November 3, 2008

The Honorable Stephen Johnson

Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Dear Administrator Johnson:

Enclosed for your consideration is the Repor t of the Small Business Advocacy Review Panel (SBAR Panel or Panel) convened for two of EPA’s planned proposed rulemakings entitled “Worker Protection Standard for Agricultural Pesticides” (WPS) and “Certification of Pesticide Applicators” (Certification rule). Possible revisions to the WPS and Certification Rule are being developed by the U.S. Environmental Protecti on Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The proposed changes to the rules are going through the regulation developmen t process concurrently.

THE AGRICULTURAL WORKER PROTECTION STANDARD

In 1974, EPA promulgated the WPS (40 CFR Part 170), based on the 1972 amendments to FIFRA. In that rule, four basic requirements to protect farmworkers performing hand labor

activities were established:

 A prohibition against sprayi ng workers and other persons

 A general reentry interval for all agricultura l pesticides prohibiting reentry into treated fields until the spray had dr ied 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 stan dards concluded that the regulations were inadequate to protect these workers. Followi ng an extensive public pa rticipation and comment process, a new final rule was promulgated in 1992 and became effective in 1995. These revised regulations are intended to:

 Eliminate or reduce exposure to pesticides

 Mitigate exposures that do occur

 Inform employees about th e hazards of pesticidesPage 2 of 8 After the 1995 implementation, the Agency initia ted a program assessment based on issues brought forward by stakeholders, by a pla nned program evaluation, the Government Accountability Office (GAO) and Children’s Health Protection Advisory Committee (CHPAC). This national assessment process included public meetings in the major agricultural areas with significant production and labor, a nd the establishment of workgroups to address the issues. A number of issues were raised through the nationa l assessment process that could not be addressed outside of regulation, and these proposals are the response to those recommendations.

THE CERTIFICATION OF PESTICIDE APPLICATORS

The Certification of Pesticide Applicators rule has been largely unchanged since promulgation in 1974 and 1975. In 1985, a taskforce appointed by EPA reviewed the program and policies and identified areas for improvement in a report. Changes to the regulations were proposed in 1990, but were never made final. In 1996, OPP estab lished the Certification and Training Assessment Group (CTAG) to define the national direction of the pesticide applicator certification and training program. This group has made a number of recommendations to improve the program. Some of these recommendations can only be addressed through regulatory change.

PANEL BACKGROUND

On September 4, 2008, EPA’s Small Business Advo cacy Chairperson convened this Panel under section 609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA). In addition to its chairperson, the Panel

consists of the Director of the Field and External Affairs Divisi on of the EPA Office of Pesticide Programs, the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB), and the Acting Chief Counsel for Advocacy of the Small Business Administration (SBA). It is impor tant to note that the Panel’s findings and

discussion are based on the information available at the time this report was drafted. EPA is continuing to conduct analyses rele vant to the proposed rules, and additional information may be developed or obtained during this process as well as from public comment on the proposed rules. The options the Panel identified for reducing the rules’ economic impact on small entities will require further analysis and/or data collection to ensure th at the options are practicable, enforceable, protective of public health, envir onmentally sound and consistent with FIFRA.

SUMMARY OF SMALL ENTITY OUTREACH

EPA has been conducting outreach to the enti re 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 evalua te the regulation and the implementation and enforcement of the national program. Repres entatives from grower groups, farmworker advocates, state lead agencies for pe sticide regulation, et c., participated.Page 3 of 8 • In 1997, the Certification and Training Asse ssment 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 committ ee 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 prelim inary options for both rules and provided

comments.

Prior to convening the Panel, EPA conducted outrea ch with small entities that will potentially be affected by these regulations. In June 2008, EPA invited SBA, OMB, and 20 potentially affected small entity representatives to a conference cal l, in which information on the rules and the Agency’s planned proposals were shared, and solicited preliminary comments from them. EPA shared the small entities’ written comments with the Panel as part of the Panel convening

document.

After the SBAR Panel was convened, the Panel distributed additional information to the small entity representatives (SERs) on September 12, 2008, for their review and comment and in preparation for another outreach meeting. On September 25, 2008, the Panel met with the SERs

to hear their comments on the info rmation distributed in these ma ilings. The SERs were asked to provide written feedback on ideas under c onsideration for the proposed rulemaking and responses to questions regarding their experience with the existing WPS and Certification rule requirements. The Panel received written co mments from the SERs in response to the discussions at this meeting and the outreach ma terials. See Section 8 of the Panel Report for a complete discussion of SER comments. Their fu ll written comments are also attached. In light of these comments, the Panel considered th e regulatory flexibility issues specified by RFA/SBREFA and developed the findings and discussion summarized below.

PANEL FINDINGS AND DISCUSSION

Under section 609(b) of the RFA, the Panel is to report its findings relate d to these four items:

1) A description of and, where f easible, an estimate of the number of small entities to which the proposed rule will apply.

2) A description of the proj ected reporting, recordkeeping and other compliance requirements of the proposed rule, includi ng an estimate of the classes of small entities which will be subject to the require ment and the type of professional skills necessary for preparation of the report or record.

3) Identification, to the extent practicable, of all relevant federal rules which may duplicate, overlap or conflict with the proposed rule.Page 4 of 8 4) A description of any significant alternativ es to the planned proposed rule which would minimize any significant economic impact of the proposed rule on small entities consistent with the stated obj ectives of the authorizing statute.

The Panel’s most significant findings and discus sion with respect to each of these items are

summarized below. To read the full discussion of the Panel findings and recommendations, see Section 9 of the Panel Report.

A. Number and Types of Entities Affected

For the WPS rule, there are approximately 956,000 small farms, nurseries, greenhouses, forests and related support businesses that are potentially affected by th e proposed regulatory revisions. For the applicator certific ation rule, the potentially affected businesses include most of the same businesses as the WPS rule, but also include a nu mber of businesses involved in non-agricultural pest control. For the certification rule , there are approximately 2,147,000 firms potentially affected. See section 5, Tables 1 and 2 of the full Panel Report for a complete listing of the affected industry types and the Small Business Administration definitions. Though the SBAR Panel did not receive specific comments on the numb er 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.

B. Recordkeeping, Reporting, and Other Compliance Requirements

Both the Worker Protection Standard and the Ce rtification of Pesticide Applicators rules are enforced by state agencies, owing to FIFRA section 26, which allows the states primary enforcement responsibility for pesticide use violat ions. EPA has received considerable feedback from our state regulatory partners indicating difficulty enforci ng the rules, particularly the WPS, due primarily to a lack of records or info rmation. Reporting require ments under the WPS are entirely third party reporting; th at is, employers provide informati on to their employees to enable them to protect themselves, and do not repor t to EPA. Reporting requirements under the Certification rule are also primarily thir d party, other than st ate reports to EPA.

EPA would like to improve enforcement capability as a means of fostering compliance, and thereby improving protections. The improvement s that EPA is considering for the WPS may include additional or more spec ific recordkeeping and reporti ng. These potential proposals include improved requirements for posting of pesticide treated areas, training, hazard communication, and emergency information.

See Tables 4 and 5 in the Panel report for summaries of SER comments on potential reporting, recordkeeping, and compliance requirements for major comment generating issues. See Appendix B of the report for complete SER co mments. 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. For example, one SERPage 5 of 8 suggested requiring recordkeep ing for training, as currently many employers train more frequently than required since th ey cannot determine when or if a worker has been trained.

C. Related Federal Rules

The Panel is aware of regulat ions promulgated by the Occupational Safety and Health Administration (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 employ ers who are covered under EPA's fi nal WPS rule with regard to HCS requirements for pesticide hazards. The Field Sanitati on Standard also provides certain protections for employees in agriculture. With re spect to the Certificatio n rule, OSHA defers to EPA for requirements for employees who use restricted use pesticides.

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

current coordination between the agencies. Entiti es affected by the WPS a nd Certification rules will also need to consider OSHA’s regulatory requirem ents for protection of employees, particularly with respect to non-pesticide hazards.

Section 2 of the Panel report di scusses related federal rules promulgated by OSHA. The SBAR Panel did not receive any comments from SERs on related federal rules.

D. Regulatory Flexibility Alternatives

As described in the report, EPA is seeking to improve the standa rds for protection of agricultural workers from pesticide exposure and for the cer tification of applicator s of restricted use pesticides. Because of the potential burdens a nd costs of meeting these standards, the Panel

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

As one SER commented generally about compliance with the rules, flexib ility is key for small entities. The Panel believes that the following flex ibility options collectively have the potential to significantly reduce compliance burden without significantly compromising intended protections for human health and the environment.

Field Posting for Restricted Entry Intervals

Restricted-entry interv als (REIs) must be specified on W PS-covered pesticide product labels. Workers are excluded from entering a pesticide treated area during the REI, with only narrow exceptions. EPA is considering a pr oposal to require agricultural establishments to post treated areas during a REI following pesticide applica tions, 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 consid er a requirement for po sting at routine or usual points of entry to th e field or treated area.Page 6 of 8 Several SERs commented that the burden for num erous posting events could be high. The Panel believes that oral notification of workers is an acceptable substitute for posting for REIs of shorter duration (e.g., 48 hours or less), as work ers 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.

Re-training Interval for Workers and Handlers

The current WPS requires that workers and pestic ide handlers receive pe sticide safety training, and that they be re-trained at least every 5 years. EPA is c onsidering a requirement for more frequent re-training, possibly annually.

A few SERs commented that they already re-train every year, as they cann ot 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, sugg ested 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 princi ples. If EPA proposes an annual re-training requirement the Panel recommends that EPA consid er flexibility for less frequent training for small entities, e.g., entities with less than 10 employees that ha ve written documentation of the following:

1. no worker turnover

2. no new or different pesticide applicat ion information from previous years

3. previous training of workers and handlers.

Elimination of Grace Peri od for Worker Training

The current WPS requires pesticide safety traini ng for agricultural workers but allows them to work up to five days before receiving the full trai ning if they are given a shorter, basic training. EPA is considering eliminating this grace period for full traini ng. Elimination of the grace period would effectively eliminat e the basic training requirement.

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

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

consider flexibilities for small entities. EPA s hould consider programmatic flexibilities for small entities such as the Agency working with the st ates to increase use of training verification programs to reduce the need for unnecessary re-training and use of the grace period.

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 notPage 7 of 8 use them. Several SERs commented that a shower facility would be very expensive, with some suggesting that the benefits would not be justified.

In light of SER comments, the Pa nel recommends that EPA limit consideration of shower facility requirements to establishments with permanent pe sticide 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 highe r. Also, establishments with permanent pesticide mixing/loading sites would pot entially have a lower incremental cost of adding a shower facility at that site, since su ch sites typically alre ady have running water.

Minimum Age for Certified Applicators and Those Applying Restricted Use Pesticides (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 propo sal 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 le vel 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 a lower age 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 recomm ends 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 appl ying RUPs under the supervision of a commercial applicator; and 16 for those applying RUPs under the superv ision 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 privat e and commercial applicators to retain their certification after any mini mum age requirement becomes effective.

Communication Method Between Certified Applicator and Individuals Applying RUPs Under Their Supervision

The current Certification rule allows non-certified app licators to apply RUPs “under the direct supervision” of a certified a pplicator, but does not specif ically require a means of communication between the supervising certified a pplicator and the superv ised applicator during the application. EPA is consider ing a proposal to require that a means of instant communication be available during such applications.

Several SERs indicated that a means of communica tion is necessary and/or desirable, while two cautioned that in some remote areas, communicati on devices do not always work well. One SER