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RIN2070

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AJ22_EO12866_AgWPS_FRM_FIFRA Review_EPA Response_2015

- 07

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### 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.



### USDA Background 1

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

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

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

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

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

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

workplace. The accountability of worker protection is not one

- sided. To be successful, the labor force 8

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

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

11



### Comments on EPA Worker Protection Standard Final Rule 12

13

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

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

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

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

18

Comments on the Preamble 19

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

manner in which EPA justifies positions it takes in the document. This weakness is a lack of evidenced

21

based scientific data. In these cases, the positions presented by EPA could have be greatly strengthened 22

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

Worker Protection Standards. With the lack of evidenced

- based scientific data, some of EPA’s positions 24

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

rule that demonstrate this lack of evidenced

- based scientific data are listed below: 26

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

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

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

pesticide exposure.” 30

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

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

reduction of between 540 and 1,620 acute, health

- related incidents.” 33

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

training for workers and handlers, quantifying th e benefits is more difficult. Nonetheless, as explained in 35*** EO 12866 Review Draft

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Page 2 of 37 the NPRM, it is reasonable to expect that more frequent training would lead to better retention of 36

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

illness in workers and handlers, improved decontamination procedures, reduced take

- home exposure, 38

and better protection of children.” 39

40

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

detailed analysis of occupational pesticide incidents for the four most recent year s in the SENSOR

42

Pesticides data base. EPA believe s the statements in the preamble

-- including the ones USDA cited

-- 43

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

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

interested in learning about any evidence

- based scientific data that USDA has seen. EPA’s decisions on 46

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

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

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

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

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

52

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

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

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

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

incidents continue to occur.” 57

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

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

incidents continue to occur.” 60

61

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

example of potentially avoidable exposure is spray drift

. l Labeling prohibits application that contacts 63

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

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

66

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

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

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

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

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

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

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

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

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

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

Standard Revisions” did not dispel this concern, because the analysis was based on the current training 77*** EO 12866 Review Draft

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Page 3 of 37 time of 30 min utes per sessions without an analysis of how long the “expanded” training sessions will 78

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

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

81

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

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

under the current rule. In the second paragr aph on page 57, and under Table 3.3

- 7 on page 57, EPA 84

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

15 minutes of training time. 86

F or the handler training baseline , please refer to Table 3.3

- 3 for the estimate of 45 minutes. 87

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

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

include s that estimate in the narrative in the economic analysis. 90

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

length and content o f current training videos. 92

93

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

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

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

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

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

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

100

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

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

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

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

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

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

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

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

they are not earning pay.” 109

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

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

training requirement. 112

113

5. Unit VII.A.2. (“Hazard Information

– Location and Accessibility: Final rule”) 114

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

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

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

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

the request.”] 119*** EO 12866 Review Draft

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Page 4 of 37 120

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

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

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

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

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

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

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

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

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

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

131

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

SDSs” ) 133

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

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

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

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

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

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

140

EPA Response. EPA’s intention with requiring agricultural employers to display the S afety D ata 141

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

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

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

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

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

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

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

are trained that they must follow labeling instructions , including those regarding PPE

. However, EPA 149

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

instructions on the labeling r egardless of any differences between information on the labeling and the 151

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

provisions regarding PPE

. 153

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

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

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

professionals for the diagnosis and treatment of certain pesticide

- related illnesses and injuries. Because 157

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

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

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

on labeling and SDSs, such as the PPE identified, they should know that they must follow the 161*** EO 12866 Review Draft

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Page 5 of 37 instructions on the pesticide labeling, as they are trained to do. For information on OSHA’s adoption of 162

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

pesticide product labeling ...” 164

165

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

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

“F. Clarifications”. 168

169

EPA Response

. The correction has been made. 170

171

Comments on the Rule 172

173

8. §170.305 174

175

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

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

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

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

one of the terms in each pair independently. 180

181

EPA Respon se

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

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

to address USDA’s concern. The terms “commercial production

, ” “farm

, ” “nurse ry

, ” and “forest 184

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

. 185

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

of “agricultural establishment” an d “agr icultural plant,” as follows: 187

188

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

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

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

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

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

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

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

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

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

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

grazing. 199

200

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

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

both ar e simultaneously present on the agricultural establishment. This causes significant concerns and 203*** EO 12866 Review Draft

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Page 6 of 37 confusion as to who is ultimately responsible for providing the protections in Subpart F (see additional 204

comments on Subpart F below). 205

As currently written, a “handler employer” is anyone who employs any handler, as well as self

206

employed handlers. The definition of “ handler employer ” uses the verb “to employ,” which is also 207

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

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

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

would include any CPHE hir ed by an agricultural employer to provide handlers

. Reading these 211

definition s together, it becomes clear t hat agricultural employers can be “handler employers” even when 212

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

contractor/CPHE. 214

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

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

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

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

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

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

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

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

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

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

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

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

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

are not handlers

, agricultural employers would still “employ” anyone engaged directly or through a 228

labor contractor. 229

230

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

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

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

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

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

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

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

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

contractors and not CPHEs. 239

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

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

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

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

or handler employer, is not a commercial pesticide handler employer. 244*** EO 12866 Review Draft

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Page 7 of 37 Employ means to obtain, directly or through a labor contractor, the services of a person in 245

exchange for a salary or wages, including piece

- rate wages, without regard to who may pay or who may 246

receive the salary or wages. It includes obtaining the services of a self

- employed person, an independent 247

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

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

commercial pe sticide handling establishment. 250

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

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

employer. 253

254

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

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

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

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

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

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

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

262

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

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

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

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

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

“ employ ” and “ agricultural employer

, ” and EPA declines to change this fundamental and longstanding 268

WPS principle. 269

270

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

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

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

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

others). 275

276

EPA R esponse. EPA agrees that the inclusion of the term “natural forest” in the de finition of 277

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

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

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

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

282

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

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

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

the costs to golf courses which may have nurseries? 286*** EO 12866 Review Draft

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Page 8 of 37 287

EPA R esponse

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

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

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

always been covered by the WPS

, and compared to the existing WPS, the coverage of golf courses that 291

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

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

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

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

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

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

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

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

300

14

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

I G W Question: What is the scop e of the WPS with respect to establishments producing 302

agricultural plants for other than direct sale, i.e., in

- house use? 303

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

direct sale, i.e., in

- house use. The WPS covers an agricultural establishment if (1) a WPS

- labeled 305

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

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

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

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

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

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

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

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

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

315

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

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

– and the related 317

state enforcement actions

– far beyond the actual agricultural establishment to reach off

- site 318

administrators involved only in pre

- application tasks. USDA recommends removing the reference to 319

“arranging for the application of the pesticide.” 320

321

EPA R esponse. EPA also received several similar comments from states, growe rs, agricultural 322

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

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

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

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

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

scope of the WPS because this language has been in § 170.9(a) of the WPS since the rule first became 328*** EO 12866 Review Draft

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Page 9 of 37 effective in 1992 . Moreover, EPA has not been made aware of any instances where this defini tion of 329

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

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

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

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

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

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

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

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

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

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

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

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

- application 341

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

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

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

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

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

347

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

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

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

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

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

to be addressed in the Economic Analysis and, therefore

, the impact on this sector may not h ave been 353

included. 354

355

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

and does not believe that t he WPS applies to them. EPA has remove d the reference from the preamble, 357

per USDA’s request. 358

359

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

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

early

- entry workers proposed by EPA and defer this decision to the States. U

. S

. agricultural workers 362

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

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

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

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

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

circumstances. USDA believes the current federal

- state sy stem is working in this regard. The need for 368

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

federal laws. 370*** EO 12866 Review Draft

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Page 10 of 37 Please see the following as posted by the Department of Labor at 371

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

Prohibited Occupations for Agricultural Employees 373

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

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

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

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

perform. 378

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

 A youth 14 or 15 years old can work in agricultur e, on any farm, but only in non

380

hazardous jobs. 381

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

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

and only in non

- hazardous jobs. 384

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

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

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

not use more than 500 "man

- days" of agricultural labor in any calendar quarter (3

- month 388

period) during the preceding calendar year. "Man

- day" means any day during which an 389

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

can only be employed with a parent's permission and only in non

- hazardous jobs. 391

Hazardous Occupations 392

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

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

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

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

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

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

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

Category I

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

crossbones; or Toxicity Catego ry II

-- identified by the word "Warning" on the label. 401

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

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

chemicals.) 404

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

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

regulations in place that are consistent with DOL

– or more restrictive

– based on the needs of individual 407

States. 408

409*** EO 12866 Review Draft

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Page 11 of 37 EPA Response

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

implement a minimum age of 18 for handlers and early

- entry workers. 411

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

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

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

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

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

pesticide handling in agriculture and entry to a treated area when a restricted

- entry interval (REI) is in 417

effect (“early

- entry workers”) by persons under the age of 18 is inconsistent with the FIFRA sta t utory 418

standard. 419

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

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

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

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

applied by persons with immature judgment and risk

- taking behaviors . Inasmuch as FLSA and FIFRA 424

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

regulatory outcomes. 426

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

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

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

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

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

toxicity categories III and IV

. Such pesticides can pose significant risks to the handler, bystanders, and 432

the environment if not used properly. 433

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

protects children as pesticide applicators. DOL’s standard does not cover early

- entry workers at all, 435

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

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

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

not establish any age

- related restrictions on pesticide handling or early

- entry activities. EPA has the 439

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

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

442

10. §170.311( b )( 6 ) 443

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

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

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

time (45 days, 60 days) rather than a 2

- year record retention. 447

448

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

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

compromise between access and the burdens of record retention

. Acute pesticide illnesses are the m ost 451*** EO 12866 Review Draft

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Page 12 of 37 common triggering effects; however, chronic illnesses are potentially linked to pesticide exposure, and 452

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

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

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

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

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

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

other requirements are met

. 459

460

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

due to a significant expansion and complexity of record

- keeping requirements. As written, agricultural 462

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

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

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

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

Employers under the Fair Labor Standards Act (FLSA)

. USDA is further concerned over agricultural 467

employers’ liability resulting from small procedural mistakes stemming from t he added recordin g

468

keeping requiremen ts under FIFRA

. 469

470

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

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

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

early

- entry

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

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

demonstrate compliance with aspects of the regulation. 476

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

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

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

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

requiremen ts and how to comply with them, ther eby minimizing “small procedural mistakes.” 481

482

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

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

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

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

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

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

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

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

and should be included in the Economic Analysis. 491

492*** EO 12866 Review Draft

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Page 13 of 37 EPA R esponse . EPA believes the WPS final rule is clear regarding the identifica tion and 493

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

from the wor ker or handle r. The information that the employer must provide is limited to the application 495

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

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

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

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

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

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

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

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

inspections for the designated representative

. 504

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

requests on a per

- request bas is, and includes the cost of verifying the validity of the request

. Please refer 506

to comment #30 for details. 507

508

d. USDA. USDA believes the total costs for record

- keeping should include the following: set

- up 509

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

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

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

records beyond the two

- year minimum for longer

- term employees. Did EPA consider all these in its cost 513

estimates for record

- keeping

, especially for small businesses and government agencies? 514

515

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

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

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

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

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

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

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

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

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

525

11. §170.311(b)(7)

- (9) 526

527

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

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

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

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

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

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

was far outnumbered by those written in opposition. 534*** EO 12866 Review Draft

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Page 14 of 37 535

Minor Crop Farmer Alliance (MCFA) 536

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

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

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

provided in the current WPS regulations. The proposed definition is open

- ended and subject to serious 540

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

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

543

National Association of State Departments of Agriculture (NASDA) 544

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

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

understand the inclusion has led to a range of complications and on

- going litigation that does nothing to 547

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

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

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

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

interests seeking to utilize this provision for non

- WPS purposes. We oppose this proposal.” 552

553

Association of American Pesticide Control Official s (AAPCO) 554

“Authorized employee representative

- A person designated by the worker or handler, orally or in 555

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

the worker or handler. 557

558

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

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

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

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

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

564

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

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

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

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

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

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

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

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

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

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

support for workers. However, under the rule, only employees s eeking emergency assistance while on 575*** EO 12866 Review Draft

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Page 15 of 37 the establishment are so protected. Additionally, employees should have access to the information if 576

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

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

ho wever, EPA has found several comment s in support of the authorized representative , stating that the 579

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

. 580

581

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

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

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

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

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

no expectation that such records would have been retained. 587

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

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

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

information as outlined may not be expedient. 591

592

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

that period of time after it is collec ted and retained. 594

USDA has also ex pressed conc ern that it is not clear who may access the information as a person 595

acting under the direction of treating medical personnel

. In consultation with USDA, EPA has revised 596

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

to be given access to the information. 598

599

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

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

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

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

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

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

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

stat ement to designate the representative. 607

608

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

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

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

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

get a written request for the hazard communication information

, in the interest of promoting access to 613

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

requests facilitates the flow of information and outweighs the convenience for the employer

. Posting a 615

treated area under an REI as a visual warning is intended to provide an ongoing reminder to workers not 616*** EO 12866 Review Draft

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Page 16 of 37 to enter the area, because they may forget the oral notification given, or there may be confusion about 617

which field is treated. 618

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

the representative

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

attachment to an e

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

representative is not sufficient

. 622

623

12. § 170.313 624

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

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

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

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

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

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

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

required by the WPS? 632

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

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

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

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

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

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

“own” handlers). 639

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

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

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

CPHE instead. 643

644

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

own handler employees because the required employer

- employee rela tionship that triggers WPS 646

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

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

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

included below: 650

651

§170.313 Commercial pesticide handler employer duties. 652

“ Commercial pesticide handler employers must: 653

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

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

handler employed by the commercial pesticide handling establishmen t. 656

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

and subject to this part receives the protections required by this part. 658*** EO 12866 Review Draft

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Page 17 of 37 (c) Ensure that any handler employed by the commercial pesticide handling 659

establishment is a t least 18 years old. 660

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

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

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

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

this part. 665

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

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

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

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

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

instructed in the safe operation of such equipment. 671

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

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

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

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

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

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

- entry 677

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

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

application of any pesticide on an agricultural establishment: 680

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

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

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

(4) The labeling

- specified restricted

- entry interval applicable for the application. 684

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

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

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

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

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

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

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

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

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

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

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

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

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

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

pesticide handling establishment, and needs emergency medical treatment, the commercial pesticide 699*** EO 12866 Review Draft

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Page 18 of 37 handler employer must do all of the following promptly after learning of the possible poisoning or 700

injury: 701

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

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

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

emergen cy medical treatment to a person exposed to pesticides

. 705

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

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

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

exposed. 709

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

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

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

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

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

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

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

information to such persons: 717

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

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

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

pesticide residues. 721

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

exposures and removing pesticide residues. 723

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

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

or Tribal government agency responsible for pesticide enforcement. ” 726

727

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

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

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

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

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

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

contractors. 734

735

13. §170.315 Whistleblower 736

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

on health and safety, USDA seeks a broad inter

- agency discussion on whistleblower rights of 738

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

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

existing OSHA investigative standards, regulatory processes and whistleblower investigative procedures 741*** EO 12866 Review Draft

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Page 19 of 37 for farm accidents, labor, chemi cal hazards, dust, wages, migrant housing, sanitation, drinking water, 742

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

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

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

employers and labor contractors to experience reduced regulatory confusion. 746

747

EPA R esponse. EPA is interested in meet ing with OSHA re garding their whistleblower 748

procedures and standards

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

providing whistleblower protections , and it makes sense to have similar process es for investigations

. 750

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

is not prepared to cede that responsibilit y to OSHA. Although OSHA jurisdiction covers most area s of 752

ag riculture

, they do not cover pesticide use or es tablishments wi th fewer than 1 1 workers

, i.e., the 753

majority of the farms subject to the WPS

. 754

755

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

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

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

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

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

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

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

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

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

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

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

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

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

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

increase in the frequency of training events?" 770

Finally, t he Forest Service’s experience with mandatory annual training is that such training 771

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

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

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

775

EPA R esponse

. EPA i s sensitive to the concerns of agricultural employers regarding the 776

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

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

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

of certified applicators to provide worker training and has re taine d certified applicators as trainers in the 780

final rule. EPA bel ieves that, with the addit ion of certified applicators as trainers, there are adequate 781

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

783*** EO 12866 Review Draft

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Page 20 of 37 “USDA is very supportive of expanding the class of persons qualifie d to train workers and 784

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

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

provide adequate numbers of trainers without se verely straining cooperative extension trainer 787

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

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

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

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

792

Safety training is well recognized as an important factor to reduce workpl ac e incidents

. Despite 793

th e absence of studies on this subject

, it is reasonable to attribute to the 1992 WPS the significant 794

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

EPA can no t attribute the reduction in incidents to particular provisions in the WPS

, we think the rule h as 796

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

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

799

15. §170.401(c)(1) [comment cross

- referenced from EA] 800

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

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

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

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

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

806

EPA R espon se. Many of the topics listed for training content are self

- explanatory and do not 807

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

including questions. While q uestions and answers from workers can be unpre dictable in quantity and 809

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

(on average) than 45 minutes. 811

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

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

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

workers can understand.” 815

816

16. §170.401(c)(3) 817

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

must include, at a minimum, all of the topics listed in §170.401(c)(i)

- (xvi) . . .” This is followed by a list 819

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

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

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

l isted in §170.401(c)(i)

- (xxiii) . . .” 823

Most of the points listed in §170.401(c)(3), including (ii)

- (xv) and (xix)

- (xxii), sound like topics 824

for training, as they should. However, there are a few points, notably (i), (xvi)

- (xviii), and (xxiii), that 825*** EO 12866 Review Draft

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Page 21 of 37 sound like restated or new requirements placed on agricultural employers. Unlike the other points, these 826

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rewording all of the five points in question

– (i), (xvi)

- (xviii), and (xxiii)

– to make it clear that these are 841

merely topics for training, and not new requirements. 842

843

EPA R esponse

. EPA appreciates the correction, and has include d all the points in the citation at 844

170.401(c)(3). EPA will revise the language at §170.401(c)( 3)(i), (xvi)

- (xviii), and (xxiii) to clarify 845

their intent as training points. 846

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

ensure that the worke r or handler has been trained. Therefore, EPA has adjust ed the lang uage to reflect 848

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

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

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

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

. 852

853

17. §170.401(c)(3)(i) 854

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

designation must be in writing. 856

857

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

as follows: 859

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

designed to reduce work

- re lated pes ticide exposures and illnesses... A worker may designate in writing 861

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

863

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

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

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

train workers (170.401) and handlers (170.501)

. This is particularly important to provide adequate 867*** EO 12866 Review Draft

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Page 22 of 37 numbers of trainers without severely straining cooperative extension trainer resources required to meet 868

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

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

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

in the past in state regulations. 872

873

EPA R esponse. None required. 874

875

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

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

responsibilities for recordkeeping: 878

879

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

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

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

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

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

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

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

agricultural employer. 887

888

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

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

birthdate in the training record. 891

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

893

USDA. 894

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

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

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

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

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

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

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

employee

- provided record to verify t raining. 902

903

National Association of State Departments of Agriculture (NASDA) 904

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

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

information submitted to and retained by EPA. 907

908*** EO 12866 Review Draft

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Page 23 of 37 EPA R esponse. Please refer to the notice of proposed rulemaking Unit VII B, 79 FR 15444, 909

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

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

would burden employers to enter the data, and th e requirement for on

- site records for inspection 912

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

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

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

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

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

918

20. §170.405(a) 919

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

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

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

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

924

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

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

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

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

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

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

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

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

be an additional 100 foot area along the side of the treated area f rom which people must be excluded

, but 933

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

of the f

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

require d. 936

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

, ” a 937

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

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

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

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

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

the pesticide application. 943

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

945

21. §170.409(b)(3)(ii)

– forestry signs 946

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

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

landing considered a road or access point? What if no road s or trails access the unit? Posting the corners 949*** EO 12866 Review Draft

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Page 24 of 37 makes no sense in such a case, as those would be essentially invisible anyway. EPA may want to 950

reconsider posting requirements related to forestry regulations. 951

952

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

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

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

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

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

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

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

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

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

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

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

for workers entering the treated area. 964

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

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

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

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

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

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

fields/forests to make sure it adequately addresses forestry concerns

. 971

972

13

- 10 Posting areas with unlimited entry points 973

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

- area warning 974

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

976

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

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

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

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

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

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

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

(March 7, 1995) 984

985

22. §170.411( b) Decon water

– 1 gallon/worker 986

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

unit for a period lasting 30 days after the REI could be problematic in forestry applications. If the water 988*** EO 12866 Review Draft

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Page 25 of 37 is always lo cated in the work er’s vehicle, it is probably not a major issue, although carrying extra 989

can teens in the vehicle will be a change in procedures. 990

991

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

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

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

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

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

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

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

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

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

forestry to accommodate the range of situations. 1001

1002

23. §170.41 1(d) and §170.509(c)

– define nearest place of vehicular access 1003

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

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

location depends on whether one considers just regular automobiles th at travel on paved or well

1006

maintained unpaved roads; or also tractors and all

- terrain vehicles that can travel where regular 1007

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

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

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

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

1012

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

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

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

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

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

and taking questions from regulators and the regulated community, EPA is not aware of any serious 1018

disagreement related to the meaning of the phrase “nearest place of vehicular access”

, and feels that 1019

trying t o define the term may reduce the existing flexibility in the rule afforded by the current approach. 1020

1021

24. Subpart F, §170.501

- 170.509 Conflict between “handler employer” and CPHE employer” 1022

USDA. Subpart F assigns a host of responsibilities regarding handlers to the “handler employer.” 1023

As noted in the comments on §170.305 , the definition of “handler employer” is currently so broad, that 1024

at any given moment there could be two or more “handler employ ers” responsible for the same handler 1025

(i.e. the agricultural employer and one or more commercia l pesticide handler employers). 1026

This dual responsibility is very problematic. Is each requirement in Subpart F supposed to be 1027

carried out in duplicate? This wou ld mean that both the agricultural employer and the commercial 1028

pesticide handler employer would have to independently check the handler’s training status (and keep 1029

the corresponding records) , age, and knowledge of relevant information; both would have to e nsure that 1030*** EO 12866 Review Draft

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Page 26 of 37 handlers using highly toxic pesticides or fumigants within enclosed spaces are monitored regularly; and 1031

both would have to provide PPE and decontamination supplies to the handler. This approach would be 1032

ridiculously wasteful. At the same time, i t is questionable whether splitting responsibility between the 1033

agricultural employer and the commercial pesticide handler employer would lead to better results, since 1034

the two parties would have to coordinate extensively to determine who will cover each req uirement. 1035

USDA recommends that EPA address this problem by making the changes to the definition of 1036

“labor contractor” in §170.305 suggested above, which would have the practical effect of changing the 1037

definition of “handler employer” to mean only the hand ler’s direct employer, whether that is an 1038

agricultural employer or a commercial pesticide handler employer. 1039

1040

EPA Response. EPA believes it has made the revisions to the rule text necessary to address 1041

USDA’s concern s in this area. Please see EPA’s respons es to comments 8b and 12. 1042

1043

25. §170.501(c)(3)(xiv) training for handlers

– error in reg text 1044

USDA. This section requires that the training for handlers include the following point: “Handler 1045

employers must post treated areas as required by this rule.” However, under §170.309(h) and §170.409, 1046

it is the agricultural employer

– not the handler employer

– who is required to display information and 1047

signs related to pesticide applications and worker entry restrictions. USDA recommends that EPA 1048

resolve this di screpancy. 1049

1050

EPA response. EPA corrected t he text of the final rule t o refer to the agricultural employer

. 1051

1052

26. §170.505(b)

– AEZ

– handler suspend appl ication if person in zone, even when outside the 1053

property 1054

USDA. This section requires that handlers suspend pesticide application when individuals are 1055

present in the application exclusion zone. Unlike in §170.405(a)(2), there is no exception if the 1056

individuals are outside the boundaries of the agricultural establishment, for example on a neighboring 1057

prop erty or on a public right

- of

- way. USDA recommends that the language in §170.505(b) should be 1058

adjusted to match §170.405(a)(2): “. . . the handler performing the application must immediately 1059

suspend a pesticide application if any worker or other person [oth er than another handler] is in the 1060

application exclusion zone described in §170.405(a)(1) that is within the boundaries of the establishment 1061

. . .” The agricultural employer has no control over individuals outside of the agricultural establishment, 1062

and thi s should be recognized by not requiring automatic suspension of application in situations where 1063

individuals beyond the boundaries of the establishment might peripherally encroach on an application 1064

exclusion zone. It should be noted that §170.505(a) already requires the handler to “ensure that no 1065

pesticide is applied so as to contact, directly or through drift, any worker or other person [other than 1066

another handler].” This renders superfluous the additional restriction in §170.505(b) requiring 1067

suspension whe n the application exclusion zone is encroached outside the establishment. 1068

1069

EPA Response. EPA disagrees that the application exclusion zone should be limited to the 1070

boundaries of the agricultural establishment for the requireme nt in §170.505(b) for a handler t o suspend 1071

application if a worker or other person is in the application exclusion zone. 1072*** EO 12866 Review Draft

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Page 27 of 37 EPA agrees with USDA that labels and §170. 210(a) already require handlers to apply in a way 1073

so pesticides do not contact a worker or another person. Howeve r, these provisions appear inadequate 1074

because drift from pesticide applications continues to cause human exposure incidents . EPA also agrees 1075

that an agricultural employer has no control over individuals outside the establishment, which is why the 1076

requirem ent for agricultural employers in §170.405(a) is limited to the boundaries of the agricultural 1077

establishment. However, the handler who is applying the pesticide does have the ability to temporarily 1078

suspend an application and restart it after the worker or person leaves the area. Handlers who are 1079

applying should already be doing this so they do not contact a worker or other person during application. 1080

As stated by the National Agricultural Aviation Association in their comments on the proposed rule, “It 1081

is standard operating procedure for aerial appli c ators to temporarily avoid making passes adjacent to 1082

such [rural] roads if workers happen to be passing by in vehicles or on foot.” 1083

1084

27. §170.507 [comment cross

- referenced from EA] Respirator Requirement costs and update 1085

terminology 1086

USDA. The discussion of costs associated with respirator fit tests could be clarified by providing 1087

additional information on the types of pesticides that are assumed to require respirators, the frequency 1088

those pesticides are applied (every year or less frequently), and the number of farms likely to apply those 1089

pesticides. 1090

Consistent use of terminology: USDA commends the change of terminology from dust/mist 1091

filtering respirator to filtering facepiece res pirator. Use of the OSHA terminology prevents confusion 1092

and contributes to more cohesive standards across agencies. USDA suggests the addition of this term to 1093

§170.205 to reflect the definition provided by OSHA in 29 CFR 1910.134 (b) (quoted below) for fur ther 1094

clarity. 1095

“Filtering facepiece respirator means a negative pressure particulate respirator with a filter as an 1096

integral part of the facepiece or with the entire facepiece composed of the filtering medium.” 1097

1098

EPA Response. EPA disagrees that a detailed discussion of the respirator cost analysis is needed 1099

in the Federal Register . Those details are included in the economic analysis. 1100

EPA appreciates USDA’s comments on changing terminology from dust/mist respirators to 1101

filter ing facepiece respirators. The final WPS rule only uses the term filtering facepiec e respirator in the 1102

preamble; it does not appear in the reg text itself. Therefore, EPA has add ed OSHA’s definition of 1103

filtering facepiece respirator to Unit XV.A.3 of the preamble as follows: “...Many farmworker 1104

advocacy organizations and some PPE manufacturers asserted that EPA should also apply the proposed 1105

standards for fit testing, training, and medical monitoring to users of filtering facepiece respirators in 1106

addition to the other respirator types (e.g., tight fitting elastomeric facepieces). Commenters suggested 1107

that filtering facepiece respirators are widely used and covered by OSHA’s respirator requirements, and 1108

that their exclusion would result in inadequate protect ion for many pesticide handlers. OSHA defines a 1109

filtering facepiece as “a negative pressure particulate respirator with a filter as an integral part of the 1110

facepiece or with the entire facepiece composed of the filtering medium ” in 29 CFR 1910.134(b). ” 1111

1112*** EO 12866 Review Draft

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Page 28 of 37 28. §170.509(b) and (d) decon water in forestry 1113

a. USDA. Requiring 3 gallons of water per handler at the beginning of the work shift will be 1114

problematic, especially if added to the eye wash requirement of 6 gallons of water for mixer/loaders 1115

using pestici des requiring protective eyewear. When using backpack applicators, each handler is at some 1116

point a mixer/loader (loading from a batch tank into the backpack, most commonly). A crew of 8 1117

applicators could then potentially need 72 gallons of water to be carr ied each day. This seems excessive. 1118

It is clear that each handler requires 3 gallons of water at the start of the shift for decontamination, but in 1119

such a circumstance as described, would a crew of 8 each need 6 gallons for eye flushing, or would one 1120

quant ity of 6 gallons meet the requirement? This could be clarified. 1121

1122

EPA Response. Section 170.509(d) requires an emergency eye wash system at the 1123

mixing/loading site immediately available to the handler when a handler is mixing or loading a product 1124

whose lab eling requires protective eyewear for handlers. Only one emergency eye wash system (that 1125

meets the WPS requirements) is required at a mixing/loading site regardless of how many hand l ers are 1126

mixing or loading at that site. EPA has revise d Unit XII.C.3 of the preamble as follows to clarify this: 1127

“... The final rule allows employers to provide either at least 6 gallons of water in containers suitable for 1128

providing a gentle eye flush for about 15 minutes, or a system capable of delivering gently running 1129

water at a rate of 0.4 gallons per minute for at least 15 minutes to satisfy the requirement. One 1130

emergency eye wash system is required at a mixing/loading site when a handler is mixing or loading a 1131

product whose labeling requires protective eyew ear to handlers, regardless of how many handlers are 1132

mixing or loading at that site

. ” The final rule retains the existing requirement for water to be of “a 1133

quality and temperature that will not cause illness or injury.” 1134

1135

b. USDA

. May this water be drafted from local natural surface waters (woodland stream)? May 1136

the requirement be met by pre

- positioning 6 gallons at the nearest place of vehicular access outside any 1137

treated area or area subject to a restricted

- entry interval? Clarification invited. 1138

1139

EPA Res ponse. The water in an emergency eye wash system can be drawn from local natural 1140

surface waters if the handler employer has determined the water meets the standard of being “of a 1141

quality and temperature that will not cause illness or injury when it contact s the skin or eyes or if it is 1142

swallowed” as required in §170.509(b)(1). An emergency eye wash system at the nearest place of 1143

vehicular access would not satisfy the requirement of §170.509(d)(1) unless it is “at the mixing/loading 1144

site immediately availa ble to the handler.” 1145

1146

29. §170.601(a)(1)(xii)

– mistake in numbering in reg text 1147

USDA. This point references §170.605(a) through (c) and (e) through (k). However, the rule as 1148

currently written does not include a §170.605(k), only (a) through (j). EPA likely meant to write 1149

§170.605(a) through (c) and (e) through (j). 1150

1151

EPA Response. This change has be en made to the r ule text. 1152

1153

USDA Comments on EPA Worker Protection Standard E conomic A nalysis 1154*** EO 12866 Review Draft

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Page 29 of 37 1155

30. §170.311 Display Requirements for Pesticide Application and Hazard Information 1156

a. USDA. The economic analysis does not account for provision of safety data sheet and 1157

information about the application to the worker or a designated representative within 15 days of request 1158

for such material. In addition, there is no cost assumed for mailing this material to the designated 1159

representative. There is no estimate of the expected number of requests for this information by workers 1160

or their representatives. These costs should be included. 1161

1162

EPA Response. These costs have now been included in the EA (Section 3.3.2) and Appendix B 1163

(Section 2, Tables B.2.a

- 2 and B.2.a

- 5). EPA calculates that the cost of responding to a request from a 1164

current employee to be about $3.50 and the cost of responding to a request from a former employee to 1165

be about $14, including mailing costs. It does not seem likely that costs would vary substantially 1166

whether the request comes directly from an employee or from a designated representative. 1167

1168

The number of requests is subject to a great deal of uncertainty; however, California and Texas 1169

have similar provisions and have not suggested that the issue arises frequently. For purposes of the EA, 1170

EPA has assume d that current employees may request hazard information once for every 20 appli cations 1171

made while one in 100 former employees may make a request. 1172

1173

b. USDA. The economic analysis assumes all farms have double

- sided copies when it estimates 1174

3.3 pages are required to store the Safety Data Sheet, reported to be 6.7 pages on average (Tabl e B.2.b.1 1175

Cost per Final Rule, WPS Farms, Information on Pesticide Applications, p. 17, Appendix B). 1176

1177

EPA Response . That is correct. 1178

1179

c. USDA. The period over which these records must be made available to the worker is unclear. 1180

The cost of retaining th ese records over time should be included and as well as the period over which 1181

they must be retained. 1182

1183

EPA Response . Records must be retained for two years (170.311(b)(6)). Retention costs are the 1184

cost of the folder used to store the documents , and are in cluded in the EA

. 1185

1186

31. §170.401 Training Requirements for Workers 1187

a. USDA. Due to the added training topics and other requirements, USDA does not believe that 1188

the estimated 45 minutes of training include ample time to thoroughly cover added topics and take 1189

questions. To allow for at least 5 minutes per training topic (11 for work ers and 13 for handlers) and at 1190

least 15 minutes for questions the estimated training time should be adjusted to 1.5 hours. This is still a 1191

conservative estimate and does not take into account the added time required when a translator is used. 1192

1193

EPA Respon se . EPA ’s experience with the training material, as well as information provided in 1194

comments, suggest that current training sessions are about 30 minutes in length. One respondent to a 1195

questionnaire by the National Council of Agricultural Employers indic ated that in the past year they 1196*** EO 12866 Review Draft

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Page 30 of 37 spent about 2,100 hours training 4,400 workers , or slightly less than 30 minutes per worker. See EPA’s 1197

response to Comment 15 , above. 1198

1199

b. USDA. The Economic Analysis does not take into consideration the cost of a translator for 1200

training. Though a translator is not required by the regulation, it does suggest the use of a translator in 1201

order to ensure that training is carried out “in a manner worker s understand” (citation). These costs 1202

could be incorporated by estimating a reasonable probability of the number of trainings that will require 1203

a translator. Since EPA plans to develop training materials in several languages, the probability of 1204

requiring a translator could be estimated based on which languages and dialects would not be covered by 1205

those materials. 1206

1207

EPA Response

. The EA considers only new burdens that would result from the amendments to 1208

the existing WPS. Sections 170.130(c) and 170.230(c) of the existing WPS include the same 1209

requirement that training be conducted “in a manner workers can understand”. 1210

1211

c. USDA. Small farms bear a disproportionately larger cost for the new training requirements 1212

than large farms. The economic analysis Appendix B states that worker training costs will result in an 1213

increase of 85% over baseline costs for small

- small WPS farms, and i ncrease by 75% for medium

- small 1214

WPS farms and large

- small WPS farms with less than 10 employees, 48% for large

- small farms with 10 1215

or more employees, and 42% for large WPS farms. It would be clearer if costs were summarized for 1216

each of these farm size cat egories for each of the rule provisions throughout the economic analysis. 1217

1218

EPA Response. USDA appears to have misunderstood the information in Appendix B. The 1219

percentage changes reported do not refer to increases in overall costs, only the change in th e number of 1220

trainings needed. For example, the Appendix states that “ Small

- small farms (revenue/year less than 1221

$10,000) are assumed to hold an average of 1.2 training sessions per year, an increase of 85% over the 1222

baseline.” That is, the number of trainin g sessions increases from an average of 0.65 sessions to 1.2 1223

sessions, an absolute increase of 0.55 sessions. EPA assumes a large farm (revenue ≥ $750,000) with 1224

more than 10 workers will increase the average number of training sessions from 4.5 sessions t o 6.4, an 1225

absolute increase of 1.9 sessions. 1226

EPA has prov ided a summary of costs by farm size throughout the analysis and provided an 1227

analysis of overall impacts to small farms, defined by the Small Business Administration as entities with 1228

revenue less than $750,000. Because this definition implies that 95% of all U.S. farms, and almost 80% 1229

of farms affected by the WPS, are small, EPA also provides a more detailed analysis to examine the 1230

impacts across the distribution of small farms. 1231

1232

d. USDA. The cos t per farm of training workers or handlers appears to assume that only 1 1233

training record per training needs to be retained by the farm (Table B.1.b.3. Cost under Final Rule, cost 1234

per WPS farm by size, Worker Training). For both large and small WPS farms, the economic analysis 1235

assumes retention of only one copy per training event. If a worker requests a copy, USDA assumes that 1236

only the worker’s information will be provided and not the records of other workers who also attended 1237

the training. If EPA assumes the employer will provide records for all workers attending training (for 1238*** EO 12866 Review Draft

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Page 31 of 37 example on the same sign

- in sheet) when one worker requests their training record, the impact of this 1239

provision on privacy requirements should be included in the analysis. If priva cy constraints prevent 1240

sharing records of other workers, the cost of record retention at the farm level should reflect the cost of 1241

providing individual records. 1242

1243

EPA Response . EPA’s goal is to make the process of confirming training as easy as possible. 1244

The record of the training can be as simple as a paper with the following information: 1245

(i) The trained worker’s printed name and signature. 1246

(ii) The date of the training. 1247

(iii) Information identifying which EPA

- approved training materials were used. 1248

(iv) The trainer’s name and documentation showing that the trainer met the requirements 1249

of §170.401(c)(4) at the time of training. 1250

(v) The agricultural employer’s name. 1251

As the draft final rule does not require the collection of any personally identifiabl e information, 1252

n o personally identifiable information would be included in the record. For a worker to confirm to a 1253

subsequent employer that he or she has recently completed the pesticide safety training, a copy of the 1254

training record would have the information needed for the subsequent employer’s records. 1255

1256

e. USDA. As part of their preliminary research, EPA conducted a Small Business 1257

Administration Review Panel (SBAR Panel or Panel). In almost every written comment they received, 1258

small business owne rs urged them to keep a grace period for employee training. Since EPA conducted 1259

a SBAR Panel, USDA would like to see an acknowledgment that these issues were taken into 1260

consideration. Though most of the commenters did not see many real cost added with remo ving (or 1261

decreasing) the grace period, they did indicate that workers would have to be hired sooner and thus 1262

paid for days where the employer received no work. If the time lost from work is considered in the 1263

benefits section regarding healthcare, then time lost from work due to training and paperwork must be 1264

considered in the costs. 1265

1266

EPA Response . EPA think s the elimination of the grace period is not likely to lead employers 1267

to hir e workers and pay them for no work

. Rather, EPA anticipates that employers may have to 1268

provide additional training sessions (see response 31.c. ). The opportunity cost of time for the worker 1269

to attend a safety training is included in the estimated cost of the revisions. 1270

1271

f. USDA. The elimination of the grace period and the requ irement that all workers be trained 1272

“ in manner workers understand” creates the potential for discrimination on the basi s of language and 1273

literacy. E conomic analysis should discuss the probability that workers who speak the language used 1274

by the employer or by on

- site trainers will be used more frequently when training is required by 1275

temporary or seasonal workers immediately prior to performing a field or handler task. If a farm must 1276

train workers immediately before any allowable exposure to pesticides, the most easily trained 1277

workers will be more likely to be used in job situations where exposure could occur, at least initially. 1278

1279

1280*** EO 12866 Review Draft

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Page 32 of 37 EPA Response : EPA notes that the requirement for training to be provided in a manner that 1281

the worker can unders tan d is not new. EPA has not received comment regarding discriminatory 1282

practices related to language as a result of the WPS. 1283

1284

32. §170.507 Personal Protective Equipment 1285

a. USDA. Consistent use of terminology : USDA commends the change of terminology from 1286

dust/mist fil tering respirator to filtering facepiece respirator. Use of the OSHA terminology prevents 1287

confusion and contributes to more cohesive standards across agencies. USDA suggests the addition of 1288

this term to §170.205 to reflect the definition provided by OSHA i n 29 CFR 1910.134 (b) (quoted 1289

below) for further clarity. 1290

“Filtering facepiece respirator means a negative pressure particulate respirator with a 1291

filter as an integral part of the facepiece or with the entire facepiece composed of the 1292

filtering medium.” 1293

Costs and benefits : In the cost estimate for the addition of filtering facepiece respirators the 1294

Agency assumes that all employers will use the suggested online medical evaluation (introduced in lines 1295

3388

- 3394 of the rule preamble) from the outset. While the use of online medical evaluations would be 1296

the most cost

- effective option for employers, assuming that employers will be able to use this method of 1297

evaluation in the first years of implementation does not seem likely. This is especially true for rural 1298

areas where broadband access is not available on every farm operation. Though online medical 1299

evaluations will likely be used by some employers, the estimated probability seems high for the first 1300

year. The probability of using an off

- site medical evaluation is much more likely in the first year with a 1301

decreasing probability within the first five years as employers learn more about their available options. 1302

1303

EPA Response. EPA does not agree with USDA’s reasoning. Employers are unlikely to forego 1304

cost

- effect ive options, even initially. EPA plans significant outreach and is confident that private 1305

interests, including crop advisors and pesticide dealers, will engage in similar programs. According to 1306

the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high

1307

quality service, including broadband or DSL. Less than 10% of farms rely on dial

- up connections. 1308

1309

b. USDA. Additionally, the time estimate for an off

- site medical evaluation (Table 3.3

- 34) 1310

should use the same estimate a s the follow

- up medical exam ($72.12). The analysis must also take into 1311

consideration the lost wages and travel time associated with visiting a medical professional considering 1312

that most farm operations are located in rural areas where access to a licensed medical professional may 1313

increase time and travel. The time should at least reflect the time allotted to the evaluation, but should 1314

also include at least 30 minutes of travel time. Please see table below for an example of suggested edits. 1315

1316

Table 3.3

- 34. C osts under Final Rule, Large WPS Farm, Respirator Fit Test. 1317

Action/Material (j) wage/price

w j unit

time/quantity

H r,i,j /M r,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*** EO 12866 Review Draft

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Page 33 of 37 Time for follow

- up exam 1 $20.04/hr 2 hour 0.134 $ 5.36

Follow

- up medical exam 1 $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

cost r,i, a P $ 135.27

Source: EPA estimation. See text for data sources. Numbers may not sum due to rounding. 1318

1 EPA assumes approximately 25 percent of handlers taking the medical evaluation will be referred for a 1319

more complete medical examination. 1320

EPA Response. EPA does not agree with USDA’s reasoning that employers will select a more 1321

costly response to the regulatory burden. Further, if they choose to skip the screening evaluation for a 1322

complete medical evaluation e.g., because of a previously scheduled physical examination , there 1323

would be no need for an on

- line (screening) evaluation or subsequent follow

- up evaluatio n. 1324

1325

c. USDA. In the Economic Analysis for the rule, EPA explains that it derives costs for 1326

respirator fit tests from the assumption that each farm will only have one handler that will need to be 1327

fit tested and that only 40 percent of farms will likely use pesticides that require respirators. 1328

“Accounting for the fact that not all farms will use pesticides every year, EPA estimates about 40 1329

percent of large farms and large

- small farms will use a product requiring a respirator. A farm is 1330

unlikely to need mor e than one handler when using these products, so for ease we calculate costs at 1331

the farm level. Further, some handlers will undergo fit testing because the requirement has been 1332

incorporated onto some product labels, for example, various soil fumigant s.” ( Economic Analysis 1333

§3.3.6) 1334

1335

With the addition of filtering facepiece respirators, USDA does not believe this estimate is 1336

accurate. First, though only one handler may be involved in pesticide use at a time, this does not imply 1337

that there is only one handler on the farm that will need to be fit tested. The number of handlers per 1338

farm that need fit tests should be estimated based on small versus large WPS farms. 1339

Second, the assumption that only 40 percent of farms will use pesticides that require respirators 1340

seems low considering the addition of filtering facepiece respirato rs (which are required for a much 1341

larger number of pesticides than chemical cartridge respirators (NIOSH 23

- C)). USDA urges EPA to 1342

gather further data on the number of pesticide labels that require respirators (including filtering 1343

facepiece respirators) an d use that data to re

- estimate the cost of respirator fit tests. 1344

1345

EPA Response . EPA notes that USDA is quoting the baseline estimation of cost, where about 1346

40% of the larger farms ultimately use a product requiring a respirator and the employer provides the 1347

handler with instruction on fit and use. Under the final rule, EPA assumes that over half of the larger 1348

farms will arrange for a handler to be tested. 1349

1350

d. USDA. The discussion of costs associated with respirator fit tests could be clarified by 1351

providi ng additional information on the types of pesticides that are assumed to require respirators, the 1352

frequency those pesticides are applied (every year or less frequently), and the number of farms likely 1353*** EO 12866 Review Draft

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Page 34 of 37 to apply those pesticides. The economic analysis could be strengthened by providing a more detailed 1354

explanation for the assumption that under the baseline and final rule, 60% of crop

- producing farms use 1355

pesticides requiring respirators with an annual use at 40% of these farms. In Appendix A, 76% of 1356

crop

- pro ducing WPS farms are estimated to use pesticides. It is unclear whether the 60% estimate 1357

requiring respirators includes pesticides requiring only the filtering facepiece respirators as well as 1358

pesticides requiring other types of respirators. The baselin e calculation for the cost of fit tests at WPS 1359

farms assumes 40.4% of these farms will have a handler undergo a fit test with 3% of these baseline fit 1360

tests consistent with OSHA requirements. The final rule calculations assume 53.5% of large and 1361

13.4% of large

- small WPS farms have handlers undergoing fit tests. EPA should present the baseline 1362

percentage of WPS farms where handlers undergo fit tests in terms of large and large

- small WPS 1363

farms to allow direct comparison between the two scenarios. 1364

1365

EPA Res ponse . EPA does not think further discussion is warranted. As noted in the EA, 1366

“Pesticides bearing label requirements for respirators are not common, but there are a few commonly 1367

used pesticides with the requirement.” The requirement is product

- specific and may apply to the 1368

mixer/loader and/or to the applicator. In the end, EPA assumes that 75% of large and large

- small 1369

primarily crop farms (farms with annual revenue of $750,000 or more and farms with annual revenue 1370

between $100,000 and $750,000, respect ively) will account for virtually all respirator use subject to 1371

the WPS . According to data from the 2012 Census of Agriculture, farms primarily producing crops 1372

(NAICS 111) in these size ranges account for about 67% of all crop acreage in the U.S., but abo ut 1373

80% of all herbicide and insecticide treated acreage and over 90% of all acres treated with fungicides 1374

or plant growth regulators. 1375

1376

e. USDA. The family farms fit test calculation needs further clarification. The economic 1377

analysis references Appendix A for the number of family farms by category (large, large

- small, etc.). 1378

Appendix A does not discuss family farms explicitly

– by back

- calculating from the existing tables 1379

you could derive the number of family farms but this adds some uncertainty and the va lues do not 1380

match those reported in the economic analysis (18,949 large family farm and 141,753 large

- small 1381

family farms). Further explanation or support is needed for the assumption that 40% of family farms 1382

producing crops use a pesticide requiring a res pirator. 1383

1384

EPA Response . EPA acknowledges that Appendix A does not contain information on so

- called 1385

family farms, i.e. , those farms that do not report hired labor. However, EPA has provided the exact 1386

numbers used within the analysis. 1387

1388

f. USDA. The values used in the baseline analysis for respirator fit tests at WPS farms are not 1389

consistent between the main economic analysis and its explanatory appendix B (See Table 3.3.32. 1390

Baseline Costs, per Large and Large

- Small WPS Farm, Respirator Fit, Econo mic Analysis versus 1391

Table B

- 6.a.3. Baseline Cost, per WPS Farm, Respirator Fit, Appendix B). Likewise, the values 1392

reported in Appendix B for the number of large (79,434) and small

- large (141,753) WPS farms do not 1393

appear in Appendix A where the reader is r eferred for further information. Since the population of 1394

WPS farms affected by the rule is assumed to only include crop

- producing farms, it is assumed that 1395*** EO 12866 Review Draft

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Page 35 of 37 these values represent crop

- producing farms hiring labor (shown in Table A.1.10 of Appendix A). 1396

Fu rther explanation would strengthen the economic analysis. 1397

1398

EPA Response . EPA acknowledges that Appendix B wa s in error and revised the tables and 1399

explanations. 1400

1401

g. USDA. In the cost estimate (p 90, Economic Analysis) for the addition of filtering facepiece 1402

respirators the Agency assumes that all employers will use the suggested online medical evaluation 1403

(introduced in lines 3388

- 3394 of the rule preamble) from the outset. While the use of online medical 1404

evaluations would be the most cost

- effective option for employers, assuming that employers will be 1405

able to use this method of evaluation in the first years of implementation does not seem likely. This is 1406

especially true for rural areas where broadband access is not available on every farm operation. 1407

Though online medical evaluations will likely be used by some employers, the estimated probability 1408

seems high for the first year. On

- line medical evaluations are currently offered only in Spanish and 1409

English. Workers speaking other languages will need off

- site medical evaluations. The probability of 1410

using an off

- site medical evaluation is much more likely in the first year with a decreasing probability 1411

within the first five years as employers learn more about their available options. 1412

1413

EPA Response . EPA does not agree with USDA’s reasoning. Employers are unlikely to forego 1414

cost

- effective options, even initially. EPA plans significant outreach and is confident that private 1415

interests, including crop advisors and pesticide dealers, will engage in similar programs. According to 1416

the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high

1417

quality service, including broadband or DSL. Less than 10% of farms rely on dial

- up connections. EPA 1418

does not see language as a signif icant barrier for employers and handlers. 1419

1420

h. USDA. The cost of the off

- site medical evaluation used in the economic analysis is based on 1421

a single provider

– Affordable Safety Training, offered in English and Spanish. A quick review of on

1422

line medical eva luations for fit testing shows a range of products from the $25 for McHaney and 1423

Associates to $27 for Affordable Safety Training to $28 for a 3M on

- line medical evaluation. These 1424

products are only offered in English and Spanish. If these medical evaluati on materials need to be 1425

provided in other languages, there is no cost considered for this in the economic analysis. The 1426

Affordable Safety Training web site offers a fit test kit for $140 using Bitrex and $139.95 using 1427

saccharin. The economic analysis cit es the cost for a fit test as ranging between $80 and $140 for an 1428

employer administered test. 1429

1430

EPA Response. EPA agrees that there are multiple options of similar price. Fit test kits come in 1431

a range of prices with smoke tests typically costing less than other options . EPA does not see language 1432

as a significant barrier for employers and handlers. 1433

1434

i. USDA. The economic analysis does not include costs accounting for circumstances 1435

requiring the same person to repeat the fit test for a different class of r espirator which may involve 1436

additional measurements. The medical evaluation questionnaire required by OSHA lists two separate 1437*** EO 12866 Review Draft

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Page 36 of 37 categories of respirators. A worker/handler would need an additional fit test and evaluation if required 1438

to use another class of respirator. The analysis also does not consider agricultural establishments 1439

where the same person is not the handler for all pesticides or for the entire year. Seasonal workers 1440

may not remain at an establishment for the entire period where pesticides r equiring respirators may be 1441

applied. 1442

1443

EPA Response . EPA does not think the cost of a medical screen would be significantly 1444

increased if the handler seeks testing for different classes of respirators. Multiple respirators could be 1445

tested at an off

- farm site or tested using the same test kit. 1446

1447

33. §170.601 Exemptions

– family farms 1448

a. USDA. Family farm exemption is too narrow : The exemption for family farms applies to any 1449

agricultural establishment th at is wholly owned by an individual, or where all of the owners of the 1450

establishment are members of the same immediate family. This definition is narrower than the 1451

definition used by ERS in the Agricultural Resource Management Survey (ARMS). The ERS definition 1452

is more flexible and requires only that th e majority of the business is owned by the operator and 1453

individuals related to the operator by blood, marriage, or adoption, including relatives that do not live in 1454

the operator’s household. Using this definition, ERS finds around 97% of all farms are fam ily farms 1455

based on data from ARMS. 1456

Findings from the 2013 ARMS survey indicate that 97.6 farm are family farms, using the ERS 1457

definition. Family farms are organized as individually owned, partnerships, corporations and other types 1458

of legal status (trust, estate, cooperative). The largest category of ownership in family farms is 1459

individual ownership (91.5%). Partnerships account for 4.4 %, corporations for 3.3 % and other types of 1460

legal status for 0.8 %. Family farms that are not individually owned accoun t for 173,434 farms. 1461

It is unclear how many of the farms considered family farms in the economic analysis would 1462

meet the definition required in the agricultural establishment exemption. The EPA should estimate how 1463

many of the crop producing family farms would be not be eligible for the exemption and thus should be 1464

counted in population of farms that must comply with the WPS standard. If ownership type is 1465

distributed similarly between crop producing family farms and all family farms, as many as 8% of crop 1466

producing farms may not be eligible for the exemption. 1467

1468

EPA Response . To determine the number of farms that would be impacted by revisions to the 1469

WPS, EPA considered all farms hiring labor as reported in the 2012 Census of Agriculture. Since farms 1470

may d escribe in their Census report as hired labor persons who would qualify for the WPS immediate 1471

family exemption , EPA has probably overestimated of the number of farms and workers/handlers 1472

affected by the WPS. 1473

1474

b. USDA. The definition of immediate family is too narrow. In regard to establishing a minimum 1475

age for handlers and workers performing early

- entry tasks, the final rule requires that handlers and 1476

workers performing early

- entry tasks be at least 18 years old, rathe r than the proposed minimum age of 1477

16 years old. This minimum age does not apply to an adolescent working on an establishment owned by 1478

an immediate family member. (EPA WPS FR page. 7). EPA has finalized the definition of “immediate 1479*** EO 12866 Review Draft

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Page 37 of 37 family” as limited to th e owner’s spouse, parents, stepparents, foster parents, father

- in

- law, mother

- in

1480

law, children, stepchildren, foster children, sons

- in

- law, daughters

- in

- law, grandparents, grandchildren, 1481

brothers, sisters, brothers

- in

- law, and sisters

- in

- law (EPA WPS FR pa ge 169). 1482

The EPA should reconsider the definition of immediate family. The proposed definition would 1483

not allow the exemption to youth who would work for a more distant family member such as an uncle. 1484

This definition would also not allow the exemption to yo uth whose parents are farm operators, but not 1485

owners. The Department of Labor (DOL) has exemptions for youth in the child labor requirements in 1486

agricultural occupations under the Fair Labor Standards Act. The Act states: “A child of any age may be 1487

employed by his or her parent or person standing in place of the parent at any time in any occupation on 1488

a farm owned or operated by that parent or person standing in place of that parent” 1489

( h ttp://www.dol.gov/whd/regs/compliance/childlabor102.pdf ). EPA should revise their definition of 1490

immediate family, or the exemption itself to be more consistent with rules enforced by DOL. 1491

1492

EPA Response. Under the owner and immediate family exemption in the existing WPS

, 1493

establishments that qualify must be either wholly owned by the individual, or all owners of the 1494

establishment must be members of the same immediate family. While EPA is proposing to expand the 1495

types of familial relationships that wou ld be considered “immediate family” under the WPS, EPA did 1496

not consider and does not plan to further expand the exemption to allow farms that are majority owned 1497

by family members to qualify. EPA did not propose such a change to the requirement and has not 1498

received comments from the public indicating that the current requirement for the establishment to be 1499

wholly owned by an individual or persons who are all members of the same immediate family is too 1500

restrictive. 1501

1502