*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

RIN2070-AJ22_EO12866_AgWPS_FRM_FIFRA Review_EPA Response_FinalRedline_AllRevisions_2015-09-28.docx

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 

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

productive agricultural enterprises, like employees 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. Agricultural 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 share 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 

number 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 evidencedbased 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 pesticide 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 the benefits is more difficult. Nonetheless, as explained in 
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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 years in the SENSORPesticides database. EPA believes the statements in the preamble -- including the ones USDA cited --

are accurate, and that the evidence and data adequately support these revisions 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 persons, but 

incidents continue to occur.”

EPA Response. EPA has made 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 and 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 implement 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 marginal 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 
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time of 30 minutes 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 establishment 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 paragraph 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.

For 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 training, and EPA 

includes that estimate in the narrative in the economic analysis. 

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

length and content of 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 spent 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 

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

not paid 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.”]
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EPA Response. In this context, the term “valid” was used to mean the request contains all of the 

required information. The agricultural employer is required 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 from 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 

anyone 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 required 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 the label. At a minimum, EPA should address this issue in the preamble.

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

Sheets (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 manufacturers, 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 on 

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

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

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

provisions regarding PPE. 

EPA has adjusted 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 

is 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 
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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 Response. EPA 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,” “nursery,” and “forest 

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

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

of “agricultural establishment” and “agricultural 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 establishment 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 plant” 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 are simultaneously present on the agricultural establishment. This causes significant concerns and 
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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 selfemployed 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 hired by an agricultural employer to provide handlers. Reading these 

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

they do not directly employ a single handler, because they are employing handlers through 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, other 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, since any person employing handlers is a 

CPHE, and no longer 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 handler 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 believes the 

revised text below clarifies 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. 
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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 pesticide 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 contractors. USDA encourages EPA to assign WPS responsibilities 

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

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

is more 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 Response. EPA agrees that the inclusion of the term “natural forest” in the definition 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. Posting 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?
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EPA Response. Golf courses that have operations considered nurseries on their establishment 

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

golf course, or they are growing ornamentals in a greenhouse for planting 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 is 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 are 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

IGW Question: What is the scope 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 in 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 livestock 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 Response. EPA also received several similar comments from states, growers, 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 will expand the 

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

“use” has resulted in an unreasonable or inappropriate 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 always 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 employee, 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 commercial 

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 during 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 

employer 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 proposed 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 expansion 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 have been 

included.

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

and does not believe that the WPS applies to them. EPA has removed 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 requirements, 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 years 

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 system 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.
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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 agriculture, on any farm, but only in nonhazardous 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. 

 If 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 Category 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 work 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. 
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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 defer to DOL regarding the scope of its authority under FLSA, it does not 

appear that DOL hasDOL 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 handling 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 statutory standard.

Moreover, where DOL exercises its FLSA child labor 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 

workers, 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 (toxicity 

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 fallen 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 most 
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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, 

employers 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 remains 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 responses 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 Standards 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 the added recordingkeeping requirements under FIFRA.

EPA Response. 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 necessary 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 penalties. 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 

requirements and how to comply with them, thereby 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 records. 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 representative 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 employers 

and should be included in the Economic Analysis.
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EPA Response. EPA believes the WPS final rule is clear regarding the identification and 

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

from the worker or handler. 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 

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

must comply with recordkeeping under requirements from other federal agencies. 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 rule 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 

handler’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 is 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. 
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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 should 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 facilitate 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 Officials (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 support 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, describe 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 recommendation. In addition, the employer has 15 days to 

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

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

the request, while continuing to allow access to important pesticide exposure 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 seeking emergency assistance while on 
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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 supports the authorized representative concept; 

however, EPA has found several comments 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 based 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.

EPA 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 requirements for requesting the 

information as outlined may not be expedient.

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

that period of time after it is collected and retained.

USDA has also expressed concern 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 their 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 notification 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 

statement to designate the representative.

EPA Response. 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 
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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 agricultural establishment, or when an agricultural employer 

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

Regarding 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 ensure 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 employs 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 relationship 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 employer 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 establishment. 

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

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

establishment is at 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 protections 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 handlers 

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 commercial 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 employees 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 pesticide 

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 restrictions 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 or 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 information 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 application. 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 potential 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 commercial 

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

injury:

(1) Make available to that person transportation 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 

emergency 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 ingredient(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 directly 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 

handling 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 application 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 authorized 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 possibility 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 comment: 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 environmental 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 
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for farm accidents, labor, chemical 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 whistleblower 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 Response. EPA is interested in meeting with OSHA regarding 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 processes for investigations. 

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

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

agriculture, they do not cover pesticide use or establishments with fewer than 11 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 their 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 opportunities to attend training sessions. What is the funding source to support this 

increase in the frequency of training events?"

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

becomes robotic and less useful over 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 Response. EPA is 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 applicators, from qualifying as trainers of workers. Based 

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

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

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

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

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

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

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 workers 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 Response. 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 questions and answers from workers can be unpredictable 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 different languages in the workforce. 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.”

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 

listed 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)-(xviii), and (xxiii), that 
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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.” This 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 agricultural 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 trained 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 agricultural 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 Response. EPA appreciates the correction, and has included 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 worker or handler has been trained. Therefore, EPA has adjusted the language 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; please 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 Response. 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-related pesticide 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 
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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 identified 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 Response. 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 verify 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 Response. 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 verification 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 trainers 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 training.

National Association of State Departments of Agriculture (NASDA)

We 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 training 

information submitted to and retained by EPA.
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EPA Response. 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 the 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 

handlers, 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 to 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 extension 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 must 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 from which people must be excluded, but 

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

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

required.

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 around 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 roads or trails access the unit? Posting the corners 
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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. The 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 

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

forestry 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 suggests, 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 situations 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 treated 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 
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is always located in the worker’s vehicle, it is probably not a major issue, although carrying extra 

canteens in the vehicle will be a change in procedures.

EPA Response. Since the WPS requirement for the quantity of decontamination 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. Since 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 necessitate 

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 decontamination supplies provide adequate flexibility to agriculture and 

forestry to accommodate the range of situations.

23. §170.411(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 that travel on paved or wellmaintained 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 vehicular 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 explanation. 

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 interpreted. 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 to 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 employers” responsible for the same handler

(i.e. the agricultural employer and one or more commercial pesticide handler employers).

This dual responsibility is very problematic. Is each requirement in Subpart F supposed to be 

carried out in duplicate? This would 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 ensure that 
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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, it 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 requirement.

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 handler’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 concerns in this area. Please see EPA’s responses 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 discrepancy.

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

26. §170.505(b) –AEZ – handler suspend application 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 

property 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 [other 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 this 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 when 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 requirement in §170.505(b) for a handler to suspend 

application if a worker or other person is in the application exclusion zone.
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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. However, 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 

requirement 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 applicators 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 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 in 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.”

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 

filtering facepiece respirators. The final WPS rule only uses the term filtering facepiece respirator in the 

preamble; it does not appear in the reg text itself. Therefore, EPA has added 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 protection 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).”
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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 pesticides 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 carried 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 

quantity 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 labeling 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 handlers are 

mixing or loading at that site. EPA has revised 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 eyewear 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 Response. 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 contacts 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 available 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 been made to the rule text.

USDA Comments on EPA Worker Protection Standard Economic Analysis
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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 assumed that current employees may request hazard information once for every 20 applications 

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 (Table 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 these 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 included 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 workers 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 Response. 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 indicated that in the past year they 
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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 workers 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 increase 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 categories 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 the 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 training 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 to 6.4, an 

absolute increase of 1.9 sessions.

EPA has provided 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 cost 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 
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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 privacy 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 identifiable information, 

no 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 owners 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 removing (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 thinks the elimination of the grace period is not likely to lead employers 

to hire 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 requirement that all workers be trained 

“in manner workers understand” creates the potential for discrimination on the basis of language and 

literacy. Economic 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. 
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EPA Response: EPA notes that the requirement for training to be provided in a manner that 

the worker can understand 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 filtering 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 in 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-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 highquality 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 as 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. Costs under Final Rule, Large WPS Farm, Respirator Fit Test.

Action/Material (j)

wage/price

wj

unit 

time/quantity

Hr,i,j /Mr,i,j

annual 

frequency

Prob(j|i)

cost

Time for medical evaluation $20.04/hr 1.5 hour 0.535 $ 16.08

Off-site evaluation $72.17 1 0.535 $ 38.61

On-line evaluation $27.00 1 0.134 $ 3.62
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Time for follow-up exam1 $20.04/hr 2 hour 0.134 $ 5.36

Follow-up medical exam1 $72.17 1 0.134 $ 9.66

Time for fit test, with travel $20.04/hr 1.5 hour 0.535 $ 16.09

Fit test and training $50.00 1 0.535 $26.76

Employer management $33.44/hr 1 hour 0.535 $17.90

Collect/Store documentation $33.44/hr 4 min 0.535 $ 1.19

costr,i,a

P $ 135.27

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 evaluation.

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 more 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 fumigants.” (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 respirators (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) and 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 

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 
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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-producing 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 baseline 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 Response. 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, respectively) 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 about 

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 values 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 respirator.

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, Economic 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 referred 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 
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these values represent crop-producing farms hiring labor (shown in Table A.1.10 of Appendix A). 

Further explanation would strengthen the economic analysis. 

EPA Response. EPA acknowledges that Appendix B was 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 highquality service, including broadband or DSL. Less than 10% of farms rely on dial-up connections. EPA 

does not see language as a significant 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 online medical evaluations 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 evaluation 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 cites 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 respirator which may involve 

additional measurements. The medical evaluation questionnaire required by OSHA lists two separate 
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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 requiring 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 that 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 the 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 family 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 account 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 describe 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, rather 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 
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family” as limited to the owner’s spouse, parents, stepparents, foster parents, father-in-law, mother-inlaw, children, stepchildren, foster children, sons-in-law, daughters-in-law, grandparents, grandchildren, 

brothers, sisters, brothers-in-law, and sisters-in-law (EPA WPS FR page 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 youth 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” 

(http://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 cousins. 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 proposingagrees with requests from USDA and 

public commenters to expandrevise the types of familial relationships that would be considered 

“immediate family” ownership requirement under the WPS,exemption. EPA did not consider and does 

not plan to further expandhas 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 theapply on any agricultural

establishment to be wholly where a majority of the establishment is owned by an individual or persons 

who are allby 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 their 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.