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AJ22_EO12866_AgWPS_FRM_FIFRA Review_EPA Response_FinalRedline_AllRevisions_2015

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### Revised to address Interagency Comments received under EO 12866 Review

. 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 A healthy and strong agricultural workforce is one of the key factors in the success of American agricultur e . The labor force, whether employed in greenhouses, fields, orchards, nurseries, or other productive agricultural enterprises, like empl oyees in other industries, should be aware of all activities in their workplace, particularly when there is potential occupational exposure directly to pesticides or their residues, so that they can take appropriate measures to minimize those risks. Agric ultural employers have a responsibility to ensure that people working at an agricultural enterprise have the protections of a safe workplace. The accountability of worker protection is not one

- sided. To be successful, the labor force and the employer sha re equally in the responsibility. USDA supports strong agricultural worker protection standards as they are essential to successful, modern agriculture.



### Comments on EPA Worker Protection Standard Final Rule

USDA did not reference its comments by page number and line, because changing the display settings for the tracked changes in the draft final rule USDA received from EPA resulted in varying page and line number alignments. To prevent confusion, USDA is referencing its comments by unit and subunit

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

Comments on the Preamble
1. USDA. The draft final rule has an overall weakness in a number of places in the document in the manner in which EPA justifies positions it takes in the document. This weakness is a lack of evidenced

based scientific data. In these cases, the positions presented by EPA could have be greatly strengthened to make the draft final rule more compelling in its justification for their proposed changes to the 1992
Worker Protection Standards. With the lack of evidenced

- based scientific data, some of EPA’s positions tend to appear as opinions rather than factual determinations. Examples of language in the draft final
rule that demonstrate this lack of evidenced

- based scientific data are listed below: a) II.D.: “Even if the lack of quantitative data impairs the reliability of estimates of the total number of chronic illnesses avoided, it is reasonable to expect that the proposed changes to the WPS will reduce pes ticide exposure, and thereby reduce the incidence of chronic disease resulting from pesticide exposure.” b) IV.B.2.: “Although EPA cannot quantify the specific reduction in incidents from any single change to the regulation, taken together, EPA estimates that the final rule will result in an annual reduction of between 540 and 1,620 acute, health

- related incidents.” c) V.H.2.: “ 2. Benefits. While EPA can estimate the costs of the changes to pesticide safety training for workers and handlers, quantifying th e benefits is more difficult. Nonetheless, as explained in*** 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 information by workers and handlers, ultimately resulting in fewer incidents of pesticide exposure and illness in workers and handlers, improved decontamination procedures, reduced take

- home exposure, and better protection of children.”

EPA Response. The preamble discusses the best evidence and data that are available, including a detailed analysis of occupational pesticide incidents for the four most recent year s in the SENSOR

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

-- including the ones USDA cited

-- are accurate, and that the evidence and data adequately support these revis ions to the WPS. EPA is not aware of any additional data sources that address the specific scenarios covered by the regulations and is interested in learning about any evidence

- based scientific data that USDA has seen. EPA’s decisions on training were based partially on the widely accepted idea that training people on worker safety decreases the number of incidents even though there is little research in how the training quantitatively translates
to fewer incidents. As stated in Unit IV.B.2 of the preamble, EPA has seen a significant reduction in the number of estimated incidents since the 1992 rule even though EPA cannot determine the impact of each individual requirement in the rule, as well as other changes in agriculture, on that reduction in incidents.

2. Unit IV.B.2. (“Surveillance data”)
USDA. Consider rewriting to improve clarity. The original statement is “Another example of potentially avoidable exposure is spray drift; labeling prohibits application that contacts other persons and handlers should be instructed to apply pesticides in a manner that does not contact other persons, but
incidents continue to occur.” Consider revising to say: “Another example of potentially avoidable exposure is spray drift. Labeling instructs handlers to apply pesticides in a manner that does not contact other p ersons, but
incidents continue to occur.”

EPA Response. EPA has ma d e this change to the preamble by revising it as follows: “...Another example of potentially avoidable exposure is spray drift

. l Labeling prohibits application that contacts other persons an d instructs handlers must to apply pesticides in a manner that does not contact other persons, but pesticide drift continues to cause exposure incidents. ”

3. Unit V.D. (“Expand the Content of Worker and Handler Pesticide Safety Training”)
USDA. USDA is concerned that the draft final rule does not include any estimate for how much additional time, if any, will be required to teach the expanded content of Worker and Handler Pesticide Safety Training. Without these time estimates, one cannot compare the training times for the expanded content for workers or handlers versus the typical time needed to teach the current pesticide safety training covering specific content. The time required for training is a significant driver of costs to effectively imp lement the draft final rule. This apparent increase in training time needed to provide the expanded content appears to put in question EPA’s marginal costs estimates of Impact on Jobs (page 10) of a typical farmworker to increase only $5/year and the margi nal cost for a more skilled pesticide handler to increase only $50 per year. The “Economic Analysis of the Agricultural Worker Protection Standard Revisions” did not dispel this concern, because the analysis was based on the current training*** 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 require. This would also put into question EPA’s estimate (Costs and Benefits of Revisions to Pesticide Safety Training, page 53) of $62 to $80 per agricultural establi shment per year.

EPA Response. In the Economic Assessment, Unit 3.3.1 Pesticide Safety Training, Step 1 Calculate Baseline Costs, EPA provides an estimate of 30 minutes for a full training session for workers
under the current rule. In the second paragr aph on page 57, and under Table 3.3

- 7 on page 57, EPA provides the estimate of 45 minutes for worker safety training with the expanded content, an increase of 15 minutes of training time.

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

- 3 for the estimate of 45 minutes. Handler safety training covers more material than worker safety training. EPA estimated that the
additional content in the final rule will result in an additional 15 minutes for handler traini ng, and EPA
include s that estimate in the narrative in the economic analysis.
The 15 minute estimate for the increase s in worker and handler training time is based on the length and content o f current training videos.

4. Unit V.H.1. (“Costs and Benefits of Revisions to Pesticide Safety Training: Costs”) The expanded training is good from a safety standpoint and is necessary. However, it does not appear that the economic analysis addresses the impact of the time spent for training on worker/handler income particularly if the training is performed at the field prior to a work day. For many laborers, wages are earn based on their volume of work and not on the hours worked. Are they paid for the time spent training or does the time s pent training significantly impact their earned wages for that day?

EPA Response. EPA does not require employers to pay workers for their time spent in training, although some employers do pay workers for that time. This is addressed in the EA as follows: Training, Step 1 Calculate Baseline Costs: “Action is required by two actors, the WPS farm, which provides or arranges the training, and the workers, who take the training. We consider these actors separatel y, although we assume the WPS farm incurs the training costs and implicitly pays the worker to take the training at the same wage he or she earns doing field work. However, some workers may bear the opportunity cost of taking the training. Workers who ar e hired to harvest fruits and vegetables are often paid by the quantity harvested; thus, time spent in training is time they are not earning pay.”
Because EPA esti mates that under the final rule worker training will last 45 minutes, workers who are

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

5. Unit VII.A.2. (“Hazard Information

– Location and Accessibility: Final rule”)
USDA. Please define the term “valid” in this context and describe how an employer will be able to determine that the request and employee’s signature is authentic. [In regards to the following sentence: “When the employer is presented a valid request, the employer must provide a copy of, or access to, all of the requested information that is applicable within 15 working days from the receipt of the request.”]*** EO 12866 Review Draft

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Page 4 of 37 EPA R esponse. In this context, the term “valid” was used to mean the request contains all of the required information. The agricultural employer is re quired to provide the information only when the designated representative presents a complete request. However, for clarity , EPA will replace “valid”
with more descriptive language. Specifically, the sentence in Unit VII.A.2 has been revised as follows: “When the employer is presented a valid request that contains all of the necessary information specified in the regulations , the employer must provide a copy of, or access to, all of the requested information that is applicable within 15 working days fr om the receipt of the request.” The employer will have access to the employee’s signature in training records. The pesticide use information is not confidential Personally Identifiable Information, and it should be readily provided to

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

6. Unit VII.B.3. ( Paragraph on “Comments on inconsistencies in information between labels and
SDSs” ) It is surprising that EPA is not acknowledging that it is common for SDSs to show PPE requirements that are different from the pesticide labels, since the two documents are intended for
different audiences. EPA states here that since the label is not requi red to be posted, they do not “expect issues with a perception of conflict between labeling and SDSs.” USDA questions whether this is correct. Many Forest Service employees have reported finding differences between the PPE listed in the SDSs compared to th e label. At a minimum, EPA should address this issue in the preamble.

EPA Response. EPA’s intention with requiring agricultural employers to display the S afety D ata
S heet s (SDSs) is to provide farm workers and handlers with information regarding chronic, developmental and reproductive toxicity that is usually found on SDSs and not the label. Much of the technical information on SDSs, such as the chemical and physical properties of the pesticide, is designed for use by multiple professionals such as manuf acturers, transporters, medical personnel and firefighters. EPA maintains our position that we do not anticipate issues with a perception of conflict between labeling and SDSs. First, many SDSs include a reference to the pesticide label in the section o n exposure controls and personal protection. Second, the persons who would wear PPE are handlers who are trained that they must follow labeling instructions , including those regarding PPE

. However, EPA
has amend ed the preamble to clarify that pesticide applicators and handlers must always follow the instructions on the labeling r egardless of any differences between information on the labeling and the
SDS , and will make a point of including in future training materi als warnings against reliance on SDS provisions regarding PPE

. EPA has ad

just ed the response to this comment in Unit VII.B.3 of the preamble as follows : “...The SDS provides succinct information about the known health hazards of the product that typically

i s not presented as part of the product label or labeling. Such information can be invaluable to medical professionals for the diagnosis and treatment of certain pesticide

- related illnesses and injuries. Because EPA is not requiring the employer to display the labeling, EPA does not expect issues with a perception of conflict between labeling and SDSs. The persons who would wear PPE are handlers who receive more thorough training than ordinary workers. If pesticide handlers encounter conflicting information on labeling and SDSs, such as the PPE identified, they should know that they must follow the*** 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 the Globally Harmonized System of Classification and Labeling of Chemicals for SDSs and the pesticide product labeling ...”

7. Unit XVIII.E. (“Equivalency provisions” and “Clarifications”) There are two subsections labeled “E.” The second one, “E. Clarifications” should be relabeled
“F. Clarifications”.

EPA Response

. The correction has been made.

Comments on the Rule

8. §170.305

a. USDA. The definition for “agricultural plant” depends on the definition for “commercial production,” and the definition for “commercial production” depends on the definition for “agricultural plant.” Similar issues exist in the definitions of “agricultural establishment” and “farm,” “forest operation,” and “nursery.” USDA recommends resolving these circular dependencies by defining at least one of the terms in each pair independently.

EPA Respon se

. E PA agrees that these definitions are somewhat circular, and while EPA is not convinced that serious confusion would result, EPA has eliminated some definitions and revised others to address USDA’s concern. The terms “commercial production

, ” “farm

, ” “nurse ry , ” and “forest operation” appear only in the definition section and are not used elsewhere in the regulation

. A ccordingly, EPA will delete these definitions and merge their substantive content into the definitions of “agricultural establishment” an d “agr icultural plant,” as follows:

“ Agricultural establishment ” means any farm, forest operation, or nursery engaged in the outdoor or enclosed space production of agricultural plants. An establishment that is not primarily agricultural is an agricultural est ablishment if it produces agricultural plants for transplant or use (in part or their entirety) in another location instead of purchasing the agricultural plants.

“ Agricultural plant ” means any plant, or part thereof, grown, maintained, or otherwise produced for commercial purposes, including growing, maintaining or otherwise producing plants for sale or trade, for research or experimental purposes, or for use in part or their entirety in another
location. “ Agricultural plant ” includes, but is not limited to, grains, fruits and vegetables; wood fiber or timber products; flowering and foliage plants and trees; seedlings and transplants; and turf grass produced for sod. “ Agricultural pl ant ” does not include pasture or rangeland used for grazing.

b. USDA. The definition of “handler employer” is very broad , because it includes both agricultural employers and commercial pesticide handler employers (CPHEs) , even in a situation where
both ar e simultaneously present on the agricultural establishment. This causes significant concerns and*** 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

comments on Subpart F below). As currently written, a “handler employer” is anyone who employs any handler, as well as self

employed handlers. The definition of “ handler employer ” uses the verb “to employ,” which is also defined in §170.305, as “to obtain, directly or through a labor contractor , the services of a person in exchange for a salary or wages . . . without regard to who may pay or who may receive the salary or

wages ” (emphasis added). This definition in turn uses the term “labor contractor,” whose definition
would include any CPHE hir ed by an agricultural employer to provide handlers

. Reading these
definition s together, it becomes clear t hat agricultural employers can be “handler employers” even when they do not directly employ a single handler, because they are employing handlers thro ugh a labor
contractor/CPHE. In a situation where an agricultural employer hires a CPHE , who in turn hires handlers, both the agricultural employer and the CPHE meet the definition of “handler employer,” since both employ
handlers under the WPS definition of “ employ ” : the CPHE does so “directly,” while the agricultural employer does so “through a labor contractor” (i.e., the CPHE). In other words, a handler that is directly employed by a commercial pesticide employer handler is simultaneously “employed” by both the CPHE and the agricultural employer, leading to confusion over who has ultimate responsibility. A solution to this problem would be to change the definition of “labor contractor” to explicitly
exclude CPHEs: “ Labor contractor means a person, ot her than a commercial pesticide handler employer , who employs workers and handlers to perform tasks . . .” [The reference to handlers in the
definition for “labor contractor” could then be eliminated, s ince any person employing handlers is a CPHE, and no l onger a labor contractor.] For handlers, this change would have the practical effect of limiting the meaning of the word “employ” to just a direct employment relationship. As a result, each handler would only have a single handler employer (i.e. his or her direct employer) . For workers who
are not handlers

, agricultural employers would still “employ” anyone engaged directly or through a
labor contractor.

EPA Response. EPA agrees that the current definitions of labor contractor and commercial pesticide handler employer contain some problematic language that could result in potential confusion and/or conflict regarding agricultural employer and commercial pesticide handle r employer duties under the rule. EPA has made the suggested changes to the final rule with minor modifications to address the fact that some labor contractors do bring handlers on to agricultural establishments. EPA believe s the
revised text below clarif

ies that CPHEs are responsible for the handlers they employ and agricultural employers would no longer be considered employers of CPHE handlers for the purposes of the WPS, without overlooking the fact that some handlers are hired by agricultural employers through labor
contractors and not CPHEs. Commercial pesticide handler employer means any person, other than an agricultural employer,
who employs any handler to perform handler activities on an agricultural establishment. A labor
contractor who does not provide pesticide application services or supervise the performance of handler activities, but merely employs laborers who perform handler activities at the direction of an agricultural or handler employer, is not a commercial pesticide handler employer.*** 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 exchange for a salary or wages, including piece

- rate wages, without regard to who may pay or who may receive the salary or wages. It includes obtaining the services of a self

- employed person, an independent contractor, or a person compensated by a third party, except that it does not include an agricultural employer obtaining the services of a handler through a commercial pesticide handler employer or a commercial pe sticide handling establishment.
Labor contractor means a person, other than a commercial pesticide handler employer, who employs workers or handlers to perform tasks on an agricultural establishment for an agricultural employer.

c. USDA. USDA is further concerned that EPA’s definitions of “employ” and “agricultural employer” are not consistent with common legal definitions of these terms. Common law, tax law, and certain court decisions interpreting related statutes such as the Fair Labor Standards Act and the Seasonal Agricultural Worker protection Act, Aimable v. Long and Scott Farms , 20 F.3d 434 (1994), make a clear distinction between an employer/employee relationship and other, less direct working arrangements, such as independent cont ractors. USDA encourages EPA to assign WPS responsibilities in accordance with these more traditional and accepted definitions of “employer” and “to employ”.

EPA R esponse. EPA disagrees. EPA acknowledges that its use of the term “ employ ” in the WPS
is mor e aligned with popular usage than with the common law and tax law uses of the term, but notes
that the definition of “ agricultural employer ” in the existing WPS has been used since 1992 without significant conflict or confusion with similar terms. USDA’s objection pertains to the existing WPS
definition of “ agricultural employer ” to the same degree as it does to the draft final rule’s definitions of

“ employ ” and “ agricultural employer

, ” and EPA declines to change this fundamental and longstanding
WPS principle.

d. USDA. EPA included in the definition of “outdoor production” the phrase “. . . or in the case of forest operations, a natural forest”. Ignoring the question of what an “unnatural” forest would be, USDA is unsure why this phrase is needed at all. As this is written one could say that any planted forest is then not subject to WPS. There are other occurrences in the preamble (pages 202, 204, and perhaps others).

EPA R esponse. EPA agrees that the inclusion of the term “natural forest” in the de finition of “outdoor production” creates confusion and is not needed. EPA has made the following change to the definition of “outdoor production” to address USDA’s comments: Outdoor production means production of an agricultural plant in an outside area that is not enclosed or covered in any way that would obstruct the natural air flow.

e. USDA. In addition, most golf courses have nursery greens located next to , or near, the golf
course. Posti ng agricultural exclusion zones, etc. could disrupt golfing activities. USDA requests clarification of how nursery greens are considered. If they are covered by this rule, did EPA consider the costs to golf courses which may have nurseries?*** EO 12866 Review Draft

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Page 8 of 37 EPA R esponse

. Golf courses that have operations considered nurseries on their establishment (e.g., they are growing turf/greens in a nursery area for use in rep lacing turf on the playing area s of the golf course, or they are growing ornamentals in a greenhouse for pla nting on the golf course) have always been covered by the WPS

, and compared to the existing WPS, the coverage of golf courses that
have nurseries on their establishment i s not changed by the amendments in this final rule. EPA has
included an excerpt from the 1995 WPS guidance which clarifies this coverage below. Since there are no posting requirements associated with application exclusion zones, EPA does not see this as an issue. Additionally, EPA understands that most golf course pesticide applications a re conducted when the public is not using the course, and this should be similar with applications to a nursery operation on the golf course . EPA expects this practice should minimize any potential impact to golf course operations due to WPS requirements. EPA considered the cost to golf courses that operate nurseries; the costs would be accounted for under the costs of the WPS revisions on nursery operations.

14

- 24 Production of agricultural plants for other than direct sale

I G W Question: What is the scop e of the WPS with respect to establishments producing agricultural plants for other than direct sale, i.e., in

- house use?
IGW Answer: There is no exception for agricultural plants produced for other than direct sale, i.e., in

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

- labeled agricultural pesticide is used on the establishment, (2) workers or handlers are employed by or on the agricultural establishment, (3) the establishment is a farm, forest, nursery, or greenhouse, as
defined i n the WPS, and (4) the establishment or the activity is not covered by one of the exceptions specifically described in the rule, Section 170.102 (b). For instance, the following operations are covered by the WPS: Production of hay or feed grown for livest ock on dairy farms, cattle ranches, or other livestock operations; sod farms, greenhouses, or nurseries operated by golf courses; and greenhouses and nurseries operated by theme parks, hotel chains, botanical gardens, and state and local governments. (Note : Pasture and rangeland used for grazing are excluded.) (March 15, 1995)

f. USDA. Including "arranging for the application of the pesticide” in the definition of “use, as in ‘to use a pesticide’” is superfluous and gives the impression of expanding the WPS

– and the related
state enforcement actions

– far beyond the actual agricultural establishment to reach off

- site administrators involved only in pre

- application tasks. USDA recommends removing the reference to “arranging for the application of the pesticide.”

EPA R esponse. EPA also received several similar comments from states, growe rs, agricultural associations and pesticide manufacturer associations objecting to the proposed definition of “use.” Most commenters objected to the definition of use because they did not support inclusion of “arranging for application of the pesticide” as part of the definition of “use,” and they said they believed that this language would greatly expand the scope of the WPS and would be unreasonable and unnecessary. EPA disagrees with comments that say the proposed definition for the term “use” could or w ill expand the scope of the WPS because this language has been in § 170.9(a) of the WPS since the rule first became*** 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
“use” has resulted in an unreasonable or i nappropriate outcome. EPA believes that “arranging for application of the pesticide” is appropriately part of the definition of “use” for the purposes of the WPS because in production agriculture, the individual who physically “uses” a pesticide almost alw ays does so at the direction of another person who has substantially greater control over the circumstances of the use. Thus the WPS is designed so that when an agricultural or handler employer arranges for the application of a pesticide by a handler emplo yee, it triggers certain WPS duties that are properly the responsibility of the agricultural or handler employer. For instance, once the agricultural employer arranges for a pesticide application by a commercial pesticide handling establishment, the commer cial pesticide handler employer must provide the agricultural employer with certain information about the intended application before the application takes place (so the employer will be able to fulfill WPS notification requirements and protect workers dur ing application, etc.). In such circumstances, it is reasonable and appropriate that the handler employer should be held responsible for the pre

- application information exchange even though the application has not commenced and even though the handler empl oyer personally never physically applies the pesticide. Therefore, since EPA has not been made aware of any instances where the existing interpretation of the term “ use ” has resulted in unreasonable
difficulties for growers, states or the agricultural industry, EPA has moved the definition for the term “use” into the definitions section of the rule without any changes from the proposal.

8.1 "Administration of Conservation Programs" was not included in the propos ed rule. This NAICS code includes the administration of recreational areas and weather forecasting administration, geologic survey program administration, preservation of natural resources, recreational areas, erosion control, etc. USDA would like an exp ansion on the rationale for their inclusion into the worker protection standard. Furthermore, the entirety of this NAICS code's government population, appears not to be addressed in the Economic Analysis and, therefore

, the impact on this sector may not h ave been
included.

EPA R esponse. EPA did not receive comments from the entities listed under this NAICS code,
and does not believe that t he WPS applies to them. EPA has remove d the reference from the preamble, per USDA’s request.

9. §170.309(c) and §170.313(c) minimum age
USDA. As in previous reviews, USDA opposes changing the minimum age for handlers and early

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

. S

. agricultural workers operate under a variety of federal requiremen ts, including those of the Environmental Protection Agency and the U.S. Department of Labor. States also have minimum age requirements for users of pesticides. The U.S. Department of Labor has already set federal minimum age limits for people who are 18 ye ars old or younger when working with pesticides. The current regulatory system allows for States to increase age requirements and most states have already exercised this right based on their unique
circumstances. USDA believes the current federal

- state sy stem is working in this regard. The need for added regulation is not apparent and should be weighed against state discretion and current state and
federal laws.*** EO 12866 Review Draft

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Page 10 of 37 Please see the following as posted by the Department of Labor at http://www.dol.gov/elaws/esa/flsa/docs/hazag.asp . (Italics added for emphasis.)
Prohibited Occupations for Agricultural Employees
The child labor rules that apply to agricultural employment depend on the age of the young worker and the kind of job to be performed. The rules are the same for all youth, migrant
children as well as local resident children. In addition to restrictions on hours, the Secretary of
Labor has found that certain jobs in agriculture are too hazardous for anyone under 16 to perform.

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

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

hazardous jobs.

 A youth 12 or 13 years of age can only work in agriculture on a farm if a parent has given written permission or if a parent is working on the same farm as his or her child, and only in non

- hazardous jobs.

 I f the youth is younger than 12 , he or she can only work in agriculture on a farm if the farm is not required to pay the Federal minimum wage. Under the FLSA, "small" farms are exempt from the minimum wage requirements. "Small" farm means any farm that did
not use more than 500 "man

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

- month period) during the preceding calendar year. "Man

- day" means any day during which an employee works at least one hour. If the farm is "small," workers under 12 years of age can only be employed with a parent's permission and only in non

- hazardous jobs.

Hazardous Occupations

 The Secretary of Labor has found that the following agricultural occupations are hazardous for youths under 16 years of age. No youth under 16 years of age may be employed at any time in any of these hazardous occupations in agriculture (HO/A) unless specifically exempt. Exemptions (*) will apply to HO/A #1 through #6 under limited circumstances. (None of the exemptions apply to pesticides.)

 HO/A #9 Handling or applying agricultural chemicals if the chemicals are classified under the Federal Insecticide, Fungicide and Rodenticide Act as Toxicity Category I

-- identified by the word "Danger" and/or "Poison" with skull and crossbones; or Toxicity Catego ry II

-- identified by the word "Warning" on the label. (Handling includes cleaning or decontaminating equipment, disposing of or returning empty containers, or serving as a flagman for aircraft applying agricultural chemicals.)
USDA requests that EPA wor k with DOL to unify their regulations so that those working in agriculture have clear guidance as to federal minimum age requirements for agricultural workers . The States have regulations in place that are consistent with DOL

– or more restrictive

– based on the needs of individual
States.*** 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 implement a minimum age of 18 for handlers and early

- entry workers. EPA welcomes input from DOL to ensure no avoidable conflict between the WPS and FLSA. However, the statutory criteria for regulating under FIFRA and the child labor provisions of FLSA are
different. While EPA will d efer to DOL regarding the scope of its authority under FLSA, it does not appear that DOL has DOL does not have the discretion to use the FLSA section 12 child labor provisions to protect children 16 or older working in agriculture. FIFRA does not contain such a limitation, and EPA believes that pesticide han dling in agriculture and entry to a treated area when a restricted

- entry interval (REI) is in effect (“early

- entry workers”) by persons under the age of 18 is inconsistent with the

FIFRA sta t utory standard. Moreover, where DOL exercises its FLSA child labo r authorities in regard to children employed in agriculture, its focus is on protecting the child worker (see 29 USC 213(c)(4)). EPA’s mandate under FIFRA is significantly broader, requiring EPA to prevent unreasonable adverse effects of pesticides to

wor kers, other persons, and the environment , and these are put at risk when agricultural pesticides are applied by persons with immature judgment and risk

- taking behaviors . Inasmuch as FLSA and FIFRA have different purposes and different scopes, it is not surprising that they should produce different regulatory outcomes. DOL’s standard and the WPS differ in the types of pesticides covered. DOL’s restrictions on pesticide use in agricultural employment applies only to pesticides with high acute toxicity (tox icity categories I and II). The WPS applies to all agricultural use pesticides, some of which may pose a variety of other risks. Pesticides that are extremely toxic to other species, or that are powerful carcinogens or mutagens, may nevertheless have low acute human toxicity, and therefore be classified in toxicity categories III and IV

. Such pesticides can pose significant risks to the handler, bystanders, and the environment if not used properly. To the extent that DOL’s standard does protect children from agricultural pesticides, it only protects children as pesticide applicators. DOL’s standard does not cover early

- entry workers at all, though they face increased risks from entering an area treated with pesticides before the residue levels
have falle n to a level unlikely to cause unreasonable adverse effects. In sum, EPA disagrees with USDA’s request that EPA should defer to the states or the FLSA and not establish any age

- related restrictions on pesticide handling or early

- entry activities. EPA has the responsibility under FIFRA to regulate the use of pesticides to avoid unreasonable adverse effects, apart from any requirements established by other federal or state laws.

10. §170.311( b )( 6 )

a. USDA: The new requirement to maintain application information and SDSs for 2 years is onerous and without foreseeable benefit. Acute toxic effects would be the most likely triggering need to get this information to a worker. EPA should have considered a longer application information posting time (45 days , 60 days) rather than a 2

- year record retention.

EPA Response. EPA believes that workers in agriculture and pesticide regulatory agencies
should have access to application and exposure information , and believes that two years is a reasonable compromise between access and the burdens of record retention

. Acute pesticide illnesses are the m ost*** 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 workers and handlers may present such illnesses and should have access to the exposure or hazard
information. Under OSHA, records of exposure to hazardous chemicals are required to be retained for 30 years, and access to those must be provided to workers, even if they are no longer employed by the employer. Once the record is created and filed, there is little cost to maintaining it. In addition,

em ployers may choose to keep the information at the central posting display for the required retention period of two years from the date of application, providing that the information remain s legible and all other requirements are met

.

b. USDA: USDA expresses concern over the increased burden placed on agricultural employers due to a significant expansion and complexity of record

- keeping requirements. As written, agricultural employers will bear the sole responsibility in providing records and r esponses to workers, their designated representatives, plus states and federal enforcement. Agricultural employers already must keep records under OSHA, including The Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Field Sanitation Standard s under the Occupational Safety and Health Act, and Agricultural Employers under the Fair Labor Standards Act (FLSA)

. USDA is further concerned over agricultural employers’ liability resulting from small procedural mistakes stemming from t he added recordin g

keeping requiremen ts under FIFRA

.

EPA R esponse. EPA responded to comments from agricultural interests opposing the proposed recordkeeping on the basis of burden by examining the purpose and need for the records. As a result,
EPA eliminated from the final rule the requirement for documenting oral notification to workers for early

- entry

. The review found that collection of the application information and the SDS are necessary for hazard communications. The remaining records were found to be ne cessary for employers to demonstrate compliance with aspects of the regulation. USDA expresses concern for employers’ liability from small procedural mistakes. Small procedural mistakes are typically addressed with a warning notice, rather than monetary p enalties. After implementation, there will be a period of compliance assistance. During this period, EPA and state regulatory agencies will work with agricultural interests to ensure understanding of the rule requiremen ts and how to comply with them, ther eby minimizing “small procedural mistakes.”

c. USDA. Under OSHA, there are already considerations for “designated representatives” for farm accidents, farm chemical hazards, wages, etc. which can be confusing if there is a separate “designated representative” under FIFRA for pesticide hazard communication re cords. OSHA provides a process for expiration, revocation of “designated representatives,” and whether the designated representative can be a union representative, worker group representative, etc. for records and in what circumstances the designated repre sentative can accompany an inspection. The WPS language does not specify how many authorized representatives a worker may have. The time to process multiple authorizations, confirm signatures and make changes will incur added costs to agricultural employer s and should be included in the Economic Analysis.*** 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 function of the designated representative. The representative must provide, in writing, the designation
from the wor ker or handle r. The information that the employer must provide is limited to the application records and the SDS that were displayed while the worker or handler was on the establishment. EPA’s designated representative requirement is modeled on OSHA’s rule at 29 CFR 1910.1020. EPA is aware that California and Texas regulations include employee representatives’ access to information for farmworkers. Comments from the Texas Department of Agriculture encouraged EPA to require the designation in writing and to limit access to records to the timeframe of 2 years. Under the final rule, while a worker may have multiple authorized representatives, EPA expects a single individual could be the designated representative under both sets of regulations, thereby
mini mizing confusion and burden for the employer. The final rule does not provide access to inspections for the designated representative

. The Economic Analysis has been updated to provide an estimate of the costs of processing
requests on a per

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

. Please refer
to comment #30 for details.

d. USDA. USDA believes the total costs for record

- keeping should include the following: set

- up costs to establish a recordkeeping system (if one has not already been established; costs to develop internal record forms; printing costs for paper records); computer software/system costs (for electronic records); storage costs; disposal costs of records with sensitive information; maintenance costs for records beyond the two

- year minimum for longer

- term employees. Did EPA consider all these in its cost
estimates for record

- keeping

, especially for small businesses and government agencies?

EPA R esponse. As USDA noted previously in this comment (10. b.) , agricultural employers must comply with recordkeeping under requirements from other federal agen cies. Therefore, EPA believes that establishments will have recordkeeping systems in place as a result of complying with the
cited requirements. EPA estimates the following costs: paper, time to collect information and signatures, and storage. The records required by EPA do not include information that would ordinarily be considered private or sensitive (note that the draft final ru le does not require employers to record workers’ birthdates), therefore, there is no need to dispose of those in any particular manner. Finally, as there is not a requirement to retain records beyond the two year timeframe regardless of a worker or
handle r’s continued employment, such cost is not necessary to assess.

11. §170.311(b)(7)

- (9)

a. USDA. Compared to the proposed rule’s “authorized representative,” EPA has now coined
and defined the term “designated representative” and added additional language. Regardless of terms, EPA’s definition of “designated representative” still raises serious concerns for USDA. We also remind EPA of the concerns expressed by key stakeholders that are detailed below in response to reading the proposed rule. USDA i s concerned that EPA has not seriously considered their concerns. We also note that there was only one public comment in support of this concept during the proposed rule period which was far outnumbered by those written in opposition.*** EO 12866 Review Draft

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Page 14 of 37 Minor Crop Farmer Alliance (MCFA) “The current proposed definition of “authorized representative” is overly broad and would be very difficult to manage to ensure information that is worker specific is protected. The information necessary to provide support for workers who seek treatment for potential health related impacts is already provided in the current WPS regulations. The proposed definition is open

- ended and subject to serious abuse. The representative of a worker seeking information under the provision of the WPS sh ould be limited to family members or medical personnel with a legitimate need for information.”

National Association of State Departments of Agriculture (NASDA) “Authorized representative: We request EPA remove “Authorized representative” from the proposed rule. We recognize at least one state has this provision included in its state regulations, and we understand the inclusion has led to a range of complications and on

- going litigation that does nothing to forward the purpose of the WPS or facilita te a sound regulatory framework. If mandated in the Code of Federal Regulations, the new provision will lead to numerous complications for both the state regulatory agency and the regulated community in trying to comply with the proposed WPS rule, even if the designation is required in writing, while protecting against liability in responding to fraudulent claims or interests seeking to utilize this provision for non

- WPS purposes. We oppose this proposal.”

Association of American Pesticide Control Official s (AAPCO) “Authorized employee representative

- A person designated by the worker or handler, orally or in writing, to request and obtain any information that the employer is required to provide upon request to
the worker or handler.

AAPCO does not suppor t the definition as proposed. An authorized representative should be designated in writing for a specific worker or handler and for a specific event or time period within the last 2 years from the date of request (due to record retention requirements). The information required to be provided to the authorized representative, and the purpose of the request or intended use of the information, should be clearly specified as noted in the above comments.”

EPA response. In response to the many comments concerning the identification of the designated (authorized) representative, EPA has clarified the requirements for the designation: it must be in writing, include the name and signature of the requesting employee, describ e the specific information being requested, the date of the designation, and directions for sending the information if so desired. These requirements largely meet the AAPCO recommendati on. In addition, the employer has 15 days to provide the information. E PA believes requiring the identification of the designated representative in writing address es the concerns raised for the legitimacy of the designated representative and clarity of the request, while continuing to allow access to important pesticide expos ure information for workers and handlers that they may be reluctant to request of their employer.
One public comment states that the emergency provisions of the current rule provide adequate support for workers. However, under the rule, only employees s eeking emergency assistance while on*** 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 they are concerned for their exposure but do not show symptoms. USDA states that only a single public comment suppo rts the authorized representative concept;
ho wever, EPA has found several comment s in support of the authorized representative , stating that the requirement would enable a worker or handler access to important information for medical purposes

.

b. USDA has the following additional comments on this section: These requirements for providing application data to the worker or handler, treating medical personnel, or a designated representative do not spell out the timeframe for which records can be produced b ased on §170.311(b)(6) (two year application information retention requirement). Each of subsections should include the phrase “within the last two years” to clarify that after two years there is no expectation that such records would have been retained.

E PA should be clear on the differences between a “designated representative” and a person acting under the direction of medical personnel. Who are those “persons”? While the two could be the same person, it is possible that in an emergency situation, the re quirements for requesting the information as outlined may not be expedient.

EPA R esponse. EPA has clarified in those sections that the information is accessible for only that period of time after it is collec ted and retained.
USDA has also ex pressed conc ern that it is not clear who may access the information as a person acting under the direction of treating medical personnel

. In consultation with USDA, EPA has revised the language to clarify that treating medical personnel and persons working under thei r supervision are to be given access to the information.

c. USDA. Allowing oral requests to the employer by workers and handlers for pesticide application information and safety data sheets is not consistent with the EPA’s new posting requirements
that prohibit oral notification to workers of pesticide applications due to difficulty in recalling oral information, difficulty communicating orally if language barriers exist and the lack of verification of an
oral notification. For these same reasons, oral n otification to employers should be replaced with written
notification. USDA encourages EPA to meet with stakeholders representing employers and farm workers to best balance the oral versus written requests and the mechanism for collecting the written

stat ement to designate the representative.

EPA R esponse. USDA finds inconsistency between (1) the option for workers and handlers to orally request hazard information from their employer and (2) the requirement for the employer to post areas treated with a pesticide with an REI of greater than 48 hours. EPA does not agree that these requirements need to be consistent with each other. While it would be more convenient for employers to get a written request for the hazard communication information

, in the interest of promoting access to workers and handlers who may not be literate and could not provide a written request, allowing oral requests facilitates the flow of information and outweighs the convenience for the employer

. Posting a
treated area under an REI as a visual warning is intended to provide an ongoing reminder to workers not*** 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
which field is treated. Regarding USDA’s comment about the mechanism for collecting the written request to designate the representative

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

- mail, or any other way seen as appropriate. Oral identification of the designated representative is not sufficient

.

12. § 170.313
USDA. This section creates responsibilities for commercial pesticide handler employers (CPHEs) toward “each handler” or “any handler,” without limiting the CPHE’s responsibility to only the handlers employed by the given CPHE. This may lead to difficulties and unintended consequences when multiple CPHEs are operating on the same agri cultural establishment, or when an agricultural employer chooses to employ some handlers directly while contracting for additional handlers through a CPHE. Regardin g subsection (b), how is a CPHE supposed to ensure that handlers employed by a different CPHE or handlers employed directly by the agricultural employer receive the protections required by the WPS? Regarding subsection (c), how is a CPHE supposed to ensur e that handlers employed by a different CPHE or handlers employed directly by the agricultural employer are at least 18 years old? The same line of questioning also applies to subsections (d), (e), (f), (g), (h), and (k). A CPHE will not likely be able to follow these requirements with regards to handlers that are not employed by
him or her and thus are not within his or her supervisory control. USDA recommends clarifying that for purposes of §170.313, the term “handler” is limited to handlers employed by the CPHE (i.e. the CPHE’s “own” handlers). In addition, if EPA makes the changes to the definition of “labor contractor” in §170.305 suggested above, EPA should remove references to labor contractors in this section. This is because any contractor who empl oys handlers will no longer be both a “labor contractor” and a CPHE, but only a
CPHE instead.

EPA Response. EPA does not believe that a CPHE has responsibilities for handlers other than its own handler employees because the required employer

- employee rela tionship that triggers WPS responsibilities does not exist for handlers that are not employed by the CPHE. However, in the interest of providing greater clarity in the, EPA has clarified in the rule in 170.313 that the commercial pesticide handler employe r duties are only applicable for handlers they directly employ. The revised reg text is
included below:

§170.313 Commercial pesticide handler employer duties.

“ Commercial pesticide handler employers must: (a) Ensure that any pesticide is used in a manner consistent with the pesticide product labeling, including the requirements of this part, when applied on an agricultural establishment by a handler employed by the commercial pesticide handling establishmen t.

(b) Ensure each handler employed by the commercial pesticide handling establishment and subject to this part receives the protections required by this part.*** EO 12866 Review Draft

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Page 17 of 37 (c) Ensure that any handler employed by the commercial pesticide handling
establishment is a t least 18 years old.

(d) Provide to each person, including labor contractors, who supervises any handlers employed by the commercial pesticide handling establishment, information and directions sufficient to ensure that each handler receives the protecti ons required by this part. Such information and directions must specify the tasks for which the supervisor is responsible in order to comply with the provisions of this part. (e) Require each person, including labor contractors, who supervises any handler s employed by the commercial pesticide handling establishment, to provide sufficient information and directions to each handler to ensure that the handler can comply with the provisions of this part.

(f) Ensure that before any handler employed by the comm ercial pesticide handling establishment uses any equipment for mixing, loading, transferring, or applying pesticides, the handler is instructed in the safe operation of such equipment.

(g) Ensure that, before each day of use, equipment used by their empl oyees for mixing, loading, transferring, or applying pesticides is inspected for leaks, obstructions, and worn or damaged parts, and any damaged equipment is repaired or is replaced.

(h) Ensure that whenever a handler who is employed by the commercial pe sticide handling establishment will be on an agricultural establishment, the handler is provided information about, or is aware of, the specific location and description of any treated areas where a restricted

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

(i) Provide the agricultural employer all of the following information before the application of any pesticide on an agricultural establishment:

(1) Specific location(s) and description of the area(s) to be treated. (2) The date(s) and start and estimated end times of application. (3) Product name, EPA registration number, and active ingredient(s). (4) The labeling

- specified restricted

- entry interval applicable for the application. (5) Whether posting, oral notification o r both are required under §170.409. (6) Any restrictions or use directions on the pesticide product labeling that must be followed for protection of workers, handlers, or other persons during or after application.

(j) If there are any changes to the info rmation provided in §170.313(i)(1), §170.313(i)(4), §170.313(i)(5), §170.313(i)(6) or if the start time for the application will be earlier than originally forecasted or scheduled, ensure that the agricultural employer is provided updated information prior to the application. If there are any changes to any other information provided pursuant to §170.313(i), the commercial pesticide handler employer must provide updated information to the agricultural employer within two hours after completing the applicati on. Changes to the estimated application end time of less than one hour need not be reported to the agricultural employer.

(k) Provide emergency assistance in accordance with this paragraph. If there is reason to believe that a handler has experienced a p otential pesticide exposure during his or her employment by the commercial pesticide handling establishment or shows symptoms similar to those associated with acute exposure to pesticides during or within 72 hours after his or her employment by the commerc ial pesticide handling establishment, and needs emergency medical treatment, the commercial pesticide*** 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 injury: (1) Make available to that person transportati on from the commercial pesticide handling establishment, or any agricultural establishment on which that handler may be working on behalf of the commercial pesticide handling establishment, to an operating medical care facility capable of providing

emergen cy medical treatment to a person exposed to pesticides

.

(2) Provide all of the following information to the treating medical personnel: (i) Copies of the applicable safety data sheet(s) and the product name(s), EPA registration number(s) and active ingre dient(s) for each pesticide product to which the person may have been exposed. (ii) The circumstances of application or use of the pesticide.

(iii) The circumstances that could have resulted in exposure to the pesticide. (l) Ensure that persons direct ly employed by the commercial pesticide handling
establishment do not clean, repair, or adjust pesticide application equipment, unless trained as a handler
under § 170.501. Before allowing any person not directly employed by the commercial pesticide
handlin g establishment to clean, repair, or adjust equipment that has been used to mix, load, transfer, or apply pesticides, the commercial pesticide handler employer must provide all of the following information to such persons:

(1) Notice that the pesticide ap plication equipment may be contaminated with pesticides. (2) The potentially harmful effects of exposure to pesticides. (3) Procedures for handling pesticide application equipment and for limiting exposure to pesticide residues.

(4) Personal hygiene practices and decontamination procedures for preventing pesticide exposures and removing pesticide residues.

(m) Provide any records or other information required by this part for inspection and copying upon request by an employee of EPA or any duly autho rized representative of a Federal, State or Tribal government agency responsible for pesticide enforcement. ”

Please note that EPA has not removed the references to labor contractors in this section. This is
because the rule must still address the possibil ity that a CPHE could hire handler labor through a labor
contractor and the CPHE must be responsible for providing handler protections to individuals hired through a contractor. The final rule has been revised so that a CPHE is no longer considered a labor contractor under the WPS, and therefore the CPHE handlers will not be considered employees of the agricultural establishment when hired through the CPHE, but it recognizes that a CPHE may use labor

contractors.

13. §170.315 Whistleblower
General co mment: Because agricultural employers must already comply with OSHA regulations on health and safety, USDA seeks a broad inter

- agency discussion on whistleblower rights of
workers. OSHA already investigates whistleblower complaints under seven environmenta l statutes, and established procedures are already in place for OSHA investigations. Is there a way to take advantage of existing OSHA investigative standards, regulatory processes and whistleblower investigative procedures*** 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,
etc.? This would also take advantage of existing state whistleblower laws and regulations. Both growers and workers would benefit as there will be one federal body to place whistleblowe r complaints and an existing regulatory process and infrastructure. One can therefore expect farm workers, agricultural employers and labor contractors to experience reduced regulatory confusion.

EPA R esponse. EPA is interested in meet ing with OSHA re garding their whistleblower procedures and standards

. The final WPS has adopted language consistent with OSHA ’s approach to providing whistleblower protections , and it makes sense to have similar process es for investigations

. However, as it is not clear that OSHA can adequately enforce the WPS whistleblower provisions, EPA is not prepared to cede that responsibilit y to OSHA. Although OSHA jurisdiction covers most area s of

ag riculture

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

, i.e., the majority of the farms subject to the WPS

.

14. §170.401(a) and §170.501(a) Annual Training
USDA. After reviewing the public comments and conferring with state Departments of Agriculture, USDA finds that annual training for workers and handlers will place an excessive burden on states and growers, without any evidence of increased protections for workers. USDA recommends that training should be required at most every two years. Moreover, USDA urges that EPA confer with th eir state regulatory partners regarding the feasibility of annual training with respect to the ability of state and extension service personnel at local universities to enforce or provide training on an annual basis. USDA has noted letters of concern dated August 15, 2014, in the docket from the Association of American Pest Control Officials (AAPCO) and the National Association of State Departments of Agriculture (NASDA). Federalism and resource issues were raised by NASDA. Also, per the Louisiana AgCenter August 18, 2014, Docket Letter to EPA, "In Louisiana, we already retrain workers and handlers every three years. This is a dramatic change requiring annual training rather than every five years. This would increase the cost of the program and limit opport unities to attend training sessions. What is the funding source to support this increase in the frequency of training events?" Finally, t he Forest Service’s experience with mandatory annual training is that such training
becomes robotic and less useful ov er time. USDA is concerned that an annual training requirement will add costs without any appreciable benefit or increase in safety. Annual training for handlers is required in California, but probably not too many other places.

EPA R esponse

. EPA i s sensitive to the concerns of agricultural employers regarding the potential burden of annual training. Many comments linked the concern for burden with EPA’s proposal
to eliminate one segment of trainers, certified applicator s , from qualifying as trainers of workers. Based
on the comments in support of allowing certified applicators to train worker s , EPA reassessed the ability of certified applicators to provide worker training and has re taine d certified applicators as trainers in the
final rule. EPA bel ieves that, with the addit ion of certified applicators as trainers, there are adequate resources to provide worker safety training. Please refer to the USDA comment 18 from this document:*** 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 handlers compared to the proposed rule, and is especially in favor of allowing certified applicators to train workers (170.401) and handlers (170.501). This is particularly important to provide adequate numbers of trainers without se verely straining cooperative extension trainer resources required to meet the annual training requirement in the draft final rule. USDA also supports that EPA retained the ability to use as trainers those who are so identified at the state level as qualifi ed trainers. That allows the Forest Service in California to utilize registered professional foresters as trainers; something that was fought for in the past in state regulations.”

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

. Despite
th e absence of studies on this subject

, it is reasonable to attribute to the 1992 WPS the significant
reduction in agricultural pesticide exposure incidents dating from the implementation of rule . Although

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

, we think the rule h as contributed significantly to this reduction , and EPA expects the number of incidents to be further reduced upon implementation of the amendments contained in this rule.

15. §170.401(c)(1) [comment cross

- referenced from EA]
USDA. Due to the added training topics and other requirements, USDA does not believe that the estimated 45 minutes of training include ample time to thoroughly cover added topics and take questions. To allow for at least 5 minutes per training topic (11 for work ers and 13 for handlers) and at least 15 minutes for questions the estimated training time should be adjusted to 1.5 hours. This is still a conservative estimate and does not take into account the added time required when a translator is used.

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

- explanatory and do not require substantial elaboration. Current EPA training videos take about 30 minutes per session, including questions. While q uestions and answers from workers can be unpre dictable in quantity and length, based on past experience EPA estimates that the training with added content will not take longer (on average) than 45 minutes. EPA recognizes there are many differe nt languages in the workforce. The EA considers only
new b urdens that would result from the amendments to the existing WPS. Sections 170.130(c) and 170.230(c) of the existing WPS include the same requirement that training be conducted “in a manner workers can understand.”

16. §170.401(c)(3)
USDA. EPA states that after the effective date, “training programs required under this section must include, at a minimum, all of the topics listed in §170.401(c)(i)

- (xvi) . . .” This is followed by a list of 23 points numbered from (i) to (xxiii). If only the first 16, up to (xvi), should be included in future training, there is no reason to include the remaining 7 points in the rule. Alternatively, if all 23 points should be included in future training, then the language should be corrected to include “all of the topics

l isted in §170.401(c)(i)

- (xxiii) . . .” Most of the points listed in §170.401(c)(3), including (ii)

- (xv) and (xix)

- (xxii), sound like topics for training, as they should. However, there are a few points, notably (i), (xvi)

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Page 21 of 37 sound like restated or new requirements placed on agricultural employers. Unlike the other points, these five points include “agricultural employer” as the subject together with commanding verbs such as “are required,” “must not,” “must,” and “are prohibited.” T his could easily lead to confusion if these points are misinterpreted as binding requirements, rather than training topics. In addition to being generally misleading, two of these five points include statements that are
incorrect. First, (i) states that a gricultural employers are required to “ provide pesticide safety training,” (emphasis added) when in fact agricultural employers are merely required to “ ensure that each worker has been trained” (§170.401(a), emphasis added), meaning that workers can be tra ined by a third party. Second, (xvi) states that agricultural employers are required to “provide workers information about the location of safety data sheets,” when in fact agricultural employers must display the safety data sheets “at a place on the agric ultural establishment where workers and handlers are likely to pass by or congregate” and must allow workers “access to the location of the information” (§170.311(b)), but there is no express requirement to provide workers information about this location. USDA recommends that at a minimum, the language in (i) and (xvi) be corrected to properly reflect the requirements placed on agricultural employers in the WPS. EPA should also consider rewording all of the five points in question

– (i), (xvi)

- (xviii), and (xxiii)

– to make it clear that these are merely topics for training, and not new requirements.

EPA R esponse

. EPA appreciates the correction, and has include d all the points in the citation at 170.401(c)(3). EPA will revise the language at §170.401(c)( 3)(i), (xvi)

- (xviii), and (xxiii) to clarify their intent as training points. Regarding §170.401(c)(3)(i), USDA’s comment is correct; the employer is required only to
ensure that the worke r or handler has been trained. Therefore, EPA has adjust ed the lang uage to reflect
that distinction . However, the comment stating that there is not a requirement for employers to inform workers and handlers of the location of the safety data sheets that reflects the training point at 170.401(c)(3)(xvi) is incorrect; plea se refer to 170.403(a) and 170.503(b)(1) that instruct the employer to inform their employees of the location(s) of the safety data sheets

.

17. §170.401(c)(3)(i)
USDA. Add the phrase “in writing” after “designate” to make it clear to workers that such designation must be in writing.

EPA R esponse. This change has been made. The rule text at §170.401(c)(3)(i) has been revised
as follows: (i) Agricultural employers are required to provide workers with information and protections designed to reduce work

- re lated pes ticide exposures and illnesses... A worker may designate in writing a representative to request access to pesticide application and hazard information.

18. §170.401(c)(4) and §170.501(c)(4) certified applicators
USDA. USDA is very supportive of expanding the class of persons qualified to train workers and handlers compared to the proposed rule, and is especially in favor of allowing certified applicators to train workers (170.401) and handlers (170.501)

. This is particularly important to provide adequate*** 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 the annual training requirement in the draft final rule. USDA also supports that EPA retained the ability
to use as trainers those who are so i dentified at the state level as qualified trainers. That allows the Forest Service in California to utilize registered professional foresters as trainers; something that was fought for in the past in state regulations.

EPA R esponse. None required.

19. §170.401(d) National Data Base for trained workers and handlers
USDA. USDA reminds EPA of the comments submitted by key stakeholder groups that have responsibilities for recordkeeping:

a. Association of American Pest [sic] Control Officials (AAPCO)
AAPCO supports recordkeeping of employee training. We recommend that the date of birth be removed as a requirement from the record, as this will complicate use of the record, since the birth date can be considered confidential information. The employer must ver ify age by other means (license, immigration documentation, etc.) for personnel purposes that are maintained separately. We recommend that the Agency provide a template for recordkeeping that can be provided as a convenience for employers, but not make use of the template a requirement. The records should be kept by the agricultural employer.

EPA R esponse. EPA was convinced by concerns raised by states regarding the confidentiality issues with personally identifiable information, and has removed the requirement for a record of the birthdate in the training record. EPA plans to develop an optional form that employers may use to collect training records.

USDA.
b. Association of American Pest [sic] Control Officials (AAPCO) AAPCO has serious concerns about the requirement in §170.101(d)(2). The possibility for use of fraudulent records is real, and verificat ion of the training record could require significant resources by state lead agency personnel, or may be impossible if the record is provided by an out of state trainer. AAPCO recommends that EPA develop a national data base that can be used by certified t rainers to enter information, coupled with a national card with a scannable bar code. State lead agencies can access the data base to verify the training record. State lead agencies should not be expected to rely on the employee

- provided record to verify t raining.

National Association of State Departments of Agriculture (NASDA)

W e encourage EPA to consult with NASDA, SFIREG, AAPCO, and the regulated community to discuss and review the benefits and drawbacks of developing a central repository for basic trai ning information submitted to and retained by EPA.*** 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, page 15463, for a discussion of the advantages and disadvantages of a centralized database for training
records. EPA declined to propose requirements that would centralize the recorded information because it would burden employers to enter the data, and th e requirement for on

- site records for inspection purposes would remain. EPA continues to believe that the costs of such a scheme would outweigh its expected benefits. Although there are potential uses for a centralized database of trained workers and
hand lers, EPA believes that it would require significant resources committed to ensure data quality. Giving workers and handlers a copy of their training records on their request should provide workers and handlers a simple way to demonstrate prior training t o a new employer.

20. §170.405(a)
USDA. USDA is concerned how helicopter or fixed wing applications can possibly meet this standard without de facto buffers. A pilot would otherwise have to be constantly scanning a distance of 100 feet from the aircraft in all directions looking for some errant person; which is a huge safety issue in
itself. This essentially means that a 100 foot buffer remains with aerial applications.

EPA Response. The provision in §170.405(a) establishes a requirement on the agricultural employer, not the applicator (handler ). Specifically, an agricultural employer must not allow or direct a worker or other person to remain in the treated area or application exclusion zone within the boundaries of the establishment until application is complete. This is a relatively small e xtension of the current requirement in §170.110(a) for agricultural employers to keep workers and others out of a treated area during application on farms and forests. The final rule will cover a slightly larger area from which the agricultural employer m ust exclude workers and other persons but only while the application equipment is treating that specific section of the treated area. For the example of an aerial application, there would be an additional 100 foot area along the side of the treated area f rom which people must be excluded

, but only while the helicopter or airplane is treating that edge of the field. O nce the aircraft has left the edge
of the f ield, workers and other persons must be excluded of only the treated area, as is currently require d. As explained in Unit IX.B.2, EPA notes that the application exclusion zone is not a “ buffer

, ” a term that typically is used to describe an area that cannot be sprayed. The application exclusion zone is simply an area arou nd active application equipment that moves with the application equipment as the application progresses. Under the final rule, a pesticide can be applied in an application exclusion zone, and the requirement for agricultural employers is to keep workers and other people out of this zone (which is a specified distance from the application equipment, not the edge of the treated area) during the pesticide application. For additional information, see the response to question 26.

21. §170.409(b)(3)(ii)

– forestry signs
USDA. The requirement to post outdoor production areas at all normal access points, or roads, or trails, or if no access points, at corners of the units can be problematic in forestry. Is a skid trail or a landing considered a road or access point? What if no road s or trails access the unit? Posting the corners*** 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 reconsider posting requirements related to forestry regulations.

EPA Response. T he requirement in the final rule is that “the signs must be visible from all reasonably expected points of worker entry to the treated area, including at least each access road, each border with any worker housing area within 100 feet of the treated area and each footpath and other

w alking route that enters the treated area.” EPA does not believe the application of this proposal to
f orestry operations is unique or substantially from its application to large fields or orchards that may not have definitive points of entry. In the situation described above, the draft final rule would require the employer to consider whether the “skid trail” or landing is a reasonably expected point of worker entry; if so, then it must be posted. Where there are no reasonably expected points of worker entry, the draft final rule provides that “signs must be posted in the corners of the treated area or in any other location affording maximum visibility.” If as USDA suggest s , the geography of a particular treated area makes posting the corners irrelevant, then the employer should post the locations providing maximum visibility for workers entering the treated area. EPA intends that the final rule should apply to these situa tions in the same manner as described in the existing WPS IGW guidance that addresses this topic (a copy of the WPS IGW guidance applicable to this issue is included below). It is worth noting that EPA intends to revisit all the existing WPS IGW guidance Q&As and will retain those that are still applicable, and will revise any guidance that is still necessary but needs to be updated to reflect changes in the final rule. EPA would be glad to work with USDA to revise the existing WPS IGW guidance related to posting such types of fields/forests to make sure it adequately addresses forestry concerns

.

13

- 10 Posting areas with unlimited entry points Question: If a treated area has unlimited entry points, how often should treated

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

Answer: The rule requires that signs be visible at all usual points of worker entry, including at least each access road, each border with any labor camp adjacent to the treated area, and each footpath and other walking route that enters the treated area. If there are many usual points of entry, then signs must be visible from all usual points of entry. When there are no usual points of worker entry, signs must be posted in the corners of the t reated area or a location affording maximum visibility. In areas where there are unlimited points of entry, the agricultural employer must determine the usual points of entry and make signs visible from those points of entry. (March 7, 1995)

22. §170.411( b) Decon water

– 1 gallon/worker
USDA. Requiring a gallon of water at the beginning of the work shift for every worker entering a treated unit for a period lasting 30 days after the REI could be problematic in forestry applications. If the water*** 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

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

EPA Response. Since the WPS requirement for the quantity of decon tamination water for workers in the final rule is merely a codification of an existing WPS IGW policy that clarified what a “sufficient” amount of water per worker was, EPA does not believe this change should represent a significant burden compared to the existing rule. S ince this is water that only has to be available at the area where decontamination supplies are provided, or at the nearest point of vehicular access, the provision will not result in workers having to carry any water on their persons . It will only necessi tate that the required amount of water per worker be available at the area where decontamination supplies are provided, or at the nearest point of vehicular access. Additionally, EPA believes the current exceptions
in the rule for the location of decontam ination supplies provide adequate flexibility to agriculture and forestry to accommodate the range of situations.

23. §170.41 1(d) and §170.509(c)

– define nearest place of vehicular access
USDA. The term “nearest place of vehicular access,” which is where decontamination supplies must be stored when workers or handlers are working in remote areas, is not defined in the WPS. This
location depends on whether one considers just regular automobiles th at travel on paved or well

maintained unpaved roads; or also tractors and all

- terrain vehicles that can travel where regular automobiles cannot; or even helicopters, drones, and other aircraft. Is there a general standard for what “nearest place of vehicul ar access” means, or does it depend on which vehicles the agricultural employer or handler employer happens to have available at the time ? USDA recommends the EPA include a definition of “nearest place of vehicular access” in §170.305.

EPA Response. EPA does not believe it is necessary to define the phrase “nearest place of
vehicular access” because the term is sufficiently clear in its meaning without further explana tion.
USDA is correct that the nearest place of vehicular access would be dependent on the type of vehicle in
use for the situation , and because it is not practical to describe all situations, EPA believes it is appropriate to use a general term that can be easily inte rpreted . In the 20 years of WPS implementation and taking questions from regulators and the regulated community, EPA is not aware of any serious disagreement related to the meaning of the phrase “nearest place of vehicular access”

, and feels that trying t o define the term may reduce the existing flexibility in the rule afforded by the current approach.

24. Subpart F, §170.501

- 170.509 Conflict between “handler employer” and CPHE employer”
USDA. Subpart F assigns a host of responsibilities regarding handlers to the “handler employer.” As noted in the comments on §170.305 , the definition of “handler employer” is currently so broad, that at any given moment there could be two or more “handler employ ers” responsible for the same handler (i.e. the agricultural employer and one or more commercia l pesticide handler employers). This dual responsibility is very problematic. Is each requirement in Subpart F supposed to be carried out in duplicate? This wou ld mean that both the agricultural employer and the commercial pesticide handler employer would have to independently check the handler’s training status (and keep the corresponding records) , age, and knowledge of relevant information; both would have to e nsure that*** 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 both would have to provide PPE and decontamination supplies to the handler. This approach would be ridiculously wasteful. At the same time, i t is questionable whether splitting responsibility between the agricultural employer and the commercial pesticide handler employer would lead to better results, since the two parties would have to coordinate extensively to determine who will cover each req uirement. USDA recommends that EPA address this problem by making the changes to the definition of “labor contractor” in §170.305 suggested above, which would have the practical effect of changing the definition of “handler employer” to mean only the hand ler’s direct employer, whether that is an agricultural employer or a commercial pesticide handler employer.

EPA Response. EPA believes it has made the revisions to the rule text necessary to address
USDA’s concern s in this area. Please see EPA’s respons es to comments 8b and 12.

25. §170.501(c)(3)(xiv) training for handlers

– error in reg text
USDA. This section requires that the training for handlers include the following point: “Handler employers must post treated areas as required by this rule.” However, under §170.309(h) and §170.409, it is the agricultural employer

– not the handler employer

– who is required to display information and signs related to pesticide applications and worker entry restrictions. USDA recommends that EPA
resolve this di screpancy.

EPA response. EPA corrected t he text of the final rule t o refer to the agricultural employer

.

26. §170.505(b)

– AEZ

– handler suspend appl ication if person in zone, even when outside the property
USDA. This section requires that handlers suspend pesticide application when individuals are present in the application exclusion zone. Unlike in §170.405(a)(2), there is no exception if the individuals are outside the boundaries of the agricultural establishment, for example on a neighboring

prop erty or on a public right

- of

- way. USDA recommends that the language in §170.505(b) should be adjusted to match §170.405(a)(2): “. . . the handler performing the application must immediately suspend a pesticide application if any worker or other person [oth er than another handler] is in the application exclusion zone described in §170.405(a)(1) that is within the boundaries of the establishment . . .” The agricultural employer has no control over individuals outside of the agricultural establishment,
and thi s should be recognized by not requiring automatic suspension of application in situations where individuals beyond the boundaries of the establishment might peripherally encroach on an application exclusion zone. It should be noted that §170.505(a) already requires the handler to “ensure that no pesticide is applied so as to contact, directly or through drift, any worker or other person [other than another handler].” This renders superfluous the additional restriction in §170.505(b) requiring suspension whe n the application exclusion zone is encroached outside the establishment.

EPA Response. EPA disagrees that the application exclusion zone should be limited to the boundaries of the agricultural establishment for the requireme nt in §170.505(b) for a handler t o suspend application if a worker or other person is in the application exclusion zone.*** 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 so pesticides do not contact a worker or another person. Howeve r, these provisions appear inadequate
because drift from pesticide applications continues to cause human exposure incidents . EPA also agrees
that an agricultural employer has no control over individuals outside the establishment, which is why the requirem ent for agricultural employers in §170.405(a) is limited to the boundaries of the agricultural
establishment. However, the handler who is applying the pesticide does have the ability to temporarily suspend an application and restart it after the worker or person leaves the area. Handlers who are applying should already be doing this so they do not contact a worker or other person during application. As stated by the National Agricultural Aviation Association in their comments on the proposed rule, “It
is standard operating procedure for aerial appli c ators to temporarily avoid making passes adjacent to such [rural] roads if workers happen to be passing by in vehicles or on foot.”

27. §170.507 [comment cross

- referenced from EA] Respirator Requirement costs and update terminology
USDA. The discussion of costs associated with respirator fit tests could be clarified by providing additional information on the types of pesticides that are assumed to require respirators, the frequency those pesticides are applied (every year or less frequently), and the number of farms likely to apply those pesticides. Consistent use of terminology: USDA commends the change of terminology from dust/mist filtering respirator to filtering facepiece res pirator. Use of the OSHA terminology prevents confusion and contributes to more cohesive standards across agencies. USDA suggests the addition of this term to §170.205 to reflect the definition provided by OSHA in 29 CFR 1910.134 (b) (quoted below) for fur ther clarity. “Filtering facepiece respirator means a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium.”

EPA Response. EPA disagrees that a detailed discussion of the respirator cost analysis is needed
in the Federal Register . Those details are included in the economic analysis. EPA appreciates USDA’s comments on changing terminology from dust/mist respirators to
filter ing facepiece respirators. The final WPS rule only uses the term filtering facepiec e respirator in the preamble; it does not appear in the reg text itself. Therefore, EPA has add ed OSHA’s definition of filtering facepiece respirator to Unit XV.A.3 of the preamble as follows: “...Many farmworker advocacy organizations and some PPE manufacturers asserted that EPA should also apply the proposed standards for fit testing, training, and medical monitoring to users of filtering facepiece respirators in
addition to the other respirator types (e.g., tight fitting elastomeric facepieces). Commenters suggested that filtering facepiece respirators are widely used and covered by OSHA’s respirator requirements, and that their exclusion would result in inadequate protect ion for many pesticide handlers. OSHA defines a filtering facepiece as “a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium ” in 29 CFR 1910.134(b). ”*** EO 12866 Review Draft

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Page 28 of 37 28. §170.509(b) and (d) decon water in forestry
a. USDA. Requiring 3 gallons of water per handler at the beginning of the work shift will be problematic, especially if added to the eye wash requirement of 6 gallons of water for mixer/loaders using pestici des requiring protective eyewear. When using backpack applicators, each handler is at some point a mixer/loader (loading from a batch tank into the backpack, most commonly). A crew of 8 applicators could then potentially need 72 gallons of water to be carr ied each day. This seems excessive. It is clear that each handler requires 3 gallons of water at the start of the shift for decontamination, but in such a circumstance as described, would a crew of 8 each need 6 gallons for eye flushing, or would one
quant ity of 6 gallons meet the requirement? This could be clarified.

EPA Response. Section 170.509(d) requires an emergency eye wash system at the mixing/loading site immediately available to the handler when a handler is mixing or loading a product
whose lab eling requires protective eyewear for handlers. Only one emergency eye wash system (that
meets the WPS requirements) is required at a mixing/loading site regardless of how many hand l ers are mixing or loading at that site. EPA has revise d Unit XII.C.3 of the preamble as follows to clarify this:
“... The final rule allows employers to provide either at least 6 gallons of water in containers suitable for providing a gentle eye flush for about 15 minutes, or a system capable of delivering gently running water at a rate of 0.4 gallons per minute for at least 15 minutes to satisfy the requirement. One emergency eye wash system is required at a mixing/loading site when a handler is mixing or loading a product whose labeling requires protective eyew ear to handlers, regardless of how many handlers are mixing or loading at that site

. ” The final rule retains the existing requirement for water to be of “a quality and temperature that will not cause illness or injury.”

b. USDA

. May this water be drafted from local natural surface waters (woodland stream)? May the requirement be met by pre

- positioning 6 gallons at the nearest place of vehicular access outside any treated area or area subject to a restricted

- entry interval? Clarification invited.

EPA Res ponse. The water in an emergency eye wash system can be drawn from local natural
surface waters if the handler employer has determined the water meets the standard of being “of a quality and temperature that will not cause illness or injury when it contact s the skin or eyes or if it is
swallowed” as required in §170.509(b)(1). An emergency eye wash system at the nearest place of
vehicular access would not satisfy the requirement of §170.509(d)(1) unless it is “at the mixing/loading site immediately availa ble to the handler.”

29. §170.601(a)(1)(xii)

– mistake in numbering in reg text
USDA. This point references §170.605(a) through (c) and (e) through (k). However, the rule as currently written does not include a §170.605(k), only (a) through (j). EPA likely meant to write §170.605(a) through (c) and (e) through (j).

EPA Response. This change has be en made to the r ule text.

USDA Comments on EPA Worker Protection Standard E conomic A nalysis*** EO 12866 Review Draft

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Page 29 of 37 30. §170.311 Display Requirements for Pesticide Application and Hazard Information

a. USDA. The economic analysis does not account for provision of safety data sheet and information about the application to the worker or a designated representative within 15 days of request for such material. In addition, there is no cost assumed for mailing this material to the designated representative. There is no estimate of the expected number of requests for this information by workers or their representatives. These costs should be included.

EPA Response. These costs have now been included in the EA (Section 3.3.2) and Appendix B (Section 2, Tables B.2.a

- 2 and B.2.a

- 5). EPA calculates that the cost of responding to a request from a current employee to be about $3.50 and the cost of responding to a request from a former employee to be about $14, including mailing costs. It does not seem likely that costs would vary substantially whether the request comes directly from an employee or from a designated representative.

The number of requests is subject to a great deal of uncertainty; however, California and Texas have similar provisions and have not suggested that the issue arises frequently. For purposes of the EA,

EPA has assume d that current employees may request hazard information once for every 20 appli cations made while one in 100 former employees may make a request.

b. USDA. The economic analysis assumes all farms have double

- sided copies when it estimates 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 Cost per Final Rule, WPS Farms, Information on Pesticide Applications, p. 17, Appendix B).

EPA Response . That is correct.

c. USDA. The period over which these records must be made available to the worker is unclear. The cost of retaining th ese records over time should be included and as well as the period over which they must be retained.

EPA Response . Records must be retained for two years (170.311(b)(6)). Retention costs are the
cost of the folder used to store the documents , and are in cluded in the EA

.

31. §170.401 Training Requirements for Workers

a. USDA. Due to the added training topics and other requirements, USDA does not believe that the estimated 45 minutes of training include ample time to thoroughly cover added topics and take questions. To allow for at least 5 minutes per training topic (11 for work ers and 13 for handlers) and at least 15 minutes for questions the estimated training time should be adjusted to 1.5 hours. This is still a conservative estimate and does not take into account the added time required when a translator is used.

EPA Respon se . EPA ’s experience with the training material, as well as information provided in comments, suggest that current training sessions are about 30 minutes in length. One respondent to a questionnaire by the National Council of Agricultural Employers indic ated that in the past year they*** 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 response to Comment 15 , above.

b. USDA. The Economic Analysis does not take into consideration the cost of a translator for training. Though a translator is not required by the regulation, it does suggest the use of a translator in order to ensure that training is carried out “in a manner worker s understand” (citation). These costs could be incorporated by estimating a reasonable probability of the number of trainings that will require a translator. Since EPA plans to develop training materials in several languages, the probability of requiring a translator could be estimated based on which languages and dialects would not be covered by
those materials.

EPA Response

. The EA considers only new burdens that would result from the amendments to the existing WPS. Sections 170.130(c) and 170.230(c) of the existing WPS include the same requirement that training be conducted “in a manner workers can understand”.

c. USDA. Small farms bear a disproportionately larger cost for the new training requirements than large farms. The economic analysis Appendix B states that worker training costs will result in an
increase of 85% over baseline costs for small

- small WPS farms, and i ncrease by 75% for medium

- small WPS farms and large

- small WPS farms with less than 10 employees, 48% for large

- small farms with 10 or more employees, and 42% for large WPS farms. It would be clearer if costs were summarized for
each of these farm size cat egories for each of the rule provisions throughout the economic analysis.

EPA Response. USDA appears to have misunderstood the information in Appendix B. The percentage changes reported do not refer to increases in overall costs, only the change in th e number of trainings needed. For example, the Appendix states that “ Small

- small farms (revenue/year less than $10,000) are assumed to hold an average of 1.2 training sessions per year, an increase of 85% over the baseline.” That is, the number of trainin g sessions increases from an average of 0.65 sessions to 1.2 sessions, an absolute increase of 0.55 sessions. EPA assumes a large farm (revenue ≥ $750,000) with more than 10 workers will increase the average number of training sessions from 4.5 sessions t o 6.4, an
absolute increase of 1.9 sessions. EPA has prov ided a summary of costs by farm size throughout the analysis and provided an analysis of overall impacts to small farms, defined by the Small Business Administration as entities with
revenue less than $750,000. Because this definition implies that 95% of all U.S. farms, and almost 80% of farms affected by the WPS, are small, EPA also provides a more detailed analysis to examine the impacts across the distribution of small farms.

d. USDA. The cos t per farm of training workers or handlers appears to assume that only 1 training record per training needs to be retained by the farm (Table B.1.b.3. Cost under Final Rule, cost per WPS farm by size, Worker Training). For both large and small WPS farms, the economic analysis assumes retention of only one copy per training event. If a worker requests a copy, USDA assumes that only the worker’s information will be provided and not the records of other workers who also attended the training. If EPA assumes the employer will provide records for all workers attending training (for*** 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 provision on privacy requirements should be included in the analysis. If priva cy constraints prevent sharing records of other workers, the cost of record retention at the farm level should reflect the cost of providing individual records.

EPA Response . EPA’s goal is to make the process of confirming training as easy as possible. The record of the training can be as simple as a paper with the following information:

(i) The trained worker’s printed name and signature. (ii) The date of the training. (iii) Information identifying which EPA

- approved training materials were used. (iv) The trainer’s name and documentation showing that the trainer met the requirements of §170.401(c)(4) at the time of training.

(v) The agricultural employer’s name. As the draft final rule does not require the collection of any personally identifiabl e information,

n o personally identifiable information would be included in the record. For a worker to confirm to a subsequent employer that he or she has recently completed the pesticide safety training, a copy of the training record would have the information needed for the subsequent employer’s records.

e. USDA. As part of their preliminary research, EPA conducted a Small Business Administration Review Panel (SBAR Panel or Panel). In almost every written comment they received,
small business owne rs urged them to keep a grace period for employee training. Since EPA conducted a SBAR Panel, USDA would like to see an acknowledgment that these issues were taken into consideration. Though most of the commenters did not see many real cost added with remo ving (or decreasing) the grace period, they did indicate that workers would have to be hired sooner and thus paid for days where the employer received no work. If the time lost from work is considered in the benefits section regarding healthcare, then time lost from work due to training and paperwork must be
considered in the costs.

EPA Response . EPA think s the elimination of the grace period is not likely to lead employers

to hir e workers and pay them for no work

. Rather, EPA anticipates that employers may have to provide additional training sessions (see response 31.c. ). The opportunity cost of time for the worker to attend a safety training is included in the estimated cost of the revisions.

f. USDA. The elimination of the grace period and the requ irement that all workers be trained

“ in manner workers understand” creates the potential for discrimination on the basi s of language and literacy. E conomic analysis should discuss the probability that workers who speak the language used by the employer or by on

- site trainers will be used more frequently when training is required by temporary or seasonal workers immediately prior to performing a field or handler task. If a farm must train workers immediately before any allowable exposure to pesticides, the most easily trained workers will be more likely to be used in job situations where exposure could occur, at least initially.*** 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
the worker can unders tan d is not new. EPA has not received comment regarding discriminatory practices related to language as a result of the WPS.

32. §170.507 Personal Protective Equipment

a. USDA. Consistent use of terminology : USDA commends the change of terminology from
dust/mist fil tering respirator to filtering facepiece respirator. Use of the OSHA terminology prevents confusion and contributes to more cohesive standards across agencies. USDA suggests the addition of this term to §170.205 to reflect the definition provided by OSHA i n 29 CFR 1910.134 (b) (quoted below) for further clarity.

“Filtering facepiece respirator means a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium.” Costs and benefits : In the cost estimate for the addition of filtering facepiece respirators the Agency assumes that all employers will use the suggested online medical evaluation (introduced in lines
3388

- 3394 of the rule preamble) from the outset. While the use of online medical evaluations would be
the most cost

- effective option for employers, assuming that employers will be able to use this method of evaluation in the first years of implementation does not seem likely. This is especially true for rural areas where broadband access is not available on every farm operation. Though online medical evaluations will likely be used by some employers, the estimated probability seems high for the first year. The probability of using an off

- site medical evaluation is much more likely in the first year with a decreasing probability within the first five years as employers learn more about their available options.

EPA Response. EPA does not agree with USDA’s reasoning. Employers are unlikely to forego

cost

- effect ive options, even initially. EPA plans significant outreach and is confident that private interests, including crop advisors and pesticide dealers, will engage in similar programs. According to the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high

quality service, including broadband or DSL. Less than 10% of farms rely on dial

- up connections.

b. USDA. Additionally, the time estimate for an off

- site medical evaluation (Table 3.3

- 34)
should use the same estimate a s the follow

- up medical exam ($72.12). The analysis must also take into consideration the lost wages and travel time associated with visiting a medical professional considering that most farm operations are located in rural areas where access to a licensed medical professional may increase time and travel. The time should at least reflect the time allotted to the evaluation, but should also include at least 30 minutes of travel time. Please see table below for an example of suggested edits.

Table 3.3

- 34. C osts under Final Rule, Large WPS Farm, Respirator Fit Test.

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.

1 EPA assumes approximately 25 percent of handlers taking the medical evaluation will be referred for a

more complete medical examination.

EPA Response. EPA does not agree with USDA’s reasoning that employers will select a more costly response to the regulatory burden. Further, if they choose to skip the screening evaluation for a complete medical evaluation e.g., because of a previously scheduled physical examination , there
would be no need for an on

- line (screening) evaluation or subsequent follow

- up evaluatio n.

c. USDA. In the Economic Analysis for the rule, EPA explains that it derives costs for respirator fit tests from the assumption that each farm will only have one handler that will need to be fit tested and that only 40 percent of farms will likely use pesticides that require respirators. “Accounting for the fact that not all farms will use pesticides every year, EPA estimates about 40 percent of large farms and large

- small farms will use a product requiring a respirator. A farm is unlikely to need mor e than one handler when using these products, so for ease we calculate costs at the farm level. Further, some handlers will undergo fit testing because the requirement has been incorporated onto some product labels, for example, various soil fumigant s.” ( Economic Analysis §3.3.6)

With the addition of filtering facepiece respirators, USDA does not believe this estimate is accurate. First, though only one handler may be involved in pesticide use at a time, this does not imply that there is only one handler on the farm that will need to be fit tested. The number of handlers per farm that need fit tests should be estimated based on small versus large WPS farms. Second, the assumption that only 40 percent of farms will use pesticides that require respirators seems low considering the addition of filtering facepiece respirato rs (which are required for a much larger number of pesticides than chemical cartridge respirators (NIOSH 23

- C)). USDA urges EPA to gather further data on the number of pesticide labels that require respirators (including filtering facepiece respirators) an d use that data to re

- estimate the cost of respirator fit tests.

EPA Response . EPA notes that USDA is quoting the baseline estimation of cost, where about 40% of the larger farms ultimately use a product requiring a respirator and the employer provides the
handler with instruction on fit and use. Under the final rule, EPA assumes that over half of the larger farms will arrange for a handler to be tested.

d. USDA. The discussion of costs associated with respirator fit tests could be clarified by providi ng additional information on the types of pesticides that are assumed to require respirators, the frequency those pesticides are applied (every year or less frequently), and the number of farms likely*** 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 explanation for the assumption that under the baseline and final rule, 60% of crop

- producing farms use pesticides requiring respirators with an annual use at 40% of these farms. In Appendix A, 76% of

crop

- pro ducing WPS farms are estimated to use pesticides. It is unclear whether the 60% estimate requiring respirators includes pesticides requiring only the filtering facepiece respirators as well as pesticides requiring other types of respirators. The baselin e calculation for the cost of fit tests at WPS farms assumes 40.4% of these farms will have a handler undergo a fit test with 3% of these baseline fit tests consistent with OSHA requirements. The final rule calculations assume 53.5% of large and
13.4% of large

- small WPS farms have handlers undergoing fit tests. EPA should present the baseline percentage of WPS farms where handlers undergo fit tests in terms of large and large

- small WPS farms to allow direct comparison between the two scenarios.

EPA Res ponse . EPA does not think further discussion is warranted. As noted in the EA, “Pesticides bearing label requirements for respirators are not common, but there are a few commonly used pesticides with the requirement.” The requirement is product

- specific and may apply to the mixer/loader and/or to the applicator. In the end, EPA assumes that 75% of large and large

- small primarily crop farms (farms with annual revenue of $750,000 or more and farms with annual revenue between $100,000 and $750,000, respect ively) will account for virtually all respirator use subject to
the WPS . According to data from the 2012 Census of Agriculture, farms primarily producing crops (NAICS 111) in these size ranges account for about 67% of all crop acreage in the U.S., but abo ut 80% of all herbicide and insecticide treated acreage and over 90% of all acres treated with fungicides or plant growth regulators.

e. USDA. The family farms fit test calculation needs further clarification. The economic analysis references Appendix A for the number of family farms by category (large, large

- small, etc.). Appendix A does not discuss family farms explicitly

– by back

- calculating from the existing tables you could derive the number of family farms but this adds some uncertainty and the va lues do not match those reported in the economic analysis (18,949 large family farm and 141,753 large

- small family farms). Further explanation or support is needed for the assumption that 40% of family farms producing crops use a pesticide requiring a res pirator.

EPA Response . EPA acknowledges that Appendix A does not contain information on so

- called family farms, i.e. , those farms that do not report hired labor. However, EPA has provided the exact numbers used within the analysis.

f. USDA. The values used in the baseline analysis for respirator fit tests at WPS farms are not consistent between the main economic analysis and its explanatory appendix B (See Table 3.3.32. Baseline Costs, per Large and Large

- Small WPS Farm, Respirator Fit, Econo mic Analysis versus
Table B

- 6.a.3. Baseline Cost, per WPS Farm, Respirator Fit, Appendix B). Likewise, the values reported in Appendix B for the number of large (79,434) and small

- large (141,753) WPS farms do not appear in Appendix A where the reader is r eferred for further information. Since the population of WPS farms affected by the rule is assumed to only include crop

- producing farms, it is assumed that*** 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).

Fu rther explanation would strengthen the economic analysis.

EPA Response . EPA acknowledges that Appendix B wa s in error and revised the tables and explanations.

g. USDA. In the cost estimate (p 90, Economic Analysis) for the addition of filtering facepiece respirators the Agency assumes that all employers will use the suggested online medical evaluation (introduced in lines 3388

- 3394 of the rule preamble) from the outset. While the use of online medical
evaluations would be the most cost

- effective option for employers, assuming that employers will be able to use this method of evaluation in the first years of implementation does not seem likely. This is especially true for rural areas where broadband access is not available on every farm operation. Though online medical evaluations will likely be used by some employers, the estimated probability seems high for the first year. On

- line medical evaluations are currently offered only in Spanish and English. Workers speaking other languages will need off

- site medical evaluations. The probability of using an off

- site medical evaluation is much more likely in the first year with a decreasing probability within the first five years as employers learn more about their available options.

EPA Response . EPA does not agree with USDA’s reasoning. Employers are unlikely to forego

cost

- effective options, even initially. EPA plans significant outreach and is confident that private interests, including crop advisors and pesticide dealers, will engage in similar programs. According to the 2012 Census of Agriculture almost 70% of U.S. farms have internet access and most have high

quality service, including broadband or DSL. Less than 10% of farms rely on dial

- up connections. EPA does not see language as a signif icant barrier for employers and handlers.

h. USDA. The cost of the off

- site medical evaluation used in the economic analysis is based on a single provider

– Affordable Safety Training, offered in English and Spanish. A quick review of on

line medical eva luations for fit testing shows a range of products from the $25 for McHaney and Associates to $27 for Affordable Safety Training to $28 for a 3M on

- line medical evaluation. These products are only offered in English and Spanish. If these medical evaluati on materials need to be provided in other languages, there is no cost considered for this in the economic analysis. The Affordable Safety Training web site offers a fit test kit for $140 using Bitrex and $139.95 using saccharin. The economic analysis cit es the cost for a fit test as ranging between $80 and $140 for an employer administered test.

EPA Response. EPA agrees that there are multiple options of similar price. Fit test kits come in a range of prices with smoke tests typically costing less than other options . EPA does not see language as a significant barrier for employers and handlers.

i. USDA. The economic analysis does not include costs accounting for circumstances requiring the same person to repeat the fit test for a different class of r espirator which may involve additional measurements. The medical evaluation questionnaire required by OSHA lists two separate*** 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
to use another class of respirator. The analysis also does not consider agricultural establishments where the same person is not the handler for all pesticides or for the entire year. Seasonal workers may not remain at an establishment for the entire period where pesticides r equiring respirators may be applied.

EPA Response . EPA does not think the cost of a medical screen would be significantly increased if the handler seeks testing for different classes of respirators. Multiple respirators could be
tested at an off

- farm site or tested using the same test kit.

33. §170.601 Exemptions

– family farms

a. USDA. Family farm exemption is too narrow : The exemption for family farms applies to any agricultural establishment th at is wholly owned by an individual, or where all of the owners of the establishment are members of the same immediate family. This definition is narrower than the definition used by ERS in the Agricultural Resource Management Survey (ARMS). The ERS definition is more flexible and requires only that th e majority of the business is owned by the operator and individuals related to the operator by blood, marriage, or adoption, including relatives that do not live in the operator’s household. Using this definition, ERS finds around 97% of all farms are fam ily farms
based on data from ARMS. Findings from the 2013 ARMS survey indicate that 97.6 farm are family farms, using the ERS definition. Family farms are organized as individually owned, partnerships, corporations and other types of legal status (trust, estate, cooperative). The largest category of ownership in family farms is individual ownership (91.5%). Partnerships account for 4.4 %, corporations for 3.3 % and other types of legal status for 0.8 %. Family farms that are not individually owned accoun t for 173,434 farms. It is unclear how many of the farms considered family farms in the economic analysis would meet the definition required in the agricultural establishment exemption. The EPA should estimate how many of the crop producing family farms would be not be eligible for the exemption and thus should be counted in population of farms that must comply with the WPS standard. If ownership type is distributed similarly between crop producing family farms and all family farms, as many as 8% of crop producing farms may not be eligible for the exemption.

EPA Response . To determine the number of farms that would be impacted by revisions to the WPS, EPA considered all farms hiring labor as reported in the 2012 Census of Agriculture. Since farms

may d escribe in their Census report as hired labor persons who would qualify for the WPS immediate family exemption , EPA has probably overestimated of the number of farms and workers/handlers affected by the WPS.

b. USDA. The definition of immediate family is too narrow. In regard to establishing a minimum age for handlers and workers performing early

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

- entry tasks be at least 18 years old, rathe r than the proposed minimum age of 16 years old. This minimum age does not apply to an adolescent working on an establishment owned by an immediate family member. (EPA WPS FR page. 7). EPA has finalized the definition of “immediate*** 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

law, children, stepchildren, foster children, sons

- in

- law, daughters

- in

- law, grandparents, grandchildren, brothers, sisters, brothers

- in

- law, and sisters

- in

- law (EPA WPS FR pa ge 169). The EPA should reconsider the definition of immediate family. The proposed definition would not allow the exemption to youth who would work for a more distant family member such as an uncle. This definition would also not allow the exemption to yo uth whose parents are farm operators, but not owners. The Department of Labor (DOL) has exemptions for youth in the child labor requirements in agricultural occupations under the Fair Labor Standards Act. The Act states: “A child of any age may be employed by his or her parent or person standing in place of the parent at any time in any occupation on a farm owned or operated by that parent or person standing in place of that parent” ( h ttp://www.dol.gov/whd/regs/compliance/childlabor102.pdf ). EPA should revise their definition of immediate family, or the exemption itself to be more consistent with rules enforced by DOL.

EPA Response. EPA agrees with public comments and USDA’s suggestion to revise the immediate family exemption. EPA has revised the definition of immediate family in the final rule to include aunts, uncles, nieces, nephews, and first cousins. The definition of “immediate family” includes
each owner’s spouse, parents, stepparents, foster parents, father

- in

- law, mother

- in

- law, children, stepchildren, foster children, sons

- in

- law, daughters

- in

- law, grandparents, grandchildren, brothers, sisters, brothers

- in

- law, sisters

- in

- law, aunts, uncles, nieces, nephews, and first co usins. A first cousin is defined as the child of a parent’s sibling, i.e., the child of an aunt or uncle. Under the owner and immediate family exemption in the existing WPS , establishments that qualify must be either wholly owned by the individual, or all owners of the establishment must be members of the same immediate family. While EPA is proposing agrees with requests from USDA and public commenters to expand revise the types of familial relationships that wou ld be considered “immediate family” ownership requirement under the WPS, exemption. EPA did not consider and does not plan to further expand has revised the exemption to allow farms that are majority owned by family members to qualify. EPA did not propose such a change to the requirement and has not received comments from the public indicating that the current requirement for the apply on any agricultural
establish ment to be wholly where a majority of the establishment is owned by an individual or persons who are all by members of the same immediate family is too restrictive.

. EPA notes that neither the existing nor the revised WPS includes a “family farm” exemption that would completely exempt farms from the WPS. The WPS only exempts owners who meet the conditions of the exemption from complying with certain portions of the WPS for themselves and members of their immediate families. Regardless of whether owners qualify for the exemption for
themselves and members of t heir immediate family, owners always must comply with all applicable provisions of the WPS in regard to workers and handlers who are not immediate family members and who are employed on the establishment.