age of 18 for handlers and early-entry workers. 

412 EPA welcomes input from DOL to ensure no avoidable conflict between the WPS and FLSA. 

413 However, the statutory criteria for regulating under FIFRA and the child labor provisions of FLSA are 

414 different. While EPA will defer to DOL regarding the scope of its authority under FLSA, it does not 

415 appear that DOL has the discretion to use the FLSA section 12 child labor provisions to protect children 

416 16 or older working in agriculture. FIFRA does not contain such a limitation, and EPA believes that 

417 pesticide handling in agriculture and entry to a treated area when a restricted-entry interval (REI) is in 

418 effect (“early-entry workers”) by persons under the age of 18 is inconsistent with the FIFRA statutory

419 standard.

420 Moreover, where DOL exercises its FLSA child labor authorities in regard to children employed 

421 in agriculture, its focus is on protecting the child worker (see 29 USC 213(c)(4)). EPA’s mandate under 

422 FIFRA is significantly broader, requiring EPA to prevent unreasonable adverse effects of pesticides to 

423 workers, other persons, and the environment, and these are put at risk when agricultural pesticides are 

424 applied by persons with immature judgment and risk-taking behaviors. Inasmuch as FLSA and FIFRA 

425 have different purposes and different scopes, it is not surprising that they should produce different 

426 regulatory outcomes.

427 DOL’s standard and the WPS differ in the types of pesticides covered. DOL’s restrictions on 

428 pesticide use in agricultural employment applies only to pesticides with high acute toxicity (toxicity 

429 categories I and II). The WPS applies to all agricultural use pesticides, some of which may pose a 

430 variety of other risks. Pesticides that are extremely toxic to other species, or that are powerful 

431 carcinogens or mutagens, may nevertheless have low acute human toxicity, and therefore be classified in 

432 toxicity categories III and IV. Such pesticides can pose significant risks to the handler, bystanders, and 

433 the environment if not used properly. 

434 To the extent that DOL’s standard does protect children from agricultural pesticides, it only 

435 protects children as pesticide applicators. DOL’s standard does not cover early-entry workers at all, 

436 though they face increased risks from entering an area treated with pesticides before the residue levels 

437 have fallen to a level unlikely to cause unreasonable adverse effects. 

438 In sum, EPA disagrees with USDA’s request that EPA should defer to the states or the FLSA and 

439 not establish any age-related restrictions on pesticide handling or early-entry activities. EPA has the 

440 responsibility under FIFRA to regulate the use of pesticides to avoid unreasonable adverse effects, apart 

441 from any requirements established by other federal or state laws.

442

443 10. §170.311(b)(6)

444 a. USDA: The new requirement to maintain application information and SDSs for 2 years is 

445 onerous and without foreseeable benefit. Acute toxic effects would be the most likely triggering need to 

446 get this information to a worker. EPA should have considered a longer application information posting 

447 time (45 days, 60 days) rather than a 2-year record retention.

448

449 EPA Response. EPA believes that workers in agriculture and pesticide regulatory agencies 

450 should have access to application and exposure information, and believes that two years is a reasonable 

451 compromise between access and the burdens of record retention. Acute pesticide illnesses are the most 
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452 common triggering effects; however, chronic illnesses are potentially linked to pesticide exposure, and 

453 workers and handlers may present such illnesses and should have access to the exposure or hazard 

454 information. Under OSHA, records of exposure to hazardous chemicals are required to be retained for 

455 30 years, and access to those must be provided to workers, even if they are no longer employed by the 

456 employer. Once the record is created and filed, there is little cost to maintaining it. In addition, 

457 employers may choose to keep the information at the central posting display for the required retention 

458 period of two years from the date of application, providing that the information remains legible and all 

459 other requirements are met. 

460

461 b. USDA: USDA expresses concern over the increased burden placed on agricultural employers 

462 due to a significant expansion and complexity of record-keeping requirements. As written, agricultural 

463 employers will bear the sole responsibility in providing records and responses to workers, their 

464 designated representatives, plus states and federal enforcement. Agricultural employers already must 

465 keep records under OSHA, including The Migrant and Seasonal Agricultural Worker Protection Act 

466 (MSPA), Field Sanitation Standards under the Occupational Safety and Health Act, and Agricultural 

467 Employers under the Fair Labor Standards Act (FLSA). USDA is further concerned over agricultural 

468 employers’ liability resulting from small procedural mistakes stemming from the added recording469 keeping requirements under FIFRA.

470

471 EPA Response. EPA responded to comments from agricultural interests opposing the proposed 

472 recordkeeping on the basis of burden by examining the purpose and need for the records. As a result, 

473 EPA eliminated from the final rule the requirement for documenting oral notification to workers for

474 early-entry. The review found that collection of the application information and the SDS are necessary 

475 for hazard communications. The remaining records were found to be necessary for employers to 

476 demonstrate compliance with aspects of the regulation.

477 USDA expresses concern for employers’ liability from small procedural mistakes. Small 

478 procedural mistakes are typically addressed with a warning notice, rather than monetary penalties. After 

479 implementation, there will be a period of compliance assistance. During this period, EPA and state 

480 regulatory agencies will work with agricultural interests to ensure understanding of the rule 

481 requirements and how to comply with them, thereby minimizing “small procedural mistakes.”

482

483 c. USDA. Under OSHA, there are already considerations for “designated representatives” for 

484 farm accidents, farm chemical hazards, wages, etc. which can be confusing if there is a separate 

485 “designated representative” under FIFRA for pesticide hazard communication records. OSHA provides 

486 a process for expiration, revocation of “designated representatives,” and whether the designated 

487 representative can be a union representative, worker group representative, etc. for records and in what 

488 circumstances the designated representative can accompany an inspection. The WPS language does not 

489 specify how many authorized representatives a worker may have. The time to process multiple 

490 authorizations, confirm signatures and make changes will incur added costs to agricultural employers 

491 and should be included in the Economic Analysis.

492
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493 EPA Response. EPA believes the WPS final rule is clear regarding the identification and 

494 function of the designated representative. The representative must provide, in writing, the designation 

495 from the worker or handler. The information that the employer must provide is limited to the application 

496 records and the SDS that were displayed while the worker or handler was on the establishment. EPA’s 

497 designated representative requirement is modeled on OSHA’s rule at 29 CFR 1910.1020. EPA is aware 

498 that California and Texas regulations include employee representatives’ access to information for 

499 farmworkers. Comments from the Texas Department of Agriculture encouraged EPA to require the 

500 designation in writing and to limit access to records to the timeframe of 2 years. 

501 Under the final rule, while a worker may have multiple authorized representatives, EPA expects 

502 a single individual could be the designated representative under both sets of regulations, thereby 

503 minimizing confusion and burden for the employer. The final rule does not provide access to 

504 inspections for the designated representative. 

505 The Economic Analysis has been updated to provide an estimate of the costs of processing 

506 requests on a per-request basis, and includes the cost of verifying the validity of the request. Please refer 

507 to comment #30 for details. 

508

509 d. USDA. USDA believes the total costs for record-keeping should include the following: set-up 

510 costs to establish a recordkeeping system (if one has not already been established; costs to develop 

511 internal record forms; printing costs for paper records); computer software/system costs (for electronic 

512 records); storage costs; disposal costs of records with sensitive information; maintenance costs for 

513 records beyond the two-year minimum for longer-term employees. Did EPA consider all these in its cost 

514 estimates for record-keeping, especially for small businesses and government agencies?

515

516 EPA Response. As USDA noted previously in this comment (10.b.), agricultural employers 

517 must comply with recordkeeping under requirements from other federal agencies. Therefore, EPA 

518 believes that establishments will have recordkeeping systems in place as a result of complying with the 

519 cited requirements. EPA estimates the following costs: paper, time to collect information and signatures, 

520 and storage. The records required by EPA do not include information that would ordinarily be 

521 considered private or sensitive (note that the draft final rule does not require employers to record 

522 workers’ birthdates), therefore, there is no need to dispose of those in any particular manner. Finally, as 

523 there is not a requirement to retain records beyond the two year timeframe regardless of a worker or 

524 handler’s continued employment, such cost is not necessary to assess. 

525

526 11. §170.311(b)(7)-(9)

527

528 a. USDA. Compared to the proposed rule’s “authorized representative,” EPA has now coined

529 and defined the term “designated representative” and added additional language. Regardless of terms, 

530 EPA’s definition of “designated representative” still raises serious concerns for USDA. We also remind 

531 EPA of the concerns expressed by key stakeholders that are detailed below in response to reading the 

532 proposed rule. USDA is concerned that EPA has not seriously considered their concerns. We also note 

533 that there was only one public comment in support of this concept during the proposed rule period which 

534 was far outnumbered by those written in opposition. 
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535

536 Minor Crop Farmer Alliance (MCFA)

537 “The current proposed definition of “authorized representative” is overly broad and would be very 

538 difficult to manage to ensure information that is worker specific is protected. The information necessary 

539 to provide support for workers who seek treatment for potential health related impacts is already 

540 provided in the current WPS regulations. The proposed definition is open-ended and subject to serious 

541 abuse. The representative of a worker seeking information under the provision of the WPS should be 

542 limited to family members or medical personnel with a legitimate need for information.”

543

544 National Association of State Departments of Agriculture (NASDA)

545 “Authorized representative: We request EPA remove “Authorized representative” from the proposed 

546 rule. We recognize at least one state has this provision included in its state regulations, and we 

547 understand the inclusion has led to a range of complications and on-going litigation that does nothing to 

548 forward the purpose of the WPS or facilitate a sound regulatory framework. If mandated in the Code of 

549 Federal Regulations, the new provision will lead to numerous complications for both the state regulatory 

550 agency and the regulated community in trying to comply with the proposed WPS rule, even if the 

551 designation is required in writing, while protecting against liability in responding to fraudulent claims or 

552 interests seeking to utilize this provision for non-WPS purposes. We oppose this proposal.”

553

554 Association of American Pesticide Control Officials (AAPCO)

555 “Authorized employee representative - A person designated by the worker or handler, orally or in 

556 writing, to request and obtain any information that the employer is required to provide upon request to 

557 the worker or handler.

558

559 AAPCO does not support the definition as proposed. An authorized representative should be designated 

560 in writing for a specific worker or handler and for a specific event or time period within the last 2 years 

561 from the date of request (due to record retention requirements). The information required to be provided 

562 to the authorized representative, and the purpose of the request or intended use of the information, 

563 should be clearly specified as noted in the above comments.”

564

565 EPA response. In response to the many comments concerning the identification of the designated 

566 (authorized) representative, EPA has clarified the requirements for the designation: it must be in writing, 

567 include the name and signature of the requesting employee, describe the specific information being 

568 requested, the date of the designation, and directions for sending the information if so desired. These 

569 requirements largely meet the AAPCO recommendation. In addition, the employer has 15 days to 

570 provide the information. EPA believes requiring the identification of the designated representative in 

571 writing addresses the concerns raised for the legitimacy of the designated representative and clarity of 

572 the request, while continuing to allow access to important pesticide exposure information for workers 

573 and handlers that they may be reluctant to request of their employer. 

574 One public comment states that the emergency provisions of the current rule provide adequate 

575 support for workers. However, under the rule, only employees seeking emergency assistance while on 
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576 the establishment are so protected. Additionally, employees should have access to the information if 

577 they are concerned for their exposure but do not show symptoms. 

578 USDA states that only a single public comment supports the authorized representative concept; 

579 however, EPA has found several comments in support of the authorized representative, stating that the 

580 requirement would enable a worker or handler access to important information for medical purposes. 

581

582 b. USDA has the following additional comments on this section:

583 These requirements for providing application data to the worker or handler, treating medical 

584 personnel, or a designated representative do not spell out the timeframe for which records can be 

585 produced based on §170.311(b)(6) (two year application information retention requirement). Each of 

586 subsections should include the phrase “within the last two years” to clarify that after two years there is 

587 no expectation that such records would have been retained.

588 EPA should be clear on the differences between a “designated representative” and a person 

589 acting under the direction of medical personnel. Who are those “persons”? While the two could be the 

590 same person, it is possible that in an emergency situation, the requirements for requesting the 

591 information as outlined may not be expedient.

592

593 EPA Response. EPA has clarified in those sections that the information is accessible for only 

594 that period of time after it is collected and retained.

595 USDA has also expressed concern that it is not clear who may access the information as a person

596 acting under the direction of treating medical personnel. In consultation with USDA, EPA has revised 

597 the language to clarify that treating medical personnel and persons working under their supervision are 

598 to be given access to the information. 

599

600 c. USDA. Allowing oral requests to the employer by workers and handlers for pesticide 

601 application information and safety data sheets is not consistent with the EPA’s new posting requirements 

602 that prohibit oral notification to workers of pesticide applications due to difficulty in recalling oral 

603 information, difficulty communicating orally if language barriers exist and the lack of verification of an 

604 oral notification. For these same reasons, oral notification to employers should be replaced with written 

605 notification. USDA encourages EPA to meet with stakeholders representing employers and farm 

606 workers to best balance the oral versus written requests and the mechanism for collecting the written 

607 statement to designate the representative.

608

609 EPA Response. USDA finds inconsistency between (1) the option for workers and handlers to 

610 orally request hazard information from their employer and (2) the requirement for the employer to post 

611 areas treated with a pesticide with an REI of greater than 48 hours. EPA does not agree that these 

612 requirements need to be consistent with each other. While it would be more convenient for employers to 

613 get a written request for the hazard communication information, in the interest of promoting access to 

614 workers and handlers who may not be literate and could not provide a written request, allowing oral 

615 requests facilitates the flow of information and outweighs the convenience for the employer. Posting a 

616 treated area under an REI as a visual warning is intended to provide an ongoing reminder to workers not 
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617 to enter the area, because they may forget the oral notification given, or there may be confusion about 

618 which field is treated. 

619 Regarding USDA’s comment about the mechanism for collecting the written request to designate 

620 the representative, the written information can be hand delivered, mailed, provided to the employer as an

621 attachment to an e-mail, or any other way seen as appropriate. Oral identification of the designated 

622 representative is not sufficient.

623

624 12. §170.313

625 USDA. This section creates responsibilities for commercial pesticide handler employers 

626 (CPHEs) toward “each handler” or “any handler,” without limiting the CPHE’s responsibility to only the 

627 handlers employed by the given CPHE. This may lead to difficulties and unintended consequences when 

628 multiple CPHEs are operating on the same agricultural establishment, or when an agricultural employer 

629 chooses to employ some handlers directly while contracting for additional handlers through a CPHE.

630 Regarding subsection (b), how is a CPHE supposed to ensure that handlers employed by a 

631 different CPHE or handlers employed directly by the agricultural employer receive the protections 

632 required by the WPS?

633 Regarding subsection (c), how is a CPHE supposed to ensure that handlers employed by a 

634 different CPHE or handlers employed directly by the agricultural employer are at least 18 years old?

635 The same line of questioning also applies to subsections (d), (e), (f), (g), (h), and (k). A CPHE 

636 will not likely be able to follow these requirements with regards to handlers that are not employed by 

637 him or her and thus are not within his or her supervisory control. USDA recommends clarifying that for 

638 purposes of §170.313, the term “handler” is limited to handlers employed by the CPHE (i.e. the CPHE’s 

639 “own” handlers).

640 In addition, if EPA makes the changes to the definition of “labor contractor” in §170.305 

641 suggested above, EPA should remove references to labor contractors in this section. This is because any 

642 contractor who employs handlers will no longer be both a “labor contractor” and a CPHE, but only a 

643 CPHE instead.

644

645 EPA Response. EPA does not believe that a CPHE has responsibilities for handlers other than its 

646 own handler employees because the required employer-employee relationship that triggers WPS 

647 responsibilities does not exist for handlers that are not employed by the CPHE. However, in the interest 

648 of providing greater clarity in the, EPA has clarified in the rule in 170.313 that the commercial pesticide 

649 handler employer duties are only applicable for handlers they directly employ. The revised reg text is 

650 included below:

651

652 §170.313 Commercial pesticide handler employer duties. 

653 “Commercial pesticide handler employers must:

654 (a) Ensure that any pesticide is used in a manner consistent with the pesticide product 

655 labeling, including the requirements of this part, when applied on an agricultural establishment by a 

656 handler employed by the commercial pesticide handling establishment. 

657 (b) Ensure each handler employed by the commercial pesticide handling establishment 

658 and subject to this part receives the protections required by this part. 
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659 (c) Ensure that any handler employed by the commercial pesticide handling 

660 establishment is at least 18 years old.

661 (d) Provide to each person, including labor contractors, who supervises any handlers 

662 employed by the commercial pesticide handling establishment, information and directions sufficient to 

663 ensure that each handler receives the protections required by this part. Such information and directions 

664 must specify the tasks for which the supervisor is responsible in order to comply with the provisions of 

665 this part.

666 (e) Require each person, including labor contractors, who supervises any handlers 

667 employed by the commercial pesticide handling establishment, to provide sufficient information and 

668 directions to each handler to ensure that the handler can comply with the provisions of this part.

669 (f) Ensure that before any handler employed by the commercial pesticide handling 

670 establishment uses any equipment for mixing, loading, transferring, or applying pesticides, the handler is 

671 instructed in the safe operation of such equipment. 

672 (g) Ensure that, before each day of use, equipment used by their employees for mixing, 

673 loading, transferring, or applying pesticides is inspected for leaks, obstructions, and worn or damaged 

674 parts, and any damaged equipment is repaired or is replaced. 

675 (h) Ensure that whenever a handler who is employed by the commercial pesticide 

676 handling establishment will be on an agricultural establishment, the handler is provided information 

677 about, or is aware of, the specific location and description of any treated areas where a restricted-entry 

678 interval is in effect, and the restrictions on entering those areas. 

679 (i) Provide the agricultural employer all of the following information before the 

680 application of any pesticide on an agricultural establishment:

681 (1) Specific location(s) and description of the area(s) to be treated.

682 (2) The date(s) and start and estimated end times of application.

683 (3) Product name, EPA registration number, and active ingredient(s).

684 (4) The labeling-specified restricted-entry interval applicable for the application.

685 (5) Whether posting, oral notification or both are required under §170.409.

686 (6) Any restrictions or use directions on the pesticide product labeling that must be 

687 followed for protection of workers, handlers, or other persons during or after application.

688 (j) If there are any changes to the information provided in §170.313(i)(1), §170.313(i)(4), 

689 §170.313(i)(5), §170.313(i)(6) or if the start time for the application will be earlier than originally 

690 forecasted or scheduled, ensure that the agricultural employer is provided updated information prior to 

691 the application. If there are any changes to any other information provided pursuant to §170.313(i), the 

692 commercial pesticide handler employer must provide updated information to the agricultural employer

693 within two hours after completing the application. Changes to the estimated application end time of less 

694 than one hour need not be reported to the agricultural employer.

695 (k) Provide emergency assistance in accordance with this paragraph. If there is reason to 

696 believe that a handler has experienced a potential pesticide exposure during his or her employment by 

697 the commercial pesticide handling establishment or shows symptoms similar to those associated with 

698 acute exposure to pesticides during or within 72 hours after his or her employment by the commercial 

699 pesticide handling establishment, and needs emergency medical treatment, the commercial pesticide 
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700 handler employer must do all of the following promptly after learning of the possible poisoning or 

701 injury:

702 (1) Make available to that person transportation from the commercial pesticide handling 

703 establishment, or any agricultural establishment on which that handler may be working on behalf of the 

704 commercial pesticide handling establishment, to an operating medical care facility capable of providing 

705 emergency medical treatment to a person exposed to pesticides.

706 (2) Provide all of the following information to the treating medical personnel:

707 (i) Copies of the applicable safety data sheet(s) and the product name(s), EPA registration 

708 number(s) and active ingredient(s) for each pesticide product to which the person may have been 

709 exposed. 

710 (ii) The circumstances of application or use of the pesticide.

711 (iii) The circumstances that could have resulted in exposure to the pesticide.

712 (l) Ensure that persons directly employed by the commercial pesticide handling 

713 establishment do not clean, repair, or adjust pesticide application equipment, unless trained as a handler 

714 under §170.501. Before allowing any person not directly employed by the commercial pesticide 

715 handling establishment to clean, repair, or adjust equipment that has been used to mix, load, transfer, or 

716 apply pesticides, the commercial pesticide handler employer must provide all of the following 

717 information to such persons:

718 (1) Notice that the pesticide application equipment may be contaminated with pesticides. 

719 (2) The potentially harmful effects of exposure to pesticides.

720 (3) Procedures for handling pesticide application equipment and for limiting exposure to 

721 pesticide residues. 

722 (4) Personal hygiene practices and decontamination procedures for preventing pesticide 

723 exposures and removing pesticide residues.

724 (m) Provide any records or other information required by this part for inspection and 

725 copying upon request by an employee of EPA or any duly authorized representative of a Federal, State 

726 or Tribal government agency responsible for pesticide enforcement.”

727

728 Please note that EPA has not removed the references to labor contractors in this section. This is 

729 because the rule must still address the possibility that a CPHE could hire handler labor through a labor 

730 contractor and the CPHE must be responsible for providing handler protections to individuals hired 

731 through a contractor. The final rule has been revised so that a CPHE is no longer considered a labor 

732 contractor under the WPS, and therefore the CPHE handlers will not be considered employees of the 

733 agricultural establishment when hired through the CPHE, but it recognizes that a CPHE may use labor 

734 contractors.

735

736 13. §170.315 Whistleblower

737 General comment: Because agricultural employers must already comply with OSHA regulations 

738 on health and safety, USDA seeks a broad inter-agency discussion on whistleblower rights of 

739 workers. OSHA already investigates whistleblower complaints under seven environmental statutes, and 

740 established procedures are already in place for OSHA investigations. Is there a way to take advantage of 

741 existing OSHA investigative standards, regulatory processes and whistleblower investigative procedures 
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742 for farm accidents, labor, chemical hazards, dust, wages, migrant housing, sanitation, drinking water, 

743 etc.? This would also take advantage of existing state whistleblower laws and regulations. Both growers 

744 and workers would benefit as there will be one federal body to place whistleblower complaints and an 

745 existing regulatory process and infrastructure. One can therefore expect farm workers, agricultural 

746 employers and labor contractors to experience reduced regulatory confusion.

747

748 EPA Response. EPA is interested in meeting with OSHA regarding their whistleblower 

749 procedures and standards. The final WPS has adopted language consistent with OSHA’s approach to 

750 providing whistleblower protections, and it makes sense to have similar processes for investigations. 

751 However, as it is not clear that OSHA can adequately enforce the WPS whistleblower provisions, EPA 

752 is not prepared to cede that responsibility to OSHA. Although OSHA jurisdiction covers most areas of 

753 agriculture, they do not cover pesticide use or establishments with fewer than 11 workers, i.e., the 

754 majority of the farms subject to the WPS.

755

756 14. §170.401(a) and §170.501(a) Annual Training

757 USDA. After reviewing the public comments and conferring with state Departments of 

758 Agriculture, USDA finds that annual training for workers and handlers will place an excessive burden 

759 on states and growers, without any evidence of increased protections for workers. USDA recommends 

760 that training should be required at most every two years.

761 Moreover, USDA urges that EPA confer with their state regulatory partners regarding the 

762 feasibility of annual training with respect to the ability of state and extension service personnel at local 

763 universities to enforce or provide training on an annual basis. USDA has noted letters of concern dated

764 August 15, 2014, in the docket from the Association of American Pest Control Officials (AAPCO) and 

765 the National Association of State Departments of Agriculture (NASDA). Federalism and resource 

766 issues were raised by NASDA. Also, per the Louisiana AgCenter August 18, 2014, Docket Letter to 

767 EPA, "In Louisiana, we already retrain workers and handlers every three years. This is a dramatic 

768 change requiring annual training rather than every five years. This would increase the cost of the 

769 program and limit opportunities to attend training sessions. What is the funding source to support this 

770 increase in the frequency of training events?"

771 Finally, the Forest Service’s experience with mandatory annual training is that such training 

772 becomes robotic and less useful over time. USDA is concerned that an annual training requirement will 

773 add costs without any appreciable benefit or increase in safety. Annual training for handlers is required 

774 in California, but probably not too many other places.

775

776 EPA Response. EPA is sensitive to the concerns of agricultural employers regarding the 

777 potential burden of annual training. Many comments linked the concern for burden with EPA’s proposal 

778 to eliminate one segment of trainers, certified applicators, from qualifying as trainers of workers. Based 

779 on the comments in support of allowing certified applicators to train workers, EPA reassessed the ability 

780 of certified applicators to provide worker training and has retained certified applicators as trainers in the 

781 final rule. EPA believes that, with the addition of certified applicators as trainers, there are adequate 

782 resources to provide worker safety training. Please refer to the USDA comment 18 from this document:

783
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784 “USDA is very supportive of expanding the class of persons qualified to train workers and 

785 handlers compared to the proposed rule, and is especially in favor of allowing certified 

786 applicators to train workers (170.401) and handlers (170.501). This is particularly important to 

787 provide adequate numbers of trainers without severely straining cooperative extension trainer 

788 resources required to meet the annual training requirement in the draft final rule. USDA also 

789 supports that EPA retained the ability to use as trainers those who are so identified at the state 

790 level as qualified trainers. That allows the Forest Service in California to utilize registered 

791 professional foresters as trainers; something that was fought for in the past in state regulations.”

792

793 Safety training is well recognized as an important factor to reduce workplace incidents. Despite 

794 the absence of studies on this subject, it is reasonable to attribute to the 1992 WPS the significant 

795 reduction in agricultural pesticide exposure incidents dating from the implementation of rule. Although 

796 EPA cannot attribute the reduction in incidents to particular provisions in the WPS, we think the rule has 

797 contributed significantly to this reduction, and EPA expects the number of incidents to be further 

798 reduced upon implementation of the amendments contained in this rule.

799

800 15. §170.401(c)(1) [comment cross-referenced from EA]

801 USDA. Due to the added training topics and other requirements, USDA does not believe that the 

802 estimated 45 minutes of training include ample time to thoroughly cover added topics and take 

803 questions. To allow for at least 5 minutes per training topic (11 for workers and 13 for handlers) and at 

804 least 15 minutes for questions the estimated training time should be adjusted to 1.5 hours. This is still a 

805 conservative estimate and does not take into account the added time required when a translator is used. 

806

807 EPA Response. Many of the topics listed for training content are self-explanatory and do not 

808 require substantial elaboration. Current EPA training videos take about 30 minutes per session, 

809 including questions. While questions and answers from workers can be unpredictable in quantity and 

810 length, based on past experience EPA estimates that the training with added content will not take longer 

811 (on average) than 45 minutes.

812 EPA recognizes there are many different languages in the workforce. The EA considers only 

813 new burdens that would result from the amendments to the existing WPS. Sections 170.130(c) and 

814 170.230(c) of the existing WPS include the same requirement that training be conducted “in a manner 

815 workers can understand.”

816

817 16. §170.401(c)(3)

818 USDA. EPA states that after the effective date, “training programs required under this section 

819 must include, at a minimum, all of the topics listed in §170.401(c)(i)-(xvi) . . .” This is followed by a list 

820 of 23 points numbered from (i) to (xxiii). If only the first 16, up to (xvi), should be included in future 

821 training, there is no reason to include the remaining 7 points in the rule. Alternatively, if all 23 points 

822 should be included in future training, then the language should be corrected to include “all of the topics 

823 listed in §170.401(c)(i)-(xxiii) . . .”

824 Most of the points listed in §170.401(c)(3), including (ii)-(xv) and (xix)-(xxii), sound like topics 

825 for training, as they should. However, there are a few points, notably (i), (xvi)-(xviii), and (xxiii), that 
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826 sound like restated or new requirements placed on agricultural employers. Unlike the other points, these 

827 five points include “agricultural employer” as the subject together with commanding verbs such as “are 

828 required,” “must not,” “must,” and “are prohibited.” This could easily lead to confusion if these points 

829 are misinterpreted as binding requirements, rather than training topics.

830 In addition to being generally misleading, two of these five points include statements that are 

831 incorrect. First, (i) states that agricultural employers are required to “provide pesticide safety training,”

832 (emphasis added) when in fact agricultural employers are merely required to “ensure that each worker

833 has been trained” (§170.401(a), emphasis added), meaning that workers can be trained by a third party. 

834 Second, (xvi) states that agricultural employers are required to “provide workers information about the 

835 location of safety data sheets,” when in fact agricultural employers must display the safety data sheets 

836 “at a place on the agricultural establishment where workers and handlers are likely to pass by or 

837 congregate” and must allow workers “access to the location of the information” (§170.311(b)), but there 

838 is no express requirement to provide workers information about this location.

839 USDA recommends that at a minimum, the language in (i) and (xvi) be corrected to properly 

840 reflect the requirements placed on agricultural employers in the WPS. EPA should also consider 

841 rewording all of the five points in question – (i), (xvi)-(xviii), and (xxiii) – to make it clear that these are 

842 merely topics for training, and not new requirements.

843

844 EPA Response. EPA appreciates the correction, and has included all the points in the citation at 

845 170.401(c)(3). EPA will revise the language at §170.401(c)(3)(i), (xvi)-(xviii), and (xxiii) to clarify 

846 their intent as training points. 

847 Regarding §170.401(c)(3)(i), USDA’s comment is correct; the employer is required only to 

848 ensure that the worker or handler has been trained. Therefore, EPA has adjusted the language to reflect

849 that distinction. However, the comment stating that there is not a requirement for employers to inform 

850 workers and handlers of the location of the safety data sheets that reflects the training point at 

851 170.401(c)(3)(xvi) is incorrect; please refer to 170.403(a) and 170.503(b)(1) that instruct the employer 

852 to inform their employees of the location(s) of the safety data sheets.

853

854 17. §170.401(c)(3)(i)

855 USDA. Add the phrase “in writing” after “designate” to make it clear to workers that such 

856 designation must be in writing.

857

858 EPA Response. This change has been made. The rule text at §170.401(c)(3)(i) has been revised 

859 as follows:

860 (i) Agricultural employers are required to provide workers with information and protections 

861 designed to reduce work-related pesticide exposures and illnesses... A worker may designate in writing 

862 a representative to request access to pesticide application and hazard information.

863

864 18. §170.401(c)(4) and §170.501(c)(4) certified applicators 

865 USDA. USDA is very supportive of expanding the class of persons qualified to train workers and 

866 handlers compared to the proposed rule, and is especially in favor of allowing certified applicators to 

867 train workers (170.401) and handlers (170.501). This is particularly important to provide adequate 
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868 numbers of trainers without severely straining cooperative extension trainer resources required to meet 

869 the annual training requirement in the draft final rule. USDA also supports that EPA retained the ability 

870 to use as trainers those who are so identified at the state level as qualified trainers. That allows the Forest 

871 Service in California to utilize registered professional foresters as trainers; something that was fought for 

872 in the past in state regulations.

873

874 EPA Response. None required. 

875

876 19. §170.401(d) National Data Base for trained workers and handlers 

877 USDA. USDA reminds EPA of the comments submitted by key stakeholder groups that have 

878 responsibilities for recordkeeping:

879

880 a. Association of American Pest [sic] Control Officials (AAPCO)

881 AAPCO supports recordkeeping of employee training. We recommend that the date of birth be 

882 removed as a requirement from the record, as this will complicate use of the record, since the birth date 

883 can be considered confidential information. The employer must verify age by other means (license, 

884 immigration documentation, etc.) for personnel purposes that are maintained separately. We recommend 

885 that the Agency provide a template for recordkeeping that can be provided as a convenience for 

886 employers, but not make use of the template a requirement. The records should be kept by the 

887 agricultural employer.

888

889 EPA Response. EPA was convinced by concerns raised by states regarding the confidentiality 

890 issues with personally identifiable information, and has removed the requirement for a record of the 

891 birthdate in the training record. 

892 EPA plans to develop an optional form that employers may use to collect training records. 

893

894 USDA.

895 b. Association of American Pest [sic] Control Officials (AAPCO)

896 AAPCO has serious concerns about the requirement in §170.101(d)(2). The possibility for use of 

897 fraudulent records is real, and verification of the training record could require significant resources by 

898 state lead agency personnel, or may be impossible if the record is provided by an out of state trainer. 

899 AAPCO recommends that EPA develop a national data base that can be used by certified trainers to 

900 enter information, coupled with a national card with a scannable bar code. State lead agencies can access 

901 the data base to verify the training record. State lead agencies should not be expected to rely on the 

902 employee-provided record to verify training.

903

904 National Association of State Departments of Agriculture (NASDA)

905 We encourage EPA to consult with NASDA, SFIREG, AAPCO, and the regulated community to 

906 discuss and review the benefits and drawbacks of developing a central repository for basic training 

907 information submitted to and retained by EPA.

908
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909 EPA Response. Please refer to the notice of proposed rulemaking Unit VII B, 79 FR 15444, 

910 page 15463, for a discussion of the advantages and disadvantages of a centralized database for training 

911 records. EPA declined to propose requirements that would centralize the recorded information because it 

912 would burden employers to enter the data, and the requirement for on-site records for inspection 

913 purposes would remain. EPA continues to believe that the costs of such a scheme would outweigh its 

914 expected benefits. Although there are potential uses for a centralized database of trained workers and 

915 handlers, EPA believes that it would require significant resources committed to ensure data quality. 

916 Giving workers and handlers a copy of their training records on their request should provide workers 

917 and handlers a simple way to demonstrate prior training to a new employer.

918

919 20. §170.405(a)

920 USDA.USDA is concerned how helicopter or fixed wing applications can possibly meet this 

921 standard without de facto buffers. A pilot would otherwise have to be constantly scanning a distance of 

922 100 feet from the aircraft in all directions looking for some errant person; which is a huge safety issue in 

923 itself. This essentially means that a 100 foot buffer remains with aerial applications.

924

925 EPA Response. The provision in §170.405(a) establishes a requirement on the agricultural 

926 employer, not the applicator (handler). Specifically, an agricultural employer must not allow or direct a 

927 worker or other person to remain in the treated area or application exclusion zone within the boundaries 

928 of the establishment until application is complete. This is a relatively small extension of the current 

929 requirement in §170.110(a) for agricultural employers to keep workers and others out of a treated area 

930 during application on farms and forests. The final rule will cover a slightly larger area from which the 

931 agricultural employer must exclude workers and other persons but only while the application equipment 

932 is treating that specific section of the treated area. For the example of an aerial application, there would 

933 be an additional 100 foot area along the side of the treated area from which people must be excluded, but 

934 only while the helicopter or airplane is treating that edge of the field. Once the aircraft has left the edge 

935 of the field, workers and other persons must be excluded of only the treated area, as is currently 

936 required.

937 As explained in Unit IX.B.2, EPA notes that the application exclusion zone is not a “buffer,” a 

938 term that typically is used to describe an area that cannot be sprayed. The application exclusion zone is 

939 simply an area around active application equipment that moves with the application equipment as the 

940 application progresses. Under the final rule, a pesticide can be applied in an application exclusion zone, 

941 and the requirement for agricultural employers is to keep workers and other people out of this zone 

942 (which is a specified distance from the application equipment, not the edge of the treated area) during 

943 the pesticide application.

944 For additional information, see the response to question 26.

945

946 21. §170.409(b)(3)(ii) – forestry signs 

947 USDA. The requirement to post outdoor production areas at all normal access points, or roads, or 

948 trails, or if no access points, at corners of the units can be problematic in forestry. Is a skid trail or a 

949 landing considered a road or access point? What if no roads or trails access the unit? Posting the corners 
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950 makes no sense in such a case, as those would be essentially invisible anyway. EPA may want to 

951 reconsider posting requirements related to forestry regulations.

952

953 EPA Response. The requirement in the final rule is that “the signs must be visible from all 

954 reasonably expected points of worker entry to the treated area, including at least each access road, each 

955 border with any worker housing area within 100 feet of the treated area and each footpath and other 

956 walking route that enters the treated area.” EPA does not believe the application of this proposal to 

957 forestry operations is unique or substantially from its application to large fields or orchards that may not 

958 have definitive points of entry. In the situation described above, the draft final rule would require the 

959 employer to consider whether the “skid trail” or landing is a reasonably expected point of worker entry; 

960 if so, then it must be posted. Where there are no reasonably expected points of worker entry, the draft 

961 final rule provides that “signs must be posted in the corners of the treated area or in any other location 

962 affording maximum visibility.” If as USDA suggests, the geography of a particular treated area makes 

963 posting the corners irrelevant, then the employer should post the locations providing maximum visibility 

964 for workers entering the treated area. 

965 EPA intends that the final rule should apply to these situations in the same manner as described 

966 in the existing WPS IGW guidance that addresses this topic (a copy of the WPS IGW guidance 

967 applicable to this issue is included below). It is worth noting that EPA intends to revisit all the existing 

968 WPS IGW guidance Q&As and will retain those that are still applicable, and will revise any guidance 

969 that is still necessary but needs to be updated to reflect changes in the final rule. EPA would be glad to 

970 work with USDA to revise the existing WPS IGW guidance related to posting such types of 

971 fields/forests to make sure it adequately addresses forestry concerns.

972

973 13-10 Posting areas with unlimited entry points 

974 Question: If a treated area has unlimited entry points, how often should treated-area warning 

975 signs be posted to be "visible from all usual points of entry?" Every 100 feet? 

976

977 Answer: The rule requires that signs be visible at all usual points of worker entry, including at 

978 least each access road, each border with any labor camp adjacent to the treated area, and each

979 footpath and other walking route that enters the treated area. If there are many usual points of 

980 entry, then signs must be visible from all usual points of entry. When there are no usual points of 

981 worker entry, signs must be posted in the corners of the treated area or a location affording 

982 maximum visibility. In areas where there are unlimited points of entry, the agricultural employer 

983 must determine the usual points of entry and make signs visible from those points of entry. 

984 (March 7, 1995)

985

986 22. §170.411(b) Decon water – 1 gallon/worker

987 USDA. Requiring a gallon of water at the beginning of the work shift for every worker entering a treated 

988 unit for a period lasting 30 days after the REI could be problematic in forestry applications. If the water 
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989 is always located in the worker’s vehicle, it is probably not a major issue, although carrying extra 

990 canteens in the vehicle will be a change in procedures.

991

992 EPA Response. Since the WPS requirement for the quantity of decontamination water for 

993 workers in the final rule is merely a codification of an existing WPS IGW policy that clarified what a 

994 “sufficient” amount of water per worker was, EPA does not believe this change should represent a 

995 significant burden compared to the existing rule. Since this is water that only has to be available at the 

996 area where decontamination supplies are provided, or at the nearest point of vehicular access, the 

997 provision will not result in workers having to carry any water on their persons. It will only necessitate 

998 that the required amount of water per worker be available at the area where decontamination supplies are 

999 provided, or at the nearest point of vehicular access. Additionally, EPA believes the current exceptions 

1000 in the rule for the location of decontamination supplies provide adequate flexibility to agriculture and 

1001 forestry to accommodate the range of situations.

1002

1003 23. §170.411(d) and §170.509(c) – define nearest place of vehicular access

1004 USDA. The term “nearest place of vehicular access,” which is where decontamination supplies 

1005 must be stored when workers or handlers are working in remote areas, is not defined in the WPS. This 

1006 location depends on whether one considers just regular automobiles that travel on paved or well1007 maintained unpaved roads; or also tractors and all-terrain vehicles that can travel where regular 

1008 automobiles cannot; or even helicopters, drones, and other aircraft. Is there a general standard for what 

1009 “nearest place of vehicular access” means, or does it depend on which vehicles the agricultural employer 

1010 or handler employer happens to have available at the time? USDA recommends the EPA include a 

1011 definition of “nearest place of vehicular access” in §170.305.

1012

1013 EPA Response. EPA does not believe it is necessary to define the phrase “nearest place of 

1014 vehicular access” because the term is sufficiently clear in its meaning without further explanation. 

1015 USDA is correct that the nearest place of vehicular access would be dependent on the type of vehicle in 

1016 use for the situation, and because it is not practical to describe all situations, EPA believes it is 

1017 appropriate to use a general term that can be easily interpreted. In the 20 years of WPS implementation 

1018 and taking questions from regulators and the regulated community, EPA is not aware of any serious 

1019 disagreement related to the meaning of the phrase “nearest place of vehicular access”, and feels that 

1020 trying to define the term may reduce the existing flexibility in the rule afforded by the current approach.

1021

1022 24. Subpart F, §170.501-170.509 Conflict between “handler employer” and CPHE employer”

1023 USDA. Subpart F assigns a host of responsibilities regarding handlers to the “handler employer.”

1024 As noted in the comments on §170.305, the definition of “handler employer” is currently so broad, that 

1025 at any given moment there could be two or more “handler employers” responsible for the same handler

1026 (i.e. the agricultural employer and one or more commercial pesticide handler employers).

1027 This dual responsibility is very problematic. Is each requirement in Subpart F supposed to be 

1028 carried out in duplicate? This would mean that both the agricultural employer and the commercial 

1029 pesticide handler employer would have to independently check the handler’s training status (and keep 

1030 the corresponding records), age, and knowledge of relevant information; both would have to ensure that 
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1031 handlers using highly toxic pesticides or fumigants within enclosed spaces are monitored regularly; and 

1032 both would have to provide PPE and decontamination supplies to the handler. This approach would be 

1033 ridiculously wasteful. At the same time, it is questionable whether splitting responsibility between the 

1034 agricultural employer and the commercial pesticide handler employer would lead to better results, since 

1035 the two parties would have to coordinate extensively to determine who will cover each requirement.

1036 USDA recommends that EPA address this problem by making the changes to the definition of 

1037 “labor contractor” in §170.305 suggested above, which would have the practical effect of changing the 

1038 definition of “handler employer” to mean only the handler’s direct employer, whether that is an 

1039 agricultural employer or a commercial pesticide handler employer.

1040

1041 EPA Response. EPA believes it has made the revisions to the rule text necessary to address 

1042 USDA’s concerns in this area. Please see EPA’s responses to comments 8b and 12.

1043

1044 25. §170.501(c)(3)(xiv) training for handlers – error in reg text

1045 USDA. This section requires that the training for handlers include the following point: “Handler 

1046 employers must post treated areas as required by this rule.” However, under §170.309(h) and §170.409, 

1047 it is the agricultural employer – not the handler employer – who is required to display information and 

1048 signs related to pesticide applications and worker entry restrictions. USDA recommends that EPA 

1049 resolve this discrepancy.

1050

1051 EPA response. EPA corrected the text of the final rule to refer to the agricultural employer.

1052

1053 26. §170.505(b) –AEZ – handler suspend application if person in zone, even when outside the 

1054 property 

1055 USDA. This section requires that handlers suspend pesticide application when individuals are 

1056 present in the application exclusion zone. Unlike in §170.405(a)(2), there is no exception if the 

1057 individuals are outside the boundaries of the agricultural establishment, for example on a neighboring 

1058 property or on a public right-of-way. USDA recommends that the language in §170.505(b) should be 

1059 adjusted to match §170.405(a)(2): “. . . the handler performing the application must immediately 

1060 suspend a pesticide application if any worker or other person [other than another handler] is in the 

1061 application exclusion zone described in §170.405(a)(1) that is within the boundaries of the establishment

1062 . . .” The agricultural employer has no control over individuals outside of the agricultural establishment, 

1063 and this should be recognized by not requiring automatic suspension of application in situations where 

1064 individuals beyond the boundaries of the establishment might peripherally encroach on an application 

1065 exclusion zone. It should be noted that §170.505(a) already requires the handler to “ensure that no 

1066 pesticide is applied so as to contact, directly or through drift, any worker or other person [other than 

1067 another handler].” This renders superfluous the additional restriction in §170.505(b) requiring 

1068 suspension when the application exclusion zone is encroached outside the establishment.

1069

1070 EPA Response. EPA disagrees that the application exclusion zone should be limited to the 

1071 boundaries of the agricultural establishment for the requirement in §170.505(b) for a handler to suspend 

1072 application if a worker or other person is in the application exclusion zone.
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1073 EPA agrees with USDA that labels and §170.210(a) already require handlers to apply in a way 

1074 so pesticides do not contact a worker or another person. However, these provisions appear inadequate 

1075 because drift from pesticide applications continues to cause human exposure incidents. EPA also agrees 

1076 that an agricultural employer has no control over individuals outside the establishment, which is why the 

1077 requirement for agricultural employers in §170.405(a) is limited to the boundaries of the agricultural 

1078 establishment. However, the handler who is applying the pesticide does have the ability to temporarily 

1079 suspend an application and restart it after the worker or person leaves the area. Handlers who are 

1080 applying should already be doing this so they do not contact a worker or other person during application. 

1081 As stated by the National Agricultural Aviation Association in their comments on the proposed rule, “It 

1082 is standard operating procedure for aerial applicators to temporarily avoid making passes adjacent to 

1083 such [rural] roads if workers happen to be passing by in vehicles or on foot.”

1084

1085 27. §170.507 [comment cross-referenced from EA] Respirator Requirement costs and update 

1086 terminology

1087 USDA. The discussion of costs associated with respirator fit tests could be clarified by providing 

1088 additional information on the types of pesticides that are assumed to require respirators, the frequency

1089 those pesticides are applied (every year or less frequently), and the number of farms likely to apply those 

1090 pesticides. 

1091 Consistent use of terminology: USDA commends the change of terminology from dust/mist 

1092 filtering respirator to filtering facepiece respirator. Use of the OSHA terminology prevents confusion 

1093 and contributes to more cohesive standards across agencies. USDA suggests the addition of this term to 

1094 §170.205 to reflect the definition provided by OSHA in 29 CFR 1910.134 (b) (quoted below) for further 

1095 clarity. 

1096 “Filtering facepiece respirator means a negative pressure particulate respirator with a filter as an 

1097 integral part of the facepiece or with the entire facepiece composed of the filtering medium.”

1098

1099 EPA Response. EPA disagrees that a detailed discussion of the respirator cost analysis is needed 

1100 in the Federal Register. Those details are included in the economic analysis.

1101 EPA appreciates USDA’s comments on changing terminology from dust/mist respirators to 

1102 filtering facepiece respirators. The final WPS rule only uses the term filtering facepiece respirator in the 

1103 preamble; it does not appear in the reg text itself. Therefore, EPA has added OSHA’s definition of 

1104 filtering facepiece respirator to Unit XV.A.3 of the preamble as follows: “...Many farmworker 

1105 advocacy organizations and some PPE manufacturers asserted that EPA should also apply the proposed 

1106 standards for fit testing, training, and medical monitoring to users of filtering facepiece respirators in 

1107 addition to the other respirator types (e.g., tight fitting elastomeric facepieces). Commenters suggested 

1108 that filtering facepiece respirators are widely used and covered by OSHA’s respirator requirements, and 

1109 that their exclusion would result in inadequate protection for many pesticide handlers. OSHA defines a 

1110 filtering facepiece as “a negative pressure particulate respirator with a filter as an integral part of the 

1111 facepiece or with the entire facepiece composed of the filtering medium” in 29 CFR 1910.134(b).”

1112
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1113 28. §170.509(b) and (d) decon water in forestry

1114 a. USDA. Requiring 3 gallons of water per handler at the beginning of the work shift will be 

1115 problematic, especially if added to the eye wash requirement of 6 gallons of water for mixer/loaders 

1116 using pesticides requiring protective eyewear. When using backpack applicators, each handler is at some 

1117 point a mixer/loader (loading from a batch tank into the backpack, most commonly). A crew of 8 

1118 applicators could then potentially need 72 gallons of water to be carried each day. This seems excessive. 

1119 It is clear that each handler requires 3 gallons of water at the start of the shift for decontamination, but in 

1120 such a circumstance as described, would a crew of 8 each need 6 gallons for eye flushing, or would one 

1121 quantity of 6 gallons meet the requirement? This could be clarified.

1122

1123 EPA Response. Section 170.509(d) requires an emergency eye wash system at the 

1124 mixing/loading site immediately available to the handler when a handler is mixing or loading a product 

1125 whose labeling requires protective eyewear for handlers. Only one emergency eye wash system (that 

1126 meets the WPS requirements) is required at a mixing/loading site regardless of how many handlers are 

1127 mixing or loading at that site. EPA has revised Unit XII.C.3 of the preamble as follows to clarify this: 

1128 “...The final rule allows employers to provide either at least 6 gallons of water in containers suitable for 

1129 providing a gentle eye flush for about 15 minutes, or a system capable of delivering gently running 

1130 water at a rate of 0.4 gallons per minute for at least 15 minutes to satisfy the requirement. One 

1131 emergency eye wash system is required at a mixing/loading site when a handler is mixing or loading a 

1132 product whose labeling requires protective eyewear to handlers, regardless of how many handlers are 

1133 mixing or loading at that site.” The final rule retains the existing requirement for water to be of “a 

1134 quality and temperature that will not cause illness or injury.”

1135

1136 b. USDA. May this water be drafted from local natural surface waters (woodland stream)? May 

1137 the requirement be met by pre-positioning 6 gallons at the nearest place of vehicular access outside any 

1138 treated area or area subject to a restricted-entry interval? Clarification invited.

1139

1140 EPA Response. The water in an emergency eye wash system can be drawn from local natural 

1141 surface waters if the handler employer has determined the water meets the standard of being “of a 

1142 quality and temperature that will not cause illness or injury when it contacts the skin or eyes or if it is 

1143 swallowed” as required in §170.509(b)(1). An emergency eye wash system at the nearest place of 

1144 vehicular access would not satisfy the requirement of §170.509(d)(1) unless it is “at the mixing/loading 

1145 site immediately available to the handler.”

1146

1147 29. §170.601(a)(1)(xii) – mistake in numbering in reg text

1148 USDA. This point references §170.605(a) through (c) and (e) through (k). However, the rule as 

1149 currently written does not include a §170.605(k), only (a) through (j). EPA likely meant to write 

1150 §170.605(a) through (c) and (e) through (j).

1151

1152 EPA Response. This change has been made to the rule text.

1153

1154 USDA Comments on EPA Worker Protection Standard Economic Analysis
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1155

1156 30. §170.311 Display Requirements for Pesticide Application and Hazard Information

1157 a. USDA. The economic analysis does not account for provision of safety data sheet and 

1158 information about the application to the worker or a designated representative within 15 days of request 

1159 for such material. In addition, there is no cost assumed for mailing this material to the designated 

1160 representative. There is no estimate of the expected number of requests for this information by workers 

1161 or their representatives. These costs should be included. 

1162

1163 EPA Response. These costs have now been included in the EA (Section 3.3.2) and Appendix B 

1164 (Section 2, Tables B.2.a-2 and B.2.a-5). EPA calculates that the cost of responding to a request from a 

1165 current employee to be about $3.50 and the cost of responding to a request from a former employee to 

1166 be about $14, including mailing costs. It does not seem likely that costs would vary substantially 

1167 whether the request comes directly from an employee or from a designated representative.

1168

1169 The number of requests is subject to a great deal of uncertainty; however, California and Texas 

1170 have similar provisions and have not suggested that the issue arises frequently. For purposes of the EA, 

1171 EPA has assumed that current employees may request hazard information once for every 20 applications 

1172 made while one in 100 former employees may make a request.

1173

1174 b. USDA. The economic analysis assumes all farms have double-sided copies when it estimates 

1175 3.3 pages are required to store the Safety Data Sheet, reported to be 6.7 pages on average (Table B.2.b.1 

1176 Cost per Final Rule, WPS Farms, Information on Pesticide Applications, p. 17, Appendix B). 

1177

1178 EPA Response. That is correct.

1179

1180 c. USDA. The period over which these records must be made available to the worker is unclear. 

1181 The cost of retaining these records over time should be included and as well as the period over which 

1182 they must be retained.

1183

1184 EPA Response. Records must be retained for two years (170.311(b)(6)). Retention costs are the 

1185 cost of the folder used to store the documents, and are included in the EA.

1186

1187 31. §170.401 Training Requirements for Workers

1188 a. USDA. Due to the added training topics and other requirements, USDA does not believe that 

1189 the estimated 45 minutes of training include ample time to thoroughly cover added topics and take 

1190 questions. To allow for at least 5 minutes per training topic (11 for workers and 13 for handlers) and at 

1191 least 15 minutes for questions the estimated training time should be adjusted to 1.5 hours. This is still a 

1192 conservative estimate and does not take into account the added time required when a translator is used. 

1193

1194 EPA Response. EPA’s experience with the training material, as well as information provided in 

1195 comments, suggest that current training sessions are about 30 minutes in length. One respondent to a 

1196 questionnaire by the National Council of Agricultural Employers indicated that in the past year they 
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1197 spent about 2,100 hours training 4,400 workers, or slightly less than 30 minutes per worker. See EPA’s 

1198 response to Comment 15, above.

1199

1200 b. USDA. The Economic Analysis does not take into consideration the cost of a translator for 

1201 training. Though a translator is not required by the regulation, it does suggest the use of a translator in 

1202 order to ensure that training is carried out “in a manner workers understand” (citation). These costs 

1203 could be incorporated by estimating a reasonable probability of the number of trainings that will require 

1204 a translator. Since EPA plans to develop training materials in several languages, the probability of 

1205 requiring a translator could be estimated based on which languages and dialects would not be covered by 

1206 those materials. 

1207

1208 EPA Response. The EA considers only new burdens that would result from the amendments to 

1209 the existing WPS. Sections 170.130(c) and 170.230(c) of the existing WPS include the same 

1210 requirement that training be conducted “in a manner workers can understand”.

1211

1212 c. USDA. Small farms bear a disproportionately larger cost for the new training requirements 

1213 than large farms. The economic analysis Appendix B states that worker training costs will result in an 

1214 increase of 85% over baseline costs for small-small WPS farms, and increase by 75% for medium-small 

1215 WPS farms and large-small WPS farms with less than 10 employees, 48% for large-small farms with 10 

1216 or more employees, and 42% for large WPS farms. It would be clearer if costs were summarized for 

1217 each of these farm size categories for each of the rule provisions throughout the economic analysis. 

1218

1219 EPA Response. USDA appears to have misunderstood the information in Appendix B. The 

1220 percentage changes reported do not refer to increases in overall costs, only the change in the number of 

1221 trainings needed. For example, the Appendix states that “Small-small farms (revenue/year less than 

1222 $10,000) are assumed to hold an average of 1.2 training sessions per year, an increase of 85% over the 

1223 baseline.” That is, the number of training sessions increases from an average of 0.65 sessions to 1.2 

1224 sessions, an absolute increase of 0.55 sessions. EPA assumes a large farm (revenue ≥ $750,000) with 

1225 more than 10 workers will increase the average number of training sessions from 4.5 sessions to 6.4, an 

1226 absolute increase of 1.9 sessions.

1227 EPA has provided a summary of costs by farm size throughout the analysis and provided an 

1228 analysis of overall impacts to small farms, defined by the Small Business Administration as entities with 

1229 revenue less than $750,000. Because this definition implies that 95% of all U.S. farms, and almost 80% 

1230 of farms affected by the WPS, are small, EPA also provides a more detailed analysis to examine the 

1231 impacts across the distribution of small farms.

1232

1233 d. USDA. The cost per farm of training workers or handlers appears to assume that only 1 

1234 training record per training needs to be retained by the farm (Table B.1.b.3. Cost under Final Rule, cost 

1235 per WPS farm by size, Worker Training). For both large and small WPS farms, the economic analysis 

1236 assumes retention of only one copy per training event. If a worker requests a copy, USDA assumes that 

1237 only the worker’s information will be provided and not the records of other workers who also attended 

1238 the training. If EPA assumes the employer will provide records for all workers attending training (for 
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1239 example on the same sign-in sheet) when one worker requests their training record, the impact of this 

1240 provision on privacy requirements should be included in the analysis. If privacy constraints prevent 

1241 sharing records of other workers, the cost of record retention at the farm level should reflect the cost of 

1242 providing individual records. 

1243

1244 EPA Response. EPA’s goal is to make the process of confirming training as easy as possible. 

1245 The record of the training can be as simple as a paper with the following information:

1246 (i) The trained worker’s printed name and signature.

1247 (ii) The date of the training.

1248 (iii) Information identifying which EPA-approved training materials were used.

1249 (iv) The trainer’s name and documentation showing that the trainer met the requirements 

1250 of §170.401(c)(4) at the time of training. 

1251 (v) The agricultural employer’s name.

1252 As the draft final rule does not require the collection of any personally identifiable information, 

1253 no personally identifiable information would be included in the record. For a worker to confirm to a 

1254 subsequent employer that he or she has recently completed the pesticide safety training, a copy of the 

1255 training record would have the information needed for the subsequent employer’s records.

1256

1257 e. USDA. As part of their preliminary research, EPA conducted a Small Business 

1258 Administration Review Panel (SBAR Panel or Panel). In almost every written comment they received, 

1259 small business owners urged them to keep a grace period for employee training. Since EPA conducted 

1260 a SBAR Panel, USDA would like to see an acknowledgment that these issues were taken into 

1261 consideration. Though most of the commenters did not see many real cost added with removing (or 

1262 decreasing) the grace period, they did indicate that workers would have to be hired sooner and thus 

1263 paid for days where the employer received no work. If the time lost from work is considered in the 

1264 benefits section regarding healthcare, then time lost from work due to training and paperwork must be 

1265 considered in the costs. 

1266

1267 EPA Response. EPA thinks the elimination of the grace period is not likely to lead employers 

1268 to hire workers and pay them for no work. Rather, EPA anticipates that employers may have to 

1269 provide additional training sessions (see response 31.c.). The opportunity cost of time for the worker 

1270 to attend a safety training is included in the estimated cost of the revisions.

1271

1272 f. USDA. The elimination of the grace period and the requirement that all workers be trained 

1273 “in manner workers understand” creates the potential for discrimination on the basis of language and 

1274 literacy. Economic analysis should discuss the probability that workers who speak the language used 

1275 by the employer or by on-site trainers will be used more frequently when training is required by 

1276 temporary or seasonal workers immediately prior to performing a field or handler task. If a farm must 

1277 train workers immediately before any allowable exposure to pesticides, the most easily trained 

1278 workers will be more likely to be used in job situations where exposure could occur, at least initially. 

1279

1280
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1281 EPA Response: EPA notes that the requirement for training to be provided in a manner that 

1282 the worker can understand is not new. EPA has not received comment regarding discriminatory 

1283 practices related to language as a result of the WPS.

1284

1285 32. §170.507 Personal Protective Equipment

1286 a. USDA. Consistent use of terminology: USDA commends the change of terminology from 

1287 dust/mist filtering respirator to filtering facepiece respirator. Use of the OSHA terminology prevents 

1288 confusion and contributes to more cohesive standards across agencies. USDA suggests the addition of 

1289 this term to §170.205 to reflect the definition provided by OSHA in 29 CFR 1910.134 (b) (quoted 

1290 below) for further clarity. 

1291 “Filtering facepiece respirator means a negative pressure particulate respirator with a 

1292 filter as an integral part of the facepiece or with the entire facepiece composed of the 

1293 filtering medium.”

1294 Costs and benefits: In the cost estimate for the addition of filtering facepiece respirators the 

1295 Agency assumes that all employers will use the suggested online medical evaluation (introduced in lines 

1296 3388-3394 of the rule preamble) from the outset. While the use of online medical evaluations would be 

1297 the most cost-effective option for employers, assuming that employers will be able to use this method of 

1298 evaluation in the first years of implementation does not seem likely. This is especially true for rural 

1299 areas where broadband access is not available on every farm operation. Though online medical 

1300 evaluations will likely be used by some employers, the estimated probability seems high for the first 

1301 year. The probability of using an off-site medical evaluation is much more likely in the first year with a 

1302 decreasing probability within the first five years as employers learn more about their available options. 

1303

1304 EPA Response. EPA does not agree with USDA’s reasoning. Employers are unlikely to forego 

1305 cost-effective options, even initially. EPA plans significant outreach and is confident that private 

1306 interests, including crop advisors and pesticide dealers, will engage in similar programs. According to 

1307 the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high1308 quality service, including broadband or DSL. Less than 10% of farms rely on dial-up connections.

1309

1310 b. USDA. Additionally, the time estimate for an off-site medical evaluation (Table 3.3-34) 

1311 should use the same estimate as the follow-up medical exam ($72.12). The analysis must also take into 

1312 consideration the lost wages and travel time associated with visiting a medical professional considering 

1313 that most farm operations are located in rural areas where access to a licensed medical professional may 

1314 increase time and travel. The time should at least reflect the time allotted to the evaluation, but should 

1315 also include at least 30 minutes of travel time. Please see table below for an example of suggested edits.

1316

1317 Table 3.3-34. Costs under Final Rule, Large WPS Farm, Respirator Fit Test.

Action/Material (j)

wage/price

wj

unit 

time/quantity

Hr,i,j /Mr,i,j

annual 

frequency

Prob(j|i)

cost

Time for medical evaluation $20.04/hr 1.5 hour 0.535 $ 16.08

Off-site evaluation $72.17 1 0.535 $ 38.61

On-line evaluation $27.00 1 0.134 $ 3.62
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Time for follow-up exam1 $20.04/hr 2 hour 0.134 $ 5.36

Follow-up medical exam1 $72.17 1 0.134 $ 9.66

Time for fit test, with travel $20.04/hr 1.5 hour 0.535 $ 16.09

Fit test and training $50.00 1 0.535 $26.76

Employer management $33.44/hr 1 hour 0.535 $17.90

Collect/Store documentation $33.44/hr 4 min 0.535 $ 1.19

costr,i,a

P $ 135.27

1318 Source: EPA estimation. See text for data sources. Numbers may not sum due to rounding.

1319 1 EPA assumes approximately 25 percent of handlers taking the medical evaluation will be referred for a

1320 more complete medical examination.

1321 EPA Response. EPA does not agree with USDA’s reasoning that employers will select a more 

1322 costly response to the regulatory burden. Further, if they choose to skip the screening evaluation for a 

1323 complete medical evaluation e.g., because of a previously scheduled physical examination, there 

1324 would be no need for an on-line (screening) evaluation or subsequent follow-up evaluation.

1325

1326 c. USDA. In the Economic Analysis for the rule, EPA explains that it derives costs for 

1327 respirator fit tests from the assumption that each farm will only have one handler that will need to be 

1328 fit tested and that only 40 percent of farms will likely use pesticides that require respirators.

1329 “Accounting for the fact that not all farms will use pesticides every year, EPA estimates about 40 

1330 percent of large farms and large-small farms will use a product requiring a respirator. A farm is 

1331 unlikely to need more than one handler when using these products, so for ease we calculate costs at 

1332 the farm level. Further, some handlers will undergo fit testing because the requirement has been 

1333 incorporated onto some product labels, for example, various soil fumigants.” (Economic Analysis 

1334 §3.3.6)

1335

1336 With the addition of filtering facepiece respirators, USDA does not believe this estimate is 

1337 accurate. First, though only one handler may be involved in pesticide use at a time, this does not imply 

1338 that there is only one handler on the farm that will need to be fit tested. The number of handlers per 

1339 farm that need fit tests should be estimated based on small versus large WPS farms. 

1340 Second, the assumption that only 40 percent of farms will use pesticides that require respirators 

1341 seems low considering the addition of filtering facepiece respirators (which are required for a much 

1342 larger number of pesticides than chemical cartridge respirators (NIOSH 23-C)). USDA urges EPA to 

1343 gather further data on the number of pesticide labels that require respirators (including filtering 

1344 facepiece respirators) and use that data to re-estimate the cost of respirator fit tests. 

1345

1346 EPA Response. EPA notes that USDA is quoting the baseline estimation of cost, where about 

1347 40% of the larger farms ultimately use a product requiring a respirator and the employer provides the 

1348 handler with instruction on fit and use. Under the final rule, EPA assumes that over half of the larger 

1349 farms will arrange for a handler to be tested.

1350

1351 d. USDA. The discussion of costs associated with respirator fit tests could be clarified by 

1352 providing additional information on the types of pesticides that are assumed to require respirators, the 

1353 frequency those pesticides are applied (every year or less frequently), and the number of farms likely 
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1354 to apply those pesticides. The economic analysis could be strengthened by providing a more detailed 

1355 explanation for the assumption that under the baseline and final rule, 60% of crop-producing farms use 

1356 pesticides requiring respirators with an annual use at 40% of these farms. In Appendix A, 76% of 

1357 crop-producing WPS farms are estimated to use pesticides. It is unclear whether the 60% estimate 

1358 requiring respirators includes pesticides requiring only the filtering facepiece respirators as well as 

1359 pesticides requiring other types of respirators. The baseline calculation for the cost of fit tests at WPS 

1360 farms assumes 40.4% of these farms will have a handler undergo a fit test with 3% of these baseline fit 

1361 tests consistent with OSHA requirements. The final rule calculations assume 53.5% of large and 

1362 13.4% of large-small WPS farms have handlers undergoing fit tests. EPA should present the baseline 

1363 percentage of WPS farms where handlers undergo fit tests in terms of large and large-small WPS 

1364 farms to allow direct comparison between the two scenarios. 

1365

1366 EPA Response. EPA does not think further discussion is warranted. As noted in the EA, 

1367 “Pesticides bearing label requirements for respirators are not common, but there are a few commonly 

1368 used pesticides with the requirement.” The requirement is product-specific and may apply to the 

1369 mixer/loader and/or to the applicator. In the end, EPA assumes that 75% of large and large-small 

1370 primarily crop farms (farms with annual revenue of $750,000 or more and farms with annual revenue 

1371 between $100,000 and $750,000, respectively) will account for virtually all respirator use subject to 

1372 the WPS. According to data from the 2012 Census of Agriculture, farms primarily producing crops 

1373 (NAICS 111) in these size ranges account for about 67% of all crop acreage in the U.S., but about 

1374 80% of all herbicide and insecticide treated acreage and over 90% of all acres treated with fungicides 

1375 or plant growth regulators.

1376

1377 e. USDA. The family farms fit test calculation needs further clarification. The economic 

1378 analysis references Appendix A for the number of family farms by category (large, large-small, etc.). 

1379 Appendix A does not discuss family farms explicitly – by back-calculating from the existing tables 

1380 you could derive the number of family farms but this adds some uncertainty and the values do not 

1381 match those reported in the economic analysis (18,949 large family farm and 141,753 large-small 

1382 family farms). Further explanation or support is needed for the assumption that 40% of family farms 

1383 producing crops use a pesticide requiring a respirator.

1384

1385 EPA Response. EPA acknowledges that Appendix A does not contain information on so-called 

1386 family farms, i.e., those farms that do not report hired labor. However, EPA has provided the exact 

1387 numbers used within the analysis.

1388

1389 f. USDA. The values used in the baseline analysis for respirator fit tests at WPS farms are not 

1390 consistent between the main economic analysis and its explanatory appendix B (See Table 3.3.32. 

1391 Baseline Costs, per Large and Large-Small WPS Farm, Respirator Fit, Economic Analysis versus 

1392 Table B-6.a.3. Baseline Cost, per WPS Farm, Respirator Fit, Appendix B). Likewise, the values 

1393 reported in Appendix B for the number of large (79,434) and small-large (141,753) WPS farms do not 

1394 appear in Appendix A where the reader is referred for further information. Since the population of 

1395 WPS farms affected by the rule is assumed to only include crop-producing farms, it is assumed that 
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1396 these values represent crop-producing farms hiring labor (shown in Table A.1.10 of Appendix A). 

1397 Further explanation would strengthen the economic analysis. 

1398

1399 EPA Response. EPA acknowledges that Appendix B was in error and revised the tables and 

1400 explanations.

1401

1402 g. USDA. In the cost estimate (p 90, Economic Analysis) for the addition of filtering facepiece 

1403 respirators the Agency assumes that all employers will use the suggested online medical evaluation 

1404 (introduced in lines 3388-3394 of the rule preamble) from the outset. While the use of online medical 

1405 evaluations would be the most cost-effective option for employers, assuming that employers will be 

1406 able to use this method of evaluation in the first years of implementation does not seem likely. This is 

1407 especially true for rural areas where broadband access is not available on every farm operation. 

1408 Though online medical evaluations will likely be used by some employers, the estimated probability 

1409 seems high for the first year. On-line medical evaluations are currently offered only in Spanish and 

1410 English. Workers speaking other languages will need off-site medical evaluations. The probability of 

1411 using an off-site medical evaluation is much more likely in the first year with a decreasing probability 

1412 within the first five years as employers learn more about their available options. 

1413

1414 EPA Response. EPA does not agree with USDA’s reasoning. Employers are unlikely to forego 

1415 cost-effective options, even initially. EPA plans significant outreach and is confident that private 

1416 interests, including crop advisors and pesticide dealers, will engage in similar programs. According to 

1417 the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high1418 quality service, including broadband or DSL. Less than 10% of farms rely on dial-up connections. EPA 

1419 does not see language as a significant barrier for employers and handlers.

1420

1421 h. USDA. The cost of the off-site medical evaluation used in the economic analysis is based on 

1422 a single provider – Affordable Safety Training, offered in English and Spanish. A quick review of on1423 line medical evaluations for fit testing shows a range of products from the $25 for McHaney and 

1424 Associates to $27 for Affordable Safety Training to $28 for a 3M on-line medical evaluation. These 

1425 products are only offered in English and Spanish. If these medical evaluation materials need to be 

1426 provided in other languages, there is no cost considered for this in the economic analysis. The 

1427 Affordable Safety Training web site offers a fit test kit for $140 using Bitrex and $139.95 using 

1428 saccharin. The economic analysis cites the cost for a fit test as ranging between $80 and $140 for an 

1429 employer administered test.

1430

1431 EPA Response. EPA agrees that there are multiple options of similar price. Fit test kits come in 

1432 a range of prices with smoke tests typically costing less than other options. EPA does not see language 

1433 as a significant barrier for employers and handlers.

1434

1435 i. USDA. The economic analysis does not include costs accounting for circumstances 

1436 requiring the same person to repeat the fit test for a different class of respirator which may involve 

1437 additional measurements. The medical evaluation questionnaire required by OSHA lists two separate 
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1438 categories of respirators. A worker/handler would need an additional fit test and evaluation if required 

1439 to use another class of respirator. The analysis also does not consider agricultural establishments 

1440 where the same person is not the handler for all pesticides or for the entire year. Seasonal workers 

1441 may not remain at an establishment for the entire period where pesticides requiring respirators may be 

1442 applied. 

1443

1444 EPA Response. EPA does not think the cost of a medical screen would be significantly 

1445 increased if the handler seeks testing for different classes of respirators. Multiple respirators could be 

1446 tested at an off-farm site or tested using the same test kit.

1447

1448 33. §170.601 Exemptions – family farms

1449 a. USDA. Family farm exemption is too narrow: The exemption for family farms applies to any 

1450 agricultural establishment that is wholly owned by an individual, or where all of the owners of the 

1451 establishment are members of the same immediate family. This definition is narrower than the 

1452 definition used by ERS in the Agricultural Resource Management Survey (ARMS). The ERS definition 

1453 is more flexible and requires only that the majority of the business is owned by the operator and 

1454 individuals related to the operator by blood, marriage, or adoption, including relatives that do not live in 

1455 the operator’s household. Using this definition, ERS finds around 97% of all farms are family farms 

1456 based on data from ARMS.

1457 Findings from the 2013 ARMS survey indicate that 97.6 farm are family farms, using the ERS 

1458 definition. Family farms are organized as individually owned, partnerships, corporations and other types 

1459 of legal status (trust, estate, cooperative). The largest category of ownership in family farms is 

1460 individual ownership (91.5%). Partnerships account for 4.4 %, corporations for 3.3 % and other types of 

1461 legal status for 0.8 %. Family farms that are not individually owned account for 173,434 farms. 

1462 It is unclear how many of the farms considered family farms in the economic analysis would 

1463 meet the definition required in the agricultural establishment exemption. The EPA should estimate how 

1464 many of the crop producing family farms would be not be eligible for the exemption and thus should be 

1465 counted in population of farms that must comply with the WPS standard. If ownership type is 

1466 distributed similarly between crop producing family farms and all family farms, as many as 8% of crop

1467 producing farms may not be eligible for the exemption.

1468

1469 EPA Response. To determine the number of farms that would be impacted by revisions to the 

1470 WPS, EPA considered all farms hiring labor as reported in the 2012 Census of Agriculture. Since farms 

1471 may describe in their Census report as hired labor persons who would qualify for the WPS immediate 

1472 family exemption, EPA has probably overestimated of the number of farms and workers/handlers 

1473 affected by the WPS.

1474

1475 b. USDA. The definition of immediate family is too narrow. In regard to establishing a minimum 

1476 age for handlers and workers performing early-entry tasks, the final rule requires that handlers and 

1477 workers performing early-entry tasks be at least 18 years old, rather than the proposed minimum age of 

1478 16 years old. This minimum age does not apply to an adolescent working on an establishment owned by 

1479 an immediate family member. (EPA WPS FR page. 7). EPA has finalized the definition of “immediate 
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1480 family” as limited to the owner’s spouse, parents, stepparents, foster parents, father-in-law, mother-in1481 law, children, stepchildren, foster children, sons-in-law, daughters-in-law, grandparents, grandchildren, 

1482 brothers, sisters, brothers-in-law, and sisters-in-law (EPA WPS FR page 169).

1483 The EPA should reconsider the definition of immediate family. The proposed definition would 

1484 not allow the exemption to youth who would work for a more distant family member such as an uncle. 

1485 This definition would also not allow the exemption to youth whose parents are farm operators, but not 

1486 owners. The Department of Labor (DOL) has exemptions for youth in the child labor requirements in 

1487 agricultural occupations under the Fair Labor Standards Act. The Act states: “A child of any age may be 

1488 employed by his or her parent or person standing in place of the parent at any time in any occupation on 

1489 a farm owned or operated by that parent or person standing in place of that parent” 

1490 (http://www.dol.gov/whd/regs/compliance/childlabor102.pdf). EPA should revise their definition of 

1491 immediate family, or the exemption itself to be more consistent with rules enforced by DOL.

1492

1493 EPA Response. Under the owner and immediate family exemption in the existing WPS, 

1494 establishments that qualify must be either wholly owned by the individual, or all owners of the 

1495 establishment must be members of the same immediate family. While EPA is proposing to expand the 

1496 types of familial relationships that would be considered “immediate family” under the WPS, EPA did 

1497 not consider and does not plan to further expand the exemption to allow farms that are majority owned 

1498 by family members to qualify. EPA did not propose such a change to the requirement and has not 

1499 received comments from the public indicating that the current requirement for the establishment to be 

1500 wholly owned by an individual or persons who are all members of the same immediate family is too 

1501 restrictive. 

1502