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 Report 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 Protection Agency (EPA) under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA). The proposed changes to the rules are going through 

the regulation development 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 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. Following an extensive public participation 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 the hazards of pesticides 
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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 public 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 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 established 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 Advocacy 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 Division 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 important 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 relevant 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 that the options are practicable, 

enforceable, protective of public health, environmentally sound and consistent with FIFRA.

SUMMARY OF 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, farmworker 

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

Prior to convening the Panel, EPA conducted outreach 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 call, 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 information distributed in these mailings. The SERs were asked to 

provide written feedback on ideas under consideration for the proposed rulemaking and 

responses to questions regarding their experience with the existing WPS and Certification rule 

requirements. The Panel received written comments from the SERs in response to the 

discussions at this meeting and the outreach materials. See Section 8 of the Panel Report for a 

complete discussion of SER comments. Their full written comments are also attached. In light 

of these comments, the Panel considered the 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 related to these four items: 

1) A description of and, where feasible, an estimate of the number of small entities to 

which the proposed rule will apply. 

2) A description of the projected reporting, recordkeeping and other compliance 

requirements of the proposed rule, including an estimate of the classes of small 

entities which will be subject to the requirement 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. 
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4) A description of any significant alternatives to the planned proposed rule which 

would minimize any significant economic impact of the proposed rule on small 

entities consistent with the stated objectives of the authorizing statute. 

The Panel’s most significant findings and discussion 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 the proposed regulatory revisions. 

For the applicator certification rule, the potentially affected businesses include most of the same 

businesses as the WPS rule, but also include a number 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 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. 

 B. Recordkeeping, Reporting, and Other Compliance Requirements 

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. 

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. 

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 comments. 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 SER 
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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. 

 C. Related Federal Rules 

The Panel is aware of regulations 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 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. 

Section 2 of the Panel report discusses 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 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. 

 Field Posting for Restricted Entry Intervals 

Restricted-entry intervals (REIs) 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. 
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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 

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. 

 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. 

 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. 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. 

 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 
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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 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. 

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 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 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 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. 

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