FINAL REPORT 

Small Business Advocacy Review Panel on 

EPA Planned Revisions to 

Two Related Rules: 

Worker Protection Standard for Agricultural 

Pesticides (RIN 2070-AJ22); and 

Certification of Pesticide Applicators (RIN 2070-AJ20)

November 3, 2008 
November 3, 2008 

2

Table of Contents 

 

1. Introduction 3

2. Background 4

2.1 Regulatory History 4

2.2 Description and Scope of Existing Rules 5

2.3 Related Federal Rules 8

3. Overview of Revisions under Consideration 8

4. Applicable Small Entity Definitions 11

5. Small Entities That May Be Subject to the Proposed Regulations 11

6. Summary of Small Entity Outreach 15

7. List of Small Entity Representatives 17

8. Summary of Comments from Small Entity Representatives 19

8.1 Number and Types of Small Entities Affected 24

8.2 Potential Reporting, Record Keeping, and Compliance Requirements 24

8.3 Related Federal Rules 24

8.4 Regulatory Flexibility Alternatives 24

9. Panel Findings and Discussion 25

9.1 Number and Types of Small Entities Affected 25

9.2 Potential Reporting, Record Keeping, and Compliance Requirements 25

9.3 Related Federal Rules 26

9.4 Regulatory Flexibility Alternatives 26

Appendix A: List of Materials the SBAR Panel Shared with Small Entity Representatives 

Appendix B: Written Comments Submitted by Small Entity Representatives 
November 3, 2008 

3

1. INTRODUCTION 

This final report is presented by the Small Business Advocacy Review Panel (SBAR Panel or 

Panel) convened to consider the proposed rulemaking on revisions to two related rules: the 

Worker Protection Standard for Agricultural Pesticides (RIN 2070-AJ22) and Certification of 

Pesticide Applicators (RIN 2070-AJ20). Possible revisions are currently being developed by the 

U.S. Environmental Protection Agency (EPA or the Agency). Under section 609(b) of the 

Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), a Panel must be convened prior to publication of the initial 

regulatory flexibility analysis (IRFA) that an Agency may be required to prepare under the RFA. 

In addition to EPA’s Small Business Advocacy Chairperson and the Director of the Field and 

External Affairs Division of the EPA Office of Pesticide Programs, the Panel members are the 

Administrator of the Office of Information and Regulatory Affairs within the Office of 

Management and Budget (OMB), and the Chief Counsel for Advocacy of the Small Business 

Administration (SBA). 

This report includes the following: 

• Background information on the proposed rules being developed; 

• An overview of regulatory revisions under consideration; 

• Information on the types of small entities that would be subject to the proposed rule; 

• A description of efforts made to obtain the advice and recommendations of 

representatives of those small entities; 

• A summary of the small entity comments submitted to the SBAR Panel; and 

• Panel recommendations. 

Section 609(b) of the RFA directs the Panel to report on the comments of Small Entity 

Representatives (SERs) and make findings on issues related to certain elements of an IRFA 

under section 603 of the RFA. Those elements of an IRFA are: 

• A description of, and where feasible, an estimate of the number of small entities to which 

the proposed rule may apply; 

• Projected reporting, record keeping, and other compliance requirements of the proposed 

rule, including an estimate of the classes of small entities which may be subject to the 

requirements and the type of professional skills necessary for preparation of the report or 

record; 

• An identification, to the extent practicable, of all other relevant Federal rules which may 

duplicate, overlap, or conflict with the proposed rule; and 

• Any significant alternatives to the proposed rule which accomplish the stated objectives 

of applicable statutes and which minimize any significant economic impact of the 

proposed rule on small entities. 

The Panel’s final report is provided to the EPA for consideration in developing the proposed rule 

and should be included in the rulemaking record. In light of the Panel report, and where 

appropriate, the Agency should also consider whether changes are needed to the IRFA for the 

proposed rule or the decision on whether an IRFA is required. 
November 3, 2008 

4

The Panel’s findings and discussion are based on the information available at the time the final 

Panel report was drafted. EPA will continue to conduct analyses relevant to the proposed rule, 

and additional information may be developed or obtained during the remainder of the rule 

development process. The Panel makes this final report at a preliminary stage of rule 

development and the Agency should consider the report in that light. At the same time, the report 

provides the Panel and the Agency with an opportunity to identify and explore potential ways of 

shaping the proposed rule to minimize the burden of the rule on small entities while achieving 

the rule’s purposes. 

Any options identified by the Panel for reducing the rule’s potential regulatory impact on small 

entities may require further analysis and/or data collection to ensure that the options are 

practicable, enforceable, environmentally sound, and consistent with the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) and its amendments. 

2. BACKGROUND 

 2.1 Regulatory History 

The two regulations being considered for change are described below. The proposed changes to 

the two rules are being developed concurrently. 

 2.1.1 The Agricultural Worker Protection Standard (WPS) 

In 1974, EPA promulgated the Agricultural Worker Protection Standard (WPS) rule in 40 CFR 

Part 170, based on the 1972 amendments to the Federal Insecticide, Fungicide, and Rodenticide 

Act (FIFRA). In that rule, four basic requirements to protect farm workers performing hand 

labor activities were established: 

 A prohibition against spraying workers and other persons 

 A general reentry interval for all agricultural pesticides prohibiting reentry into treated 

fields until the spray had dried or the dust had settled and longer intervals for 12 

specific pesticides 

 A requirement for protective clothing for any worker who had to reenter treated fields 

before the specific reentry period had expired 

 A requirement for "appropriate and timely" warnings. 

In 1983, an Agency review of the existing standards concluded that the regulations were 

inadequate to protect these workers. A public participation process was initiated in 1985, but 

representatives of farm worker unions ended their participation. Despite this, EPA issued a 

proposed rulemaking in July 1988 that proposed expanding the scope of coverage to pesticide 

handlers and others working on agricultural establishments, among other enhancements. A 

series of public meetings was held to inform the affected communities about the proposal. 

Comments in response to the proposal were considered and addressed, and the proposed 
November 3, 2008 

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requirements were substantially revised when the final rule was issued in August 1992, 

becoming effective in 1995. This regulation was intended to: 

 Eliminate or reduce exposure to pesticides 

 Mitigate exposures that do occur 

 Inform employees about the hazards of pesticides 

After the 1995 implementation, the Agency initiated a program assessment based on issues 

brought forward by stakeholders, by a planned program evaluation, the Government 

Accountability Office (GAO) and Children’s Health Protection Advisory Committee (CHPAC). 

This national assessment process included meetings in the major agricultural areas with 

significant production and labor, and the establishment of workgroups to address the issues. 

A number of issues were raised through the national assessment process. Our State and extension 

partners have been involved with the regulations’ development through regular meetings and a 

workshop program. In 2006 and 2007, the initial set of proposed rule changes was shared with 

the Pesticide Program Dialogue Committee (PPDC), a stakeholder committee under the Federal 

Advisory Committee Act (FACA) which provides input to the Pesticide Program. 

2.1.2 The Certification of Pesticide Applicators

The Certification of Pesticide Applicators rule has been largely unchanged since promulgation in 

1974 and 1975 (40 CFR Part 171). In 1985, a taskforce consisting of federal agencies, 

agricultural trade associations and farm worker advocates was appointed by EPA to review the 

program and policies to identify areas for improvement. In August of that year, the taskforce 

provided a report to EPA. Based in part on that report, EPA proposed changes to the regulations 

in 1990, but the proposed changes were never made final. In 1996, OPP established the 

Certification and Training Assessment Group (CTAG) to define the national direction of the 

pesticide applicator certification and training program. This group consisting of EPA, state 

regulatory agencies and university agricultural extension, has made a number of 

recommendations to improve the program. Some of these recommendations can only be 

addressed through a regulatory change. 

As described above, our State lead agencies and university agricultural extension partners have 

been involved with the Certification regulation development through regular meetings and 

workshops. In 2006 and 2007, the initial set of proposals was shared with the PPDC. 

2.2 Description and Scope of the Existing Rules 

 2.2.1 The Agricultural Worker Protection Standard (WPS) 

In 1992, EPA issued the current WPS regulations governing the protection of employees on 

farms, forests, nurseries, and greenhouses from occupational exposure to agricultural pesticides 

(40 CFR Part 170). The regulations are designed to protect agricultural workers and pesticide 

handlers who are occupationally exposed to pesticides. The regulations contain exposure 
November 3, 2008 

6

reduction measures to reduce the risk of pesticide poisonings and injuries among agricultural 

workers and pesticide handlers. 

Basic elements of these regulations include: 

 - Protection during applications: Applicators are prohibited from applying a pesticide 

in a way that will expose workers or other persons. Workers are excluded from areas while 

pesticides are being applied. 

 - Restricted-entry intervals: Restricted-entry intervals must be specified on all plant 

agriculture pesticide product labels. Workers are excluded from entering a pesticide treated area 

during the restricted-entry interval, with only narrow exceptions. 

 - Personal protective equipment: Personal protective equipment must be provided and 

maintained for handlers and early-entry workers. 

 - Notification of workers: Workers must be notified about treated areas so that they may 

avoid inadvertent exposures. 

 - Decontamination supplies: Handlers and workers must have an ample supply of 

water, soap and towels for routine washing and emergency decontamination. 

 - Emergency assistance: Transportation must be made available to a medical care 

facility if a worker or handler may have been poisoned or injured. Information must be provided 

about the pesticide to which the person may have been exposed. 

 - Pesticide safety training and safety posters: Training is required for all workers and 

handlers, and a pesticide safety poster must be displayed. 

 - Access to labeling and site specific information: Handlers and workers must be 

informed of pesticide label requirements. Central posting of recent pesticide applications is 

required. 

2.2.2 The Certification of Pesticide Applicators

Certain pesticide products may cause unreasonable adverse effects on human health and/or the 

environment if used in a manner inconsistent with their labeling. To address this risk, EPA may 

limit their availability and application through designation as Restricted Use Products. Only 

persons holding valid pesticide applicator certification may purchase and use these products, 

with limited exceptions. Standards established by regulation by EPA are used by the States to 

develop ways to gauge the competency of candidate applicators. The Applicator Certification 

rule seeks to protect public health and the environment, including applicators, from potential 

adverse risks of these products. 

Definitions and basic elements of this regulation include: 
November 3, 2008 

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 - Private applicator: A private applicator uses or supervises the use of restricted use 

pesticides for the purpose of producing an agricultural commodity on property owned or rented 

by him or his employer or, if applied without compensation other than the trading of personal 

services between producers of agricultural commodities, on the property of another person. 

 - Standards for certification of private applicators: Private applicators must show a 

practical knowledge of pest problems and control practices associated with their agricultural 

operations; proper storage, use, handling and disposal of pesticides and containers; and legal 

responsibility. This knowledge must include the ability to recognize common pests and damage 

caused by them; read and understand label and labeling; apply pesticides according to label 

instructions and warnings; recognize local environmental situations to be considered during 

application to avoid contamination; recognize poisoning symptoms and procedures to follow in 

case of a pesticide accident. Competence of private applicators shall be verified through a 

certification system administered by the responsible state, territorial or tribal agency. The state, 

territory or tribe may use a written or oral test, or an equivalent system approved by EPA in their 

plan. 

 - Commercial applicator: A commercial applicator uses or supervises the use of 

restricted use pesticides for any purpose or on any property other than as provided by the 

definition of “private applicator.” 

 - Standards for certification of commercial applicators: Commercial applicators must 

demonstrate practical knowledge of the principles and practices of pest control and the safe use 

of pesticides. Competence shall be determined on the basis of a written exam and, as 

appropriate, performance testing in the following areas: label and labeling comprehension, 

safety, environment, pests, pesticides, equipment, application techniques, and laws and 

regulations. In addition, tests shall be given on the particular category of the applicator’s 

certification. 

 -Categories of commercial applicator certification: States, territories and tribes are 

required to adopt the following pest control categories to the extent they will be used in that 

State, territory, or tribe: agricultural (plant and animal); forest; ornamental and turf; seed 

treatment; aquatic; right-of-way; industrial, institutional, structural and health related; public 

health; regulatory; demonstration and research. A state, territory or tribe may submit a plan to 

EPA requesting approval to add or delete categories. 

 - Continuing level of competency: All states, territories and tribes must ensure that 

certified applicators maintain a continuing level of competency. Generally, this involves training 

and recertification every three to five years. 
November 3, 2008 

8

2.3 Related Federal Rules

 2.3.1 The Agricultural Worker Protection Standard (WPS) 

The Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard 

(HCS) is the main federal regulation designed to protect employees from chemical hazards in the 

workplace. In industries where chemicals are commonly used, OSHA has established that employees 

have a right to know about the chemical hazards in their workplace so they can make informed 

decisions about their work practices and protect themselves. 

The HCS technically applies to the agricultural industry, but in practice it is enforced on a 

limited number of agricultural establishments because OSHA is prohibited from enforcing it on 

farms with 10 or fewer employees unless the farm has a temporary labor camp. 

EPA has established requirements to protect agricultural pesticide workers exposed to pesticides 

under the WPS that are essentially equivalent to the HCS; therefore, OSHA established a policy 

agreeing not to cite employers who are covered under EPA's final WPS rule with regard to HCS 

requirements for pesticide hazards. Employers on OSHA covered agricultural establishments 

remain responsible for compliance with the HCS for other non-pesticide chemical hazards, as well 

as other OSHA standards for agriculture at 29 CFR part 1928, such as the Field Sanitation Standard 

(29 CFR § 1928.110). 

2.3.2 The Certification of Pesticide Applicators 

OSHA provides Hazard Communications requirements coverage for the employees using nonrestricted use pesticides and in industries other than agriculture (where they are covered under 

the WPS). However, OSHA defers to EPA for requirements for employees who use restricted 

use products, such as certified pesticide applicators. 

3. OVERVIEW OF REVISIONS UNDER CONSIDERATION 

Through Agency deliberations and stakeholder input, a broad range of program improvements 

have been suggested. From these EPA identified those which could only be addressed through a 

regulation change, and further limited to those which would provide the most protective impact. 

The following is a listing of regulatory revisions currently being considered and evaluated by 

EPA and were presented to the SERs for their reaction. This listing is not intended to limit the 

Agency’s consideration during the development of the proposed rule. These potential revisions 

for proposal are organized by type of improvement within each rule. 

3.1 Worker Protection Standard for Agricultural Pesticides 

• Improve effectiveness of worker and handler training: 

– Reduce retraining interval 

– Expand training contents 

– Eliminate grace period before full worker training 
November 3, 2008 

9

– Improved worker trainer competency 

– Establish training recordkeeping by employers 

• Improve protections to workers during Restricted Entry Intervals (REI): 

– Ag employer provide notifications to workers when directing early entry (during 

REI) to a treated area 

• Oral and written notifications 

• Limit duration of early entry during agricultural emergency 

• Keep records of workers in a treated area during the REI 

– Post warning signs at treated area for any pesticide application that has an REI 

– Improve content of warning signs for posting at treated areas during REI 

• Improve protections for workers during pesticide applications: 

– Add requirement for application entry restricted areas for farms/forests similar to 

those in place for nurseries and greenhouses 

• Improve hazard communication protections: 

– Expanded information on application and hazard to be available 

– Specify when application information must be recorded and retention period 

– Require handler employer (commercial applicators) to notify agricultural 

employer of any changes in application within specified time period 

• Improve effectiveness of safety poster: 

– Expand poster content to match expanded training points 

– Add requirement for poster at decontamination supply location 

• Improve protections for employees of Certified Crop Advisors: 

– Require personal protective equipment (PPE) for entry during REI 

– Provide decontamination supplies 

• Improve effectiveness of decontamination supplies: 

– Improve eyeflush water supply requirements for workers and handlers 

– Increase amount of water available to handlers at mix/load site 

– Require shower and changing area for all handlers 

• Improve effectiveness of emergency information: 

– Specify information to be provided and time allowed to provide it 

• Improve handler application restrictions 

– Require handlers to cease application if workers enter restricted area around 

treated area 

– Improve protections from cholinesterase inhibition to handlers by restricting 

amount of time per month they may apply organophosphate and carbamate 

products or by cholinesterase monitoring for those who apply organophosphates 

and carbamates 
November 3, 2008 

10

• Improve effectiveness of Personal Protective Equipment (PPE): 

– Require that handler either use PPE or approved closed systems with specified 

standards 

– Eliminate substitution of an enclosed cab for labeled respirator requirement 

– Require maintenance of enclosed cabs and closed systems, with record-keeping 

– Require medical monitoring and fit testing for all handlers who use respirators 

3.2 Certification of Pesticide Applicators 

• Add commercial applicator categories and sub-categories to ensure specific 

competency for potentially high-risk scenarios: 

– Aerial application 

– Fumigation 

– Chemigation 

– M-44 and Compound 1080 

• Ensure competency of commercial applicators: 

– Establish minimum age for commercial applicators 

– Establish requirements for administration of commercial applicator exams 

• Written 

• Proctored 

• Closed-book 

• Positive identification 

– Standardize and better define re-certification requirements 

• Ensure competency of private applicators: 

– Establish minimum age for private applicators 

– Establish requirements for administration of private applicator exams 

• Written 

• Proctored 

• Closed-book 

• Positive identification 

– Amend competency standard to be more comparable to commercial applicator 

standard 

– Standardize and better define recertification requirements 

• Ensure competency of non-certified applicators applying Restricted Use Pesticides 

(RUP) under the supervision of a certified applicator: 

– Define and develop the following requirements regarding applicator competency 

for certified applicator and those applying under the supervision 

• Appropriately trained 

• Maintain records of training 

• Copy of label provided to & carried by applicator 

• Means of instant communication between applicator & supervising 

certified applicator 
November 3, 2008 

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– Require minimum age for applicator under the supervision 

4. APPLICABLE SMALL ENTITY DEFINITIONS 

The Regulatory Flexibility Act (RFA) defines small entities as including “small businesses,” 

“small government jurisdictions,” and “small organizations” (5 USC 601). The regulatory 

revisions being considered by EPA for these two rulemakings are expected to affect a variety of 

small businesses, but would not affect any small government jurisdictions or small organizations. 

The RFA references the definition of “small business” found in the Small Business Act, which 

authorizes the Small Business Administration to further define “small business” by regulation. 

The SBA defines small business by size standards using the North American Industry 

Classification System (NAICS) (13 CFR 121.201). 

The detailed listing of SBA definitions of small business for affected industries or sectors, by 

NAICS code, is included in Tables 1 and 2 in Section 5, below. 

5. SMALL ENTITIES THAT MAY BE SUBJECT TO THE PROPOSED REGULATION 

The following tables list industries/sectors potentially affected by the two regulations. The EPA 

name for each industry/sector is generally the terminology used in the current regulations, 

followed by the corresponding NAICS name and code. The estimated number of small firms 

within each NAICS code, and the number of employees in those small firms, is also presented. 

Table 1: Industry Sectors, Definitions & Number of Small Entities Potentially 

Affected by Proposed Amendments to the Worker Protection Standard 

Small Farms/Firms 

EPA Name for 

Industry/Sector 

2002 NAICS 

Name for 

Industry/Sector 

2002 

NAICS 

Code 

SBA Definition 

for Small 

Business Number Employees 

Agricultural 

Establishment / 

Farm 

Crop Production 111000 

(not 

111421) 

< $750,000 

annual gross 

revenue 

887,297 1,074,932

Agricultural 

Establishment / 

Nurseries & 

Greenhouses 

Nursery and Tree 

Production 

111421 < $750,000 

annual gross 

revenue 

59,452 154,788

Agricultural 

Establishment / 

Forest 

Timber tract 

operations 

113110 < $7.0 million 

annual gross 

revenue 

528 1,753

Agricultural 

Establishment / 

Forest nurseries 

Forest Nurseries 

and Gathering 

Products 

113210 < $7.0 million 

annual gross 

revenue 

1,153 5,164
November 3, 2008 

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Small Farms/Firms 

EPA Name for 

Industry/Sector 

2002 NAICS 

Name for 

Industry/Sector 

2002 

NAICS 

Code 

SBA Definition 

for Small 

Business Number Employees 

Commercial 

Pesticide 

Handling 

(Forestry) 

Support Actives for 

Forestry 

115310 < $7.0 million 

annual gross 

revenue 

63 280

Commercial 

Pesticide 

Handling (Farms 

- Ground and 

aerial) 

Soil Preparation, 

Planting, and 

Cultivating 

115112 < $7.0 million 

annual gross 

revenue 

4,634 19,144

Crop Advisor Entomological 

service, agricultural 

Agricultural 

consultants and 

Entomological 

consultants 

Agricultural 

research and 

Chemical 

laboratory, except 

testing 

Part of 

115112 

Part of 

541690 

Part of 

541710 

< $7.0 million 

annual gross 

revenue 

< $7.0 million 

annual gross 

revenue 

< 500 

employees 

2,625 12,476

Farm Labor 

Contractors 

Farm Labor 

Contractors and 

Crew Leaders 

115115 < $7.0 million 

annual gross 

revenue 

654 6,946

Table 2: Industry Sectors, Definitions & Number of Small Entities Potentially 

Affected by Proposed Certification of Pesticide Applicators Amendments 

Small Farms/Firms 

EPA Name for 

Industry/Sector 

2002 NAICS 

Name for 

Industry/Sector 

2002 

NAICS 

Code 

SBA Definition 

for Small 

Business Number Employees 

Firms Employing Commercial Applicators 

Agricultural pest 

control/animal 

Support Activities 

for Animal 

Production 

115210 < $7.0 million 

annual gross 

revenue 

3,891 11,632
November 3, 2008 

13

Small Farms/Firms 

EPA Name for 

Industry/Sector 

2002 NAICS 

Name for 

Industry/Sector 

2002 

NAICS 

Code 

SBA Definition 

for Small 

Business Number Employees 

Agricultural pest 

control/plant1

(aerial and ground 

application) 

Soil Preparation, 

Planting, and 

Cultivating (only 

aerial and ground 

application sectors)

115112 < $7.0 million 

annual gross 

revenue 

4,634 19,144

Forest Pest 

Control 

(Forests, forest 

nurseries, & forest 

seed) 

Support Activities 

for Forestry 

115310 < $7.0 million 

annual gross 

revenue 

63 280

Ornamental & 

Turf Pest Control 

(trees, shrubs, 

flowers, grass) 

Landscaping 

Services (only 

applicable pest 

control sectors and 

not right-of-way) 

561730 < $7.0 million 

annual gross 

revenue 

59,893 186,549

Right-Of-Way 

Pest Control 

Landscaping 

Services (right-ofway pest control 

only) 

561730 < $7.0 million 

annual gross 

revenue 

1,464 8,069

Industrial, 

institutional, 

structural & health 

related pest control 

(Pest Control 

Operator)

Exterminating and 

Pest Control 

Services 

561710 < $7.0 million 

annual gross 

revenue 

20,584 87,392

Industrial, 

institutional, 

structural & health 

related pest control 

(Wood Preservation) 

Wood Preservation 321114 < 500 employees 568 10,726

Research & 

Demonstration 

(includes some 

crop advisors) 

Research & 

Demonstration in 

physical engineering 

& life sciences 

541710 < 500 employees 635 6,484

 

1

 Same as WPS “Commercial Pesticide Handling,” but using terminology found in Certification regulations. 
November 3, 2008 

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Small Farms/Firms 

EPA Name for 

Industry/Sector 

2002 NAICS 

Name for 

Industry/Sector 

2002 

NAICS 

Code 

SBA Definition 

for Small 

Business Number Employees 

Firms Employing Private Applicators 

Agricultural 

Producers / Farms 

/ plant 

Crop Production 111000 

(not 

111421)

< $750,000 

annual gross 

revenue 

887,297 1,074,932

Agricultural 

Producers / 

nurseries & 

greenhouses 

Nursery and Tree 

Production 

111421 < $750,000 

annual gross 

revenue 

59,452 154,788

Agricultural 

Producers / Farms 

/ animal / cattle 

feedlots 

Cattle Feedlots 112112 < $2.5 million 

annual gross 

revenue 

53,173 37,344

Agricultural 

Producers / Farms 

/ animal / all other 

Animal Production 112000 

(not 

112112)

< $750,000 

annual gross 

revenue 

1,041,922 676,843

Agricultural 

Producers / Forests 

/ logging 

Logging 113310 < 500 employees 9,710 51,691

Agricultural 

Producers / Forests 

/ other 

Timber Tract 

Operations 

Forest Nurseries 

and Gathering of 

Forest Products 

113110 

113210 

< $7.0 million 

annual gross 

revenue 

1,681 6,917

Other

Pesticide 

Registrants a 

Pesticide and other 

agricultural 

chemical 

manufacturing 

325320 

and 

various 

others 

< 500 employees 

(for 325320) 

1,658 64,662

Notes: 

a

 Based on the profile of pesticide registrants prepared for the “container rule”. See Appendix D of “Economic Analysis of 

the Bulk Pesticide Container Design and Residue Removal Standards,” July 20 2005. 
November 3, 2008 

15

6. SUMMARY OF SMALL ENTITY OUTREACH 

6.1 Small Entity Outreach 

EPA has been conducting outreach to the entire stakeholder community, including small 

businesses, for a number of years. This outreach has included presentations and workshops such 

as: 

• Public meetings were held in 1999 on the Worker Protection Standard in Texas, 

California, Florida, and Virginia to evaluate the regulation and the implementation and 

enforcement of the national program. Representatives from grower groups, farm worker 

advocates, state lead agencies for pesticide regulation, etc., participated. 

• In 1997, the Certification and Training Assessment Group (CTAG) was formed of state 

lead agency and agricultural extension representatives to assess the Applicator 

Certification Program. 

• A workgroup from the Pesticide Program Dialogue Committee (PPDC) has reviewed 

preliminary options for both rules and provided data, recommendations for change, and 

comments. The PPDC is an advisory committee to EPA’s Office of Pesticide Programs, 

with membership including stakeholders with diverse interests in the benefits and risks 

associated with pesticides. 

• State Lead Agencies have reviewed preliminary options for both rules and provided 

comments. 

6.2 Summary of EPA’s Outreach Meeting with Potential Small Entity 

Representatives 

In January 2008, EPA began an informal outreach process to potential Small Entity 

Representatives (SERs) as part of the pre-SBAR panel planning process. EPA contacted States, 

agricultural extension agents, and organizations known to represent effected small business, such 

as grower associations, and various pest control industry associations, to ask them to submit the 

names of potential SERs. EPA looked for representatives from differing types of business 

involved in pesticide application and/or different crops or agricultural commodities. EPA also 

sought to have representatives from a number of geographic areas of the nation. 

On February 12, 2008, EPA sent an e-mail to the 16 potential SERs identified by that point and 

provided two Fact Sheets as background for the process they were being asked to participate in: 

• What Small Entities Should Know About the Regulatory Flexibility Act and the Small 

Business Regulatory Enforcement Fairness Act 

• What Potential Small Entity Representatives Should Know About the Small Business 

Advocacy Review Panel Process 

The e-mail also explained background concerning the two rules that are the subject of this Panel, 

and asked to confirm interest in participating as a SER. Four more potential SERs were later 

identified, for a total of 20, and the materials were sent to them. 
November 3, 2008 

16

EPA conducted a pre-panel meeting/teleconference with potential SERs on June 30, 2008, as 

background and preparation for the upcoming Small Business Advocacy Review (SBAR) Panel 

meetings and process. To help potential SERs prepare for the June 30 pre-panel 

meeting/teleconference, EPA sent materials to each of the potential SERs via email on June 16. 

A list of all materials shared with the potential SERs before the pre-panel outreach meeting is 

contained in Appendix A. SBAR Panel members from the Office of Advocacy of the Small 

Business Administration and the Office of Information and Regulatory Affairs within the Office 

of Management and Budget also attended the June 30 meeting. A total of 12 potential SERs 

participated in the meeting. EPA presented an overview of the SBAR process, an overview of the 

existing regulations, an explanation of the planned rulemaking and proposals being considered, 

and technical background. 

This outreach meeting was held to provide background to the potential SERs on the existing 

rules, familiarize them with proposals under consideration, and to solicit their comments. EPA 

provided a list of questions for SERs and asked for comments on potential proposals under 

consideration, including alternative proposals. The Agency received written comments from 

seven potential SERS. Those written comments are in Appendix B. Section 8 of this document 

contains a summary of written comments received along with oral comments noted at the 

meeting.

6.3 Summary of SBAR Panel’s Outreach Meeting with Small Entity Representatives 

The SBAR Panel convened on September 4, 2008. The Panel decided to add one additional 

SER, for a total of 21 (see list in Section 7), prior to the Panel meeting with the SERs. The Panel 

held a formal panel outreach meeting/teleconference with SERs on September 25, 2008. Two 

weeks before the panel outreach meeting EPA sent materials to each of the SERs via email. A 

list of all materials shared with the SERs before the panel outreach meeting is contained in 

Appendix A. 

Information presented at the meeting included: 

• Guidance for SERs 

• Introduction to Pesticide Worker Safety program 

• Background and regulatory history, including overview of existing regulations 

• Rationale for revising these regulations 

• Overview of proposals under consideration 

• Regulatory flexibility options for small entities 

• Industry sectors, definitions and number of small entities potentially affected by proposed 

regulations 

• List of SERs 

• List of questions for consideration by SERs 

This outreach meeting was held to solicit feedback from the SERs on their suggestions for the 

upcoming rulemakings. EPA asked that the SERs provide feedback on ideas under consideration 

for the proposed rulemakings and responses to questions regarding their experience with the 

requirements of the two existing regulations. Specifically, they were asked to provide any 
November 3, 2008 

17

alternate solutions to the potential proposals presented that provide flexibility, or decrease 

economic impact, for small entities while still accomplishing the goal of improved safety. The 

Agency received written comments from eight SERS (see Appendix B). Section 8 of this 

document contains a summary of written and oral comments received. 

7. LIST OF SMALL ENTITY REPRESENTATIVES (SERs) 

The twenty potential SERs who participated in the pre-panel outreach activities in the summer of 

2008, plus a representative of the American Farm Bureau Federation added prior to convening 

the SBAR Panel, were selected as SERs for the official Panel process and are listed in Table 3. 

Table 3. List of Small Entity Representatives 

Name Industry/Sector Business Name & Address E-mail Address 

Cline, Ron Aerial applicator Cline Air Services, LLC/dba: 

Central Valley Helicopters 

891 Prater Road 

Ellensburg, WA 98926 

cvh@centralvalleyheli.com

Reed, Rick Aerial applicator Reed's Fly-On Farming 

490 Airport Rd. 

Mattoon, IL 61938 

reedfly@aol.com

Hester, John Agricultural 

ground applicator 

Nichols Agriservice L.L.C. 

1783 Davis Ave. Box A 

Nichols, IA 52766 

jhester@nicholsag.com

Hunt, Bill Crop advisor Bill Hunt Company, LLC 

14400 SW 149 Terrace 

Miami, FL 33186 

bilihun@spraytec.com

Averitt, Al Crop advisor Protech Advisory Services 

Inc. 955 Sandy Grove Road 

Lumber Bridge, NC 28357 

aaveritt@earthlink.net

Berglund, 

Dennis 

Crop advisor Centrol Crop Consulting 

Box 367, 102 East Main Ave 

Twin Valley, MN 56584 

dennisb@tvutel.com

Femling, 

Frank 

Farm / apple Afton Apple Orchard 

9225 St Croix Trail S 

Hastings, MN 55033 

cfemling@aol.com

Elmstrand, 

Rod 

Farm / berry Rod's Berry Farm 

28624 Zodiac St NE 

North Branch, MN 55056 

elmst002@umn.edu
November 3, 2008 

18

Name Industry/Sector Business Name & Address E-mail Address 

Webb, 

Clint J. 

Farm / cotton Webb Farms 

6430 Dixie-Barwick Rd. 

Boston, GA 31622 

webbfarm@netzero.net

Matoian, 

Richard 

Farm / grape Matoian Brothers 

1383 East Valley Forge 

Fresno, CA 93720 

rmatoian@westernpistachio.org

Dasher, 

Randall 

Farm / peanuts, 

seeds, & herbs 

Dasher Farm 

5195 180th Street 

McAlpin, FL 32062 

dasherfarm@alltel.net

Metzler, 

Ryan 

Farm / tree fruit Fruita Del Sol 

5026 E Townsend 

Fresno CA 93727 

rmetzler@pearsonrealty.com

Jordan, Bill, 

Jr. 

Farm / vegetable William H. Jordan Farm 

LLC 21 Wells Road 

Cape Elizabeth, ME 04107 

whjjr30@aol.com

Wegmeyer, 

Tyler 

Farm / trade 

association 

American Farm Bureau 

Federation 

Washington, DC 

tylerw@fb.org

Bare, Dick Landscape 

maintenance 

Arbor-Nomics Turf, Inc, 

800 Langford Dr., Suite A, 

Norcross, GA 30071 

richard@arbor-nomics.com

Crenshaw, 

Kenny 

Landscape 

maintenance 

Herbi-Systems, Inc. 

7551 Bartlett Corp. Cove 

East Bartlett, TN 38133 

kcrenshaw@herbi-systems.com

Alonso, 

Lonnie 

Structural pest 

control 

Columbus Pest Control, Inc. 

1510 West Broad St. 

Columbus, OH 43222 

lonniealonso@ColumbusPestCo

ntrolinc.com

Bookout, 

Anne 

Structural pest 

control 

Royal Fumigation Inc. 

53 McCullough Drive 

New Castle, DE 19720 

anne@royalpest.com

Carter, Bruce Structural pest 

control 

Carter Services, Inc. 

PO Box 342 

Farmington, NM 87499 

bruce@csipest.com

Marlowe, 

Jack 

Structural pest 

control 

Eden Advanced Pest 

Technologies 

3425 Stoll Rd SE 

Olympia, WA 98501 

jackmarlowe@edenpest.com
November 3, 2008 

19

Name Industry/Sector Business Name & Address E-mail Address 

Wright, 

Morgan 

Wood treatment Wood Preservers, Inc. 

PO Box 158 

Warsaw, VA 22572 

mwright@woodpreservers.com

8. SUMMARY OF COMMENTS FROM SMALL ENTITY REPRESENTATIVES 

The summary of SER comments on major issues for the two rules under consideration are 

presented below, in Tables 4 and 5. Major issues were identified using the quantity and 

substantive content provided in the comments received. The Panel decided to focus their 

discussion and recommendations on the potential proposals that were the major issues for the 

SERs, based on their verbal and written comments. 

A brief discussion of SER comments with respect to elements of the Initial Regulatory 

Flexibility Analysis appears in sections 8.1 through 8.4. The full written SER comments 

received after both the Pre-panel and Panel meetings with them are included in Appendix B. 

As described in Section 6 above, EPA and the SBAR Panel conducted outreach to potential 

SERs and official SERs by sending outreach packages and conducting outreach meetings 

(teleconferences) with them on June 30, 2008 and September 25, 2008. In addition to the oral 

comments that the SERs made during the outreach meetings, the Panel received written 

comments from a total of seven potential SERs during the pre-Panel outreach and from eight 

SERs during the formal Panel outreach process (including two who submitted a set of joint 

comments and one who re-submitted his pre-panel written comments). The written comments 

were distributed to all Panel members as they were received. 

Because of the number of potential proposals considered, the various types of affected entities 

commenting, the number of comments received, and the variety of positions taken, the Panel 

believes that a tabular summary of SER comments best serves the reader. SER comment 

summary tables were prepared that briefly paraphrase SER comments from both the pre-Panel 

and Panel outreach processes (both oral comments at the meetings and written comments 

received) without repeating the same comment from the same commenter. The comment 

summary tables are organized with a row for each issue/potential proposal, and columns for 

general comments, time and cost related comments, and alternate proposals suggested by the 

SERs. Readers may want to refer to chapter 3 and the “Questions for Small Entity 

Representatives” in Appendix A for additional detail on issues and potential proposals to which 

the comments refer. 
 

Table 4 

 Worker Protection Standard (WPS) 

Summary of SER Written and Oral Comments on Major Issues 

 Received in Response to SBAR Pre-Panel and Panel Outreach Meetings 

WPS 

Issue/Potential 

proposal 

General Comments 

(commenter type) 

Time or Cost ($) Related 

Comment 

(commenter type)

Alternate Proposals 

(commenter type)

Restricted Entry 

Interval /Field 

Posting: Require 

All Treated Areas 

to be Posted 

 Time consuming and 

difficult. Too expensive to 

orally notify and post all 

applications. (Farm) 

 Supports mandatory posting 

only for Restricted Use 

Products. Posting should be 

at usual points of entry to 

field. (Farm) 

 Posting only for products 

requiring both oral and 

written notification. 

Workers read labels, so 

know Restricted Entry 

Intervals. Can refer to 

WPS. Retain central 

posting. (AFBF) 

 Many fields are irregular in 

shape, therefore, no corners. 

Posting is burdensome. 

(Aerial) 

 Numerous small fields of 

different crops makes 

posting difficult (Farm) 

 Up to 1 hour per application 

to orally notify and post. 

(Farm) 

 Costly, time consuming and 

difficult to enforce. Should 

only require points of entry, 

not four corners (Ag custom 

applicator) 

 Posting all fields could 

increase cost to about one 

hour per day effort and a 

$25 per day cost. Small 

farms would have higher 

costs than large because 

field size is smaller (thus 

more fields to post). More 

signs per acre on small than 

on large farms (Farm) 

 Impractical to post corners 

of field; Leads to loss of 

productivity; Time 

consuming to post (e.g., 

hammering stake in ground, 

attaching sign to stake). 

(Aerial) 

 Would take an employee out 

of other productive work 

(AFBF) 

 Estimate 30 minutes to post 

a single reusable sign at 

point of entry. Would take 

at least one hour to post four 

corners. Some growers 

have many fields resulting 

in a heavy posting burden. 

(Crop advisor) 

 EPA estimate of 15 minutes 

to post a field is too low. 

(Aerial) 

 Central map with 

field marked by flags 

and requirement for 

daily worker check 

in. Or exempt small 

farms, if all workers 

are certified and 

notified at time of 

application. (Farm) 

 Posting should be for 

Restricted Use 

Products only, and at 

each possible entry 

point and each 

corner. (Farm) 

 Farms with less than 

10 non-family 

employees should not 

be required to post, 

just verbal 

notifications. (Farm) 

 Farms with fewer 

employees could 

orally notify rather 

than by posting. 

Perhaps institute 

worker sign off for 

oral notification. 

(Farm) 

 Consider an 

exception to field 

posting for farms 

with a few 

employees. Oral 

notification with 

central posting is 

sufficient. (AFBF) 

WPS Training/ 

Retraining 

Interval: Require 

More Often than 5 

Years 

 Everyone retrains every 

year because can’t verify 

previous training and 

turnover. (Farm) 

 Retain 5-year interval. 

(Farm) 

 Retain 5-year interval. 

(Aerial) 

 Training burden: 30 minutes 

for workers, 45 minutes for 

handler. (AFBF) 

 Worker training 30-60 

minutes; Handler training 

45- 60 minutes. Material 

cost is minimal. (Crop 

advisor) 

 5 years (as is) or 

when newly hired. 

Rather than reduce 

interval, require 

documentation of 

training. (Farm) 
November 3, 2008 

21

WPS 

Issue/Potential 

proposal 

General Comments 

(commenter type) 

Time or Cost ($) Related 

Comment 

(commenter type)

Alternate Proposals 

(commenter type)

 Retraining interval should 

be same as recertification 

for applicators. Keep at 5 

years. (Farm) 

 Most workers trained 

annually. Retain 5 years – 

effective and not unusual 

burden. Growers do not 

check for training history. 

(AFBF) 

 Train annually even if 

previously trained although 

some may not. (Crop 

advisor) 

WPS Training/ 

Grace period: 

Rescind Five Day 

Grace Period 

 Do not eliminate grace 

period; bad idea. Too much 

in first few days. (Farm) 

 Need grace period for 

flexibility. (Farm) 

 Retain 5-day grace period. 

(Aerial) 

 Support retention of grace 

periods. (Ag custom 

applicator) 

 Need to retain a grace 

period for flexibility around 

busy schedules.(Farm) 

 Loss of grace period would 

lead to earlier hiring and 

more cost to grower. 

(AFBF) 

 Would necessitate earlier 

hiring which would lead to 

increased input cost by $100 

-200 per hire. (AFBF) 

Decontamination: 

Require Showers 

for Handlers 

 Major burden and 

employees would not use. 

(Farm) 

 Shower is unreasonably 

expensive. (Farm) 

 Shower not justified. (Farm) 

 Unnecessary (AFBF) 

 Crop advisor handlers are 

mobile and shower facilities 

would be difficult and costly 

to provide. (Crop advisor) 

 Ag custom applicators in the 

Midwest have showers, but 

are seldom used. (Ag 

custom applicator) 

 Shower facility would cost 

tens of thousands of dollars. 

(Farm) 

 Portable showers cost $5000 

- $6000. Add cost of water. 

(AFBF) 

 Train handlers on 

minimizing takehome exposure. 

(Farm) 

 Additional personal 

protective equipment 

for handlers 

/mixer/loaders (Farm) 

 Protect better by 

requiring workers to 

remove early entry 

clothing and footwear 

– do not allow it to be 

taken home (AFBF) 
November 3, 2008 

22

Table 5 

Certification of Pesticide Applicators 

Summary of SER Written and Oral Comments on Major Issues 

 Received in Response to SBREFA Pre-Panel and Panel Outreach Meetings 

Certification 

Issue/Potential 

proposal 

General Comments 

(commenter type)

Time or Cost ($) Related 

Comment 

(commenter type)

Alternate Proposals 

(commenter type)

Commercial 

Applicator 

Competency: 

Establish 

Minimum Age 

 Minimum age should not 

exceed 14 for commercial 

applicators, if pass test. 

(Landscape maintenance) 

 Commercial applicator 18; 

children of farmers age 16. 

(Farm) 

 Supports ages 16 – 18 for 

commercial. (Farm) 

 Minimum age for pilot’s 

license is 18, so no impact 

for aerial applicator. 

(Aerial) 

 Supports 18 as minimum 

age. (Structural pest control) 

 One cannot understand the 

concept of safe and accurate 

application until age 18. (Ag 

custom applicator). 

 No minimum age, just 

written test. (Farm) 

 Supports 18 as minimum 

age. (Structural pest control) 

 Commercial – 16 or 18 OK. 

(AFBF) 

 Minimum for pilots makes 

this moot for aerial 

applicators. (Aerial) 

 

Private Applicator 

Competency: 

Establish 

Minimum Age 

 Law sets minimum at age 

18 for non farm. Farm 

children should be certified 

when pass test. (Farm). 

 Supports 16. (Farm) 

 One cannot understand the 

concept of safe and accurate 

application until age 18. (Ag 

custom applicator). 

 No minimum, need to use 

family. (Landscape 

maintenance) 

 Privates should be 15 or 16, 

not 12. 

 Private – 16 OK.(AFBF) 

 Would be forced to hire 

certified applicators or older 

workers. Could delay 

applications, affecting yield. 

(Farm) 

 Cost to replace lost family 

worker: salary, 

unemployment and 

workman’s comp taxes, loss 

of reliability. (AFBF) 
November 3, 2008 

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Certification 

Issue/Potential 

proposal 

General Comments 

(commenter type)

Time or Cost ($) Related 

Comment 

(commenter type)

Alternate Proposals 

(commenter type)

Application of 

Restricted Use 

Pesticides under 

the supervision of 

a certified 

applicator : 

Establish 

Minimum Age 

 Minimum age of 16 for an 

apprentice program, but not 

working alone. (Structural 

pest control) 

 One cannot understand the 

concept of safe and accurate 

application until age 18. (Ag 

custom applicator) 

 No minimum, need to use 

family. (Farm) 

 Would be forced to hire 

certified applicators or older 

workers. Could delay 

applications, affecting yield. 

(Farm). 

 Support training or 

requirement for 

presence of certified 

applicator. 

(Landscape 

maintenance) 

Application of 

Restricted Use 

Pesticides under 

the supervision of 

a certified 

applicator: 

Require 

Communication 

method 

 Radios and cell phones are 

problem in some remote 

areas. Generally supports 

good communication. 

Insurance companies also 

support. (Farm) 

 Supports communication 

method rather than on-site 

presence. (Farm) 

 Supports requirement for 

instant communication. (Ag 

custom applicator) 

 While desirable, not always 

possible. (Structural pest 

control) 

 Most, if not all, have twoway radios or cell phones, 

so no additional cost. 

 For full coverage, could add 

several hundred if not 

thousands of dollars in 

equipment and future 

subscriptions (Farm) 

 Issues that may come 

up and need 

communication 

should be covered in 

training. (Farm) 

 Should consider 

distance rather than 

communication 

requirement. (Farm) 
 

8.1 Number and Types of Entities Affected 

Though the SBAR Panel did not receive specific comments on the number and types of entities 

that may be affected by the two rulemakings, the Panel believes that the SERs are in agreement 

with EPA on this matter. Tables 1 & 2 in Chapter 5 of this report, which present the industry 

sectors, definitions and number of small entities potentially affected by the two rules, were 

provided to the SERs before both outreach meetings, and were discussed at the meetings. 

8.2 Potential Reporting, Recordkeeping, and Compliance Requirements 

See Tables 4 and 5, above, for summaries of SER comments on potential reporting, 

recordkeeping, and compliance requirements for major comment generating issues (the 

‘Alternate Proposals’, the ‘General Comment’ and the ‘Time or Cost Related Comment’ 

columns), and Appendix B for complete SER comments. Although some SERs commented on 

the added burden of recordkeeping requirements, there were also comments that suggested added 

recordkeeping because it would reduce other compliance burdens. One SER suggested requiring 

recordkeeping for training, as currently many employers train more frequently than required 

since they cannot determine when or if a worker has been trained. Two SERs suggested oral 

notification of REIs, with recordkeeping, as an alternative to posting treated areas. 

 8.3 Related Federal Rules 

The SBAR Panel did not receive any comments from SERs on related federal rules. Section 2.3 

of this report discusses related federal rules promulgated by the Occupational Safety and Health 

Administration (OSHA). 

 8.4 Regulatory Flexibility Alternatives 

Tables 4 and 5 (‘Alternate Proposals’ column) and comments in Appendix B include regulatory 

flexibility alternatives raised. SERs did not offer alternatives for all potential proposals. Some of 

the alternative proposals were flexibilities for small entities, while others were suggested for all 

affected entities. The major issue SER comments are discussed below for each of the two 

rulemakings. 

 8.4.1 Worker Protection Standard for Agricultural Pesticides 

For the potential proposal to require agricultural establishments to post treated areas during a 

Restricted Entry Interval (REI) following pesticide applications, SERs suggested several 

alternatives for small farms. Three SERs suggested that farms with few employees (one said less 

than 10 non-family employees) should be required to verbally notify employees of the REI rather 

than posting the field. One of these SERs suggested a worker sign off, while another suggested 

central posting, along with the oral notification. One SER proposed that posting should be 

required for Restricted Use Pesticides only, and should be at each possible entry point and each 

corner of the field. Another SER suggested exempting small farms from posting requirements if 
November 3, 2008 

25

all workers are certified and orally notified. The same commenter suggested an alternative of 

posting REIs on a central map, with daily worker check in, and fields marked by flags. 

One SER suggested an alternative for the potential proposal to reduce the current five year 

retraining interval for workers and pesticide handlers on agricultural establishments that use 

pesticides. He suggested that the retraining interval not be reduced and to require documentation 

of training, however training would also be required when a worker is newly hired regardless of 

the retraining interval. This alternative appeared to be for all farms, not just small ones. 

Three SERs suggested alternatives for a potential requirement that agricultural establishments 

provide shower facilities for pesticide handlers. One SER suggested a requirement to train 

handlers on minimizing take-home exposure of pesticides to handlers’ family members rather 

than the shower requirement. Another SER suggested requiring additional PPE instead of 

showers. A third SER suggested better protection by requiring workers to remove early entry 

clothing and footwear and not allow it to be taken home, instead of the shower requirement. 

8.4.2 Certification of Pesticide Applicators 

Two SERs suggested alternative proposals for the potential requirement for a means of 

communication between a certified applicator and someone applying a RUP under their 

supervision. One SER suggested that issues that may arise during a pesticide application that 

may need communication should be covered in training, rather than requiring a means of 

communication during application. Another SER suggested that EPA consider a requirement for 

a maximum distance between the certified applicator and the person applying under the 

supervision, rather than a communication requirement. 

9. PANEL FINDINGS AND DISCUSSION 

 9.1 Number and Types of Entities Affected 

For a complete description and estimate of the type and number of small entities to which the 

proposed rules will apply, see Section 5. For the Worker Protection Standard, this includes 

primarily agricultural employers on farms, forests, nurseries and greenhouse establishments. For 

the Certification of Pesticide Applicators, affected entities include a variety of firms that apply 

pesticides for hire, as well as agricultural producers. 

 9.2 Potential Reporting, Recordkeeping, and Compliance 

Both the Worker Protection Standard and the Certification of Pesticide Applicators rules are 

enforced by state agencies, owing to FIFRA section 26, which allows the states primary 

enforcement responsibility for pesticide use violations. EPA has received considerable feedback 

from our state regulatory partners indicating difficulty enforcing the rules, particularly the WPS, 

due primarily to a lack of records or information. Reporting requirements under the WPS are 

entirely third party reporting. That is, employers provide information to their employees to 

enable them to protect themselves, and do not report to EPA. Reporting requirements under the 

Certification rule are also primarily third party, other than state reports to EPA. 
November 3, 2008 

26

EPA would like to improve enforcement capability as a means of fostering compliance, and 

thereby improving protections. The improvements that EPA is considering for the WPS may 

include additional or more specific recordkeeping and reporting. These potential proposals 

include improved requirements for posting of pesticide treated areas, training, hazard 

communication, and emergency information. 

 9.3 Related Federal Rules 

The Panel is aware of regulations promulgated by the Occupational Safety and Health 

Administration’s (OSHA) to protect employees of firms affected by the WPS and Certification 

rules. The Hazard Communications Standard (HCS) is the main federal regulation designed to 

protect employees from chemical hazards in the workplace. However, OSHA established a 

policy agreeing not to cite employers who are covered under EPA's final WPS rule with regard to 

HCS requirements for pesticide hazards. The Field Sanitation Standard also provides certain 

protections for employees in agriculture. With respect to the Certification rule, OSHA defers to 

EPA for requirements for employees who use restricted use pesticides. 

The proposed rules are being developed and considered within the context of the OSHA rules and 

current coordination between the agencies. Entities affected by the WPS and Certification rules will 

also need to consider OSHA’s regulatory requirements for protection of employees, particularly 

with respect to non-pesticide hazards. 

 9.4 Regulatory Flexibility Alternatives 

As described above, EPA is seeking to improve the standards for protection of agricultural 

workers from pesticide exposure and for the certification of applicators of restricted use 

pesticides. Because of the potential burdens and costs of meeting these standards, the Panel 

recommends that EPA consider and seek comments on the flexibility options described below. 

As one SER commented generally about compliance with the rules, flexibility is key for small 

entities. The Panel believes that the following flexibility options collectively have the potential 

to significantly reduce compliance burden without significantly compromising intended 

protections for human health and the environment. 

 9.4.1 Field Posting for Restricted Entry Intervals 

Restricted-entry intervals (REI) must be specified on WPS-covered pesticide product labels. 

Workers are excluded from entering a pesticide treated area during the REI, with only narrow 

exceptions. EPA is considering a proposal to require agricultural establishments to post treated 

areas during a REI following pesticide applications, to warn workers of the existence and 

duration of the REI and to stay out. 

Several SERs raised concerns about the number and placement of signs. Based on those 

comments, the Panel recommends that EPA consider a requirement for posting at routine or 

usual points of entry to the field or treated area. 

Several SERs commented that the burden for numerous posting events could be high. The Panel 

believes that oral notification of workers is an acceptable substitute for posting for REIs of 
November 3, 2008 

27

shorter duration (e.g., 48 hours or less), as workers can more easily remember the notice for a 

shorter period. Therefore, the Panel recommends that EPA consider the flexibility to permit only 

oral notification for those pesticide applications with REIs of 48 hours or less. 

 9.4.2 Re-training Interval for Workers and Handlers 

The current WPS requires that workers and pesticide handlers receive pesticide safety training, 

and that they be re-trained at least every 5 years. EPA is considering a requirement for more 

frequent re-training, possibly annually. 

A few SERs commented that they already re-train every year, as they cannot verify whether or 

when employees have been previously trained, in part due to turnover in the workforce. Several 

SERs, including one that said most workers are re-trained annually, suggested that EPA retain 

the current five year re-training interval, as it is sufficient. 

The Panel recognizes that there is value in re-training workers as it serves to emphasize and 

remind the worker of important safety principles. If EPA proposes an annual re-training 

requirement the Panel recommends that EPA consider flexibility for less frequent training for 

small entities, e.g., entities with less than 10 employees that have written documentation of the 

following: 

1. no worker turnover 

2. no new or different pesticide application information from previous years 

3. previous training of workers and handlers. 

 9.4.3 Elimination of Grace Period for Worker Training 

The current WPS requires pesticide safety training for agricultural workers but allows them to 

work up to five days before receiving the full training if they are given a shorter, basic training. 

EPA is considering eliminating this grace period for full training. The current allowance for a 

grace period was added primarily because at the time trainers were scarce and no training 

materials existed. Now these limitations have largely been addressed. Elimination of the grace 

period would effectively eliminate the basic training requirement. 

Several SERs indicated that the grace period allows flexibility in work schedules and should not 

be eliminated. The Panel recommends that EPA carefully weigh the potential burden and 

consider flexibilities for small entities. EPA should consider programmatic flexibilities for small 

entities such as the Agency working with the states to increase use of training verification 

programs to reduce the need for unnecessary re-training and use of the grace period. 

 9.4.4 Shower Facility for Handlers

EPA is considering a requirement that employers of pesticide handlers make available a shower 

facility for their use. A few SERs said that when showers are available that employees do not 

use them. Several SERs commented that a shower facility would be very expensive, with some 

suggesting that the benefits would not be justified. 
November 3, 2008 

28

In light of SER comments, the Panel recommends that EPA limit consideration of shower facility 

requirements to establishments with permanent pesticide mixing/loading sites. Such a limitation 

would eliminate the costly requirement for many smaller entities, and limit it to establishments 

where pesticide use and potential for exposure is likely to be higher. Also, establishments with 

permanent pesticide mixing/loading sites would potentially have a lower incremental cost of 

adding a shower facility at that site, since such sites typically already have running water. 

 9.4.5 Minimum Age for Certified Applicators and Those Applying RUPs 

Under Their Supervision

Currently there is no federal minimum age requirement to become certified as a commercial 

applicator or private applicator, or for individuals to apply RUPs under the supervision of a 

certified applicator. EPA is considering a proposal to require a minimum age for each of these 

categories of applicators. The Agency’s concerns for younger applicators includes their 

increased vulnerability to the adverse effects of pesticides, potentially lower level of competence 

in applying pesticides, as well as potentially poorer judgment and level of responsibility. 

SERs were not in agreement on this potential proposal. Two SERs suggested no minimum age 

for commercial certification, as long as they can pass the examination. One SER suggested a 

minimum age of 14 for commercial applicators. Several SERs suggested a minimum age of 18 

for all categories. A few SERs suggested 18 as a minimum age, with lower ages for family 

members of the employer. A few other SERs suggested 15 or 16 as the minimum on farms. 

Given the SERs’ comments, the Panel recommends that EPA consider a minimum age 

requirement of: 18 for commercial applicators; 18 for hired private applicators and 16 for family 

members; 18 for individuals applying RUPs under the supervision of a commercial applicator; 

and 16 for those applying RUPs under the supervision of a private applicator. Also, based on 

SER comments on the cost of replacing current younger applicators, the Panel recommends 

including a grandfather clause to allow currently certified private and commercial applicators to 

retain their certification after any minimum age requirement becomes effective. 

 9.4.6 Communication Method Between Certified Applicator and Individuals 

Applying RUPs Under Their Supervision 

The current Certification rule allows non-certified applicators to apply RUPs “under the direct 

supervision” of a certified applicator, but does not specifically require a means of 

communication between the supervising certified applicator and the supervised applicator during 

the application. EPA is considering a proposal to require that a means of instant communication 

be available during such applications. 

Several SERs indicated that a means of communication is necessary and/or desirable, while two 

cautioned that in some remote areas, communication devices do not always work well. One SER 

suggested that communication may not be necessary with proper training, and another said a 

distance requirement could replace a communication requirement. 
November 3, 2008 

29

The Panel agrees with the majority of SER comments that there should be communication 

capability between certified applicators and those under their supervision during RUP 

applications. The Panel recommends that EPA consider proposing a requirement that a means of 

communication between certified applicators and individuals applying RUPs under their 

supervision be available and employed during RUP applications.
November 3, 2008 

30

Appendix A

List of Materials EPA shared with Potential Small Entity 

Representatives 

(June 2008) 

• Fact Sheet: What Small Entities Should Know About the Regulatory Flexibility Act and 

the Small Business Regulatory Enforcement Fairness Act 

• Fact Sheet: What Potential Small Entity Representatives Should Know About the Small 

Business Advocacy Review Panel Process 

• Power Point presentation including: 

o Guidance for SERs 

o Introduction to Pesticide Worker Safety program 

o Background and regulatory history, including overview of existing regulations 

o Rationale for revising these regulations 

o Overview of proposals under consideration 

o Regulatory flexibility options for small entities 

• Industry Sectors, Definitions & Number of Small Entities Potentially Affected by 

Proposed Amendments to the Worker Protection Standard and Certification of Pesticide 

Applicators Rule 

• List of Potential Small Entity Representatives 

• Questions for Potential Small Entity Representatives 

• GAO Report: Pesticides: Improvements to Ensure Safety of Farmworkers and Their 

Children 

• Pesticide Worker Safety – National Program Assessment 

Gaps in Protections from current Worker Protection Standard and Certification of Pesticide 

Applicators Rule

Additional Materials the SBAR Panel shared with Small Entity 

Representatives 

(September 2008)

• Power Point presentation (revised) 

• List of Small Entity Representatives (updated) 

• Questions for Small Entity Representatives (revised) 
November 3, 2008 

31

Appendix B 

Written Comments Submitted by Small Entity Representatives 

(See separate file)