*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

RIN2070-AJ22_EO12 866_AgWPS_NPRM_FIFRA Review_ EPA Response_201 3-09-11.docx



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

SCOPE AND IMPACT OF THE PROPOSED WPS REGULATIONS

Under section 25(a) of FIFRA, EPA is required to provide draft regulations to USDA for review

and comment prior to signature by the Administrator. USDA completed review of the

proposed agricultural Worker Protection Standard on August 19, 2013 and provided the

following numbered comments, which are quoted directly from USDA’s comments.

“RESPONSE:” indicates EPA’s response to USDA’s comments.

1. According to EPA's interpretive policy for Worker Protection Standards (WPS), a number of

scenarios can be subject to the proposed WPS regulations described at

http://www.epa.gov/pesticides/saf ety/workers/wpsinterpolicy.htm

. Among them are: seed

treatment facilities, plants grown for research, Conservation Reserve Program land, grower

cooperative establishments, persons selling produce from home gardens, garden clubs,

nurseries operated by golf courses, greenhouses and nurseries which are operated by theme

parks, hotel chains, botanical gardens, and state and local governments. EPA interpretive policy

states that researchers, day haulers, and employees working for a packing shed can be subject

to WPS requirements. The proposed rule would benefit if these scenarios and these workers

were included into the EPA scoping assessment and the small business impact assessment,

where applicable. USDA seeks confirmation that the Small Business Advocacy Review Panel

(SBARP) was comprised of representatives who could address these sectors.

RESPONSE: The entities and facilities listed above generally fall outside the scope of the current

rule or are clearly exempted or covered by existing exceptions in the rule when engaged in their

normal operations (e.g., seed treatment facilities, Conservation Reserve Program land

, day

haulers, and packing sheds). EPA did not include these entities or facilities in our scoping

assessment or in the small business impact assessment because they are almost never covered

under the current rule and would not be covered under the proposed revisions. However, if

their employees engage in worker or handler activities that are covered under the rule and if

they are paid for this work, it is possible that the rule requirements would apply. Although this

potential exists, EPA believes that those instances would be limited and that the vast majority

of the population identified for protections are the farmworkers and handlers working on crop

farms, in nurseries, forests, and greenhouses. Except where noted, EPA did not include

representatives from the identified entities on the SBREFA review for this reason.

EPA's proposed revisions clarify existing definitions and add new definitions to the rule. The

purpose of the new definitions is to limit the scope of the rule to the commonly recognized

agricultural and pesticide handling establishments and to protect those persons who regularly

and routinely encounter occupational pesticide exposure associated with agricultural crop

production

The entities identified above are discussed below, with the current guidance related to their

responsibilities under the current rule, and their disposition under the proposed rule.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

Seed Treatment

A seed treatment facility that commercially applies pesticides to seed for sale or use by growers

is not covered by the existing or proposed rule, because it would not meet the definition of an

agricultural establishment as defined at 40 CFR 170.3. However, if seed to be planted is treated

with a pesticide bearing the WPS reference statement at the establishment (on farm), using

hopper boxes or other such seed treatment equipment, the WPS does apply (IWG 14.18). Seed

treatment on farm would be considered a handler activity and would be covered under the

proposed rule.

Research

Plants being used for research are covered by the current and proposed rule, if a product

bearing the WPS reference statement is being used (IWG 14.19). The proposed definition of a

commercial production establishes that plants grown for research purposes are covered under

the rule. However, whether the researchers are covered depends on the activity the

researchers are performing. If they are applying a pesticide or performing other handler

activities, they are a handler. If they perform worker activities, they are a worker. A person who

is entering the treated area during the REI to collect data and/or samples related to assessing

pest numbers or damage, pesticide distribution, or the status or requirements of agricultural

plants and is not performing any other hand labor tasks is considered a crop advisor under the

rule. Crop advisors are considered handlers during the application and until the expiration of

the REI, at which time they are considered workers in terms of coverage under the WPS, but are

exempt from certain requirements of the rule. Please refer to 40 CFR part 170 for additional

information (IWG 14.37). Three crop advisors were included in the SBREFA process.

Conservation Reserve Program plantings

Conservation Reserve Program plantings that will not be harvested fall outside the current

scope of the WPS. However, any pesticide applications made in preparation for planting an

agricultural plant or to an agricultural plant that is intended to be harvested will be subject to

the WPS regulation (IWG 14.24). This also accurately describes the coverage under the rule

proposal.

Grower cooperatives

Grower cooperatives may be considered a commercial pesticide handling or agricultural

establishment under the current WPS if they meet the definition in the regulation. The

cooperative may also be an agricultural or handler employer (IWG 14.28). This also accurately

describes the coverage under the rule proposal.

Home Garden Produce Sale

Persons selling produce from home gardens are covered by the WPS currently only if they use a

pesticide with the WPS statement on the label in the production of the produce being sold. The

exception for home gardens does not apply when the produce is produced for commercial*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

purposes. However, if the person does not employ workers or handlers, or if the workers or

handlers are immediate family members of the owner, they are exempt from most

requirements (IWG 14.30). This accurately describes the coverage under the rule proposal, and

EPA expects a home garden to have employed, non

‐ immediate family members as workers to

be the exception rather than the rule.

Garden Clubs

Under the existing rule, a garden club is an agricultural employer only if (1) it hires or contracts

for the services of workers, for any type of compensation, to perform activities related to the

production of agricultural plants; or (2) if it is an owner of or is responsible for the management

or condition of an agricultural establishment that uses such workers (IWG 14.32).

“Compensation” was broadly interpreted, resulting in members of garden clubs being

considered workers when their compensation was nominal, e.g., a cup of coffee and a

doughnut. To correct this, the proposed rule provides a definition of “employ” as payment by

salary or wage. It is expected that garden clubs will rarely compensate their members in this

way. As a result, EPA expects that the proposed revised definition would result in garden clubs

not being covered by the rule.

In

‐ House Use of Plants

There is no exception in the current WPS 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).

The following in

‐ house use operations are covered by the current 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.

Pasture and rangeland used only for grazing are excluded (IWG 14.34). This also accurately

describes the coverage under the rule proposal.

Packing Shed Employees

Packing shed employees may be covered by the current WPS if they pack produce into

containers in the field. If the packing activity takes place in a shed and out of the field, they are

handling the produce post

‐ harvest and are not covered by the rule (IWG 14

‐ 35). EPA believes

that most packing shed employees do not work in the field, and would therefore not be

covered. This also accurately describes the coverage under the rule proposal.

Day haulers

Day haulers who hire or contract for the services of workers in the field would be considered

agricultural employers under the current rule and must comply with the WPS. If a person only*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

provides transportation to and from the agricultural establishment, then he would not be

covered by the WPS (IWG 14

‐ 36). This also accurately describes the coverage under the rule

proposal.

SMALL BUSINESS IMPACTS

2. Although EPA has indicated that this proposal will not have a significant adverse economic

impact on a substantial number of small entities and that EPA convened a Small Business

Advocacy Review Panel (SBARP) and consulted with small business representatives

– including

farmers

‐ who would potentially be regulated by the proposal, we do not believe that the

widely diverse farm community was adequately represented and therefore cannot truly reflect

the opinions of agricultural growers working across America’s landscape.

RESPONSE: Even though the agency has concluded that its proposal does not trigger the

requirement for a SBARP, EPA believes that it has obtained the views of a diverse and

representative selection of small businesses likely to be affected by the proposed changes to

the WPS rule. EPA’s screening analysis indicates that, over all types of small farms, the impact

of the rule is 0.1% of sales. A cost of up to 1% of annual sales is considered non

‐ significant. EPA

determined no significant impact on a substantial number of small entities (SISNOSE);

therefore, SBREFA was not required. However, EPA convened a SBREFA panel to formally solicit

input. Representatives on the SBREFA panel included twenty

‐ one representatives of

agricultural applicators, crop advisors; and orchard, small fruit, vegetable, cotton, crops for

seed, and herb growers. The panel also had geographic distribution. Most of the SBREFA panel

members would be regulated under both WPS and the pesticide applicator certification

regulation. Besides this SBREFA process, EPA has conducted years of stakeholder engagement

–

the Pesticide Dialogue Process (1996

‐ 2000), the National Assessment Process (2000

‐ 2005), a

subgroup from the Pesticide Program Dialogue Committee (2006), and many informal meetings

– where input was solicited from a range of stakeholders representing a wide array of interests.

MINIMUM AGE REQUIREMENTS

3. The EPA proposal for a minimum age of 18 is in conflict with Department of Labor regulations

setting the minimum age for agricultural at 16 years for the "Handling or applying toxic

agricultural chemicals identified by the words "danger," "poison," or "warning" or a skull and

crossbones on the label"

http://youthrules.dol.gov/know

‐ the

‐ limits/agriculture/index.htm

http://youthrules.dol.gov/know

‐ the

‐ limits/agriculture/hazards.htm

USDA agrees with the Department of Labor regulations on minimum age requirements.

RESPONSE: EPA has decided to change the proposal to a minimum age of 16 for handlers and

early entry workers. After taking USDA’s comment and other information into account, EPA

agrees that a minimum age of 16 is appropriate at this time. The change to a proposed

minimum age of 16 will not conflict with states that require a minimum age of 16 for pesticide

handlers, or with the Department of Labor regulations. EPA will solicit comments on*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

establishing a minimum age of 18 for these tasks and the potential impact of establishing either

minimum age. EPA will continue to exempt family farms from a minimum age requirement.

4. The EPA proposed age requirement also raises Federalism issues (see Executive Order 13132)

because a number of States have a lower minimum age for pesticide handlers than 18. For

example, the minimum age in Utah is 16 years old.

http://ag.utah.gov/licensing/documents/4001

‐ 4002.pdf

USDA respects the decisions of the States to establish minimum age requirements with regard

to agricultural work related to pesticides.

RESPONSE: See the response to question 3 concerning a proposed minimum age requirement.

5. USDA also seeks confirmation that members of the SBARP were asked for feedback on the

proposed minimum age of 18 for all pesticide handlers and reentry workers. On reviewing the

2008 "Small Business Advocacy Review Panel on EPA Planned Revisions to Two Related Rules,"

it would appear that they were only asked for their opinion regarding a minimum age for

certified commercial and private applicators and regarding those applying restricted use

pesticides under their supervision

– not all pesticide handlers and reentry workers.

RESPONSE: EPA asked for feedback through the SBREFA process on both the worker protection

and the pesticide applicator certification regulatory change proposals. Because EPA was

drawing from both proposals when posing questions to the panel, it was not possible to ask for

feedback on every potential change. EPA is requesting comment on an alternative to allow

increased flexibility for agriculture

– establishing a minimum age of 16 with an exemption for

persons performing handler or early entry tasks on a farm owned by an immediate family

member. This recommendation is derived from a similar proposal resulting from the SBREFA

consultation related to the minimum age proposal for applicators under the pesticide

applicator certification regulation.

6. EPA should provide information on how the age requirement will be documented.

RESPONSE: The proposal would require the employer to maintain records of worker and

handler pesticide safety training. The record would include the worker’s or handler’s date of

birth. The proposal does not specifically require workers or handlers to show identification as

part of the training or creation of the record. EPA expects employers to rely on information

given by workers and handlers.

TRAINING

7. While USDA agrees with premise of the proposed yearly training requirement, the impact of

the training requirements proposed in this draft rule on existing federal Certification & Training

(C&T) programs is not clear. The potential impact would be better assessed if this rule and

EPA’s pending proposed rule for C&T requirements were issued as a single proposed rule or if

both were to proceed through inter

‐ agency review concurrently. While we realize there are*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

resource challenges, we do not have a clear understanding of the impacts and expectations of a

rule that has not yet been formally proposed, yet referenced in this rule. For example, the

proposed rule references “Part 171 rule revisions”. Without seeing those revisions, we cannot

assess their impacts. Ideally, USDA would like to see the final rule and C&T requirements

released together. However, understanding the resource challenges, we suggest the timeline

of two years be shortened. The sooner these requirements are in place, the sooner agricultural

workers are provided the awareness and understanding about the importance of working with

and around pesticides in the workplace.

RESPONSE: The proposed changes to the WPS will not impact the existing C&T requirements.

A person currently holding a certified applicator’s license will be deemed to have met the WPS

handler training requirement. The existing and proposed required WPS handler trainings,

however, do not fulfill the applicator certification requirement.

EPA acknowledges that there are references to anticipated revisions to 40 CFR part 171

(applicator certification rule) that have not been released yet. The two rules are substantially

different in their regulatory intent and implementation scheme. The applicator certification rule

addresses occupational application of restricted use pesticides, as well as the process for states

to administer an applicator certification program. The WPS is an employer

‐ based regulation

that provides general protections to those who work in pesticide

‐ treated areas and mix, load,

and apply pesticide to produce agricultural commodities. Therefore, these two rules cannot be

effectively combined into a single rule. EPA is working to issue the proposed revisions to the

applicator certification rule as quickly as possible.

8. EPA should describe a clear plan for documenting the training of workers. Numerous farm

workers are employed on various farms throughout the year. Please include in that plan how

the documentation of training transfers from one location to another. In addition, please

describe the format in which proof of training has occurred. For example, will "proof of

training" cards be issued to workers, labor contractors, owners, etc? If not, describe that

mechanism. Finally, please describe the plan of how EPA intends to ensure that this training

requirement is met as intended.

RESPONSE: The proposal describes the mechanism for documenting the training of workers and

handlers. Employers will be required to document the training of workers and handlers

through recordkeeping. The proposal specifies the information required in the record (i.e., the

trained worker’s or handler’s name, signature, and date of birth; the date of training; the

trainer’s name; proof of trainer’s qualification to train; the employer’s name; employer’s phone

number or phone number of the establishment; and which EPA

‐ approved training materials

were used), but does not dictate a specific format for the record, to allow flexibility for the

agricultural employer, such as maintaining electronic or paper records. Employers would be

required to maintain records of worker and handler training on the agricultural establishment

for two years.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

EPA proposes to require employers to provide a copy of the training record to each worker and

handler upon completion of the training. Workers and handlers can provide this record to their

next employer as proof of valid training and for the new employer to maintain a copy in his or

her records.

The agricultural employer has the responsibility to ensure workers and handlers receive training

and to create a record documenting the training. EPA intends to verify that the training

requirement is met by reviewing the relevant training records.

EPA is requesting comment on alternative options for providing verification of worker and

handler training.

EPA TRAINING MATERIALS

9. USDA recommends that new EPA

‐ approved training materials be developed with input from

all stakeholders. This would include growers, farm worker advocacy representatives, state

enforcement agencies, and the registrant community. Since the implementation of the Worker

Protection Standards twenty years ago, much has been learned about the most vulnerable

areas of the body to exposure from pesticides: Training materials should include advice on

simple, yet practical measures, such as wearing a hat, to reduce pesticide exposure.

RESPONSE: EPA plans to seek input from all stakeholders and consider all research on

communicating simple, practical measures to reduce pesticide exposure when developing

revised training materials.

RECORD RETENTION AND ACCESSIBILITY

10. Under the EPA proposed rule, the agricultural employer must maintain the pesticide

information described in § 170.11(b)(1) on the agricultural establishment for two years after

the date of expiration of any restricted

‐ entry interval, and make the information available to

any worker(s), handler(s), or their authorized representative(s) upon request during normal

work hours.

The proposed rule should include a definition of "authorized representative" in the definitions

list at 170.5. The definition should be in agreement with the Department of Labor.

RESPONSE: EPA has added a definition of “authorized representative” to the proposed

regulation. In the proposed rule, “authorized representative” means 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.

11. USDA has concerns for the liability incurred by growers to provide information persons

other than emergency medical personnel, law enforcement, and legal representatives. USDA

notes that some states have disclosure laws which classify pesticide use info as private (See*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

e.g., Minnesota pesticide information is private: MN Stat. 18B.37,

https://www.revisor.leg.state.mn.us/statutes/?id=18B.37 )

RESPONSE: EPA will request comment on legal or other issues that might arise by allowing

authorized representatives of workers and handlers to access the information employers must

provide to workers and handlers under the proposed rule.

12. USDA also seeks confirmation that members of the SBARP were asked for feedback on the

increased recordkeeping requirements. On reviewing the 2008 "Small Business Advocacy

Review Panel on EPA Planned Revisions to Two Related Rules," it would appear that they were

not asked.

RESPONSE: The SBARP members were informed about the potential areas for regulatory

change, including recordkeeping for training. EPA did not include a general question about

recordkeeping, but it was discussed by some members in their comments. Specific comments

are available in Appendix B to the SBARP report.

LANGUAGE OF INSTRUCTION

13. Under the proposed rule, growers will need to provide "workers and handlers with

information on reducing pesticide exposure in a manner they understand." Such a requirement

could be a significant burden upon growers if the language is other than English since, as EPA

has stated, many workers do not speak or read English and/or are illiterate in their own native

language. Some growers will need to verbally field questions in languages other than English

during question and answer sessions following any video training sessions. Not all growers will

have the ability to communicate in any language other than English. There have been reports

that some farm workers from Latin America speak Spanish in a “limited fashion.”

http://articles.latimes.com/2002/dec/09/local/me

‐ mixtec9.

http://indigenousfarmworkers.org/indigenous_languages.shtml

RESPONSE: The agency notes that the requirement to provide the worker and handler training

in a manner they understand is already contained in the current regulation; it is not a new

requirement under the proposal and EPA does not anticipate that the proposal will impose

additional burden. This requirement does not require growers or the training provider to be

fluent in the languages spoken by any worker. Rather, it requires communication in a manner

that could be understood. Training providers are instructed on ways of delivering information

to workers when the training providers do not speak the worker’s language. Although the

agency has not received feedback from agricultural employers indicating this requirement

imposes undue burdens, EPA will request comment on the requirement to provide information

in a manner that workers and handlers understand.

14. While EPA has written training material in a number of languages including Cambodian,

Chinese

‐ Mandarin, Haitian Creole, Hmong, Ilocano, Khmer, Korean, Laotian, Tagalog Filipino,

Polish, Portuguese, Russian, Spanish, Thai, and Vietnamese, are video training materials in all*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

these languages also available? Would they be available at low cost to those that will need to

provide training? http://www.epa.gov/agriculture/awor.html

. These issues have important

implications for the US H

‐ 2A agricultural guest worker program.

RESPONSE: EPA plans to request funds to support development of training materials in multiple

languages prior to implementation deadlines. EPA will make these training materials available

to the regulated community at low

‐ cost or no

‐ cost. EPA cannot commit at this time to making

training materials available in specific languages and formats.

15. Under the definition of agricultural employer, “Agricultural employer means any person

who is an owner of, or is responsible for the management or condition of an agricultural

establishment, and who employs any worker or handler”, the responsibilities of a labor

contractor to ensure the training of employees is not clear. Please clarify the role and

responsibilities of a labor contractor and the agricultural employer with regard to training and

recordkeeping especially as it relates to this definition.

RESPONSE: The employer is responsible for complying with all relevant provisions of the WPS.

He or she may choose to delegate some responsibilities to a labor contractor, such as providing

training for workers and handlers and creating the necessary records. However, the employer

retains liability in the event that the labor contractor does not comply with the duties delegated

by the employer.

Under the current rule, the agricultural establishment owner, operators and employers,

including labor contractors, are jointly responsible for providing training and other WPS

protections to workers, and for ensuring compliance with WPS requirements. The agricultural

owner, operator and employer, including labor contractors, each may be liable for a given WPS

violation. (IWG 16.12).

The proposed rule incorporates this guidance at 170.9. The proposal requires the employer to

“provide to each person, including labor contractors, who supervises any workers or handlers,

information and directions sufficient to ensure that each worker and 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,” and to “require each person, including

labor contractors, who supervises any workers or handlers, to provide sufficient information and

directions to each worker and handler to ensure that they can comply with the provisions of this part.”

PERSONAL PROTECTIVE EQUIPMENT (PPE)

16. USDA supports EPA’s proposal to add specific requirements of the existing California

standard for closed systems

. USDA notes though, that the California standards are dependent

on the “Director’s Criteria” where new technology is submitted for review and approved on a

case

‐ by

‐ case basis. Will EPA also have this review provision or will it be adopted by reference?

For clarification, please describe this in the proposed rule. This would expedite the introduction*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

of new technology for use on farm fields and thereby expedite the protection of farm workers.

http://www.cdpr.ca.gov/docs/whs/ pdf/closed_system_suppliers_2013.pdf

RESPONSE: EPA will not review and approve new technology. The proposed rule adopts the

standards set forth in California’s “Director’s Criteria” but does not adopt a parallel provision

for reviewing and approving new technology. Any closed system that meets California’s

standards would also meet the proposed standards. In addition, inspectors may evaluate

systems during inspections to determine whether they meet the criteria in the regulation.

DECONTAMINATION REQUIREMENTS FOR HANDLERS

17. The proposal would eliminate the option of using clean, natural waters (springs, streams,

lakes, etc.) for personal decontamination. This might be infeasible for some of the Forest

Service’s remote field operations. Please clarify the necessary use of such waters where water

supplies are not available in remote locations or when it is not possible to transport water into

remote locations.

RESPONSE: EPA has clarified the requirement in the proposal. The proposal would allow the

use of clean, natural waters in addition to the required decontamination water and supplies.

Under the proposal, however, clean, natural waters cannot be substituted for the required

decontamination water.

EARLY ENTRY WORKERS

18. USDA believes that reentry signs should be risk based. Currently, the word “Danger” is on all

signs which conflicts with the precautionary hazard language on the pesticide products applied.

This is confusing. While we understand the sign is intended to communicate information

indicating the area is under an REI, EPA should be consistent. Reduced risk pesticides, if used

alone, do not merit the word “Danger” on posted reentry signs. Alternative language would be

more appropriate.

RESPONSE: The duration of a Restricted Entry Interval is risk

‐ based; workers may freely reenter

a pesticide

‐ treated area only when residue levels have declined to levels which are acceptably

low risk. The cautionary language on reentry signs, however, is not risk

‐ based since the

residues and thus risks change over time. Thus, EPA does not plan to require risk

‐ based reentry

signs. Further, to require different signs for pesticides posing different risks, such as reduced

risk pesticides, would increase the burden on growers, by requiring them to purchase and

maintain multiple types of signs. It would also interfere with the premise of the WPS, which is

to provide simple, consistent safety messages, i.e., a warning that the area is under an REI and

must not be entered without additional protections. (EPA notes that many reduced risk

pesticides will not have REIs long enough to require posting of a warning sign.)

EPA is requesting comment on the costs and benefits of requiring risk

‐ based reentry signs.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

COMMENTS FROM THE U.S. FOREST SERVICE

19. The Environmental Protection Agency’s (EPA) proposed worker protection standards (WPS)

are expected to improve the protection of workers, their immediate family, and the general

public in areas where pesticides are used. The USDA Forest Service (USFS) conducts a wide

variety of activities utilizing pesticides, including but not limited to seed orchard management,

nursery management, invasive species management, silviculture, and other aquatic and

terrestrial vegetation and pest species management. The USFS strongly supports the EPA

proposed changes because they will help strengthen safety protections for those who use

pesticides, and those who will be accessing areas where pesticides were applied. The EPA

proposal will also bring hazard communication requirements more in line with Occupational

Safety and Health Administration requirements and make improvements to pesticide safety

training.

EPA uses the North American Industrial Classification System (NAICS) to identify a partial list of

agricultural worker groups potentially affected by this proposed rule. NAICS was developed

under the auspices of the Office of Management and Budget (OMB) as a joint effort of the U.S.,

Canada, and Mexico to allow for a high level of comparability in business statistics among the

North American countries. Using the NAICS, at minimum, the proposed rule covers workers

using pesticides in production agriculture, including but not limited to the NAICS categories for

Nursery and Tree Production (NAICS 111421), Agricultural Establishments (NAICS 111000),

Timber Tract Operations (113110), Forest Nurseries and Gathering of Forest Products (NAICS

113210), and Pesticide Handling in Forestry (NAICS 115310). NAICS 115310, for example,

covers workers engaged in programs and establishments which provide support activities for

forestry, such as forest pest control. “Forest Pest Control” is not defined in the proposed rule,

and may potentially affect the scope applicability of the new WPS. The NAICS category 115310,

as well as the other categories described in the proposal, do not adequately describe the

breadth of pesticide activities performed on National Forest System lands.

While safety of pesticide operations, and environmental protection, are paramount for

USDA/Forest Service (FS), the applicability of the Agricultural Worker Protection Standard

(WPS) to Federal land management, forestry and grassland stewardship in particular, is

ambiguous. The sample NAICS codes listed as potentially affected within the draft FR

announcement includes the following commercial enterprises:

Nursery and Tree Production (NAICS code 111421), e.g., establishments or persons primarily

engaged in (1) growing nursery products, nursery stock, shrubbery, bulbs, fruit stock, sod, and

so forth, under cover or in open fields and/or (2) growing short rotation woody trees with a

growth and harvest cycle of 10 years or less for pulp or tree stock.

Timber Tract Operations (NAICS code 113110), e.g., establishments or persons primarily

engaged in the operation of timber tracts for the purpose of selling standing timber.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

Forest Nurseries and Gathering of Forest Products (NAICS code 113210), e.g., establishments or

persons primarily engaged in (1) growing trees for reforestation and/or (2) gathering forest

products, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and

truffles.

Support Activities for Forestry (NAICS Code 115310)

Definition: This industry comprises establishments primarily engaged in performing particular

support activities related to timber production, wood technology, forestry economics and

marketing, and forest protection. These establishments may provide support activities for

forestry, such as estimating timber, forest firefighting, forest pest control, and consulting on

wood attributes and reforestation.

Though the list of potentially affected NAICS Codes in the draft FR announcement was not

intended to be all inclusive, only some of the pesticide operations conducted by FS, such as in

nurseries and greenhouses, resemble “agricultural” operations. FS pesticide operations in

wildland tracts that might someday be subject to timber harvesting are not properly classified

along with “Timber Tract Operations” of commercial tree plantations. And, the gathering of

forests products by members of the general public from FS lands does not place those activities

into NAICS Code 113210, along with private commercial enterprises.

Much of FS enterprise is more properly characterized as fitting into NAICS Code 924120

‐

Administration of Conservation Programs, 924120 NAICS Code

‐ Administration of Conservation

Programs, with the following “Industry Description:”

This industry comprises government establishments primarily engaged in the administration,

regulation, supervision and control of land use, including recreational areas; conservation and

preservation of natural resources; erosion control; geological survey program administration;

weather forecasting program administration; and the administration and protection of publicly

and privately owned forest lands. Government establishments responsible for planning,

management, regulation and conservation of game, fish, and wildlife populations, including

wildlife management areas and field stations; and other administrative matters relating to the

protection of fish, game, and wildlife are included in this industry.

FS follows substantive requirements (e.g. adherence to Restricted Entry Intervals –REIs and use

of personal protective equipment) of the extant WPS, consistent with pesticide labeling.

However, the re

‐ written WPS proposal would impose new requirements concerning

recordkeeping, hazards communication, decontamination supplies, and medical evaluation of

pesticide handlers who use respirators. Additionally, annual pesticide training would be

required for workers and handlers, where now training every 5 years suffices. How the

proposed requirement for increased training comports with the existing pesticide

‐ applicator

certifications of FS employees is unclear; because, in part, FS relies on State certifications in

some areas and the EPA

‐ approved “Plan for Certification of Forest Service Employees Engaged

in Applying or Supervising the Application of Restricted

‐ Use Pesticides” in others. Under the

proposal, trainers would need to additionally complete an EPA

‐ approved train the trainer*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

program, or otherwise be designated by EPA, State, or Tribal authorities. Whether, and how,

the proposed WPS revisions are intended to apply to Federal land management operations and

personnel is unclear, in large measure because Governmental land stewardship activities are so

dissimilar to “agricultural” operations. And, because of the dissimilarity, there is doubt whether

“improvements” for agricultural operations would provide safety or environmental protection

benefit for many FS operations. “Improvements” required without regard to relevance could

simply mean higher compliance costs without actual benefits. As noted in the Economic

Analysis provided by EPA, under Agricultural Employees [emphases added]:

WPS also covers employees of forestry operations although most workers in forestry would

generally not be at substantially more risk than the general public due to pesticide use patterns

in forestry.

And, under Regulated Entities:

Given forest production practices, pesticide applications and worker activities are commonly

quite distinct and so WPS requirements would rarely impact forestry operations.

And, in the Overview:

Forestry operations are not analyzed quantitatively; with the exception of tree nurseries,

pesticide use patterns in forestry operations will not typically trigger most WPS provisions such

as training and notification.

And, under Hazard Communication:

Forestry operations are also covered, but as the impact is minimal, they are not

considered in this analysis.

Yet, under Costs of Proposed Rule:

Forestry operations are also covered by WPS, but we lack the data on pesticide use on

these establishments to confidently estimate the impact of WPS requirements.

The intended applicability of the proposal to FS operations is unclear partly due to the

definitions provided for the terms “Agricultural Employer,” “Agricultural Establishment,”

“Agricultural Plant,” “Commercial Production,” “Forest Operation,” and other terms. For

example, it is not clear whether the term “Worker” might be construed, in the case of National

Forests, to include members of the general public engaged in collection of forest products, or

loggers harvesting timber.

Also, the proposal would eliminate the option of using clean, natural waters (springs, streams,

lakes, etc.) for personnel decontamination. This might be infeasible for some FS remote field*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

operations where sites are accessed by hiking, or on horseback. And, are these types of remote

area forestry activities sufficiently dissimilar from “agriculture” to exempt them from the WPS?

Prior to promulgation of revisions to the WPS, it would be invaluable for EPA to engage the FS

and other Federal land management agency pesticide

‐ use representatives, perhaps through the

Federal Integrated Pest Management Coordinating Committee (FIPMCC), in discussions to

address applicability, and compliance cost, of the proposed WPS revisions to Federal land

management operations.

Pesticide

‐ use activities in NFS programs are quite extensive. The USFS conducts pesticide

‐ use

activities, using USFS personnel and/or contractors, across every National Forest and Grassland

in the United States; mostly to prevent or control invasive species, for general vegetation

control, and to control other native pests and diseases. Although not conducted expressly for

the purpose of agricultural production forestry, these pesticide

‐ use activities are critical for the

management of the forests, grasslands, wetlands, waterways, public use, safety, and human

health on these public lands. Cumulatively, these types of worker activities are conducted

across hundreds of millions of acres of terrestrial and aquatic areas of the United States, and

involve thousands of public and private personnel who conduct those activities. Annually, USFS

pesticide

‐ use workers apply pesticides directly, or supervise the applications indirectly, to at

least 500,000 acres of aquatic and terrestrial areas of the National Forest System each year. It is

unclear if the proposed rule will apply to National Forest System invasive species management

programs and related pesticide

‐ use activities. Therefore, the USFS recommends that EPA clarify

if proposed rule specifically applies to the type of pesticide

‐ use activities typically conducted by

government and non

‐ government workers on public lands.

In addition, it may be necessary for EPA, USDA, the Office of Management and Budget to

collaborate to establish an additional agricultural worker category “Pesticide Handling in

Natural Areas” within the North American Industrial Classification System. This new NAICS

category would help to protect the large population of workers conducting pesticide use

management activities in natural areas outside of traditional production

‐ agriculture settings,

particularly on public lands and waters, and in areas where workers and the general public are

entering. Under this category, people conducting those activities would be provided the full

worker protection standards protections being proposed by EPA. This addition would help not

only workers in USFS programs, but also workers in many other public and private

organizations.

Safety is a top priority for the USFS, and the agency is strongly committed to improve safety of

its workers and others. The USFS believes that a key towards increasing safety outcomes is

continuous improvement. The worker protection standards being proposed by EPA will assist

the USFS to improve its safety outcomes. When complete, the USFS will incorporate the final

Worker Protection Standards into applicable USFS directives as appropriate. The Forest Service

Manual and Handbook for Pesticide Use Management may be modified to incorporate these

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

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

RESPONSE:

20(a) FOREST SERVICE: While safety of pesticide operations, and environmental protection, are

paramount for USDA/Forest Service (FS), the applicability of the Agricultural Worker Protection Standard

(WPS) to Federal land management, forestry and grassland stewardship in particular, is ambiguous.

RESPONSE: The WPS covers an agricultural establishment whether the property is owned

and/or operated by the government or a private individual if (1) a WPS

‐ labeled agricultural

pesticide was used on the establishment or an REI in effect within the last 30 days, (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 engaged in

the production of a commercial agricultural product or research, and (4) the establishment

or the activity is not covered by one of the exceptions specifically described in the rule.

Handler activities include including mixing, loading, using and disposing of pesticides.

Worker activities include including pruning trees, growing host plant material from seeds

for disease resistance screening, planting trees and researching activities such as gathering

seed where workers may be in contact with pesticide residues.

20 (b) FOREST SERVICE: How the proposed requirement for increased training comports with the

existing pesticide

‐ applicator certifications of FS employees is unclear.

RESPONSE: See the response to number 7 under “Training”.

20 (c) FOREST SERVICE: Whether, and how, the proposed WPS revisions are intended to apply to

Federal land management operations and personnel is unclear.

RESPONSE: WPS applies to “agricultural establishments” owned and operated by private, public or

non

‐ profit organizations and to people who work with pesticides and around pesticide residues. A

federal land management operation is subject to the WPS if the production of a commercial

agricultural product 1 or research is involved, and a pesticide product whose label indicates that the

user must comply with the WPS is used within the last 30 days. As long as all of these circumstances

exist, the federal land management operation and its personnel would be subject to the WPS

requirements if the personnel handle (including mixing, loading, using and disposing) pesticides

and/or work 2 (including pruning trees, growing host plant material from seeds for disease resistance

screening, planting trees and researching activities such as gathering seed) where they may be in

contact with pesticide residues.

1 “Commercial” means for sale, or producing plants for the use of the establishment instead of buying them from a

commercial market (e.g., ornamental shrubs).

2 Typical worker tasks include thinning, pruning, and harvesting commodities. The proposed definition of “worker”

is: any person, including a self

‐ employed person, who is employed and performs activities directly relating to the

production of agricultural plants on an agricultural establishment.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

20 (d) FOREST SERVICE: It is not clear whether the term “Worker” might be construed, in the case of

National Forests, to include members of the general public engaged in collection of forest products, or

loggers harvesting timber.

RESPONSE: In the WPS, a “worker” is an employed person who performs activities relating to the

product of agricultural plants. However, all of the circumstances regarding the operation and

personnel must exist before the employer has to comply with the requirements. A member of the

general public engaged in the collection of forest products would not be a “worker” under the WPS

because they are not employed by the Forest Service. The employer of a logger harvesting timber is

subject to the WPS requirements if the timber is used for a commercial or research purpose and a

pesticide product whose label indicates that the user must comply with the WPS is used within the

last 30 days.

20 (e) FOREST SERVICE: Also, the proposal would eliminate the option of using clean, natural

waters (springs, streams, lakes, etc.) for personnel decontamination.

RESPONSE: EPA is not eliminating the option of using clean, natural waters for decontamination.

See the response to question 18 for further information.

20 (f) FOREST SERVICE: In addition, it may be necessary for EPA, USDA, the Office of

Management and Budget to collaborate to establish an additional agricultural worker category

“Pesticide Handling in Natural Areas” within the North American Industrial Classification

System.

RESPONSE: EPA will add the recommended NAICS code, 924120, to the list of potentially

affected entities in the preamble to the proposal. EPA recommends that the U.S. Forest

Service collaborate with the Office of Management and Budget to create an additional

category under NAICS to reflect the pesticide handling activities in the industry.

20 (g) FOREST SERVICE: It is unclear if the proposed rule will apply to National Forest System

invasive species management programs and related pesticide

‐ use activities.

RESPONSE: One of the criteria that must be in place before a program is subject to the WPS

is that the agricultural production is for commercial or research purposes. The following

activities do not meet this criterion, and therefore are not subject to the WPS:

 The control of vegetation along rights

‐ of

‐ way and other non

‐ crop areas, pasture and

rangeland use.

 Growing plants for other uses (i.e., not for commercial or research purposes).

 Public pest control programs sponsored by governmental entities (i.e., to prevent or

control invasive species or control native pests and diseases).

 The control of aquatic weeds.

COMMENTS ON THE ECONOMIC ANALYSIS*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

21. USDA has concerns that EPA has not fully accounted for the costs to agricultural producers

to comply fully with the new worker protection standard (WPS) requirements and the benefits

to agricultural workers. Many of the inputs into the economic analysis are difficult to quantify

but could be represented by a range of plausible values. Using a range rather than a single

point estimate provides more information to the public and decision maker about the potential

magnitude of costs and benefits. More specific comments are grouped below under relevant

headings.

Response: EPA acknowledges the difficulty of quantifying the costs of revisions to the WPS, but

does not think there has been a systematic underestimating of the costs. Additional sensitivity

analysis, particularly in terms of the number of workers and the number of farms, would likely

lead to lower cost estimates.

There is considerable uncertainty in the appropriate values due to the diversity among farms

and the lack of data regarding many current practices and the effect of the proposed

requirements. We necessarily rely on averages and/or information on ‘typical’ practices when,

in fact, there is great diversity in pest pressure and the use of pesticides across the agricultural

sector. EPA has, therefore, made a number of assumptions based on experience by EPA staff in

the field and on conversations with state regulators and other stakeholders.

EPA disagrees, however, that we have not fully accounted for the costs. While some

assumptions were made regarding the average or typical situation and practice, for key inputs

to the cost estimate, EPA has tended to use values that are probably more indicative of high

and frequent pesticide use than would be typical for many farms. As a result, the costs may be

overestimated, particularly for the overall regulatory burden of the WPS in the baseline and

under the proposed requirements. We explain how these assumptions tend to overestimate

the per

‐ farm costs of individual requirements under the relevant headings below. We also

conducted sensitivity analyses around some parameters to ascertain if they had an important

impact on costs (see Chapter 3 of the EA). For the overall impact of the rule, the most

important factor in the magnitude of the estimated cost is the number of farms and workers

impacted by the rule.

The WPS imposes certain requirements on agricultural employers of pesticide handlers and of

fieldworkers who engage in hand labor activities associated with crop production

, where

pesticides are used. According to data from the 2007 Census of Agriculture, compiled for EPA

by USDA, there are almost 1.6 million farms producing crops in the U.S., of which about 1.1

million primarily produce crops and just over 500,000 are primarily livestock operations,

including poultry farms and feedlots. About 395,000 of the 1.6 million farms hire labor; the

remaining 1.2 million farms are essentially ‘family farms’ that rely on their own labor force and

are exempt from most WPS requirements. Of the 2.3 million farm employees reported in the

Census data, almost 1.8 million work on farms primarily producing crops and about 540,000

work on primarily livestock operations. Slightly more than 300,000 (less than 80%) of the farms

hiring labor reported using pesticides in 2007. However, in EPA’s analysis, we assume that all*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

395,000 farms and 2.3 million workers are subject to all WPS provisions. As a result, we

estimate a total incremental cost of the WPS revisions to be $62.2 and $74.4 million per year.

This estimate should be considered an upper bound because we have made relatively

conservative assumptions about the impact of individual requirements (discussed below), but

also because we apply all requirements to all farms hiring labor.

A more realistic estimate would consider that much of U.S. agriculture is mechanized and that

workers are not involved in hand labor activities. For example, the primarily livestock

operations that also produce crops likely grow forage crops or field crops like corn and soybean

that are highly mechanized. Since they are not engaged in hand labor activities, employers and

employees would not be covered by the field worker requirements of the WPS. Only the

handler requirements would apply. They would be required to:

 Conduct handler pesticide safety training;

 Maintain records of pesticide applications;

 Provide handler pesticide safety training;

 Provide handler safety displays and decontamination supplies;

 Comply with minimum age requirements for pesticide handlers; and

 Comply with all PPE requirements.

However, farms without fieldworkers engaged in hand labor activities would not be required to:

 Conduct worker pesticide safety training;

 Provide worker pesticide safety displays;

 Provide worker decontamination supplies; nor

 Provide notification of REIs, either orally or by posting.

If we separate the 153,000 primarily livestock farms from the 242,000 primarily crop farms and

their 1.8 million workers, and assume that only the latter represent the farms with hand labor

activities, the total incremental cost of the proposed revisions is around $55 to 62 million per

year or 15

‐ 18% less than reported in the Economic Analysis.

It should be noted that this latter estimate still includes about 157,000 farms (with almost

500,000 employees) that primarily produce field crops such as grains, oilseeds, potatoes, etc.

Many of the activities on these farms will also not involve hand labor. Thus, even this lower

estimate is still biased upward.

In contrast, key assumptions such as the number of pesticide applications made on the farm

have a smaller effect on overall costs. A 25% change in the number of applications changes the

total cost of the rule by only 6%.

Training Costs

22. The analysis of the proposed new training requirements could be strengthened by

considering increased costs associated with the first year of the new training requirements.

EPA has not considered how initial implementation of the new standards will likely take more

time than is assumed in the EA for the costs. For example, it is likely that trainers will take*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

longer to present the training material the first time they present such material. As such we

would expect that initial costs of the program to be higher in the first year.

EPA has considered how annual implementation of the new training standards will

increase the effectiveness of those standards when it considered the SENSOR data and

developed estimates of benefits. However, EPA has not considered how improved

implementation of the new standards will also increase the costs of that implementation.

USDA suggests conducting sensitivity analysis on EPA’s baseline implementation assumptions

and how that would lead to higher costs of fully implementing the new standards.

Including new training topics and clarifying some existing information will add additional

time to the training. EPA estimates the new material would add incremental 15 to 18 minutes

to the existing training for workers and handlers. The factors contributing to training length

should be discussed. The NPRM and EA note training videos exist that are currently in use. The

NPRM cites a 50 minute video for pesticide handlers and the EPA web site refers to a 36 minute

worker training video. The EPA WPS training web site emphasizes the importance of providing

a question and answer period as well as the training material. The EA would be strengthened

by providing additional explanatory information supporting the baseline training duration

estimate and the incremental addition. It would also be extremely useful to provide a range of

the typical training durations and a range for the additional material for current worker and

handler training rather than the 30 or 45 minute baseline estimates and the 15 to 18 minute

additional time.

The incremental cost of training including the new topics is $36.1 million, primarily due

to the cost of providing the trainer. The cost of developing the new material, either by the

Agency or private entities, is not included in the analysis but should be considered. The NPRM

notes several videos available for training

– these will need to be revised to include the

material. Other training materials currently in use will also need to be revised. The cost of

providing training in different languages other than English should be included in the estimates.

The average 1.5 training sessions expected annually at a large WPS farm does not appear to

include sessions in different languages.

EPA has not yet developed new training materials for agricultural producers to use in

meeting the training requirements of these standards. As such, EPA should make

implementation of the new training requirements contingent upon EPA developing and

providing such materials to agricultural producers. That change should be reflected in the

regulatory text.

Response: EPA did consider the cost of the new training requirements and estimated the

impact of changing both the frequency of training and the duration of the training (in order to

cover new material). The estimated cost of revisions to the training requirements is $24

‐ 32

million per year. This cost is primarily a function of the additional time required on the part of

both the trainer, who is often the employer, and the workers to meet the new requirement. It

is not primarily a cash outlay on the part of the employer, but rather the opportunity cost of*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

time spent in training rather than in farming activities. Not all requirements will be effective

immediately. The new training content, for example, will be implemented two years after the

rule is finalized to allow materials to be developed and disseminated. Further, as has been

noted above, there is no requirement that trainings be conducted in languages other than

English; the proposal carries forward the requirement from the current rule that training must

be provided in a manner that the employee can understand. The EA does not estimate any

costs for the requirement that training be provided in a manner the workers understand, since

the proposal would not change the current rule in that regard.

With respect to the comment that EPA should conduct a sensitivity analysis, as described

above, EPA has considered a range of estimated cost impacts of its proposal. EPA’s cost

estimate assumes that all farms producing crops, including those that are primarily livestock

operations, must train all workers. If only those farms that are primarily producing crops are

considered, the national cost of the training requirements is reduced to $19

‐ 25 million per year.

The estimated cost for a large farm with 25

‐ 30 workers is an additional $270 per year, which is

slightly higher than shown in the analysis because large crop farms tend to employ more

workers than primarily livestock farms (10

‐ 15 workers). The estimated cost for a small farm

with around 4 workers is about $60 more per year under both scenarios. These per

‐ farm cost

estimates are biased upward somewhat, however, because we assume that all farms provide

training to all their workers although training is only required if the workers are entering an

area that has been treated with pesticides. Many of these workers will be temporary

employees who are hired to help with harvest and if pesticides have not been used, training will

not be required. According to the 2007 Census, nearly 20% of small crop farms did not use

pesticides in 2007, suggesting that many farms will not incur these costs; at least not every

year. Sensitivity analyses around several training parameters are detailed in Chapter 3 of the

EA.

The amount of time an agricultural employer takes to cover the current safety material can

obviously vary, but is largely irrelevant to the estimate of the incremental cost of the revisions.

EPA is not proposing to change materials related to current topics so the time needed to cover

that material will not change. EPA is proposing to cover additional topics, which will require

additional time. The new material will cover important information for workers to know,

especially about protecting their families from inadvertently transporting pesticide residues

home on their clothing. As USDA suggests, it could be that the new information will be more

difficult for trainers to address, at least initially, but the impact on cost is minimal. Even if we

assume that there is a 20% increase in the time required to present the information in the first

year, it amounts to only a 3% change in the cost of this individual requirement over the

standard ten

‐ year time horizon.

As for the new training material, EPA cannot develop the new training materials until the rule

becomes final. The revised training materials are expected to be available two years after the

proposed rule becomes final; until that time, the current training, using the training materials

already in the field, will continue to be required. The proposed regulatory language at

170.101(c)(3) explains:*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

“After [insert date 2 years after the effective date of the final rule specified in 170.7],

the training must also include all of the following:”

Following this text is a list of the new training requirements.

Recordkeeping Costs

23. The proposed rule imposes new recordkeeping requirements for agricultural employers and

handlers. The estimated costs for creating worker and handler training records and retaining

them for two or five years is not well explained in the EA. Costs of producing and retaining the

record should be discussed. The burden on employers and handlers in filling out forms and

collecting the new information should be explained. The EA suggests the cost for worker

training records ranges from $4.30 to $5.10 per year per WPS farm but it is unclear how this

was derived.

Costs to WPS farms and certified pesticide handling establishments (CPHEs) associated

with creating and maintaining records of handler training also need further explanation for the

range reported for farms ($0.80 to $1.90) and CPHEs ($3.00 to $4.70).

Costs associated with the other record keeping provisions also need further explanation

(Keeping information about pesticides used on the agricultural establishment 170.11(b);

Personal Protective Equipment 170.207(b)(9); Agricultural employer responsibilities to protect

workers entering treated areas during a restricted

‐ entry interval 170.305(b); Exceptions to

personal protective equipment requirements specified on pesticide product labeling, Closed

Systems 170.307 (d); Exceptions to personal protective equipment requirements specified on

pesticide product labeling 170.309).

Response: All of the cost estimates for the proposed new recordkeeping requirements were

developed in the same manner. EPA estimated the cost of the materials (e.g., paper) needed

for keeping the records and the opportunity cost of labor for employees to acknowledge

training and for employers to distribute, collect, and store the records. A detailed description

of the assumptions about material cost and time used for record

‐ keeping is in Appendix A of

the EA.

In the case of worker training records, for example, the record would be the training register,

which each worker would sign, taking about 30 seconds. The time is minimal, but EPA includes

a cost of $0.10/worker. The employer files the training register, taking 5 to 10 minutes ($3.30).

We also account for the cost of the paper for the register and the file for storage (about $0.29).

The estimated cost per farm is based on the average number of workers and the average

number of trainings that would be held in a year.

A similar, detailed estimation is made for the other options EPA considered, and is provided in

Appendix A. The cost for maintaining handler records is lower per farm because only a few*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

employees would handle pesticides. The descriptions of all the assumptions made for record

keeping options are in the Appendix:

Discussion of the assumptions for the baseline and costs for record keeping of worker and

handler training are in Appendix A.1.c. Record Keeping, Worker Training (Train

‐ 10,11) and

A.1.e. Record Keepking, Handler Training (Train

‐ 16,17). For the other proposals mentioned

above, the specific parts of the appendix are:

 Keeping information about pesticides used on the agricultural establishment

170.11(b):

o Appendix A.2.c: Record keeping (HAZCOM

‐ 05 and 06)

 Personal Protective Equipment 170.207(b)(9);

o Appendix A.6.a, Respirators (PPE

‐ 01)

 Agricultural employer responsibilities to protect workers entering treated areas

during a restricted

‐ entry interval 170.305(b);

o Appendix A.3.f, Early Entry Notification Record Keeping (Notify

‐ 12 and 13)

 Exceptions to personal protective equipment requirements specified on pesticide

product labeling, Closed Systems 170.307 (d);

o Appendix A.6.c, Closed Systems (PPE

‐ 04)

 Exceptions to personal protective equipment requirements specified on pesticide

product labeling 170.309)

See also Appendix B.1, which details the costs for training records, including for the ‘right to

know’ information required in 170.309, accounting for all the proposed training revisions and

their interactions.

Baseline Estimates

24. The assumed baseline may not represent current application of the WPS today. The

frequency at which workers currently receive training and the proportion being trained each

year could vary from the baseline assumptions. The probability that a particular type of trainer

will conduct training is not well documented. Sensitivity analysis of the proportion of trainings

conducted by each trainer category would provide an estimate of how important the assumed

baseline proportion is in the cost calculation. Upper and lower bounds could be derived by

changing the proportion.

Response: EPA acknowledges that there are limitations to the analysis, and we conducted

some sensitivity analyses around some parameters. Regarding the proportion of trainings

conducted by each type of trainer, we relied on qualitative information from state officials that

the majority of trainings (we assumed 75%) are conducted by a certified pesticide applicator,

who is often the employer, with the rest of the trainings conducted by someone certified to

train pesticide handlers or who has completed an appropriate “Train

‐ the

‐ Trainers” program.

The proposed revision most affected by this assumption is the requirement that trainings only*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

be conducted by someone certified to train handlers or someone who has completed a “Train

‐

the

‐ Trainers” program. If we assume that all trainings are conducted by a certified applicator,

the cost of this revision increases less than $1.00 per year per farm. Thus, the proportion of

trainings currently conducted by an employer or certified applicator is not a large factor in the

estimate of the cost of revisions to training.

25. Current regulations require the handler employer to confirm that a respirator is fit properly.

The new regulations require fit test, training and medical evaluation conforming to OSHA

requirements and recordkeeping. The baseline estimate for obtaining a fit test is not well

described and it is unclear what assumptions were made for current practice. The incremental

difference between the baseline and new requirements doubles the baseline cost but may

understate the difference as it is unclear what current practice entails. Sensitivity analysis

about the travel and wait time for medical examinations and cost of follow

‐ up medical

examinations could provide a range of likely values for the proposed alternative. The cost of

travel, as well as time spent traveling should be included in the cost. Presenting a range, rather

than a point estimate, incorporates some acknowledgement of uncertainty in these

calculations.

If the baseline is actually “lower” than EPA is assuming, the benefits and costs of the

new requirements will both be higher.

Response: The specific assumptions for estimating the costs of individual line items are in

Appendix A.6. EPA acknowledges that the baseline practices are not well defined; the current

regulation merely requires that employers insure that respirators fit properly.

For the purposes of costing the baseline requirement, we assumed only minimal checking,

amounting to 10 minutes on the part of both the employer and employee. We also assume

that this occurs only when a pesticide requiring a respirator is used. It is this assumption of

very minimal action in the baseline that drives the estimate of the incremental cost of

respirator fit testing. Considering the opportunity cost of their time, the baseline cost is less

than $5.00 per farm per year. A small portion of handlers (0.7%) is assumed to already follow

OSHA standards for respirator fit as a result of handling fumigants, for which an OSHA

‐ style

requirement is mandatory, and the baseline costs for these handlers are the same as the costs

for all handlers under the proposal.

To comply with the proposal, we assume handlers face substantially more travel and

examination time (1.5 hours combined), and a substantial fraction (23%) will undergo a follow

‐

up examination (2 hours, travel and exam combine). Varying assumptions about these times

will vary the cost estimates, of course. Doubling the travel and examination time to three hours

will increase the cost per handler about 38%, and will increase the overall costs of this proposal

a similar amount, about $3 million. Finally, EPA assumes that almost twice as many handlers

will be fit

‐ tested under the proposed requirement than are impacted in the baseline. This

increase in the number of handlers is based on the assumption that employers will be unwilling*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

to wait to see if a covered pesticide is needed during the growing season, but will have handlers

fit

‐ tested in advance so that no delay occurs if a pest problem emerges. Assuming a range of

times would yield a range of cost, although EPA believes the assumptions already made are

already conservative.

Additional Sensitivity Analysis

26. If EPA were to include sensitivity analyses around parameters discussed above and other

important parameters it is likely that the upper range would likely make this an economically

significant rulemaking. For example EPA assumes large WPS farms employ two pesticide

handlers but large

‐ small farms employ one handler. EPA assumes the annual training

requirement would result in 1.5 training sessions/year for large farms but additional sessions

may be required for employees who speak a language other than English. Those assumptions

could be examined through sensitivity analysis as well to provide a wider range of likely

outcomes.

Response: Most of the assumptions EPA made to estimate costs were conservative, so the

cost estimates reported in the EA should be considered “high

‐ end” estimates. EPA conducted a

number of sensitivity analyses as part of the economic analysis. Additional sensitivity analyses

would provide a wider range of cost estimates, but it is unlikely that cost estimates would be

substantially higher. Sensitivity analyses on the number of agricultural establishments and the

number of employees were described above, for which more realistic estimates result in lower

costs.

As another example, we compared various assumptions about the occurrence of training

–

whether it occurred each year as a matter of course or was dependent on the use of pesticides

by the farm. We examined how the costs varied according to the number of pesticide

applications that are made per year and the rate new workers enter into the agricultural labor

market. Most of the assumptions we made are conservative. For example, we assume that

about 20 pesticide applications are made each year and that most workers are present for all

applications, thus triggering notification requirements for each worker and each application. In

reality, many workers are not engaged in hand labor activities that necessitate notification and

many of those are employed temporarily for specific tasks, like harvest. At that time, workers

would be informed of the most recent applications to the field in which they work.

EPA also wants to make clear that the average of 1.5 training sessions/year masks considerable

variation considered in the number of trainings, depending on the number of workers and size

of the farm as defined by the annual sales. The number of sessions ranges from slightly over

one per year for small farms (defined by the Small Business Administration as a farm with less

than $750,000 in sales) with fewer than 10 workers (the average, according to USDA statistics,*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

is 3 worker/farm) to six sessions for large farms with more than 10 workers. It is also important

to understand that, to the best of EPA’s knowledge, trainings occur throughout the season as

workers are employed. According to USDA Farm Labor reports, for example, farm employment

is at its peak around July as harvest begins, drops in October and is lowest around January

before rising again through the spring. The WPS has always required that training be provided

in a way that can be understood, but not that training must be provided in languages other

than English.

Importance of Chronic Exposure

27. In the economic analysis, EPA acknowledges that, to date, there is only initial evidence of a

possible association between various pesticide exposures and cancers of the lung, colon,

prostate, bladder and pancreas as has been published by the Agricultural Health Study (AHS).

EPA also has recognized that the overall cancer incidence (all cancers combined) observed in

the AHS is lower [in the farmer population] than the general population and that the incidence

of prostate cancer is consistently higher than the general population. Because researchers have

yet to determine whether the links are causal in nature, and the degree to which pesticide

exposures and other farm

‐ related exposures may contribute to the risk of these cancers, USDA

considers it premature to estimate health benefits based on possible associations alone as

there is no real linkage. To do so would unnecessarily cause alarm and worry to our Nation’s

farm workers and farm families.

Response: The preamble and economic analysis are careful to indicate that information based

on epidemiological studies can show an association between pesticide exposure and an adverse

health effect, but is often inadequate, by itself, to prove causation. However, the potential

value of preventing even a few cases of these diseases is great, and it would be inappropriate to

ignore the results of these studies as part of our economic analysis. The epidemiological

studies have begun to show that pesticides may be at least a contributing factor to a number of

serious diseases, possibly due to exposures to multiple pesticides or to pesticides and other

chemicals

– including natural chemicals. The presentation in the economic analysis is not

intended to alarm the agricultural community, but the information is based on published

research, and better informing workers about pesticide practices and pesticide safety may

serve to improve day

‐ to

‐ day behaviors that will, in turn, reduce risks and any potentially

associated adverse health outcomes.

Estimation of Chronic Benefits

28. Please move this bold highlighted language about Chronic Benefits from the second

paragraph on page 200 to the beginning of section 6.6 on page 193 between the existing

sections of text reproduced below in regular typeface.*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Final USDA Comments on Proposed Worker Protection Standards (WPS) September 5, 2013

This section will describe the potential chronic health effects to farm workers, pesticide

handlers and their families from pesticide exposure. Following this section, EPA presents a

semi

‐ quantitative method for assessing benefits (“break

‐ even analysis”) to chronic health

conditions, i.e.

, chronic cases avoided due to the rule.

EPA is not stating that there is a causal link between certain health outcomes and exposure to

specific pesticides. It would be premature at this stage to suggest a causal link between these

exposures and the health outcomes. However, information linking pesticide exposure is

compelling enough to suggest some of the statistical associations may at some point in future

be determined to be causal in nature. Therefore, overall pesticide exposure reduction

through WPS may have substantial benefits that cannot be quantified at this time.

While there is limited epidemiological evidence of a definitive causal link between specific

pesticide exposures and adverse chronic health outcomes at this time, this section presents

evidence of well

‐ documented associations between pesticide exposure and certain cancer and

non

‐ cancer chronic health effects in the peer

‐ reviewed literature.

Response: EPA agrees with the suggested change and has made these revisions.