15P-0213

Worker Protection Standard: Response to Comment Document

1 I. Introduction 

2 The purpose of this document is to summarize and respond to the comments received on the 

3 revisions to 40 CFR Part 170, the Worker Protection Standard. 

4 The revisions were proposed on March 19, 2014 (79 FR 15444). EPA received substantial 

5 feedback on the proposal, including about 2,400 written comments with over 393,000 signatures. 

6 Commenters included state pesticide regulatory agencies, state departments of health, farmworker 

7 advocacy organizations, public health agencies, growers and grower organizations, agricultural producer 

8 organizations, applicators and applicator organizations, pesticide manufacturers and their organizations, 

9 personal protective equipment manufacturers, farm bureaus, crop consultants and organizations, the 

10 Small Business Administration (SBA) Office of Advocacy, concerned citizens, and others. 

11 This document generally follows the same structure as the preamble for the final rule to make it 

12 easy to cross reference between the two documents. The preamble to the final rule includes a summary 

13 of the major comments and EPA’s responses to them.

14 Here is an outline of the contents:

15 I. Introduction

16 II. General Support

17 III. General Opposition

18 IV. Context and Goals of this Rulemaking

19 A. Context of this Rulemaking

20 B. Goals of this Rulemaking

21 V. Pesticide Safety Training for Workers and Handlers

22 A. Shorten Retraining Interval for Workers and Handlers

23 B. Establish Recordkeeping Requirements to Verify Training for Workers and Handlers

24 C. Establish Trainer Qualifications for Workers and Handlers

25 D. Expand the Content of Worker and Handler Pesticide Safety Training

26 E. Exception to full Pesticide Safety Training for Workers Prior to Entry into Treated Areas (Grace 

27 Period)

28 F. Training Program Administration Requirements

29 G. Require Employers to Provide Establishment-Specific Information to Workers and Handlers

30 VI. Notification

31 A. Posted Notification Timing and Oral Notification

32 B. Revise Content of Warning Sign

33 C. Warning Sign Location Revisions

34 VII. Hazard Communication

35 A. Hazard Information – Location and Accessibility

36 B. Pesticide-Specific Hazard Communications Materials – General

37 C. Pesticide Application Information - Content

38 D. Pesticide Application and Hazard Information – When Information Must be Made Available

39 E. Pesticide Application and Hazard Information – Retention of Records

40 VIII. Information Exchange Between Handler and Agricultural Employers

41 IX. Drift-Related Requirements

42 A. Overarching Performance Standard

43 B. Entry Restrictions to Protect Workers and Other Persons During Applications

44 C. Suspend Applications
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45 X. Establish Minimum Age for Handling Pesticides and Working in a Treated Area while an REI is in 

46 Effect 

47 XI. Restrictions on Worker Entry into Treated Areas 

48 A. Requirements for Entry During an REI 

49 B. Clarify Conditions of the “No Contact” Exception 

50 C. Limit “Agricultural Emergency” Exception 

51 D. Codify “Limited Contact” and “Irrigation” Exceptions 

52 E. Eliminate the Option for an Exception Requiring Agency Approval 

53 XII. Display of Pesticide Safety Information 

54 A. Pesticide Safety Information Content 

55 B. Location of Pesticide Safety Information Display 

56 XIII. Decontamination 

57 A. Clarify the Quantity of Water Required for Decontamination 

58 B. Eliminate the Substitution of Natural Waters for Decontamination Supplies 

59 C. Requirements for Ocular Decontamination in Case of Exposed Pesticide Handlers 

60 D. Showers for Handler Decontamination 

61 XIV. Emergency Assistance 

62 XV. Personal Protective Equipment 

63 A. Respirators: Fit Testing, Training, and Medical Evaluation 

64 B. Chemical-Resistant PPE 

65 C. Contaminated PPE 

66 XVI. Decision not to Require Monitoring of Handler Exposure to Cholinesterase-Inhibiting Pesticides 

67 XVII. Exemptions and Exceptions 

68 A. Immediate Family 

69 B. Crop Advisors and Employees 

70 C. Closed Systems 

71 D. Aerial Applications— Eyewear Protection for Open Cockpits 

72 E. Aerial Applications – Use of Gloves 

73 F. Enclosed Cabs – Changes to Exceptions to PPE Requirements when Applying Pesticides from 

74 Inside an Enclosed Cab 

75 XVIII. General Revisions 

76 A. Label vs. Labeling 

77 B. Regulating Other Persons 

78 C. Definitions 

79 1. General 

80 2. Authorized Representative

81 3. Closed System 

82 4. Enclosed Space Production and Outdoor Production 

83 5. Entry-Restricted Area and Application Exclusion Zone 

84 6. Hand Labor 

85 7. Immediate Family 

86 8. Use 

87 D. Restructuring 40 CFR 170 

88 E. Equivalency Provisions 

89 F. Clarifications 
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90 G. Anti-retaliation Measures

91 H. Comments Relating to OSHA

92 XIX. Implementation 

93 XX. Economic Analysis

94 A. Cost Assessment and Related Topics

95 B. Benefits

96 XXI. References 

97

98 II. General Support

99 A. Comments 

100 Many commenters expressed general support for EPA’s proposed revisions to the WPS and 

101 noted that the revised rule should help to prevent adverse health effects resulting from exposure to 

102 pesticides among agricultural workers and pesticide handlers. While most commenters supported the 

103 proposed changes generally, many provided comments about specific elements of the proposal that 

104 should be strengthened. Many commenters who expressed general support also raised concerns about 

105 specific elements of the proposed regulation.

106 B. EPA Response

107 EPA appreciates the commenters’ general support for the proposed revisions. EPA 

108 acknowledges commenters’ specific concerns and suggestions in the specific units of this response to 

109 comments document.

110 III. General Opposition

111 A. Comments 

112 Many commenters opposed EPA finalizing the proposed changes. Some commenters suggested 

113 that EPA engage in a thorough evaluation of the existing WPS, considering the changes in agricultural 

114 practices and technology since the existing WPS was promulgated over 20 years ago. In addition, some 

115 commenters asserted that acute incidents have declined significantly since the existing WPS was 

116 implemented, demonstrating improvements in worker safety.

117 Another commenter suggested that EPA engage in a thorough review and dialogue related the 

118 existing WPS with state regulatory agencies and the regulated community to enhance the effectiveness 

119 of the current WPS and to develop alternative proposals. This commenter also requested that any 

120 changes to the WPS provide state regulatory agencies flexibility in structuring and enforcing certain WPS 

121 provisions to better reflect the diversity of agricultural operations in their states.

122 A few commenters expressed concern that EPA used outdated data on the demographics of 

123 farmworkers when more current data are available. A commenter noted that EPA relied on information 

124 from the Department of Labor’s (DOL) National Agricultural Worker Survey (NAWS) from 2005, although 

125 a more recent data set is available to the public. 

126 Several commenters argued that EPA’s characterization of the existing WPS and need for the proposed 

127 changes implies that EPA has been ineffective at regulating pesticides. Commenters also asserted that 

128 the proposed rule indicates a belief on EPA’s part that pesticide labels are inadequate. Commenters 

129 alleged that the label provides necessary protections and that by revising the WPS EPA is ignoring the 

130 protections inherent in the labeling. Lastly, commenters argued that the proposal overlooks the

131 extensive worker protection stewardship programs of states, registrants, professional applicators,

132 producers, and the regulated community.

133 B. EPA Response
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134 EPA disagrees with the commenters’ request not to promulgate revisions to the WPS. EPA 

135 already engaged stakeholders extensively, in both formal and informal consultations, to evaluate the 

136 existing WPS. EPA engaged in a National Assessment of the Pesticide Worker Safety Program, convened 

137 a workgroup of the Pesticide Program Dialogue Committee, convened a Small Business Advocacy Review 

138 (SBAR) Panel, and participated in many meeting with stakeholders to discuss the existing rule and to 

139 accept suggestions for improvements. Stakeholders consulted included grower organizations, 

140 farmworker organizations, cooperative extension services, commodity organizations, healthcare 

141 providers, state regulatory agencies, federal agencies, pesticide manufacturers and distributers, and 

142 individual workers, handlers, and growers. In addition, EPA encouraged comments from all stakeholders 

143 on the proposed changes to the WPS, and considered those comments in developing a final rule.

144 EPA discussed the changes over time in the regulation of pesticides in both the proposed and 

145 final regulations. EPA acknowledges that agriculture has changed over time and technology has 

146 advanced. However, the WPS is focused on protecting workers and handlers from pesticide exposure 

147 through a generally applicable regulation that applies regardless of the agricultural practices or 

148 technology used. Changes in agricultural practices and technology, such as using pesticides with a lower 

149 application rate or shorter REI, applying pesticides using drift reduction technology, or mixing and 

150 loading using a closed system, are additional ways to reduce potential exposure to workers and 

151 handlers. However, these measures do not replace or negate the need for the protections provided 

152 under the WPS.

153 EPA notes that some data show that incidents of occupational pesticide exposure in agriculture 

154 have declined over time. Many factors may have contributed to this reduction, including 

155 implementation of the WPS, registration of lower risk pesticides, and adoption of safer application 

156 technology. However, avoidable and preventable incidents continue to affect workers and handlers; EPA 

157 intends to further reduce the number and severity of incidents occurring through updating the 

158 protections in the WPS.

159 EPA disagrees with commenters’ suggestion to engage in additional review and dialogue with 

160 state regulatory agencies and the regulated community instead of finalizing the revised WPS, because 

161 EPA already conducted a significant National Assessment of the Pesticide Worker Safety Program to 

162 evaluate implementation of the existing WPS and to request suggestions for improving its effectiveness. 

163 The National Assessment of the Pesticide Worker Safety Program resulted in a variety of suggestions to 

164 improve the existing WPS, which came from the many stakeholders who participated in the process. EPA 

165 took actions following the assessment process to improve implementation of the existing WPS by:

166 • Revising and developing improved outreach and compliance assistance materials (including 

167 a revised How to Comply with the WPS manual released in 2005)

168 • Improving guidance and expanding training for enforcement inspectors, and increasing 

169 oversight by EPA regional offices

170 • Improving training materials for train-the-trainer programs

171 • Expanding funding of pesticide incident monitoring

172 • Revising grant guidance to states for improved enforcement tracking, incident monitoring 

173 and program reporting

174 While EPA was able to take some actions to improve the existing WPS immediately following the 

175 National Assessment process, other recommendations require regulatory change to implement. For 

176 example, expanding the content of worker and handler pesticide safety training and requiring respirator 

177 fit testing consistent with OSHA and National Institute for Occupational Safety and Health (NIOSH)
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178 requirements require EPA to revise the requirements of the existing WPS. Given the many opportunities 

179 for stakeholders to engage with EPA prior to publication of the proposed rule and to provide comments 

180 during the public comment period, EPA rejects commenters’ request for further review and dialogue 

181 between EPA, state regulatory agencies, and the regulated community prior to publishing a final rule.

182 EPA notes that nationally consistent implementation of the WPS is a necessary underpinning of 

183 the pesticide regulatory decisions made by EPA. EPA will work with state regulatory agencies on 

184 enforcing the WPS. Additionally, EPA has incorporated an equivalency provision in the final rule to allow 

185 states to request EPA to review portions of their laws protecting workers and handlers to determine if 

186 they are equivalent to the protections offered under the WPS.

187 EPA agrees with commenters that the farmworker demographic data used in the preamble to 

188 the proposed rule was from 2005, and notes that the preamble to the final rule uses the most current 

189 data available from NAWS.

190 EPA disagrees with commenters’ assertions that the proposed changes to the WPS imply that 

191 EPA has been ineffective at regulating pesticides. EPA believes that the current system for regulating 

192 pesticide products is generally adequate, and that pesticides can be used safely and effectively when the 

193 labeling is followed. EPA relies on the complementary relationship between the labeling and the WPS, 

194 which is referenced as part of labeling, to protect workers and handlers. EPA’s proposal to improve the 

195 WPS protections does not mean that EPA believes pesticide registration and labeling are not effective. 

196 Rather, EPA’s registration decisions and labeling language requirements are predicated on the premise 

197 that employers, workers and handlers are complying with the important workplace protections, training, 

198 and hygiene measures specified in the WPS. If the existing WPS does not ensure that the assumed 

199 protections are occurring, e.g., workers are entering treated areas before the REI expires or experiencing 

200 pesticide exposure through drift from products applied according to labeling requirements, then EPA 

201 must review the existing regulation to address these shortcomings and to ensure that the basis on which 

202 the labeling decisions rest is sound. 

203 EPA disagrees with comments that labeling alone provides sufficient protection to workers and 

204 handlers. Under FIFRA’s authority, EPA has implemented measures to protect workers, handlers, other 

205 persons, and the environment from pesticide exposure in two primary ways. First, EPA includes product206 specific use instructions and restrictions on individual pesticide product labeling. These instructions and 

207 restrictions are the result of EPA’s stringent registration and reevaluation processes and are based on 

208 the risks of the particular product. Since users must comply with directions for use and restrictions on a 

209 product’s labeling, EPA uses the labeling to convey mandatory requirements for how the pesticide must 

210 be used to protect people and the environment from unreasonable adverse effects of pesticide 

211 exposure. Second, EPA enacted the WPS to expand protections against the risks of agricultural 

212 pesticides without making individual product labeling longer and much more complex. The WPS is a 

213 uniform set of requirements for workers, handlers and their employers that are generally applicable to 

214 all agricultural pesticides and are incorporated onto agricultural pesticide labels by reference. Its 

215 requirements complement the product-specific labeling restrictions and are intended to minimize 

216 occupational exposures generally.

217 EPA has included in the preamble to the final rule a discussion of EPA’s regulation of pesticides, 

218 including a summary of the data required and the process for evaluating the data to determine whether 

219 to register a product and what, if any, labeling-based risk mitigation measures are necessary. The final 

220 rule preamble also includes a discussion of the complementary relationship between pesticide labeling 

221 and the WPS.
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222 EPA recognizes that a number of stewardship activities may support worker and handler safety. 

223 However, because pesticide registration and labeling decisions depend on assurance that specific 

224 protections are being provided to workers and handlers, it is not possible to rely on voluntary 

225 stewardship programs alone. To ensure that workers and handlers receive the protections assumed 

226 when EPA reviews data and establishes risk mitigation measures during the pesticide registration and 

227 registration review processes, EPA must establish enforceable requirements under the WPS. 

228

229 IV. Context and Goals of This Rulemaking

230 A. Context for this Rulemaking

231 1. Statutory authority. Enacted in 1947, FIFRA established a framework for the pre-market 

232 registration and regulation of pesticide products; since 1972, FIFRA has prohibited the registration of 

233 pesticide products that cause unreasonable adverse effects. FIFRA makes it unlawful to use a pesticide 

234 in a manner inconsistent with the labeling and gives EPA’s Administrator authority to develop 

235 regulations to carry out the Act. FIFRA’s legislative history indicates that Congress specifically intended 

236 for FIFRA to protect workers and other persons from occupational exposure directly to pesticides or to 

237 their residues (Ref. 5).

238 Under FIFRA’s authority, EPA has implemented measures to protect workers, handlers, other 

239 persons, and the environment from pesticide exposure in two primary ways. First, EPA includes specific 

240 use instructions and restrictions on individual pesticide product labeling. These instructions and 

241 restrictions are the result of EPA’s stringent registration and reevaluation processes and are based on 

242 the risks of the particular product. Since users must comply with directions for use and restrictions on a 

243 product’s labeling, EPA uses the labeling to convey mandatory requirements for how the pesticide must 

244 be used to protect people and the environment from unreasonable adverse effects of pesticide 

245 exposure. Second, EPA enacted the WPS to expand protections against the risks of agricultural 

246 pesticides without making individual product labeling longer and much more complex. The WPS is a 

247 uniform set of requirements for workers, handlers and their employers that are generally applicable to 

248 all agricultural pesticides and are incorporated onto agricultural pesticide labels by reference. Its 

249 requirements complement the product-specific labeling restrictions and are intended to minimize 

250 occupational exposures generally. 

251 2. EPA’s regulation of pesticides. EPA uses a science-based approach to register and re-evaluate 

252 pesticides, in order to protect human health and the environment from unreasonable adverse effects 

253 that might be caused by pesticides. The registration process begins when a manufacturer submits an 

254 application to register a pesticide. The application must contain required test data, including 

255 information on the pesticide’s chemistry, environmental fate, toxicity to humans and wildlife, and 

256 potential for human exposure. EPA also requires a copy of the proposed labeling, including directions for 

257 use and appropriate warnings.

258 Once an application for a new pesticide product is received, EPA conducts an evaluation, which 

259 includes a detailed review of scientific data to determine the potential impact on human health and the 

260 environment. EPA considers the risk assessments and results of any peer review, and evaluates potential 

261 risk management measures that could mitigate risks that exceed EPA’s level of concern. In the 

262 registration process, EPA evaluates the proposed use(s) of the pesticide to determine whether it would 

263 cause adverse effects on human health, non-target species, and the environment. In evaluating the 

264 impact of a pesticide on occupational health and safety, EPA considers the risks associated with use of 

265 the pesticide (occupational, environmental) and the benefits associated with use of the pesticide 

266 (economic, public health, environmental). However, FIFRA does not require EPA to balance the risks and 
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267 benefits for each audience. For example, a product may pose risks to workers, but risk may nevertheless 

268 be reasonable in comparison to the economic benefit of continued use of the product to society at 

269 large.

270 If the application for registration does not contain evidence sufficient for EPA to determine that 

271 the pesticide meets the FIFRA registration criteria, EPA communicates to the applicant the need for 

272 more or better refined data, labeling modifications, or additional use restrictions. Once the applicant has 

273 demonstrated that a proposed product meets the FIFRA registration criteria and any applicable 

274 requirements under the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 321 et seq., EPA 

275 approves the registration subject to any risk mitigation measures necessary to meet the FIFRA 

276 registration criteria. EPA devotes significant resources to the regulation of pesticides to ensure that each 

277 pesticide product meets the FIFRA requirement that pesticides not cause unreasonable adverse effects 

278 to the public and the environment.

279 When EPA approves a pesticide, the labeling generally reflects all risk mitigation measures 

280 required by EPA. The risk mitigation measures may include requiring certain engineering controls, such 

281 as the use of closed systems for mixing pesticides and loading them into application equipment to 

282 reduce potential exposure to those who handle pesticides; establishing conditions on the use of the 

283 pesticide by specifying certain use sites, maximum application rate or maximum number of applications; 

284 or establishing REIs during which entry into an area treated with the pesticide is generally prohibited 

285 until residue levels have declined to levels unlikely to cause unreasonable adverse effects. Because users 

286 must comply with the directions for use and use restrictions on a product’s labeling, EPA uses the 

287 labeling to establish and convey mandatory requirements for how the pesticide must be used to protect 

288 the applicator, the public, and the environment from pesticide exposure.

289 Under FIFRA, EPA is required to review periodically the registration of pesticides currently 

290 registered in the United States. The 1988 FIFRA amendments required EPA to establish a pesticide 

291 reregistration program. Reregistration was a one-time comprehensive review of the human health and 

292 environmental effects of pesticides first registered before November 1, 1984 to make decisions about 

293 these pesticides' future use. The 1996 amendments to FIFRA require that EPA establish, through rule 

294 making, an ongoing “registration review” process of all pesticides at least every 15 years. The final rule 

295 establishing the registration review program was signed in August 2006 (Ref. 16). The purpose of both 

296 re-evaluation programs is to review all pesticides registered in the United States to ensure that they 

297 continue to meet current safety standards based on up-to-date scientific approaches and relevant data. 

298 Pesticides reviewed under the reregistration program that met current scientific and safety 

299 standards were declared “eligible” for reregistration. The results of EPA’s reviews are summarized in 

300 Reregistration Eligibility Decision (RED) documents. The last RED was completed in 2008. Often before a 

301 pesticide could be determined “eligible,” additional risk reduction measures had to be put in place. For a 

302 number of pesticides, measures intended to reduce exposure to handlers and workers were needed and 

303 are reflected on pesticide labeling. To address occupational risk concerns, REDs include mitigation 

304 measures such as: Voluntary cancellation of the product or specific use(s); limiting the amount, 

305 frequency or timing of applications; imposing other application restrictions; classifying a product or 

306 specific use(s) for restricted use only by certified applicators; requiring the use of specific PPE; 

307 establishing specific REIs; and improving use directions. During this process, EPA also encouraged 

308 registrants to find replacements for the inert ingredients of greatest concern. As a result of EPA’s 

309 reregistration efforts, current U.S. farm workers are not exposed to many of the previously used inert 

310 ingredients that were of the greatest toxicological concern.

311 EPA’s registration review program is a recurring assessment of products against current 
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312 standards. EPA will review each registered pesticide at least every 15 years to determine whether it 

313 continues to meet the FIFRA standard for registration. Pesticides registered before 1984 were 

314 reevaluated initially under the reregistration program. These and pesticides initially registered in 1984 

315 or later are all subject to registration review. 

316 In summary, EPA’s pesticide reregistration and registration reviews assess the specific risks 

317 associated with particular chemicals and ensure that the public and environment do not suffer 

318 unreasonable adverse effects from those risks. EPA implements the risk reduction and mitigation 

319 measures identified in the pesticide reregistration and registration review programs through 

320 amendments to individual pesticide product labeling.

321 3. WPS. The WPS regulation is incorporated by reference on certain pesticide product labeling 

322 through a statement in the agricultural use box. The WPS provides a comprehensive collection of 

323 pesticide management practices generally applicable to all agricultural pesticide use scenarios in crop 

324 production, complementing the product-specific requirements that appear on individual pesticide 

325 product labels.

326 The risk reduction measures of the WPS may be characterized as being one of three types: 

327 Information, protection and mitigation. To ensure that employees will be informed about exposure to 

328 pesticides, the WPS requires that workers and handlers receive training on general pesticide safety, and 

329 that employers provide access to information about the pesticides with which workers and handlers 

330 may have contact. To protect workers and handlers from pesticide exposure, the WPS prohibits the 

331 application of pesticides in a manner that exposes workers or other persons, generally prohibits workers 

332 and other persons from being in areas being treated with pesticides, and generally prohibits workers 

333 from entering a treated area while an REI is in effect (with limited exceptions that require additional 

334 protections). In addition, the rule protects workers by requiring employers to notify them about areas 

335 on the establishment treated with pesticides, through posted and/or oral warnings. The rule protects 

336 handlers by ensuring that they understand proper use of and have access to required PPE. Finally, the 

337 WPS has provisions to mitigate exposures if they do occur by requiring the employer to provide to 

338 workers and handlers with an ample supply of water, soap and towels for routine washing and 

339 emergency decontamination. The employer must also make transportation available to a medical care 

340 facility if a worker or handler may have been poisoned or injured by a pesticide and provide information 

341 about the pesticide(s) to which the person may have been exposed.

342 EPA manages the risks and benefits of each pesticide product primarily through the labeling 

343 requirements specific to each pesticide product. If pesticide products are used according to the labeling, 

344 EPA does not expect use to cause unreasonable adverse effects. However, data on incidents of adverse 

345 effects to human health and the environment from the use of agricultural pesticides show that users do 

346 not always comply with labeling requirements. Rigorous ongoing training, compliance assistance and 

347 enforcement are needed to ensure that risk mitigation measures are appropriately implemented in the 

348 field. The framework provided by the WPS is critical for ensuring that the improvements brought about 

349 by reregistration and registration review are realized in the field. For example, the requirement for 

350 handlers to receive instruction on how to use the pesticide and the application equipment for each 

351 application is one way to educate handlers about updated requirements on product labeling to ensure 

352 they use pesticides in a manner that will not harm themselves, workers, the public or the environment. 

353 In addition, the REIs are established through individual product labeling, but action needs to be taken at 

354 the use site to ensure that workers are aware of areas on the establishment where REIs are in effect and 

355 given directions to be kept out of the treated area while the REI is in effect. The changes to the WPS are 

356 designed to enhance the effectiveness of the existing structure of protections and to better realize 
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357 labeling-based risk mitigation measures at the field level.

358 B. Goals of This Rulemaking

359 Discussions with stakeholders over many years, together with EPA’s review of incident data, led 

360 EPA to identify several shortcomings in the current regulation that will be addressed by this final rule. As 

361 discussed in Unit IV.A., EPA uses both product-specific labeling and the WPS to effectuate occupational 

362 protections for workers and handlers. EPA engages in ongoing reviews and reassessments of pesticide 

363 products to ensure they continue to meet the standard of not causing unreasonable adverse effects to 

364 human health and the environment. The WPS must be updated to ensure that the rule continues to 

365 complement the labeling-based protections and to address issues identified through experience with 

366 the WPS, and review of incident data and stakeholder engagement.

367 1. Purpose of the WPS. The WPS is intended to reduce the risks associated with occupational 

368 pesticide exposure to workers, handlers and their families, and to protect others and the environment 

369 from risks of pesticide use in agricultural production. The rule makes employers of workers and handlers 

370 responsible for providing protections to workers and handlers on their establishments. By imposing this 

371 obligation, EPA seeks to ensure those who make pesticide use decisions (employers) internalize the 

372 effects of their decision making rather than passing on the costs associated with these decisions (risks of 

373 pesticide exposure) to others (workers and handlers).

374 As noted in Unit IV.A., the components of the WPS generally can be grouped into three 

375 categories: Information, protection, and mitigation. Employers must provide workers and handlers with 

376 information needed to protect themselves, others, and the environment from pesticides and pesticide 

377 residues through pesticide safety training, pesticide application and hazard information, and access to 

378 labeling. Employers must provide protections to workers and handlers during and after applications in 

379 order to minimize potential for exposure. Finally, employers must be prepared to mitigate exposures 

380 that do occur by providing supplies for washing and emergency decontamination, and emergency 

381 transportation to a medical facility if necessary. These elements are necessary to implement product382 specific labeling requirements effectively. For example, pesticide safety training informs workers that 

383 areas treated with pesticides are off limits for entry for a certain period after the application, i.e., a 

384 product-specific REI, and that their employers will inform them of where and when REIs are in effect and 

385 entry into the treated areas is prohibited. In some instances, employers must provide further protection 

386 by posting warning signs at treated areas while REIs are in effect to remind workers to keep out of the 

387 treated areas. For handlers, training informs them about basic pesticide safety and handling precautions 

388 and reducing the potential to expose themselves or others. In addition, the employer must provide 

389 information for each application, informing the handler about the product-specific labeling restrictions 

390 and requirements.

391 In summary, the WPS works in conjunction with product labeling to protect workers and 

392 handlers from occupational pesticide exposure. The rule imposes on the employer the responsibility for 

393 providing protections to workers and handlers and to ensure they have access to information necessary 

394 to protect themselves and others during and after pesticide application. 

395 2. Surveillance data. When EPA promulgated the existing rule, it used existing data on 

396 occupational pesticide-related incidents to estimate that that approximately 10,000 to 20,000 incidents 

397 of physician-diagnosed (not hospitalized) pesticide poisonings occurred in the WPS-covered workforce 

398 annually. For this rulemaking, EPA estimates that about 1,810 to 2,950 acute pesticide exposure 

399 incidents occur annually on agricultural establishments that potentially could be prevented by the WPS. 

400 This substantial drop in the estimated number of incidents shows that the existing rule and efforts by 

401 employers, workers and handlers have made great accomplishments in reducing pesticide exposure for 
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402 workers and handlers. Pesticide use in agriculture is safer than it was 20 years ago. 

403 Current occupational health incident surveillance data show, however, that avoidable incidents 

404 continue to occur. For example, some of the occupational pesticide illnesses reported to state health 

405 agencies have occurred when workers entered a treated area before the REI expired. Although 

406 employers are obligated to warn workers to keep out of treated areas and to ensure that workers 

407 receive training on and information about treated areas, incidents continue to occur. Another example 

408 of potentially avoidable exposure is spray drift. Labeling instructs handlers to apply pesticides in a 

409 manner that does not contact other persons, but pesticide drift continues to cause exposure incidents. 

410 In addition to surveillance data, studies also show that pesticide residues are brought home by workers 

411 and handlers on their bodies and clothing (known as “take-home exposure”), creating an exposure 

412 pathway for family members. 

413 This rulemaking is intended to reduce avoidable incidents by improving information, 

414 protections, and mitigations for workers and handlers without imposing unreasonable burdens on 

415 employers. Although EPA cannot quantify the specific reduction in incidents from any single change to 

416 the regulation, taken together, EPA estimates that the final rule will result in an annual reduction of 

417 between 540 and 1,620 acute, health-related incidents. In addition, EPA expects that the final rule will 

418 help reduce chronic health problems among workers and handlers by reducing daily pesticide 

419 exposures, and thereby improving quality of life throughout their lives, resulting in a lower cost of health 

420 care and a healthier society. (See Unit II.C.) Units V. through XIX. describe the final regulatory 

421 requirements and their potential to reduce avoidable incidents. The Economic Analysis for this 

422 rulemaking provides an estimate of the costs of the requirements and a quantitative and qualitative 

423 discussion of the potential benefits, including avoiding acute pesticide-related illnesses in workers and 

424 handlers (Ref. 1).

425 3. Demographics of workers and handlers. In addition to the complexity of the science issues 

426 involving pesticide use, variability of pesticide use patterns and incomplete information about 

427 occupational pesticide-related illnesses and injuries, the diversity of the labor population at risk and the 

428 tasks they perform makes it challenging to ensure that workers and handlers are adequately protected.

429 According to the most recent public data set available from the DOL’s NAWS for 2011-2012, 64% 

430 of agricultural workers in the United States were born in Mexico and 6% in Central and South America

431 (Ref. 6). A majority (69%) of all survey respondents speak Spanish as their primary language (Ref. 6).

432 Approximately 65% of this population speaks a little or no English; 38% cannot read English at all and 

433 another 30% can only read English “a little” (Ref. 6). Many have received only some formal education; 

434 on average, the highest grade completed by foreign-born workers was seventh grade (Ref. 6). 

435 Approximately 17% of the survey respondents were classified as migrant, having traveled at 

436 least 75 miles in the previous year to find a job in agriculture (Ref. 6). Only 17% of respondents lived in 

437 housing provided by their employer and 55% rented housing from someone other than their employer

438 (Ref. 6). In general, agricultural workers surveyed by NAWS do not have access to employer-provided 

439 health insurance – in 2011-2012, only 21% of farmworkers reported having the option for employer440 provided health insurance (Ref. 6). USDA research, based on NAWS data, also reports that workers have 

441 difficulty entering the health care system to receive treatment (Ref. 7). Cost was a significant barrier for 

442 two-thirds of farmworkers, while about a third listed language barriers as an impediment to receiving 

443 care. Most workers fear that seeking treatment will result in losing their job because someone will 

444 replace them while they are getting treatment or the employer will label them as troublemakers and 

445 dismiss them. The problem is more severe among undocumented workers because they fear seeking 

446 treatment will lead to deportation or other adverse legal action (Ref. 7). A USDA report indicates that 
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447 the factors mentioned previously contribute to the disadvantaged status of hired workers in agriculture 

448 (Ref. 7).

449 The NAWS found that 19% of workers and handlers surveyed earned less than $10,000 annually 

450 from agricultural work, and another 39% earn between $10,000 and $20,000 annually. Over 55% of 

451 respondents reported a total family income below $22,500 (Ref. 6).

452 Both the existing WPS and the changes included in the final rule seek to eliminate some of the 

453 potential barriers to achieving effective protection of these persons by requiring training in a manner 

454 that workers and handlers can understand, requiring the employer to ensure that handlers understand 

455 relevant portions of the labeling before handling a pesticide, and expanding training to provide 

456 information on seeking medical care in the event of a pesticide exposure and highlighting the anti457 retaliation provisions of the WPS. 

458 4. Summary of the final rule. The final rule amends the WPS by:

459 • Requiring pesticide safety training at one-year intervals and amending the existing pesticide 

460 safety training content.

461 • Requiring recordkeeping for pesticide safety training.

462 • Eliminating the “grace period” that allowed workers to enter a treated area to perform WPS 

463 tasks before receiving full pesticide safety training.

464 • Establishing a minimum age of 18 for handlers and early-entry workers.

465 • Establishing requirements for specific training and notification for workers who enter an 

466 area under an REI.

467 • Restricting persons’ entry into certain areas surrounding application equipment during an 

468 application.

469 • Clarifying requirements for supplies for routine washing and emergency decontamination.

470 • Requiring employers to post warning signs around treated areas when the product applied 

471 has an REI greater than 48 hours and allowing the employer to choose to post the treated 

472 area or give oral notification when the product applied has an REI of 48 hours or less (unless 

473 the labeling requires both types of notification).

474 • Requiring employers to maintain and make available copies of the SDSs for products used on 

475 the establishment.

476 • Requiring employers to provide application information and SDSs to designated 

477 representatives making the request on behalf of workers or handlers. 

478 • Adding elements to the requirement to maintain application-specific information.

479 • Adopting by cross reference certain OSHA requirements for employers to provide training, 

480 fit testing and medical evaluations to handlers using products that require use of 

481 respirators.

482 • Requiring employers to provide supplies for emergency eye flush at all pesticide mixing and 

483 loading sites when handlers use products that require eye protection.

484 • Maintaining the immediate family exemption and ensuring it includes an exemption from 

485 the new minimum age requirements for handlers and early-entry workers.

486 • Expanding the definition of “immediate family” to allow more family-owned operations to 

487 qualify for the exemptions to the WPS requirements.

488 • Revising definitions to improve clarity and to refine terms.
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489 • Restructuring the regulation to make it easier to read and understand.

490 Units V. through XVIII. discuss the final rule requirements and elements considered in the 

491 proposal but not included in the final rule. Unit XIX. discusses implementation of the final regulatory 

492 requirements. Each of these Units generally describes the existing rule, proposal and final regulatory 

493 requirements (where appropriate), and summarizes the major comments received and EPA’s responses. 

494 EPA has grouped the discussion of the final rule and elements considered in the proposal but 

495 not included in the final rule as follows:

496 • Unit V: Pesticide Safety Training for Workers and Handlers. 

497 • Unit VI: Notification. 

498 • Unit VII: Hazard Communication.

499 • Unit VIII: Information Exchange Between Handler and Agricultural Employers.

500 • Unit IX: Drift-Related Requirements.

501 • Unit X: Establish Minimum Age for Handling Pesticides and Working in a Treated Area while 

502 an REI is in Effect.

503 • Unit XI: Restrictions on Worker Entry into Treated Areas.

504 • Unit XII: Display of Pesticide Safety Information.

505 • Unit XIII: Decontamination. 

506 • Unit XIV: Emergency Assistance.

507 • Unit XV: Personal Protective Equipment.

508 • Unit XVI: Decision not to Require Monitoring of Handler Exposure to Cholinesterase509 Inhibiting Pesticides.

510 • Unit XVII: Exemptions and Exceptions.

511 • Unit XVIII: General Revisions.

512 • Unit XIX: Implementation.

513 V. Pesticide Safety Training for Workers and Handlers

514 A. Shorten Retraining Interval for Workers and Handlers

515 1. Current rule and proposal. The existing WPS requires employers to ensure that workers and 

516 handlers are trained once every five years. EPA proposed to establish an annual retraining interval for 

517 workers and handlers in order to improve the ability of workers and handlers to protect themselves and 

518 their families from pesticide exposure. 

519 2. Final rule. In the final rule, EPA has adopted the proposed requirement for workers and 

520 handlers to receive full pesticide safety training annually. The final regulatory text for these 

521 requirements is available at 40 CFR 170.401(a) and 170.501(a). 

522 3. Comments and responses.

523 Comments.

524 Several farmworker advocacy groups, public health organizations and academics, public health 

525 agencies, and PPE manufacturers supported full, annual training, stating that the more frequent training 

526 would improve workers’ and handlers’ ability to protect themselves and their families, and that annual 

527 training would be simple to track administratively. Many of these commenters stated that annual safety 

528 training would be comparable to training required by OSHA in other industries. 

529 Agricultural producer organizations, growers, pesticide producers, the SBA Office of Advocacy, 

530 farm bureaus, and state pesticide regulatory agencies expressed concern for the burden annual training 
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531 would place on agricultural employers. Some stated that farmworkers would be insulted by the 

532 repeated trainings, and asked for evidence that increased training would lead to reduced pesticide 

533 exposure. Some of these entities, including the SBA Office of Advocacy, recommended an initial in534 depth training for new workers followed annually by a shortened “refresher” training. A similar 

535 suggestion was to require initial in-depth training for workers and handlers, followed by four years of 

536 refresher training, with an in-depth training every fifth year. Some states suggested training every two 

537 or three years, or allowing each state to set its own training interval, to parallel the state’s pesticide 

538 applicator recertification interval. A few states recommended a system where the training timeframe is 

539 based on the calendar year, to allow flexibility for employers. For example, under this proposal, an 

540 employee trained in March 2014 could be retrained as late as December 2015. This suggestion would 

541 extend the permitted interval between worker and handler trainings to as long as two years. Comments 

542 from pesticide industry organizations suggested that the frequency of worker safety training be 

543 commensurate with an individual workers’ tasks, previous training, and experience.

544 One commenter provided a specific alternative. The SBA Office of Advocacy reiterated the 

545 comments of the SBAR Panel, convened in 2008. The SBAR Panel report recognized the importance of 

546 training workers and handlers to remind them of the safety principles, but recommended that EPA 

547 consider flexibilities for small establishments. Specifically, the SBAR Panel suggested that EPA consider a 

548 reduced training frequency where all of the following conditions are met: (1) no new workers are hired 

549 during the interval; (2) no new or different pesticide applications are made as compared to the previous 

550 year, and (3) the workers and handlers were trained on the establishment previously. Small 

551 establishments requesting this flexibility would need to document their compliance with these 

552 conditions. The comment from SBA stated that EPA almost always follows the Panel consensus 

553 recommendation, and highlights that EPA should discuss the recommendations and final position.

554 The SBA Office of Advocacy also commented that the proposal for retraining would have 

555 required a higher standard for trainers, and would require employers to provide all workers a copy of 

556 the training record, adding burden to employers. SBA Office of Advocacy noted that most small 

557 businesses retrain annually due to high worker turnover, despite the five year maximum retraining 

558 interval in the current rule, and retain records of the training. 

559 EPA Response. EPA considered the alternatives described for training frequency, and agrees 

560 with the comments that annual training, in some form, is the appropriate interval to ensure that 

561 workers and handlers receive more frequent reinforcement of the safety principles. EPA rejected the 

562 suggestion for a limited refresher training based on the difficulty both employers and regulators would 

563 face in tracking multiple levels of training among a mobile workforce, the burdens of maintaining 

564 multiple forms of training materials and providing different trainings where employees are on differing 

565 cycles for full and refresher training, and the fact that very little of the substantive content of the 

566 required training appears to be material that would not need to be brought to employees’ attention 

567 annually. 

568 The suggestions for biennial or triennial training and allowing the states to base the frequency of 

569 training for workers and handlers on their pesticide applicator recertification requirements would 

570 present similar administrative problems with tracking trainings and introduce the possibility that 

571 workers or handlers would miss information needed to protect themselves. Finally, the alternative to 

572 establish the frequency of training based on the calendar year presents similar issues with tracking 

573 training and needed frequency of repetition.

574 The recommendation for training to be tailored to the individual workers’ tasks, experience, and 

575 prior training was rejected based on the difficulty in tracking the specific training needs with a mobile 
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576 workforce, the need for multiple forms of training materials, and the potential burden on employers to 

577 determine specific needs for each employee. In addition, the training gives practical information that is 

578 useful to everyone who works with or around agricultural pesticides.

579 Comments that farmworkers would resent the more frequent training do not comport with the 

580 information available to the EPA. In response to the proposal, EPA received comments from

581 farmworkers related to training frequency. In one survey provided by Cabrillo, 78% of the farmworkers 

582 asked how often they should receive training responded that annual training should be provided. Letters 

583 from Spanish-speaking farmworkers submitted to the docket included similar requests for annual 

584 training. 

585 Commenters that asked for evidence that increased frequency of training would lead to reduced 

586 pesticide exposure should refer to the discussion of evidence supporting annual training in the preamble

587 for the proposed rule. (Ref. 2, Unit VII.A.)

588 The revisions to the WPS will not cause a significant impact on a substantial number of small 

589 entities. EPA has already certified that there is not a significant impact on a substantial number of small 

590 entities which would trigger the requirement for an SBAR Panel review. However, EPA opted to conduct 

591 a SBAR Panel review to gather more information related to the impact of the proposed regulations, and 

592 included discussion of the retraining interval for workers. The recommendation from the SBAR Panel 

593 regarding the retraining interval encouraged EPA to consider flexibility for less frequent training for 

594 small entities. EPA agrees that the SBAR Panel recommendation could reduce burden on small entities, 

595 but it would also reduce the benefit workers would receive from annual training. EPA considered the 

596 recommendation for reduced training, but notes that the SBAR Panel alternative would increase 

597 recordkeeping burdens for all small establishments that would – to some degree – offset their savings 

598 from fewer trainings. The additional burden to document compliance with the SBAR Panel alternative’s 

599 requirements would include recordkeeping documenting that: (1) no new workers are hired during the 

600 reduced training interval; (2) no new or different pesticide applications are made during the reduced 

601 training interval, and (3) the specific workers were trained on the establishment within the reduced 

602 training interval. Those costs were not estimated, but EPA expects that they would be higher than those 

603 estimated for the proposed recordkeeping for all workers. Based on the marginal cost reduction and 

604 potential risk to workers who would not receive training annually, EPA believes that annual training is 

605 more protective. And in any case, the revisions to the WPS will not cause a significant impact on a 

606 substantial number of small entities.

607 EPA has responded to comments from SBA Office of Advocacy and others about the burden on 

608 employers from eliminating the option for certified applicators to train workers and on the proposed 

609 requirement for employers to provide all workers and handlers with a copy of the training by reinstating 

610 certified applicators as trainers of workers and limiting the requirement for providing training records to 

611 only requesting employees. SBA Office of Advocacy noted that most small businesses retrain annually 

612 due to high worker turnover, despite the five year maximum retraining interval in the current rule, and 

613 retain records of the training. 

614 B. Establish Recordkeeping Requirements to Verify Training for Workers and Handlers 

615 1. Current rule and proposal. The existing WPS does not specify how an employer must verify 

616 that a worker or handler has received pesticide safety training. EPA proposed to eliminate the existing 

617 voluntary training verification card system and to require employers to maintain records of WPS worker 

618 and handler training for two years. EPA proposed that the training record include, among other things, 

619 the employee’s birthdate to verify minimum age for early-entry worker or handler activities. EPA 

620 proposed to require the employer to provide a copy of the record to each worker or handler upon 
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621 completion of the training.

622 2. Final rule. EPA has finalized the proposed requirement for employers to maintain records of 

623 worker and handler training for two years. Required information for the record of worker and handler 

624 training includes the trained worker’s or handler’s name and signature, the date of training, the trainer’s 

625 name, evidence of the trainer’s qualification to train, the employer’s name, and which EPA-approved 

626 training materials were used. EPA has not included in the final rule the proposed requirement for the 

627 employer to record or retain the birthdate of the employee. The final rule does not require employers to 

628 automatically provide a copy of the training record to each worker and handler; instead, the final rule 

629 only requires the employer to provide a copy of the training record to the trained employee upon the 

630 employee’s request. The final regulatory text for the worker and handler training recordkeeping 

631 requirements appears at 40 CFR 170.401(d) and 170.501(d), respectively.

632 3. Comments and responses.

633 Comments that recordkeeping does not improve worker safety. Several farm bureaus, pesticide 

634 manufacturers, and some state pesticide regulatory agencies commented that the requirement for the 

635 employer to make and keep training records is for determining compliance but does not improve worker 

636 safety. 

637 A pesticide industry organization stated that there is a body of research supporting the notion 

638 that better training and good supervision protect better than creating records. 

639 EPA Response. EPA agrees with the comments that state that recordkeeping, in itself, does not 

640 improve worker safety. However, the requirement for employers to retain documentation that training 

641 has been provided is expected to improve compliance with the rule. One state agency indicated that 

642 unless employers are held accountable, they may not take the requirement seriously. Even for those 

643 employers with the strongest commitment to worker training, training records can be a useful tool to 

644 track employee trainings and make sure their employees receive the protections provided through 

645 training and are able to protect themselves. The training recordkeeping will also be used to provide 

646 verification to future employers to demonstrate that a worker or handler has been properly trained. 

647 Statements that the states will need to verify training are correct. FIFRA section 26 gives states 

648 primary enforcement responsibility in regard to pesticide use violations, which include the requirements 

649 of the WPS. Currently, in the absence of training records, inspectors generally rely on interviews with 

650 workers and handlers to determine whether training has been provided, and have stated that it is 

651 difficult to determine whether training has been provided. Workers may not consistently recall when or 

652 whether they were provided training or may not be able to communicate clearly with an inspector due 

653 to language differences. Please refer to the preamble of the proposed rule (Ref. 2, Unit VII.B.3.) for a 

654 discussion of these issues. Reliance on both records and interviews will provide a more reliable 

655 assessment of whether workers have been properly trained.

656 EPA does not agree that the recordkeeping of training is highly burdensome to employers. One 

657 farm bureau commenter found the proposed recordkeeping manageable. EPA is convinced that the 

658 benefits of training and training recordkeeping exceed the burden on employers, who benefit 

659 economically from worker and handler activity.

660 Comments – support for recordkeeping. Comments from state regulatory agencies, farmworker 

661 advocacy organizations, a grower organization, and academics in support of a requirement for 

662 recordkeeping stated that it would ensure employees received the training and that it would improve 

663 enforcement and compliance. One applicator organization and two state regulatory agencies support 

664 the recordkeeping to demonstrate that a person was trained. 

665 One farm bureau finds the burden for growers to be manageable. One grower stated that they 
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666 have maintained records of training for many years.

667 Another state regulatory agency supports employer recordkeeping of worker training, from the 

668 date of employment until one year after they are either separated or retrained, and two farmworker 

669 advocacy organizations support the training recordkeeping and distribution to employees.

670 One grower/public citizen had this to say:

671 “I track a person’s training and retraining by using a roster spreadsheet that they [workers] 

672 sign...I feel the responsibility of retaining a training roster is the responsibility of the individual 

673 employer/employee.”

674 EPA Response. EPA agrees with the commenters that recordkeeping is necessary for the purpose 

675 of compliance monitoring and to ensure that workers and handlers receive the required training.

676 Comments in opposition to recordkeeping on basis of burden to the state or agricultural 

677 employers. One state regulatory agency argued that states would have to verify the training record, 

678 which would be burdensome. They noted that the state and the employer would be responsible for

679 verifying the training. Several farm bureaus and a pesticide manufacturer, as well as some state 

680 regulatory agencies, stated that the requirement would be burdensome to employers.

681 One farm bureau stated that collecting the date of birth, the trainer’s credentials, and the 

682 training materials used, as required under the proposal, would be “time consuming and restrictive.”

683 EPA Response. EPA agrees that the state regulatory agency would need to verify training from 

684 employer records. Currently, inspectors must rely on interviews and in some instances on the training 

685 verification card to determine if a worker or handler has been trained. Using a combination of an 

686 interview and comparison with the training record can provide a more reliable assessment of whether 

687 workers and handlers have been properly trained. 

688 EPA has revised the requirement to eliminate the documentation of the birth date. The 

689 information describing the trainer’s credentials and the materials used for training need be captured 

690 only once per specific training. EPA finds that the benefit to workers and handlers from annual training

691 and recordkeeping of training outweighs the burden on employers to collect and retain the information. 

692 Comments in opposition to training records because benefits cannot be quantified. Several farm 

693 bureaus and pesticide manufacturers, some grower groups, and state regulatory agencies stated that, 

694 due to the burden on growers and because EPA stated that it is unable to quantify the benefits 

695 associated with the training records, the need for recordkeeping is not supported and should not be 

696 implemented.

697 EPA Response to benefits. EPA disagrees with the contention that, because the benefits of 

698 keeping records of training cannot be quantified, that the requirement is not supported. Recordkeeping 

699 increases incentive to comply with requirements. Increased compliance with the requirement to provide 

700 pesticide safety training to workers and handlers should result in increased safety of workers and 

701 handlers. Employers benefit from recordkeeping because inspectors would review documentation of 

702 training rather than relying on the memory of workers and handlers about when and whether they were 

703 trained. EPA directs the commenter to review Unit VII. of the preamble of the proposed rule (Ref. 2) for 

704 information that describes the benefits of training. One specific benefit, from an association that 

705 provides safety training, is that repeating safety messages increases the adoption of improved safety 

706 practices. Although these benefits, and others identified in the preamble to the proposed rule, cannot 

707 be quantified, EPA finds them compelling, and that they justify the burden on employers.

708 Comments in opposition to the requirement to distribute records to all workers and handlers.

709 Several grower organizations, a public health organization, and two state regulatory agencies stated that 

710 the proposed requirement to distribute the record to every trained worker or handler would be 
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711 burdensome and that most workers or handlers would not take or keep the records. One state 

712 regulatory agency commented that state lead agencies should not have to rely on the record provided 

713 to the worker or handler to verify training, because state lead agencies may not be able to confirm with 

714 the person who issued the record that it is valid. 

715 EPA Response. EPA agrees with commenters that providing a copy of the training record to each 

716 worker and handler would be unduly burdensome, and has modified the requirement. The final rule 

717 requires employers to provide training records to the trained employee only on the employee’s request. 

718 This will reduce the burden on employers while ensuring that interested employees will be able to 

719 demonstrate to future employers that they were appropriately trained. 

720 Subsequent employers would be responsible, as in the current rule, to decide whether the 

721 provided training record was valid. If the new employer believes the provided record is falsified, the new 

722 employer must provide the safety training to the employee. However, if a worker or handler presents a 

723 valid training record to an employer indicating he or she has been trained according to the rule within 

724 the last year, and the employer has no reason to believe the record has been falsified, the employer 

725 could retain a copy of the training record as proof the worker or handler has been trained. If a state 

726 confirms that a training record is invalid, the employer must provide training to the worker or handler. 

727 Comments in support of proposal to provide training records to employees. One grower 

728 organization supported the requirement for training documentation to be given to all workers to prove 

729 to subsequent employers that they have been trained. Many commenters recommended the record be 

730 provided to the worker or handler only upon their request to reduce burden.

731 EPA Response. EPA agrees that the record can be useful to demonstrate to future employers 

732 that workers or handlers have been trained. EPA also agrees with commenters that not all workers or 

733 handlers may want or need documentation of training. EPA has revised the final rule to reflect that the 

734 training record need only be provided to workers and handlers on their request. 

735 Comments opposed to requiring birthdate in the record. There were a number of comments 

736 from state regulatory agencies, one grower organization, and farmworker advocacy organizations 

737 related to the proposed requirement that employers include the trained employee’s birthdate among 

738 the information to be recorded to document training. EPA proposed including the trained employee’s 

739 birthdate in the recordkeeping in order to facilitate the employer’s verification that a worker or handler 

740 met the minimum age requirement for handling pesticides or entering treated areas under an REI as 

741 allowed under the early entry exceptions. States and other commenters noted that a person’s birthdate 

742 can be considered confidential and personal information, the distribution of which can lead to identity 

743 theft. 

744 Farmworker advocacy groups also expressed concern that workers would be denied 

745 employment based on their age. 

746 EPA Response. EPA has decided the advantages of requiring the employer to record the 

747 birthdate of the trained worker or handler are outweighed in this instance by concerns for protecting 

748 confidential and personal information. Under the final rule, the employer is responsible for determining 

749 that each employee has met applicable the minimum age requirement. The final rule does not include 

750 the proposed requirement for the employer to collect or retain specific documentation of the

751 employee’s birthdate or age. However, the employer must verify that early-entry workers and handlers 

752 meet the minimum age of 18 prior to performing those tasks. 

753 In response to farmworker advocacy organization concerns regarding employers discriminating 

754 on the basis of age, the revised rule eliminates the birthdate as a required element. EPA believes that 

755 the protecting persons under 18 years of age from the pesticide exposures associated with handler 
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756 duties and early-entry worker tasks is more important than the possibility that employers’ inquiries into 

757 age might lead to age-based discrimination. The Age Discrimination in Employment Act (29 U.S.C. 621 et 

758 seq.) forbids age discrimination against people who are age 40 or older, and some states have laws that 

759 protect younger workers from age discrimination. Employers may not direct a person under 18 years of 

760 age to perform handler duties or early-entry worker tasks. 

761 Comments opposing the provided record due to concerns for falsification. One farm bureau, a 

762 state lead agency and a marketing group expressed concern for falsification of these employer-created 

763 records. One state pesticide regulatory agency stated that because many workers and handlers are 

764 undocumented, there will be falsification of the records. Another state pesticide regulatory organization 

765 stated that they do not support recordkeeping on the basis that it is likely that fraudulent records will be 

766 used, and because verification of the record will burden the state regulatory agency. One grower group 

767 asked how the proposed record, which would be given to the worker or handler, would reduce 

768 fraudulent records as compared to the verification card system, stating that the training record is not 

769 different in that it could also be compromised. This commenter asserted the main change to be the 

770 recordkeeping burden to the employer, and stated that if EPA cannot demonstrate how this is an 

771 improvement, the current system should be retained. 

772 Another state regulatory agency asked for the specific benefits of the proposed change, and for 

773 a viable program of verification to be implemented, such as using the verification card system. Another 

774 commented that state lead agencies should not have to rely on the provided record to verify training, 

775 because of concerns for falsification.

776 EPA Response. The statement that the recordkeeping would force employers to falsify records 

777 appears unsupported, because the WPS training record requirement does not require documentation of 

778 the worker’s or handler’s immigration status. The worker’s name is the only personal identifying 

779 information required in the training record. EPA believes the requirement to provide a copy of the 

780 training record to the trained employee is reasonable and will provide adequate verification of training. 

781 If the subsequent employer does not believe that the record has been tampered with or falsified, the 

782 employer does not need to train the employee. If he or she is concerned that the record has been 

783 tampered with and potentially falsified, the employer may contact the previous establishment (listed on 

784 the record) to verify the training, or train the employee.

785 Comments in support of a national trained employee database. Several entities supported a 

786 national centralized database of trained workers and handlers, for a variety of purposes. A state 

787 pesticide regulatory agency expressed concern for fraudulent entries on the provided training 

788 document, and recommended that EPA develop a national database that trainers could maintain and 

789 state regulatory agencies could access to verify the training record. A state department of health also 

790 supported a centralized database of handler training, for use to determine if, in case of an incident, 

791 whether the employee was trained. Another state pesticide regulatory agency and state department of 

792 health suggested that subsequent employers could rely on the information in the database to confirm 

793 whether a new employee had been trained. Several farmworker advocacy organizations supported a 

794 nationalized central database, to estimate the number of trained workers and handlers. An academic 

795 supported the centralized tracking of training to help determine the efficacy of the training.

796 Another state pesticide regulatory agency would support a national database, but commented

797 that their inspections show that most employers provide safety training even when prospective 

798 employees have verification of training, reducing the need for a federal program. 

799 EPA Response. EPA discussed this alternative in the proposed rule (Ref. 2, Unit VII.B). EPA 

800 agrees that there may be merit in a centralized database of trained workers and handlers that may be 
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801 used for reference by an employer. However, EPA did not propose such a database because it is unclear 

802 whether a reliable database of national scale could be accurately populated and updated in a timely 

803 manner. Issues of who would be allowed to input data, what data would be collected, how the data 

804 would be authenticated, and who would be able to view the data, all present significant challenges. As 

805 resources permit, EPA plans to discuss with stakeholders the future feasibility, utility, and efficiency of 

806 developing and implementing a centralized database of trained workers and handlers. 

807 Comments in opposition to a national trained employee database. Two state pesticide 

808 regulatory agencies strongly opposed a state-by-state training database, commenting that workers are 

809 very mobile and keeping the data accurate would be difficult. However, they recommended that EPA 

810 consider, in consultation with the state regulatory partners and the regulated community, the benefits 

811 of a national database. One state farm bureau and a grower opposed a requirement for worker and 

812 handler training information to be provided to the state or federal government for keeping in a central 

813 repository. They stated that during periodic regulatory inspections, there is adequate opportunity for 

814 training records to be inspected. Additional reporting burdens are not necessary. This grower also 

815 stated that the documentation can be given to workers to prove to subsequent employers that they 

816 have been trained, so the central database would not be necessary. A public health organization agreed 

817 with EPA that the cost and incremental benefit of a central database would not warrant such an 

818 undertaking. They stated that the employer records will be sufficient to demonstrate compliance.

819 Another grower organization commented that a national registry for training records would be 

820 very difficult to implement, stating that history has indicated that this type of verification system is 

821 extremely difficult to maintain and ensure accuracy of the information collected. A state pesticide 

822 regulatory agency commented that they did not see this providing benefits, and it would be 

823 burdensome. This entity preferred that the records be available when requested by the state. One state 

824 agency expressed concern that there would be speculation that the data would be used to track 

825 immigration status, resulting in workers’ being reluctant to be trained. 

826 EPA Response. EPA agrees with commenters that a national database of trained workers and 

827 handlers would be very difficult to successfully implement and would impose unnecessary burden on 

828 employers, with limited benefit.

829 Comment on the use of wallet-sized training verification cards. A couple of state regulatory 

830 agencies and many farmworker advocacy organizations, as well as a number of public citizens, 

831 recommended that the worker and handler training verification system include a wallet-sized card for 

832 workers and handlers, some stating because it works best in the field. The current voluntary card system 

833 relies on a wallet-sized card that is provided by the trainer or employer directly to the worker. One state 

834 pesticide regulatory agency stated that the cards serve the purpose of documenting workers’ training, 

835 but noted that the current card would need to be modified to cover most of the required elements. A 

836 farmworker advocacy organization encouraged EPA to maintain the training card, stating that in their 

837 experience, employers have asked workers to sign a piece of paper indicating they had been trained, 

838 when in fact they had not. This commenter also stated that the card reinforces the importance of the 

839 training. 

840 One crop advisor stated that the required recordkeeping is part of a well-managed operation, 

841 and asserted the elimination of the verification card is a mistake, as they are readily accepted and 

842 difficult to falsify. 

843 One farm bureau stated that their farmers provide verification cards to their employees and 

844 contend that the proposed recordkeeping would be overly burdensome. They note that date of birth, 

845 trainer’s credentials, and training materials required under the proposal are “time consuming and 
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846 restrictive.” They strongly prefer the current training card. One state lead agency requested that EPA 

847 develop a training record format that could be used by employers. 

848 EPA Response. EPA recognizes that the wallet-sized verification card is a convenient document 

849 for workers, handlers and employers. However, requiring employers to maintain training records on the 

850 establishment will allow inspectors to review two years’ practices, rather than being limited to just the 

851 workers and handlers currently on the establishment. Employers would be required to provide the 

852 information on the card because of the difficulty of imposing FIFRA requirements on trainers. The WPS 

853 is applied through labeling. Since trainers are not the parties making pesticide use decisions on the 

854 establishment or making pesticide applications, requirements to comply with the WPS cannot extend to 

855 them.

856 The information needed to ensure that the training meets the WPS requirements would be 

857 difficult to fit on a wallet-sized card. However, if all of the information was included on a wallet-sized 

858 card, it would be sufficient documentation to comply with the recordkeeping requirement. The 

859 provision of a copy of the training record to the worker or handler provides information to subsequent 

860 employers that is complete for purposes of inspection. 

861 Comment on documentation of trainer qualifications. One state regulatory agency expressed 

862 concern that they would have to maintain documentation of qualified trainers. They suggested that EPA 

863 create and maintain a national database of qualified trainers. 

864 EPA Response. The requirements for qualified trainers are not different from those in the 

865 current rule; it is the responsibility of the employer to ensure the trainer has the proper qualifications. 

866 Under the final rule, the training record must include documentation of the trainer’s qualification. The 

867 suggested option for a national database of qualified trainers presents similar issues as the national 

868 trained worker database discussed above, and as resources permit, EPA will include that in the 

869 stakeholder discussions about a national trained worker database. EPA notes that certified applicators 

870 must possess a credential demonstrating their qualification, which can be used to show the employer 

871 that the holder is qualified to be a trainer for workers and handlers. 

872 Comments on access to the training record by an authorized representative. Several farm 

873 bureau organizations, one organization representative of agricultural employers, and one pesticide 

874 manufacturer organization opposed authorized representative access to training records, even if the 

875 authorization is in writing. These entities did not see any benefit and observed that there may be abuse. 

876 EPA Response. EPA did not propose and is not finalizing a requirement to allow authorized 

877 representatives access to training records. Under the final rule, the designated representative (under 

878 the proposal, authorized representative) could request the application information and safety data 

879 sheet (SDS) on behalf of a worker or handler. The final rule does not require employers to make training 

880 records available to the designated representative.

881 Comments supporting a performance standard approach instead of recordkeeping. One public 

882 health organization recommended a performance standard that would weigh understanding of the 

883 safety principles, and highlight those training approaches that were most successful. Two farmworker 

884 advocacy organizations supported recordkeeping as a reliable, cost-efficient and effective way to 

885 determine compliance, but expressed concern that the quality of the training is important, and 

886 supported a performance standard to measure comprehension. 

887 EPA Response. Inspectors having used only a performance-based approach to verifying training

888 find the burden of interviewing each worker or handler to determine their understanding of the safety 

889 principles extremely high. Language difficulties often complicate interviews. Access to a record of 

890 training, available from the employer, provides adequate information to efficiently determine a 
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891 threshold level of compliance. EPA’s guidance for inspectors recommends interviews with workers and 

892 handlers as part of the inspection, including to verify that training has been provided. 

893 Comments opposing a performance standard to evaluate training. One state pesticide 

894 regulatory agency did not support a performance standard to evaluate training, saying it places 

895 unnecessary burden on trainers to prove their competence.

896 Although one public health organization supported post-testing to determine comprehension 

897 and retention, they recognized the additional cost for training and supported voluntary use of post898 training assessment by employers.

899 EPA Response. EPA agrees that use of exams to determine comprehension for compliance 

900 purposes would be inappropriate with this population. There is a description of the concerns with the 

901 use of exams to evaluate training in the preamble for the proposed rulemaking (Ref. 2). EPA agrees that 

902 requiring inspectors to determine whether training was provided to a worker or handler solely through 

903 interviews and questions is inefficient, and can provide false positives and negatives.

904 Comments in support of a longer timeframe for record retention. One advocacy group 

905 recommended a five year retention period for records. One public health school stated that records 

906 should be kept for more than two years. A farmworker advocacy organization asserted that EPA did not 

907 adequately support a shorter timeframe rather than five years for record retention, stating that chronic 

908 illnesses can manifest years after the exposure. 

909 EPA Response. EPA considered a five year retention schedule for training record retention in the 

910 proposal, but as noted in the preamble to the proposed rule, California and Florida have a two year 

911 retention timeframe (Ref. 2). EPA received support for a two year timeframe, including from state 

912 regulators who noted it would be adequate for determining compliance. 

913 Comments in support of a two year timeframe for recordkeeping. One academic organization 

914 supported the two year timeframe for retention, stating that it will improve the state’s ability to follow 

915 up on referrals they make on reported pesticide illness.

916 EPA Response. EPA agrees with this comment.

917 Comments on state concerns for burden. One state regulatory agency asked for information 

918 about how training verification will be implemented, and whether states will need to keep track of 

919 training cards. They also noted that it will be difficult to verify employee age. 

920 EPA Response. EPA is not implementing a mandatory training verification card program, so 

921 states will not need to track cards. EPA plans to develop an optional form that may be used to collect 

922 the training information, but its use will not be required under the final rule. EPA is developing detailed 

923 information for the states about rule implementation. The rule becomes effective 60 days after 

924 publication, but the requirement for training recordkeeping will be implemented one year and 60 days 

925 after publication, to give states and the regulated entities time to learn and understand the rule.

926 Regarding the minimum age requirement for handlers and early entry workers, inspectors will 

927 need to ask how the employer verified the age of those employees, similar to the process used in liquor 

928 stores, and consider whether the method used was reasonable. 

929 Comments from industry that civil rights laws foster employer reliance on worker-presented 

930 documents. The proposal asked whether employers would be likely to rely on training records provided 

931 by the worker. A farm bureau commenter noted it is likely that employers would rely on training records 

932 provided by the worker or handler, in part because employers are already accustomed to relying on 

933 worker-presented documents. They note that Federal law prohibits discrimination against any 

934 individual other than an unauthorized alien, with respect to hiring, employment, etc. 8 U.S.C. 

935 1324b(a)(1). The same law expressly prohibits immigration-related discrimination by “refusing to honor 
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936 documents tendered that on their face reasonably appear to be genuine...” 8 U.S.C. 1324b(a)(6). A farm 

937 bureau made the point that since employers are accustomed to rely on presented immigration-related 

938 documents, they are also likely to rely upon WPS training documents that on their face reasonably 

939 appear to be genuine.

940 EPA Response. EPA thanks AFBF for the helpful information.

941 Comment that there may be duplicative recordkeeping. One grower organization suggests that 

942 there may be duplicative recordkeeping required under Food Safety Programs. 

943 EPA Response. Regulations under the Food Safety Modernization Act have not yet been 

944 promulgated in final form by the Food and Drug Administration (FDA). EPA is not aware of duplicative 

945 recordkeeping requirements under FDA’s proposed rules. 

946 Comment that states have requirements for recordkeeping in place. One grower organization 

947 commented that EPA should reinforce the state requirements but not place additional burden by way of 

948 redundant requirements. 

949 EPA Response. If state requirements produce records that satisfy the WPS requirements, 

950 inspectors can use those records to confirm compliance. If additional information is needed to satisfy 

951 the WPS requirements, employers must record that information. Moreover, under the final rule, a state 

952 or tribe may request authority to continue implementing any provision of its existing regulations 

953 (including recordkeeping requirements) that provides equivalent protection, in lieu of implementing the 

954 corresponding WPS provision. 

955 Comments in opposition to training records for handlers. Several state pesticide regulatory 

956 agencies stated, in similar comments, that the recordkeeping requirements for handlers are 

957 unnecessary and would burden the handler employer: 

958 “This section should be deleted. This extensive recordkeeping requirement for proof of training 

959 creates an unnecessary burden and expense for the agricultural producer. The current requirements in 

960 the existing rule are adequate. From a compliance standpoint, if an SLA is investigating a for-cause 

961 complaint for determination of compliance with the training requirement, examining training records 

962 alone will probably not satisfy the burden of proof for a significant enforcement action. This is especially 

963 true if any training records are found not to be 100% accurate and complete for all trainees. Again, 

964 adding this recordkeeping requirement creates the opportunity for technical violations without a 

965 demonstrated improvement in actual protections for workers and handlers. It should also be noted that 

966 since the inception of the original WPS rule [the state] has not investigated a single complaint focusing 

967 solely on failure to provide training. If training was not being provided, it was a case of the agricultural 

968 employer not complying with any of the WPS rule provisions.” 

969 EPA Response. The recordkeeping requirements for handlers are identical to the recordkeeping 

970 requirements for workers. EPA does not believe that the recordkeeping requirements for handlers 

971 impose unnecessary or excessive burdens in comparison with the expected benefits. 

972 Comment on responsibility for the training record. One state pesticide regulatory agency stated

973 that only the employer, not the trainer, should have responsibility for the record. This agency added

974 that the record should be in paper or electronic format and retained for two years, and stated that some 

975 employers have agreements with labor contractors and the rule should allow that the entity with 

976 direction and control over the worker is the one with responsibility to keep training records. 

977 EPA Response. EPA agrees that the employer is responsible for maintaining records. Trainers are 

978 not directly responsible under the rule. The employer, as the entity that makes pesticide use decisions 

979 on their establishment, is responsible for providing the protections of the rule. 
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980 Whether or not it might be desirable that the rule require labor contractors to keep training 

981 records, EPA’s authority to promulgate and enforce the WPS is based on each agricultural pesticide’s 

982 label requiring users to comply with the WPS. Labor contractors are not typically the pesticide user, nor 

983 do they typically have control over pesticide use on the establishment, and therefore would not 

984 ordinarily be directly subject to the WPS requirements. The employer may require, through terms of an 

985 agreement or contract, the labor contractor or other entity to prepare records of training; however, the 

986 agricultural employer is the responsible party and must demonstrate compliance. 

987 The records may be in paper or electronic format, but they must be made available upon 

988 request for inspection purposes. 

989 Comments regarding “shift” of regulatory responsibility from EPA and states to employers for 

990 training verification for workers and handlers. One state regulatory agency noted that the requirement 

991 for training verification represents a shift of regulatory responsibility from EPA and states to agricultural 

992 employers. One organization that represents agricultural employers stated the following:

993 “... we oppose that EPA’s current proposal shifts regulatory responsibility from EPA and 

994 state lead agencies to agricultural employers, adding the cost and responsibility for 

995 implementing and maintaining a new recordkeeping system that are not considered in 

996 the Information Collection Request (ICR). Additionally it is our concern that the 

997 significantly increased documentation and retention requirements will put state lead 

998 agencies into the position that they will be sued to require them to audit such records 

999 and thus be forced to divert scarce resources from training and enforcement to become 

1000 “auditors.”

1001 EPA Response. The agricultural employer is responsible, under the existing rule, to ensure that 

1002 the worker or handler has been trained, according to the requirements of the rule. This final rule merely 

1003 requires that the employer create a record that documents the fulfillment of that requirement. EPA 

1004 expects the documentation to ease the burden on inspectors, because training can be more easily 

1005 verified by reviewing a contemporaneous record than in the absence of a training record. To the extent 

1006 that this represents a shifting of burden from the states (who have primary enforcement responsibility 

1007 for WPS compliance) to the employer, it is a small and reasonable burden. The ICR for the proposed rule 

1008 in the docket includes estimates for the recordkeeping of training on page 31, Table 14

1009 (http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2011-0184-0105).

1010 EPA does not expect that state lead agencies for pesticide enforcement will be sued to require 

1011 them to audit training records; however, they are expected to enforce the WPS rule and as such, will be 

1012 expected to inspect these records. 

1013 Comments on workers being denied employment because of lack of training record. Two 

1014 farmworker advocacy organizations expressed concerns for employers denying employment to workers 

1015 and handlers based on their inability to demonstrate that they have been trained.

1016 EPA Response. This concern is addressed by the requirement for the employer to provide a 

1017 record of their training to the requesting employee upon request. However, if the employer cannot 

1018 verify that a worker or handler has been trained, they must receive the training prior to entry into a 

1019 treated area. 

1020 C. Establish Trainer Qualifications for Workers and Handlers

1021 1. Current rule and proposal. The existing WPS allows workers and handlers to be trained by a 

1022 variety of persons, including pesticide applicators certified to use restricted use pesticides (RUPs) under 

1023 40 CFR part 171, persons identified by the agency with jurisdiction for pesticide enforcement as a trainer 

1024 of certified applicators, or persons having completed an approved pesticide safety train-the-trainer 
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1025 course. In addition, persons trained as handlers under the WPS are also eligible to train workers.

1026 EPA proposed to limit eligible trainers of workers to those who complete an EPA-approved train1027 the-trainer program or are designated by EPA or an appropriate state or tribal agency as trainers of 

1028 certified applicators; being a certified applicator or trained as a handler under the WPS would not 

1029 automatically qualify a person to train workers under the proposal. EPA did not propose to change the 

1030 qualifications for trainers of handlers. 

1031 2. Final rule. In the final rule, EPA has expanded the class of persons qualified to train workers 

1032 relative to the proposed rule. Under the final rule, qualified trainers of workers include persons who: 

1033 Have completed a pesticide safety train-the-trainer program approved by EPA, are designated as a 

1034 trainer of certified applicators, handlers or workers by EPA or a state or tribal agency responsible for 

1035 pesticide enforcement, or are certified pesticide applicators under 40 CFR part 171. Unlike the proposal, 

1036 certified applicators are considered qualified to train workers under the final rule. However, consistent 

1037 with the proposal, the persons trained as handlers under the WPS are not considered qualified to train 

1038 workers under the final rule.

1039 The final rule does not make any changes from the existing rule and proposal related to who is 

1040 qualified to provide training to handlers. 

1041 The final regulatory text for worker and handler trainer qualifications is available at 40 CFR 

1042 170.401(c)(4) and 170.501(c)(4), respectively.

1043 3. Comments and responses.

1044 Comments. Many of the comments, from states, grower organizations, and farm bureaus, 

1045 advised EPA to retain certified applicators as trainers of workers in the final rule. Several commenters 

1046 stated that without certified applicators providing worker training, resources such as cooperative 

1047 extension trainers would be severely strained and there might not be adequate resources to provide 

1048 annual training for workers. Several states and others noted that certified applicators possess the 

1049 necessary competence to provide training to workers; in some states, they must receive training 

1050 specifically for the purpose of training workers in order to meet their certification requirements. 

1051 Commenters also questioned how a certified applicator could be considered qualified to train handlers, 

1052 but not workers as many handlers have the same demographic profile as workers, some stating that the 

1053 training material covered mostly the same material. 

1054 Comments that supported the proposal to remove certified applicators as trainers of workers 

1055 stated that certified applicators may not have the training skills needed for effectively communicating 

1056 with this demographic, but suggested certified applicators that may lack such skills could be effective 

1057 trainers of workers by completing a training course. 

1058 A few commenters opposed the proposed elimination of handlers as worker trainers, stating 

1059 that the existing system works and that trained handlers are needed to provide training. However, there 

1060 were few comments in support of retaining handlers as trainers for workers. One comment suggested 

1061 that handlers could be required to take an approved train-the-trainer course to ensure they can 

1062 adequately train workers. 

1063 One commenter stated that if a certified applicator is not qualified to train a worker, then they 

1064 should not be qualified to train handlers.

1065 In response to the question raised in the proposal for the final rule regarding retraining for 

1066 trainers, a few commenters suggested that refresh training should take place every five years. One 

1067 commenter stated that trainers would need to know about new products and techniques that may 

1068 come on line. Comments from a state and a farm bureau opposed refresh training, expressing concern 

1069 for burden.
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1070 One commenter expressed concern that, if certified applicators were no longer acceptable 

1071 trainers for workers, all workers would be trained as handlers to manage the additional training 

1072 requirements, and they would perform handler tasks with higher risk.

1073 One commenter suggested that EPA designate a category under the Certification of Pesticide 

1074 Applicators rule for WPS Trainers. Persons certified under this category would be eligible to train 

1075 workers. 

1076 EPA Response. EPA is persuaded by the comments that it is reasonable to expect that certified 

1077 applicators can competently train workers, as well as handlers. Commenters noted that certified 

1078 applicators possess knowledge of pesticide safety from their certification training and pesticide handling 

1079 experience. The commenters stated that the additional burden from the proposed requirement for 

1080 annual training in combination with the elimination of certified applicators as trainers would severely 

1081 strain trainer resources and potentially result in fewer workers receiving annual training. This concern 

1082 persuaded EPA to include certified applicators as qualified to train workers in the final rule. 

1083 Commenters that supported the proposal to no longer qualify all certified applicators as trainers 

1084 of workers recommended that they receive training to qualify as trainers. This is very similar to the 

1085 proposal that would have allowed certified applicators to train workers if they completed a train-the1086 trainer course. In combination with concerns raised for burden in response to the question about 

1087 refresh training for trainers, and the consistent comments from states and growers supporting certified 

1088 applicators as trainers of workers, EPA was convinced that certified applicators have successfully trained 

1089 workers since the rule was originally implemented and should continue to be eligible to provide training 

1090 to workers. 

1091 In response to comments supporting handlers as trainers of workers, EPA is not convinced that 

1092 they possess the skills and/or technical knowledge to convey the information. Some comments stated 

1093 that the existing system works and that trained handlers are needed to provide training. EPA believes 

1094 that permitting certified applicators to train workers provides adequate numbers of trainers. Under the 

1095 final regulation, any person, including a handler, is qualified to train workers after successfully 

1096 completing an approved train-the-trainer course.

1097 In response to concerns that without certified applicators as trainers of workers, more workers 

1098 would be given handler training and thereafter perform handler tasks with higher risk, EPA does not 

1099 consider this a plausible outcome, but it is moot as the final rule allows certified applicators to train 

1100 workers. First, EPA expects that the difference between the burdens of worker and handler training will 

1101 encourage the development of appropriate worker training capacity. Second, an increase in the number 

1102 of trained handlers would not increase risk, because it would not cause an increase in the aggregate 

1103 hours of handler activity; if there were an increase in the number of trained handlers, that would merely 

1104 spread those hours over a larger pool of trained handlers.

1105 EPA agrees with the commenters that requiring refresher training for trainers would be 

1106 burdensome. Although application methods and pesticides used might change over time, the pesticide 

1107 safety training provides common-sense steps that workers can take to protect themselves from 

1108 exposure, and EPA does not find that these steps change significantly over time. EPA supports training 

1109 for trainers and encourages them to enhance their skills, but based on comments received, has not 

1110 established a requirement under the WPS for refresher training for trainers of workers or handlers. 

1111 The comment that EPA should establish a category under the Certification of Pesticide 

1112 Applicators rule for certified applicators to become qualified as WPS worker trainers is moot because 

1113 under the final rule, any certified applicator is authorized to train workers. 
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1114 In response to the question of whether a person trained as a handler is allowed to perform 

1115 worker activities without separate worker training, EPA agrees that a person trained as a handler is 

1116 qualified to perform worker activities. The question of what would have been allowed under the 

1117 proposed rule is moot. 

1118 D. Expand the Content of Worker and Handler Pesticide Safety Training

1119 1. Current and proposed rule. The existing WPS requires employers to provide pesticide safety 

1120 training covering specific content to workers and handlers. Under the existing rule, worker safety 

1121 training content must include the following 11 points: 

1122 • Where and in what form pesticides may be encountered during work activities.

1123 • Hazards of pesticides resulting from toxicity and exposure, including acute and chronic 

1124 effects, delayed effects, and sensitization.

1125 • Routes through which pesticides can enter the body.

1126 • Signs and symptoms of common types of pesticide poisoning. 

1127 • Emergency first aid for pesticide injuries or poisonings.

1128 • How to obtain emergency medical care. 

1129 • Routine and emergency decontamination procedures, including emergency eye flushing 

1130 techniques.

1131 • Hazards from chemigation and drift. 

1132 • Hazards from pesticide residues on clothing.

1133 • Warnings about taking pesticides or pesticide containers home.

1134 • Requirements of the WPS designed to reduce the risks of illness or injury resulting from 

1135 workers' occupational exposure to pesticides, including application and entry restrictions, 

1136 the design of the warning sign, posting of warning signs, oral warnings, the availability of 

1137 specific information about applications, and the protection against retaliatory acts.

1138 Under the existing rule, pesticide handler safety training must include the following 13 basic 

1139 safety training points:

1140 • Format and meaning of information contained on pesticide labels and in labeling, including 

1141 safety information such as precautionary statements about human health hazards.

1142 • Hazards of pesticides resulting from toxicity and exposure, including acute and chronic 

1143 effects, delayed effects, and sensitization. 

1144 • Routes through which pesticides can enter the body.

1145 • Signs and symptoms of pesticide poisoning.

1146 • Emergency first aid for pesticide injuries or poisonings.

1147 • How to get emergency medical care.

1148 • Routine and emergency decontamination procedures.

1149 • Need for and appropriate use of PPE.

1150 • Prevention, recognition, and first aid treatment of heat-related illness.

1151 • Safety requirements for handling, transporting, storing, and disposing of pesticides.

1152 • Environmental concerns.

1153 • Warnings about taking pesticides or pesticide containers home.

1154 • Training on the requirements of the regulation related to handling.
Page 27 of 176

1155 EPA proposed additional content in worker pesticide safety training including, among other 

1156 things, information on the requirements for early-entry notification and emergency assistance, how to 

1157 reduce pesticide take-home exposure, the availability of hazard communication materials for workers, 

1158 the minimum age requirements for handling and early entry, and the obligations of agricultural 

1159 employers to provide protections to workers. 

1160 EPA proposed additional content in handler pesticide safety training, including the requirement

1161 for handlers to cease application if they observe a person, other than another trained and properly 

1162 equipped handler, in the area being treated or the entry-restricted area, and information about the 

1163 requirement for OSHA-equivalent training on respirator use, fit-testing of respirators, and medical 

1164 evaluation in the event a handler must wear a respirator. 

1165 2. Final rule. EPA has finalized the proposed additions to and expansions of the worker and 

1166 handler pesticide safety training. The final regulatory text for the content of worker and handler 

1167 pesticide training is available at 40 CFR 170.401(c)(2)-(3) and 170.501(c)(2)-(3). 

1168 The final rule requires employers to ensure that workers are trained on the following topics 

1169 after EPA has announced the availability of training materials (see Unit XIX. for information on the 

1170 timing of implementation):

1171 • The responsibility of agricultural employers to provide workers and handlers with information 

1172 and protections designed to reduce work-related pesticide exposures and illnesses. This includes 

1173 ensuring workers and handlers have been trained on pesticide safety, providing pesticide safety and 

1174 application information, decontamination supplies and emergency medical assistance, and notifying 

1175 workers of restrictions during applications and on entering pesticide treated areas. A worker or handler 

1176 may designate in writing a representative to request access to pesticide application and hazard 

1177 information. 

1178 • How to recognize and understand the meaning of the warning sign used for notifying workers 

1179 of restrictions on entering pesticide-treated areas on the establishment. 

1180 • How to follow directions and/or signs about keeping out of pesticide-treated areas subject to 

1181 an REI and application exclusion zones.

1182 • Where and in what form pesticides may be encountered during work activities and potential 

1183 sources of pesticide exposure on the agricultural establishment. This includes exposure to pesticide 

1184 residues that may be on or in plants, soil, tractors, application and chemigation equipment, or used PPE, 

1185 and that may drift through the air from nearby applications or be in irrigation water. 

1186 • Potential hazards from toxicity and exposure that pesticides present to workers and their 

1187 families, including acute and chronic effects, delayed effects, and sensitization.

1188 • Routes through which pesticides can enter the body.

1189 • Signs and symptoms of common types of pesticide poisoning.

1190 • Emergency first aid for pesticide injuries or poisonings. 

1191 • Routine and emergency decontamination procedures, including emergency eye flushing 

1192 techniques, and if pesticides are spilled or sprayed on the body, to use decontamination supplies to 

1193 wash immediately or rinse off in the nearest clean water, including springs, streams, lakes, or other

1194 sources, if more readily available than decontamination supplies, and as soon as possible, wash or 

1195 shower with soap and water, shampoo hair, and change into clean clothes.

1196 • How and when to obtain emergency medical care.

1197 • When working in pesticide-treated areas, wear work clothing that protects the body from 

1198 pesticide residues and wash hands before eating, drinking, using chewing gum or tobacco, or using the 

1199 toilet.
Page 28 of 176

1200 • Wash or shower with soap and water, shampoo hair, and change into clean clothes as soon as 

1201 possible after working in pesticide-treated areas.

1202 • Potential hazards from pesticide residues on clothing.

1203 • Wash work clothes before wearing them again and wash them separately from other clothes. 

1204 • Do not take pesticides or pesticide containers used at work to your home.

1205 • Safety data sheets provide hazard, emergency medical treatment and other information about 

1206 the pesticides used on the establishment they may come in contact with. 

1207 The responsibility of agricultural employers to do all of the following: Display safety data sheets for all 

1208 pesticides used on the establishment, provide workers and handlers information about the location of 

1209 the safety data sheets on the establishment, and provide workers and handlers unimpeded access to 

1210 safety data sheets during normal work hours.

1211 • The rule prohibits agricultural employers from allowing or directing any worker to mix, load or 

1212 apply pesticides or assist in the application of pesticides unless the worker has been trained as a 

1213 handler.

1214 • The responsibility of agricultural employers to provide specific information to workers before 

1215 directing them to perform early-entry activities. Workers must be 18 years old to perform early-entry 

1216 activities.

1217 • Potential hazards to children and pregnant women from pesticide exposure.

1218 • Keep children and nonworking family members away from pesticide-treated areas.

1219 • After working in pesticide-treated areas, remove work boots or shoes before entering your 

1220 home, and remove work clothes and wash or shower before physical contact with children or family 

1221 members. 

1222 • How to report suspected pesticide use violations to the state or tribal agency responsible for 

1223 pesticide enforcement. 

1224 • The rule prohibits agricultural employers from intimidating, threatening, coercing, or 

1225 discriminating against any worker or handler for complying with or attempting to comply with the 

1226 requirements of this rule, or because the worker or handler has provided, caused to be provided, or is 

1227 about to provide information to the employer or to the EPA or its agents regarding conduct that the 

1228 employee reasonably believes violates this part, and/or has made a complaint, testified, assisted, or 

1229 participated in any manner in an investigation, proceeding, or hearing concerning compliance with this 

1230 rule. 

1231 The final rule requires employers to ensure that handlers are trained on the following topics 

1232 after EPA has announced the availability of training materials (see Unit XIX. of the preamble for 

1233 information on the timing of implementation):

1234 • All content for worker training.

1235 • Information on proper application and use of pesticides.

1236 • Handlers must follow the portions of the labeling applicable to the safe use of the pesticide. 

1237 • Format and meaning of information contained on pesticide labels and in labeling applicable to 

1238 the safe use of the pesticide. 

1239 • Need for and appropriate use and removal of all PPE. 

1240 • How to recognize, prevent, and provide first aid treatment for heat-related illness. 

1241 • Safety requirements for handling, transporting, storing, and disposing of pesticides, including 

1242 general procedures for spill cleanup. 

1243 • Environmental concerns, such as drift, runoff, and wildlife hazards. 

1244 • Handlers must not apply pesticides in a manner that results in contact with workers or other 
Page 29 of 176

1245 persons.

1246 • The responsibility of handler employers to provide handlers with information and protections 

1247 designed to reduce work-related pesticide exposures and illnesses. This includes providing, cleaning, 

1248 maintaining, storing, and ensuring proper use of all required personal protective equipment; providing 

1249 decontamination supplies; and providing specific information about pesticide use and labeling 

1250 information.

1251 • Handlers must suspend a pesticide application if workers or other persons are in the 

1252 application exclusion zone.

1253 • Handlers must be at least 18 years old.

1254 • The responsibility of handler employers to ensure handlers have received respirator fit-testing, 

1255 training and medical evaluation if they are required to wear a respirator by the product labeling.

1256 • The responsibility of agricultural employers to post treated areas as required by this rule.

1257 EPA intends to develop the training materials that meet the final training requirements and to 

1258 publish in the Federal Register a notice of their availability. To allow time for the completion and 

1259 distribution of revised training materials and to allow time for trainers to become familiar with them and 

1260 begin training workers and handlers, the rule extends the implementation period for training on the 

1261 new requirements for two years, or until six months after EPA has made the revised training materials 

1262 available, whichever is longer. The final requirements for the content of worker and handler pesticide 

1263 safety training are available at 40 CFR 170.401(c)(2)-(3) and 170.501(c)(2)-(3), respectively.

1264 3. Comments and responses.

1265 Comments on training requirements – general. Farmworker advocacy organizations, many 

1266 states, and public health organizations provided support for the expanded training topics, in particular 

1267 information about preventing take-home exposure, and medical evaluation, fit testing and training on 

1268 respirator use for handlers who need to wear respirators. Some farmworker advocacy organizations 

1269 commented on the importance of information about worker rights. 

1270 Agricultural producer organizations expressed concern for the additional burden of the lengthier 

1271 training. Some states asserted that several of the handler training points are beyond the scope of the 

1272 WPS and should be addressed in applicator certification only. Specifically, they requested that EPA 

1273 eliminate training on environmental concerns from pesticide use; proper application and use of 

1274 pesticides; and requirements for handlers to understand the format and meaning of all information 

1275 contained on pesticide labels and labeling, and to follow all pesticide label directions. These 

1276 commenters stated that these training points are appropriate for persons who work under the 

1277 supervision of certified applicators, but they do not relate directly to worker or handler safety. Two 

1278 states recommended a revision to language in the handler training topics requiring that “all” 

1279 information on the pesticide label would be required to be covered, stating that all labeling information 

1280 may not be relevant to a given application. 

1281 EPA Response. EPA does not agree with comments from states that the handler training topics 

1282 related to environmental concerns from pesticide use, proper application and use, requirements for 

1283 handlers to understand the format and meaning of information on labeling and to follow labeling

1284 directions are beyond the scope of the WPS and may expand the liability of handlers. First, the “Worker 

1285 Protection Standard” title is descriptive, and not jurisdictional. The WPS is, in essence, a codification of 

1286 material that EPA would otherwise have to require to appear on the labeling of agricultural pesticides. 

1287 Thus its potential scope is as broad as EPA’s labeling authority. While there may be some point at which 

1288 a prospective provision might be so tangentially related to the rest of the WPS that its inclusion in the 

1289 WPS would cause excessive confusion, that is not the case with the provisions included in today’s final 
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1290 rule. 

1291 In addition, this is not the first time that requirements included in the WPS have served 

1292 purposes beyond the protection of agricultural workers and handlers. Section 170.210(a) of the existing 

1293 rule requires that “The handler employer and the handler shall assure that no pesticide is applied so as 

1294 to contact, either directly or through drift, any worker or other person, other than an appropriately 

1295 trained and equipped handler” (emphasis added). Section 170.234(c) of the existing rule requires that, 

1296 among other things, when application equipment is sent to non-handlers for repair, the handler 

1297 employer must assure that pesticide residues have been removed, or else warn the person who would

1298 perform the repair. The handler training point on environmental concerns from pesticide use already 

1299 appears in the existing rule at 40 CFR 170.230(c)(4)(xi). In response to a similar comment on the 

1300 proposal that resulted in the existing regulation, EPA stated: 

1301 One comment questioned the relevancy of environmental information in worker 

1302 protection training. The Agency believes such training is relevant to worker protection. 

1303 Many environmental concerns are applicable not only to the organisms in the 

1304 environment, but also to workers and other persons who may be in that environment. 

1305 Ground and surface water warnings, for example, are designed not to protect only aquatic 

1306 organisms, but to protect workers and other persons who may be using the water for 

1307 drinking, cooking, bathing, etc. The Agency notes that FIFRA defines “environment” as 

1308 including “water, air, land, and all plants and man and other animals living therein, and 

1309 the interrelationships which exist among these.” (Ref. 8).

1310 The final rule retains the requirement for handler training on environmental concerns related to 

1311 pesticide use from the current WPS.

1312 EPA does not agree that the training topic requiring handlers to receive instruction on proper 

1313 application and use of pesticides is only appropriate for noncertified applicators making application 

1314 under the direct supervision of a certified applicator. First, handlers routinely apply pesticides, and 

1315 misapplication of pesticides can result in injury to persons covered by the WPS, including workers and 

1316 handlers. Training on proper use can help prevent such misapplication and consequent exposure to 

1317 people. Second, relying solely on the training of noncertified applicators under direct supervision would 

1318 cover only applicators using RUPs, and many agricultural use products covered by the WPS are not RUPs. 

1319 To ensure that handlers under the WPS have the training to apply pesticides properly, it is necessary for 

1320 them to be trained on proper use. The final rule includes the handler training topic requiring information 

1321 on proper application and use of pesticides.

1322 EPA does not agree with the commenters that requirements for handlers to understand the 

1323 format and meaning of information on labeling and to follow labeling directions are only appropriate for 

1324 noncertified applicators applying under the supervision of certified applicators. To properly handle 

1325 agricultural pesticides covered by the WPS rule, handlers need to understand the information on the 

1326 labeling related to safe use of the pesticide and follow the use instructions. Use of a product in a manner 

1327 inconsistent with the labeling may cause injury or illness to the handler and to others. However, EPA did 

1328 revise the handler training requirements based on commenters concerns that the proposed training 

1329 requirements were too broad. See the discussion in Unit XVIII.A. related to changes to the handler 

1330 training requirements covering labels and labeling.

1331 Comments on the cost. A farm bureau expressed concern for the costs of revising and updating 

1332 existing materials, questioning whether the additional material is necessary to further the program and 

1333 whether it can be provided in a way that it can be used.

1334 EPA Response. EPA agrees that there are costs associated with the revisions to the training 
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1335 program, including costs to update materials, produce, and distribute them. EPA plans to revise the 

1336 training materials and make them widely available, reducing the burden on employers. EPA has 

1337 considered the costs to the regulated community and found them to be reasonable in the context of 

1338 health improvements and protections for workers, handlers, and their families. 

1339 Comment on applicability of information. One commenter stated that the CDC study cited in the 

1340 preamble does not reflect current practices, and that since the 1996 FQPA, there have been significant 

1341 revisions to pesticide regulation. 

1342 EPA Response. Families and their environment can be exposed to pesticides by contact with 

1343 residues carried on working parents’ clothing, dirt tracked into the home, or from other pathways. The 

1344 transfer of residues can be minimized by the worker or handler by observing simple hygienic steps, 

1345 including hand washing and removal of work boots prior to entry into the home. Studies cited in the 

1346 preamble demonstrated a reduction in residues when workers observe these practices. Although the 

1347 CDC study itself is from 1995, several of the studies that support improved practices to reduce take 

1348 home exposure are more recent, notably the 2000 study by Lu, et al, titled “Pesticide Exposure of 

1349 Children in an Agricultural Community: Evidence of Household Proximity to Farmland and Take Home 

1350 exposure Pathways,” and the Arcury study titled, “Pesticide Urinary Metabolite Levels in Urine of 

1351 Children Living In Agricultural Communities (2005).” These studies found that children in homes with 

1352 agricultural parents are exposed to pesticides and that changes are needed to protect them from such 

1353 exposures.

1354 Although the FQPA has altered the types and amounts of certain pesticides used on certain 

1355 crops in order to reduce dietary exposures, there is no evidence that it has resulted in overall reductions 

1356 in worker or handler occupational exposure to pesticides or the associated risks.

1357 Comments on topics related to reporting violations. Two commenters expressed concern for 

1358 EPA’s rationale to require worker and handler pesticide safety training to include information on how to 

1359 report suspected pesticide use violations. They objected to the rationale in part because the context 

1360 used to justify this action suggested that it is an infringement of “WPS rights”, not general pesticide or 

1361 FIFRA label violations. 

1362 EPA Response. EPA believes the commenters have misunderstood EPA’s position. The proposal 

1363 states the following related to this issue:

1364 “Farmworker advocacy organizations recommend including in the worker or handler 

1365 pesticide safety training information on the rights of workers and handlers under the WPS 

1366 (Ref. 36). The Agency agrees that workers and handlers should be aware of WPS 

1367 provisions on how to report violations and the prohibition on retaliation by the 

1368 agricultural employer.” (Ref. 2.)

1369 While the WPS does not use the term “rights”, various sections (particularly section 170.7 of the 

1370 existing WPS) impose certain duties upon employers in regard to their employees, and it is not 

1371 unreasonable to speak of employees having certain WPS rights as a consequence of the employers’ WPS 

1372 duties. However, the commenters appear to misconstrue the preamble statement as an endorsement 

1373 of broader worker rights claims made by farmworker advocates. Regardless of what other rights 

1374 workers and handlers might have, EPA’s focus is on compliance with FIFRA and its associated regulations 

1375 and requirements. Consequently, the focus of the WPS training provision concerning reporting of 

1376 violations refers to pesticide use violations (including WPS violations).

1377 Comments on “take home exposure” training. One commenter wrote at length about 

1378 “protection from pesticide take home exposure,” stating that current training already addresses the 

1379 risks of pesticide residues on clothes, and this awareness could be augmented quite simply by updating 
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1380 current training materials. It does not warrant the attention paid to it within the preamble. The 

1381 commenter expressed concern that the tone and information provided by EPA to justify this action 

1382 undermines the great strides that have been made in product safety, labeling and application.

1383 EPA Response. The existing point in the training informs workers and handlers to remove and 

1384 wash their clothes to protect themselves from exposure to pesticide residues. The additional training 

1385 point emphasizes that there are risks to worker’s families from these residues, and provides information 

1386 on how to reduce those exposures. EPA agrees that updates to the training are necessary. 

1387 Comments on handler training. One commenter recommended that NIOSH and OSHA be 

1388 involved with EPA’s review of training material. They ask if the employer can rely on outside trainers to 

1389 provide the respirator training, or have these agencies approve materials. 

1390 EPA Response. The training requirements of the WPS for handlers wearing respirators must 

1391 conform to 29 CFR 1910.134. EPA plans to work with NIOSH and OSHA on the development of training 

1392 material related to respirators. The final rule requires employers to ensure proper respirator training 

1393 conforming to 29 CFR 1910.134 is provided for handlers required to wear a respirator; it does not 

1394 prohibit the employer from using outside trainers to provide the required respirator training. 

1395 E. Exception to Full Pesticide Safety Training for Workers Prior to Entry into Treated Areas (Grace Period).

1396 1. Current rule and proposal. Except in regard to workers entering treated areas during an REI, 

1397 the existing WPS permits the agricultural employer to delay providing full pesticide safety training until 

1398 the end of the fifth day after the worker’s entry into a treated area, often called the “grace period,” 

1399 provided that the worker receives training in a basic set of two safety points before entering the treated 

1400 area (i.e., an area that has been treated or where an REI has been in effect within the last 30 days). 

1401 Under this exception, the worker must receive the full safety training on the content outlined in the rule 

1402 prior to the sixth day of entry into a treated area. EPA proposed to shorten the “grace period” to two 

1403 days, require that full training take place before the third day of entry into a treated area, and expand 

1404 the basic set of safety information to be provided prior to the worker’s first entry into a treated area 

1405 under the “grace period.” 

1406 2. Final rule. EPA has eliminated the “grace period” entirely. The final rule requires employers to 

1407 ensure that workers receive full pesticide safety training before entering a treated area (i.e., an area 

1408 that has been treated or where an REI has been in effect within the last 30 days). 

1409 3. Comments and responses.

1410 Comments. Few commenters supported the proposed two day grace period coupled with the 

1411 expanded basic safety points prior to first entry. Many agricultural producer organizations and the SBA 

1412 Office of Advocacy requested that EPA retain the five day grace period in the existing rule, stating it is 

1413 needed for flexibility in scheduling training sessions as workers arrive at various times on the 

1414 establishment. Many farmworker advocacy organizations and two states recommended elimination of 

1415 the grace period entirely. Several commenters recommended, as an alternative, adoption of the two 

1416 day grace period with reduced material relative to the proposed training required prior to first entry, 

1417 because the brief training seemed onerous. Farmworker advocacy organizations that supported the 

1418 elimination of the grace period cited the importance of workers having full safety information prior to 

1419 entering an area with pesticide residues. One state that supported the elimination of the grace period 

1420 expressed concern that this change would heighten concerns about the number of qualified trainers in 

1421 the event that EPA would follow through on its proposal to make certified applicators ineligible to train 

1422 workers. 

1423 SBA’s Office of Advocacy stated that small businesses stated that a reduced grace period would 

1424 require employers to hire workers earlier and increase the per-hire costs. Other small businesses stated 
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1425 that flexibility is needed around busy schedules and to ensure continuity of operations. 

1426 Two commenters from regulatory agencies in states with significant agricultural production 

1427 stated that their programs do not allow a training grace period; in those states, workers must be trained 

1428 before they can enter treated areas. Some commenters indicated that eliminating the grace period 

1429 would reduce complexity of the rule.

1430 EPA Response. While EPA recognizes the flexibility that the grace period offers agricultural 

1431 employers in scheduling training sessions for workers, and the economic importance of that flexibility, 

1432 EPA remains convinced that the elimination of the grace period is reasonable. The full pesticide safety 

1433 training provides information that workers need to have before their exposure to pesticide treated 

1434 areas so they can protect themselves. Under OSHA, training must take place at the time of the 

1435 employee’s initial assignment. EPA has decided that the cost of eliminating the grace period is 

1436 reasonable when compared to the benefit from workers receiving the complete pesticide safety training 

1437 before their first exposure to pesticides. 

1438 EPA acknowledges concerns raised by agricultural producer organizations and state regulatory 

1439 agencies that eliminating the grace period combined with the proposal to limit who is qualified to 

1440 conduct worker training could result in an inadequate number of people available to provide worker 

1441 training. The final rule allows certified applicators to continue to be trainers of workers (see Unit V.D.). 

1442 As a result, EPA expects that there will be an adequate number of trainers to provide full pesticide safety 

1443 training for workers prior to their entry into treated areas. 

1444 F. Training Program Administration Requirements 

1445 1. Current rule and proposal. Under the existing WPS, pesticide safety training must be 

1446 presented either orally from written materials or in audiovisual format. The information must be 

1447 presented in a manner that the worker or handler can understand, and the trainer must respond to 

1448 questions, but the existing rule does not require the trainer to be present for the entire training period. 

1449 EPA proposed to retain the requirement to provide training in an oral or audiovisual format, to require 

1450 that the trainer remain present throughout the training session, and to require that the training be 

1451 presented in a place that is conducive to learning and reasonably free of distractions. 

1452 2. Final rule. EPA has finalized the proposed requirements for the presentation of training. 

1453 Trainers of workers and handlers must remain present during training sessions to respond to questions. 

1454 The training environment must be conducive to training and be reasonably free of distractions, to help 

1455 ensure training quality. The final rule retains the existing requirement for pesticide safety training to be 

1456 delivered either orally from written materials or by audiovisual means.

1457 The final regulatory text for these requirements is available at 40 CFR 170.401(c)(1) and 

1458 170.501(c)(1).

1459 3. Comments and responses.

1460 Comments on use of videos. Most commenters endorsed the use of videos. Some stated that 

1461 they enhance understanding of the material, especially when combined with hands-on activities or 

1462 other kinds of learning approaches. Other farmworker advocacy organizations stated that there is a lack 

1463 of interaction between the trainer and the employees trained using a video, resulting in reduced 

1464 information transfer. Agricultural producer organizations and state regulatory agencies supported the 

1465 use of the video, citing ease of use and effectiveness. Commenters from each category urged EPA to 

1466 update the videos; a few suggested EPA evaluate different media presentations.

1467 One commenter noted that videos are preferred so the workers and handlers can see and hear 

1468 the presentation. This commenter mentioned that trainees preferred having the presenter remain with 

1469 the workers to answer questions and manage distractions.
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1470 Another commenter suggested that trainers use a variety of materials, including the videos, to 

1471 train and cited the Food Safety training materials that are adapted to field situations and include flip 

1472 charts, handouts, and videos. One department of agriculture recommended keeping the video because 

1473 employers would not need expertise to provide the training. They suggested having two videos, one for 

1474 entry level and one for more experienced workers. Another state regulatory agency stated that the 

1475 video is an essential training tool. 

1476 Many other organizations – growers, pesticide manufacturers, and farm bureaus – supported 

1477 the use of the video for training.

1478 EPA Response. EPA agrees with the commenters who consider videos to be effective and useful 

1479 training materials. 

1480 EPA intends to update the training videos with information about the final rule requirements. 

1481 The revised videos will cover updates to the rule as well as the existing protections. EPA recognizes that 

1482 updated videos are needed for workers and handlers. 

1483 Comments on the requirement for trainers to remain present during entire training session.

1484 Farmworker advocacy organizations and another commenter supported the proposal for trainers to 

1485 remain present during the entire training, citing the need for them to be interactive with workers to 

1486 enhance the training and facilitate discussion. One commenter, experienced in providing pesticide 

1487 safety training, noted that the interaction with trainees, through hands-on training and sharing of 

1488 experiences, was effective. Some agricultural producer organizations opposed the requirement, stating 

1489 that it would be distracting for the video to be interrupted for questions, and there would be lost time 

1490 for the trainer. One commenter suggested it would lead to larger training conferences that would 

1491 discourage post-video interaction. Some states opposed the requirement for the trainer to be present 

1492 throughout the training; some recommended that the trainer only needs to be available before and/or 

1493 after the training if a video is used. 

1494 One pesticide manufacturer organization supported requiring the trainer to remain present 

1495 during the training, but other agricultural industry organizations rejected the concept, stating that it was 

1496 burdensome and unnecessary, and that the trainer was only needed at the end or beginning of the 

1497 training.

1498 Workers responding to questions from an advocacy organization indicated that having persons 

1499 available to answer questions was important.

1500 EPA Response. EPA agrees with the commenters that having trainers present during the entire 

1501 training program could facilitate discussion and promote interaction. EPA recognizes that a video is a 

1502 passive form of training, and has added the requirement for the trainer to be present to answer 

1503 questions during the entire session to mitigate this problem.

1504 EPA disagrees that questions from the trainees would be disruptive to the training; responding 

1505 to questions during the video would facilitate learning. A 2006 study (Burke) cited interactive training 

1506 activities as a best practice for supporting training transfer. EPA is convinced that the trainer’s presence 

1507 during the video enhances the training by enabling questions and discussion during the presentation.

1508 Comments on the requirement for the training environment to be relatively free of distractions 

1509 and conducive to learning. The commenters were mostly in agreement that the learning environment 

1510 needs to have minimal distractions and be conducive to learning. Farmworker advocacy organizations 

1511 and public health organizations supported the proposed requirement as a way to improve the learning 

1512 environment. Two farm bureaus suggested allowing the trainer to be absent during the video, and to 

1513 have a supervisor present to ensure the quality of the training environment. One state supported the 

1514 proposed requirement for the training to be conducted in an environment reasonably free of 
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1515 distractions; another stated that the requirement was not enforceable. Finally, one agricultural 

1516 organization described the environment where their workers receive training as taking place either on 

1517 or outside their transportation bus or in the field where it is difficult to manage distractions, and noted 

1518 that the low number of incidents is evidence that the training is effective.

1519 EPA Response. EPA agrees that the requirement for the training environment to be reasonably 

1520 free from distractions and conducive to training would make it easier for workers and handlers to 

1521 absorb and retain information. As discussed in the previous response, EPA disagrees with comments 

1522 requesting that EPA eliminate the requirement for the trainer to be present throughout the training. The 

1523 proposal and final rule establish requirements for the training location; the ultimate responsibility for 

1524 ensuring the requirements are met rests with the employer. EPA recognizes that there are challenges in 

1525 locating environments in agriculture that are quiet and present few distractions; classrooms are rarely 

1526 convenient. However, EPA is requiring employers to provide a training environment that is reasonably 

1527 free from distractions and conducive to training. EPA notes that the final rule does not prohibit 

1528 providing training in any specific location, such as outdoors or on a bus, as long as the environment is 

1529 reasonably free from distraction and conducive to training.

1530 Other comments on training administration. Commenters from a state regulatory agency and 

1531 farmworker advocacy organization suggested that the trainings should be in the language of the workers 

1532 and/or handlers. 

1533 EPA Response. EPA agrees that, ideally, trainers would provide training in the language of the 

1534 workers or handlers. Agricultural workers and handlers speak many languages, and employers may not 

1535 have ready access to trainers with skills in multiple languages. The WPS requires that the training be 

1536 provided in a manner that the worker or handler can understand, which allows flexibility for the trainer 

1537 to use graphics, gestures, and examples to describe a point. The concepts from the training are 

1538 relatively simple and can be communicated with the use of a narrated video or pictorial flipchart, along 

1539 with demonstrations by the attending trainer. 

1540 G. Require Employers to Provide Establishment-Specific Information to Workers and Handlers

1541 1. Current rule and proposal. The existing WPS does not clearly require employers to provide to 

1542 workers and handlers establishment-specific information on the location of decontamination supplies or 

1543 hazard information as part of their pesticide safety training. EPA proposed that in addition to required 

1544 pesticide safety training, employers must provide workers and handlers with establishment-specific 

1545 information about the location of decontamination supplies and pesticide safety and hazard 

1546 information, as well as how to obtain medical assistance. EPA proposed that agricultural and handler 

1547 employers would be required to provide this establishment-specific information to all workers and 

1548 handlers, including those previously trained on other establishments. 

1549 2. Final rule. EPA has finalized the proposed requirement for employers to provide 

1550 establishment-specific information to workers and handlers. The final rule requires employers to 

1551 provide establishment-specific information for workers and handlers when they enter the establishment 

1552 and before beginning WPS tasks in areas where within the last 30 days a product requiring compliance 

1553 with the WPS has been applied or an REI has been in effect. Content for the establishment-specific 

1554 information includes the location of the pesticide safety information, the location of pesticide 

1555 application and hazard information, and the location of decontamination supplies. Employers are 

1556 required to provide this information in a manner that the worker or handler can understand, such as 

1557 through a translator, and prior to the worker or handler performing activities covered by the WPS. 

1558 Lastly, this information is required even if the employer can verify that the worker or handler has 

1559 already received the general pesticide safety training on another establishment, because the 
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1560 information required is specific to each establishment. The final regulatory text for these requirements 

1561 is available at 40 CFR 170.403 and 170.503(b).

1562 3. Comments and responses.

1563 Comments. Most commenters supported the addition of the establishment-specific training, 

1564 with some noting that it is currently being provided voluntarily. One farmworker advocacy organization 

1565 commented that the information would help workers access decontamination supplies and safety and 

1566 hazard information quickly, even workers trained at other establishments.

1567 Some farm bureaus, a grower organization, and a state pesticide regulatory agency noted that 

1568 employers already provide the information, and another farm bureau stated that the requirement is 

1569 reasonable. 

1570 One grower organization requested clarification on whether the statement in the preamble 

1571 about “how to obtain emergency medical assistance” refers to emergency numbers on the safety 

1572 poster. 

1573 Two farmworker advocacy organizations responded to a question in the preamble, that asked if 

1574 there are any issues related to the requirement that the information be provided in a manner the 

1575 worker or handler understands. These farmworker advocacy organizations replied that the information 

1576 needs to be in the worker’s or handler’s “mother tongue.” Similarly, another farmworker advocacy 

1577 organization stated that the requirement must establish that the information be provided in a language 

1578 all workers can understand fluently; it must be delivered at an appropriate literacy level and in a 

1579 culturally appropriate manner. Additionally, the commenter stated that the content must include 

1580 information about buffers in the fields. 

1581 One commenter expressed concern that the training has to be EPA-approved and must be 

1582 presented in a manner the worker can understand such as through a translator, and that this could 

1583 increase costs. 

1584 One state regulatory agency stated that this requirement should be deleted, because the 

1585 provision does not specifically address protection of workers, is not germane, and therefore should not 

1586 be included in this rule. A commenter representing agricultural industry stated that employers must 

1587 provide workers with information on restricted sites. 

1588 EPA Response. EPA agrees with the commenters that the establishment-specific training is 

1589 necessary for workers and handlers to know where to find information on the establishment to protect 

1590 themselves from pesticides and their potential effects. EPA notes that some of this information is 

1591 required under the existing rule. However, EPA is convinced that consolidating the requirements for 

1592 establishment-specific training and co-locating them with requirements for pesticide safety training will 

1593 make them easier for employers to find and comply with, resulting in a higher likelihood that workers 

1594 and handlers will receive the necessary information. 

1595 One commenter requested clarification of the meaning of the phrase “how to obtain emergency 

1596 medical assistance.” To clarify, the establishment-specific training requirement includes the location of 

1597 the safety information display, which provides contact information for emergency medical services. 

1598 Once the worker or handler knows where to access the safety information, they can contact emergency 

1599 medical assistance. In addition, if a worker or handler may have been exposed or displays symptoms 

1600 consistent with pesticide exposure, their employer is obligated to provide emergency assistance under 

1601 the rule. This point is covered in pesticide safety training. 

1602 Two commenters were concerned that the training would have to be EPA-approved. The 

1603 worker training covered under Section 170.401 and the handler training under 170.501 must be 

1604 approved by EPA, however, the establishment-specific training is not required to be EPA-approved. EPA 
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1605 believes the requirements themselves are self-explanatory. Please refer to 170.403 and 170.503(b) for 

1606 the regulatory language. 

1607 One of the commenters expressed concern that the information had to be provided in a manner 

1608 that the worker or handler can understand, such as through a translator, stating that it could increase 

1609 costs. For the information to be useful it must be provided so the worker or handler can understand it. 

1610 However, EPA recognizes that there are many languages spoken by farmworkers and does not require 

1611 that the information is provided in those languages. Information may be provided through videos, 

1612 illustrations, and gestures in such a way as to be understood by the target audience. 

1613 Regarding the comments from farmworker advocacy organizations about the need for the 

1614 information to be provided in the language of the worker or handler, EPA agrees that this would be 

1615 useful. However, there are many languages spoken by workers and handlers, and the burden on 

1616 employers to find translators for this information, in a timely manner, would be too great. Also, the 

1617 existing requirement for training to be provided so the employee can understand it has been in the rule 

1618 for training for nearly 20 years without significant problem. This, combined with comments from 

1619 growers that the information is already being provided, suggests that employees are receiving the 

1620 information and understanding it. Trainers may rely on videos in the language of the workers or a 

1621 flipchart to share information. 

1622 Regarding the comment about presenting the information in a culturally appropriate way and at 

1623 a literacy level that could be understood by the employee, EPA expects that the location of the 

1624 decontamination supplies, the safety poster, and the hazard information is not likely to be provided in a 

1625 manner that would be inappropriate or difficult to understand. 

1626 Regarding the comment about the employer providing information about buffers in the field, 

1627 EPA believes the commenter was referring to the application exclusion zone (previously the entry 

1628 restricted area). EPA considered this requirement, but rejected it because under the final rule, it is only a 

1629 requirement during the application, the temporal nature of the restriction would limit the usefulness of 

1630 the information, and would be difficult to convey accurately. Finally, the annual safety training includes 

1631 information on restrictions during application, so workers will know to stay away from areas during 

1632 treatment. 

1633 EPA disagrees with the comment that the establishment-specific information does not 

1634 contribute to worker or handler safety. As commenters have noted, knowing where to go to 

1635 decontaminate, find safety and hazard information, and learn what they were exposed to, can enable 

1636 workers and handlers to reduce their exposure, find ways to avoid exposure, and react to an exposure 

1637 by contacting an emergency medical facility. 

1638 VI. Notification

1639 A. Posted Notification Timing and Oral Notification

1640 1. Current rule and proposal. The current WPS requires agricultural employers to notify workers 

1641 about pesticide applications and areas on the agricultural establishment subject to an REI. Notification is 

1642 required when workers are on the establishment during application or the REI and will pass within one1643 quarter mile of the treated area. On farms, and in forests and non-enclosed nurseries (referred to as 

1644 “outdoor production” in the proposal) the agricultural employer may choose either to post warning 

1645 signs at the usual points of entry around the treated area or to notify workers orally about applications 

1646 that will take place on the establishment. In greenhouses and some other enclosed spaces (referred to 

1647 as “enclosed space production” in the proposal), the agricultural employer must post warning signs for 

1648 all applications, regardless of the product’s REI. In cases where the product labeling requires both 

1649 written and oral notification of workers, the WPS also requires this “double notification.” 
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1650 For outdoor production, EPA proposed requiring agricultural employers to post warning signs 

1651 where the pesticide to be applied has an REI greater than 48 hours, and to allow the option of oral 

1652 warning or posted notification for products with an REI of 48 hours or less. For enclosed space 

1653 production, EPA proposed requiring posting of warning signs only when the product applied has an REI 

1654 greater than four hours, and to allow the option of oral warning or posted notification for products with 

1655 an REI of four hours or less.

1656 2. Final rule. EPA has finalized the proposed requirements to post warning signs for all “outdoor 

1657 production” when a product with an REI longer than 48 hours is used, and to allow either oral or posted 

1658 warnings for “enclosed space production” when a product with an REI of 4 hours or less is used. The 

1659 final regulatory text for these requirements is available at 40 CFR 170.409(a)(1)(ii)-(v). The final rule 

1660 modifies the existing requirement for employers to take down posted warning signs within three days of 

1661 the expiration of the REI by prohibiting worker entry into the area until the posted warning signs have 

1662 been removed (except for early entry pursuant to 40 CFR 170.603). The final regulatory text for this 

1663 prohibition is available at 40 CFR 170.409(b). 

1664 3. Comments and responses.

1665 Comments in support of proposal. Many states and some farmworker advocacy organizations 

1666 and public health organizations supported the notification requirements as proposed. They noted the 

1667 potential benefit to workers and employees of crop advisors of mandatory posting for the most toxic 

1668 pesticides. They agreed with EPA’s assessment that additional posting would provide added protection 

1669 for workers while placing a minimal burden on employers. 

1670 Comments opposed to the proposal. Several grower associations and farm bureaus supported 

1671 the proposed change in notification requirements for indoor production but opposed the proposal for 

1672 additional posting for outdoor production. They noted that signs can be destroyed, removed, or 

1673 relocated and that agricultural producers may not return to some fields more than once per week. One 

1674 grower association specifically requested that EPA clarify how enforcement would address these 

1675 challenges. Another grower association highlighted the need for clarity on how to comply with 

1676 notification rules for products with multiple, activity-based REIs. One grower association also stated 

1677 that workers are fully capable of understanding oral notification and suggest focusing instead on 

1678 reinforcing the existing oral notification. One industry association objected to the proposal on the 

1679 grounds that the changes did not recognize existing practices and improvements in training, 

1680 recordkeeping, supervision and other protections since the WPS was initially implemented. This 

1681 commenter also noted that posting for REIs is further complicated by the additional requirement to post 

1682 “no entry” buffers during application. Several grower associations stated that the proposal lacked data 

1683 to support the need for increased posting or for why certain REIs were selected over others, and that 

1684 EPA underestimated the cost of field posting.

1685 Comments suggesting alternatives to the proposal. Several farmworker advocacy organizations, 

1686 health organizations, individual farmworkers and one state regulatory agency suggested requiring both 

1687 posting signs and providing oral warnings for all pesticide applications, or at a minimum for those 

1688 pesticides with an REI of 12 hours or more. Some farmworker advocacy organizations suggested 

1689 mandatory posting of any treated area subject to an REI greater than 24 hours, and others requested 

1690 that EPA require mandatory posting of any treated area subject to an REI. They reiterated EPA’s 

1691 rationale that oral notification of pesticide application information is difficult to recall over multiple 

1692 days, that oral notification may not be clearly communicated due to multiple language barriers and that 

1693 it is difficult to verify whether oral notification was in fact given.
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1694 EPA Response. EPA considered the comments submitted and remains convinced that increasing 

1695 workers' awareness of treated areas through additional posting will lead to an overall reduction in 

1696 occupational pesticide-related illnesses at reasonable cost. Because of the nature of pesticide exposure, 

1697 the possible latency of effects, and the underreporting of pesticide incidents, it is difficult to find precise 

1698 estimates of the benefits of the WPS changes. EPA took great care to not underestimate the costs of the 

1699 WPS changes, and is confident that the estimates in the Economic Analysis are reliable. 

1700 EPA disagrees with commenters that assert oral notification alone would provide sufficient 

1701 notification to workers. As noted in the proposal for this rule (Ref. 2, see reference number 41), research 

1702 has shown that oral instruction alone may not be an effective method of safety instruction. Because 

1703 workers face challenges with literacy and understanding English, EPA believes that reducing the reliance 

1704 on spoken messages and increasing reliance on a clear, graphic, posted warning would better protect 

1705 workers from the risks of mistakenly entering a treated area before the REI expires. The most recent 

1706 public data set available from the DOL’s NAWS (2011-2012), which shows a majority (69%) of all survey 

1707 respondents speak Spanish as their primary language and approximately 65% speak little or no English 

1708 (Ref. 5), supports the need for visual reminders to reinforce oral warnings.

1709 EPA acknowledges that compliance with the posting requirement for outdoor production could 

1710 require some establishments to change their business practices or monitor posted fields more often. 

1711 However, the commenter’s concern about additional requirements to post “no entry” buffers during 

1712 application is based on a misunderstanding. The only additional field posting required under this rule is 

1713 when a product with an REI longer than 48 hours is used in outdoor production. Posting requirements 

1714 for greenhouses have been reduced.

1715 While EPA recognizes industry improvements in training and supervision, and other efforts to 

1716 protect workers from improperly entering fields during an REI, these efforts are not required and can 

1717 vary significantly in quality from employer to employer. In addition, the preamble to the proposed rule 

1718 cites two studies that support the need for additional field posting (Ref. 2, see references numbered 11 

1719 and 60). EPA continues to believe that occupational illnesses related to improper entry into treated 

1720 fields can be reduced by more robust posting of treated areas. 

1721 Enforcement of the Federal WPS is generally the responsibility of state, tribal or territorial 

1722 pesticide regulatory agencies. EPA will develop compliance monitoring strategies and guidance for the 

1723 responsible enforcement agencies. In addition, EPA will develop and disseminate guidance for the 

1724 regulated community on how to interpret and comply with the rule.

1725 EPA considered additional posting requirements presented by farmworker advocacy 

1726 organizations and was not convinced that the increased cost to employers to post all treated areas, or to 

1727 post areas treated with products with REIs of 12 hours or greater or 24 hours or greater would result in 

1728 significantly more protections than the requirement to post areas treated with products with an REI 

1729 longer than 48 hours. EPA concluded that it is reasonable to expect workers to remember oral warnings 

1730 regarding REIs for two work days, or about 48 hours total, and to require employers to provide visual 

1731 reminders for longer periods for the more hazardous pesticides.

1732 B. Revise Content of Warning Sign

1733 1. Current rule and proposal. The existing WPS requires agricultural employers to post warning 

1734 signs with the words “DANGER,” “PELIGRO,” “PESTICIDES” and “PESTICIDAS,” at the top of the sign, and 

1735 the words “KEEP OUT” and “NO ENTRE” at the bottom of the sign. A circle containing an upraised hand 

1736 on the left and a stern face on the right must be near the center of the sign. EPA proposed replacing 

1737 “KEEP OUT” and “NO ENTRE” with “Entry Restricted” and “Entrada Restringida,” and changing the shape 

1738 containing the face and hand to an octagon (similar to a stop sign).
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1739 2. Final rule. EPA has decided not to change the text or graphic of the existing warning sign. The 

1740 final regulatory text for the warning sign content is available at 40 CFR 170.409(b)(2).

1741 3. Comments and responses.

1742 Comments. Two state pesticide regulatory agencies and several grower organizations supported 

1743 the proposed changes on the grounds that "Entry Restricted" would be less confusing to workers than 

1744 “KEEP OUT,” since entry is allowed under certain circumstances. Many more state regulatory agencies 

1745 and supporting organizations, grower associations, farmworker advocacy organizations, and public 

1746 health organizations opposed changing the existing warning sign. Those commenters asserted that 

1747 “KEEP OUT” sends a much clearer message than “Entry Restricted,” particularly to people with lower 

1748 levels of literacy. They noted that the term “Entrada Restringida” is not common in Spanish, which is the 

1749 first language of the majority of farmworkers in the U.S., whereas “KEEP OUT” is simple and well 

1750 understood even by people who do not speak or read English. Commenters pointed to standard 

1751 readability test results confirming that “KEEP OUT” is easily understood by most six-year-olds, while 

1752 “Entry Restricted” is placed at the grade 12-13 reading level and would be beyond the reading and 

1753 comprehension level of the majority of farmworkers in the U.S. 

1754 A number of states commented that the existing sign is sufficient. They noted that although 

1755 “Entry Restricted” is more accurate, it would be a costly change for growers that may lead to confusion 

1756 and not be more protective than the language on the existing warning sign. States also commented that 

1757 20 years of training and experience with the current sign is what makes it effective for keeping workers 

1758 out of fields under an REI. The state regulatory agencies and farmworker advocacy organizations agreed 

1759 that for the predominantly low-literacy population of farmworkers, a simpler message, along with 

1760 training on the message, is more protective than the proposed wording for the warning sign.

1761 EPA Response. EPA was persuaded that the proposed changes to the warning sign would be 

1762 costly for employers and not increase protections for workers as much as expected. A significant factor 

1763 in EPA’s decision was the additional information presented in public comments regarding the potential 

1764 lack of understanding of the term “Entrada Restringida.” EPA was convinced that eliminating the existing 

1765 language, “KEEP OUT,” in favor of a technically more accurate sign would be less protective for the 

1766 majority of workers. The goal of the warning sign is to keep workers out of areas that are treated with 

1767 certain pesticides. Entry into these areas is prohibited while the REI is in effect with a few narrow 

1768 exceptions. Workers that are directed to enter treated areas under an REI and/or areas where the 

1769 warning sign is posted must have received pesticide safety training, be provided additional protections, 

1770 and be informed that their entry is subject to the limitations established for early entry exceptions in the 

1771 regulation. Because EPA expects that the majority of workers would never enter treated areas during an 

1772 REI, because 20 years of training and experience have familiarized workers with the message and intent

1773 of the sign, and because EPA has added additional training and protection for early-entry workers 

1774 entering treated areas while an REI is in effect, EPA agrees with commenters that the easily understood 

1775 message of “KEEP OUT” is most appropriate.

1776 C. Warning Sign Location Revisions

1777 1. Current rule and proposal. Under the existing rule, when signs are required for applications in 

1778 outdoor production, they “shall be visible from all usual points of worker entry to the treated area, 

1779 including at least each access road, each border with any labor camp adjacent to the treated area, and 

1780 each footpath and other walking route that enters the treated area.” EPA proposed maintaining the 

1781 existing posting requirement for outdoor production and clarifying the language to require posting be 

1782 visible from “each border with any worker housing area within 100 feet of the treated area,” rather than 

1783 “labor camps adjacent to the treated area.” 
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1784 2. Final rule. EPA has finalized the proposed changes to the warning sign location requirements 

1785 for outdoor production. The final regulatory text for this requirement is available at 40 CFR 

1786 170.409(b)(3)(ii). 

1787 3. Comments and responses.

1788 Comments. Several state pesticide regulatory agencies, grower organizations, and farmworker 

1789 advocacy organizations supported the proposal and agreed that it would support EPA’s goal of 

1790 increasing clarity of the rule and enhance the ability of employers to understand their responsibilities 

1791 under the regulation. Commenters in support of the change noted that “adjacent” is a vague term that 

1792 may be interpreted differently by different people and that “labor camp” is too limited and does not 

1793 technically include worker housing. They noted that clearer posting requirements could lead to better 

1794 compliance and thus be a better system for keeping people living in close proximity to treated fields 

1795 safe. 

1796 Some pesticide manufacturers opposed the proposal on the grounds that it is an overly 

1797 prescriptive, costly, and unnecessary provision which would not provide additional protection above 

1798 that already provided by the label and existing WPS.

1799 A public health organization proposed adding pesticide application information and REIs to the 

1800 posting requirement near worker housing areas. One state regulatory agency suggested revising the 

1801 language by stating “Each border with any worker housing area provided by this 

1802 establishment/employer within 100 feet of the treated area.”

1803 Several industry associations commented on the timing of the required posting. They noted 

1804 that requiring signs to be posted prior to but no earlier than 24 hours before the scheduled application 

1805 could be complicated by inclement weather, equipment malfunctions, or other unforeseen conditions 

1806 that could delay a planned pesticide application. These commenters requested an exemption be written 

1807 into the regulation for such delays. Another industry association objected to the requirement that 

1808 “under no circumstances shall the signs remain posted and uncovered when worker entry is permitted.” 

1809 They contend that employers want to remove signs as soon as possible to allow reentry and the timing 

1810 provision could lead to technical violations without additional protections.

1811 EPA Response. EPA was not persuaded by the comments that the revised posting location 

1812 requirement would be a significant additional burden on employers. The requirement only clarifies 

1813 where employers need to post warning signs but does not increase posting requirements beyond what 

1814 was intended in the existing regulation. EPA agrees with commenters who noted that increased clarity 

1815 on posting requirements will lead to better compliance and increase awareness of treated fields by 

1816 workers who live near treated areas.

1817 EPA acknowledges that scheduled pesticide applications can be delayed by many factors. EPA 

1818 considered allowing the warning signs to be posted after an application is complete but decided the risk 

1819 of entry during applications, as well as confusion over when an application is complete, necessitated 

1820 posting prior to an application. EPA did not establish an exemption that would allow warning signs to be 

1821 posted more than 24 hours in advance because of the continuing belief that the meaning of warning 

1822 signs is diminished if they are posted well before the hazard exists. If inclement weather or other 

1823 factors postpone an application, the regulation does allow the signs to be covered rather than entirely 

1824 removed.

1825 EPA agrees with the industry association commenter that employers will want to remove 

1826 warning signs as soon as possible to allow reentry. While the three-day standard for removal remains, 

1827 the rule also has an exemption for signs to remain posted after the restricted-entry interval has expired 

1828 as long as certain conditions are met.
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1829 VII. Hazard Communication

1830 A. Hazard Information – Location and Accessibility

1831 1. Current rule and proposal. The existing WPS requires employers to display certain information 

1832 about pesticide applications at a central location on the establishment when workers or handlers are 

1833 present and an application of a pesticide requiring compliance with the WPS has been made or an REI 

1834 has been in effect within the past 30 days (referred to as the “central display” requirement). 

1835 EPA proposed to replace the existing requirement for the application information to be located 

1836 at the central display with a requirement for employers to make the application information and 

1837 additional hazard information accessible upon request by workers, handlers or their authorized 

1838 representatives.

1839 2. Final rule. EPA has decided not to finalize the proposal. The final rule generally retains the 

1840 existing requirement related to the location of, and accessibility for workers and handlers to, the 

1841 pesticide application information, makes some changes to the content of the required information, 

1842 requires the display of hazard information, and includes the accessibility requirements proposed for 

1843 workers, handlers, and their designated representatives (“authorized representatives” in the proposal). 

1844 The employer must display the information at a place on the establishment where workers or handlers 

1845 are likely to pass by (the “central display”). The information must be displayed when workers or 

1846 handlers are on the establishment and an application of a WPS-covered pesticide has been made or an 

1847 REI has been in effect within the past 30 days. After this time, the information must be kept on the 

1848 establishment for two years and made available to workers, handlers, or their designated 

1849 representatives or any treating medical personnel. The final rule contains more specificity than the 

1850 proposal, particularly in reference to the designated representative, where details are drawn from 

1851 OSHA’s rule at 29 CFR 1910 (Ref. 17).

1852 The designated representative must provide written evidence of such designation, including the 

1853 name of the worker or handler being represented, a description of the specific information being 

1854 requested, including dates of employment of the employee, the dates for which the records are 

1855 requested, the type of work conducted by the worker or handler during that period, a statement 

1856 indicating that the representative is designated by the worker or handler, the specific application and/or 

1857 hazard information requested, a statement designating the representative to request the information 

1858 on the worker’s or handler’s behalf, the date of the designation, and the printed name and contact 

1859 information for the designated representative. If the information is to be sent to the requester, 

1860 direction for where that information must be sent is to be included. When the employer is presented a 

1861 request that contains all of the necessary information specified in the regulations, the employer must 

1862 provide a copy of, or access to, all of the requested information that is applicable within 15 working days 

1863 from the receipt of the request. Failure to respond to the request would be a violation of the rule. The 

1864 final regulatory text for this requirement is available at 40 CFR 170.311(b)(9). 

1865 Workers and handlers who worked on the establishment may request, orally or in writing, the 

1866 pesticide-specific information retained by the employer. The information must have been displayed 

1867 while the worker or handler worked on the establishment. The employer must provide access to, or a 

1868 copy of, the information within 15 days of the request. The regulatory text for this requirement is 

1869 available at 40 CFR 170.311(b)(7).

1870 Under the requirements to provide records to workers, handlers, and designated 

1871 representatives, EPA also added language similar to that found in OSHA regulations (see 29 CFR 

1872 1910.1020(e)(1)(v)) to ensure that whenever a record has been previously provided without cost to a 

1873 worker, handler, or their designated representative, the agricultural employer may charge reasonable, 
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1874 non-discriminatory administrative costs (i.e., search and copying expenses but not including overhead 

1875 expenses) for a request by the worker or handler for additional copies of the same record.

1876 Medical personnel or persons acting under their supervision may also request the pesticide1877 specific information required to be retained in 170.311(b)(6) to inform diagnosis or treatment of 

1878 workers or handlers who were employed on the establishment during the time the information was 

1879 required to be displayed. The request may be provided orally or in writing to the agricultural employer, 

1880 and the employer must respond promptly to the request. The regulatory text for this requirement is 

1881 available at 40 CFR 170.311(b)(8).

1882 Lastly, the final rule makes some changes to the content of the required pesticide application 

1883 information and when it must be posted, as explained in Units VII.C. and VII.D. The final regulatory text 

1884 for this requirement is available at 40 CFR 170.311(b).

1885 3. Comments and responses.

1886 Comments. The overwhelming majority of commenters requested that EPA keep the existing 

1887 central display requirement. Many comments from farmworker advocacy organizations, academic 

1888 institutions, public health organizations, states, unions, a pesticide retailer association, many citizens 

1889 and some members of Congress noted that they thought it was unreasonable, unrealistic and naïve to 

1890 think a vulnerable population such as workers and handlers would request hazard information from 

1891 their employers. These commenters cited many reasons for this position, including barriers (e.g., 

1892 language differences, concern about compromising their immigration status, intimidation, and fear of 

1893 retribution, retaliation or job loss) and the power and social dynamics between employer and employee. 

1894 One state remarked that their experience was workers simply do not want to draw attention to 

1895 themselves for fear of discrimination. These commenters were adamant that workers and handlers 

1896 needed ready, anonymous, unhampered access to hazard information as currently provided through the 

1897 central display requirement. Farmworkers themselves, in letters and surveys, revealed that they would 

1898 not feel comfortable asking the employer for information. These farmworkers insisted that employers 

1899 would ignore such a request, reprimand them for halting work, or reply that the information is only for 

1900 “those spraying,” and order them to resume working. One citizen in support of the central display 

1901 requirement pointed out that no one should assume that farmworkers are aware of the dangers posed 

1902 by exposure to pesticides or pesticide residues. Many commenters from farmworker advocacy groups, 

1903 state regulatory agencies and a union noted that one benefit of keeping the requirement is that 

1904 employers are already mostly complying with it, it is well accepted by the agricultural community, and 

1905 workers expect to find the information there. 

1906 To improve accessibility to information, one state, a public health organization and a 

1907 farmworker advocacy group suggested requiring that the displayed information include cell phone scan 

1908 codes linked to pesticide use records and SDSs. A professional organization of trainers and educators 

1909 suggested setting up an online site for agricultural employers to post and maintain information specific 

1910 to their operation, thereby making the information available by cell phone and Internet access. 

1911 However, one state regulatory agency has observed a problem with a system whereby pesticide 

1912 application information that was called or texted into a recording system was checked once a day, 

1913 resulting in the posting of incorrect information. Commenters also offered suggestions on 

1914 nontraditional ways of complying with the central display requirement. For example, one state 

1915 regulatory agency suggested putting the information in a binder in a work area while a public health 

1916 organization suggested the use of a hard plastic sleeve to protect the information from weathering. A 

1917 farmworker advocacy group suggested posting a leaflet at the worksite identifying the location of SDSs 

1918 and pesticide application records, while another noted that it has seen the information displayed near 
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1919 bathrooms, hand washing stations and time clocks at nurseries or greenhouses. 

1920 State regulatory agencies requested that EPA stratify the central display requirement, but did 

1921 not elaborate how. One state wanted the display requirement limited to work hours, because of their 

1922 experience with nighttime vandalism of central displays. 

1923 Many commenters supported the inclusion of a designated representative who could request 

1924 the hazard information on behalf of a worker or handler, as long as the central display requirement was 

1925 also kept. Farmworker advocacy organizations, public health organizations, unions and citizens cited 

1926 OSHA’s requirements at 29 CFR 1910.1020(e)(1) that require access to exposure records for workers in 

1927 other industries. Comments in support of including access to hazard information by workers’ or 

1928 handlers’ designated representatives note that workers and handlers may be reluctant to request the 

1929 information for themselves due to their inability to communicate effectively with, or fear of, their 

1930 employer, or because they may not be able to understand the information without help. Many 

1931 commenters repeated the need to access information for early diagnosis and treatment. However, 

1932 commenters also discussed the benefits of having the information in non-emergency situations. 

1933 Specifically, having the information would allow health care providers to assess risk, educate workers, 

1934 and offer preventative care to patients who are workers. Along the same lines, two public health 

1935 organizations thought access would be helpful for incident reporting and differential diagnosis. One 

1936 farmworker advocacy organization pointed to their need for information so they can knowledgeably 

1937 respond during pesticide safety training to farmworkers’ questions about the health effects of pesticides 

1938 where they work. One comment described a situation where a farmworker advocacy organization 

1939 requested such information from an employer on behalf of two ill workers, but their request was denied 

1940 because the workers themselves did not make the request. One commodity association was in support 

1941 of a provision for a designated representative. One farmworker advocacy group wanted collective 

1942 bargaining agents to be able to obtain records as well as designated representatives. A citizen noted 

1943 that a family of a worker could also need or want access to the information. 

1944 In contrast, there was significant opposition from many state regulatory agencies, farm bureaus, 

1945 the SBA Office of Advocacy and the agricultural industry in general to the proposal for the designated 

1946 representative, including growers, pesticide manufacturers, and their organizations. Comments from 

1947 these groups centered on the additional burden on employers to provide the records. Many 

1948 commenters also expressed concerns that allowing access to pesticide application information by 

1949 designated representatives could be abused by anti-pesticide organizations and others, who could send 

1950 people onto the establishment requesting information purportedly on behalf of a worker or handler. 

1951 One farm bureau described a hypothetical situation, and gave examples of legal challenges to, and 

1952 alleged harassment of, farmers by persons purporting to be worker advocates. To alleviate this concern, 

1953 it was suggested by at least one commodity organization and one farm bureau that the designated 

1954 representative be restricted to someone already associated with the farming operation, such as a 

1955 foreman. 

1956 There was concern expressed by commenters of the privacy of information. Some farm bureaus 

1957 stated that the requirement for providing the information to a representative is a violation of farmer’s 

1958 legal and privacy rights, stating that the representative could demand all information related to 

1959 pesticides on that establishment. In one state, a yearlong debate centered around whether or not to 

1960 keep pesticide application information confidential. Ultimately, the state’s solution was to enhance the 

1961 pesticide use information gathered by the USDA’s National Agricultural Statistics Service and still 

1962 maintain the anonymity of pesticide users. 

1963 Some commenters pointed out that the WPS already requires under the “emergency assistance 
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1964 provisions” that employers provide promptly upon request to workers, handlers or treating medical 

1965 personnel, information on the pesticide to which a person may have been exposed, treatment 

1966 information, how the pesticide was used and circumstances of possible exposure. One state regulatory 

1967 agency suggested that EPA use USDA’s provision for making pesticide applicator records of restricted 

1968 pesticide use available to certified or licensed health care professionals, or those acting under their 

1969 direction, for the treatment of any individual who may have been exposed to an RUP. The USDA 

1970 regulation (7 U.S.C. 136i-1) also requires that the information be made available immediately in case of 

1971 a medical emergency.

1972 One association of state regulatory agencies objected because of the time and administrative 

1973 burden to themselves and to agricultural employers. Another state regulatory agency was concerned 

1974 that a requirement to provide information upon request and during normal work hours meant that the 

1975 agricultural employer would have to be chained to their office in case someone were to appear with a 

1976 request. According to several grower organizations, unless EPA requires that all records be kept in one 

1977 physical location agricultural employers may need to respond more than once to a single request since 

1978 various records could be kept in various places on an establishment. One state was concerned that if 

1979 the agricultural employer were to make the information available orally or electronically, there would be 

1980 no record of compliance. 

1981 Some state regulatory agencies and other commenters provided recommendations to improve 

1982 the proposed requirement for a designated representative. Suggested improvements included limiting 

1983 the designated representative requirement to current workers and handlers or to employees who 

1984 worked on the establishment within two years of the request, limiting access to medical personnel only, 

1985 or limiting the request to a specific acute incident. Many state regulatory agencies, a farmworker 

1986 advocacy organization and others recommended that the request be in written form, on paper or 

1987 electronically, and include designation of the representative by the worker or handler. One state 

1988 recommended defining a time frame for provision of the information to the requester. Another state 

1989 suggested that the request clearly identify the information required to be provided to the designated 

1990 representative, and the purpose of the request or intended use of the information. State regulatory 

1991 agencies were concerned about the ambiguity of the requirement to fulfill a request for information no 

1992 later than the end of the day of the request. A few farmworker advocacy organizations expressed 

1993 concern that there was no requirement to provide information to the designated representative for 

1994 free. They maintained that the information should be provided at no cost, as is the case with a similar 

1995 OSHA requirement. 

1996 Many of the commenters in favor of keeping the existing central display requirement explained 

1997 that a central display requirement that provides information about general pesticide safety, including 

1998 symptoms of pesticide illness and the specific pesticides used on the establishment, is necessary to 

1999 protect the health of workers and handlers. First, having information available in non-emergency 

2000 situations could help workers and handlers be aware of symptoms before they occur, help them avoid 

2001 exposure, and possibly enhance the reporting of illnesses. Secondly, they stated that emergency medical 

2002 personnel would not have to lose critical time tracking down information instead of treating the ill or 

2003 injured person if they could rely on accessing the information quickly from the central display. As 

2004 expressed by one municipality required to post similar kinds of information, employers’ convenience 

2005 should not outweigh the employees’ right to have the information available to them. One farmworker 

2006 advocacy organization argued that a lack of current information at central displays is attributable to a 

2007 lack of compliance and not problems with the requirement itself. 

2008 EPA also received comments from one pesticide manufacturer organization, a couple of states 
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2009 and some farm bureaus in favor of the proposal to eliminate the existing requirement for a central 

2010 display of pesticide application information. These commenters agreed with EPA’s observations in the 

2011 preamble to the proposal that this requirement imposes a paperwork burden and that states often cite 

2012 employers for technical violations of the display requirement. The commenters stated it is difficult to 

2013 keep the displayed information current when application plans change, especially on large 

2014 establishments. They also noted the difficulty keeping information legible when it is displayed at a 

2015 central location subject to weather conditions. These commenters encouraged EPA to eliminate the 

2016 existing central display requirement, not to finalize the proposed requirement to provide hazard 

2017 communication information to workers, handlers, or their designated representative, and to require 

2018 employers to only keep records of pesticide applications on their establishment.

2019 EPA Response. EPA agrees with those commenters who argued that workers and handlers must 

2020 have relatively unhindered access to pesticide-specific information, and has decided to retain the central 

2021 display requirement. Although the extent and type of barriers and employer-employee dynamics are 

2022 unique to each situation, EPA recognizes that a significant number of workers and handlers face 

2023 disadvantages that can reasonably be expected to make them hesitant to ask their employers for 

2024 information relating to their pesticide exposure. As stated by commenters, agricultural employers are 

2025 accustomed to complying with the requirement and workers and handlers already know to find the 

2026 information at the central location. EPA recognizes that it is an environmental justice issue and that 

2027 removing the requirement would be taking a step backwards. Consequently, EPA believes that it is not 

2028 reasonable to make it more difficult for an employee to obtain this information, particularly given the 

2029 potential usefulness of the information if an employee may have been harmed by a pesticide. 

2030 Therefore, EPA has decided to retain the requirement for the pesticide application information to be 

2031 displayed at a place on the establishment where workers and handlers are likely to pass by or 

2032 congregate and has added the requirement that the SDS must also be displayed at that location. 

2033 In the final rule, workers and handlers, their designated representative and any treating medical 

2034 personnel may request either a copy of or access to the pesticide-specific information that was required 

2035 to be displayed while the worker or handler was employed on the establishment. The records of 

2036 application and SDSs must be retained for two years after the date of expiration of the REI applicable to 

2037 the pesticide application. Access to the SDSs after the display period will afford workers and handlers 

2038 information about the pesticides they may have been exposed to, and the hazards they may present.

2039 EPA recognizes, however, that there can be difficulties in complying with the central display 

2040 requirement. In response to comments about the difficulty of keeping accurate information posted, EPA 

2041 simplified the central display requirement by changing the required time frame for posting the 

2042 application-specific information from before the application to within 24 hours of the end of the 

2043 application. (Unit VII.D.) EPA expects this modification to the requirement for the timing to post the 

2044 application information will reduce the burden on employers, while providing employees with ready 

2045 access to accurate information. In response to the comments about the difficulty of maintaining a 

2046 legible central display when it is subject to weather conditions, EPA notes that the central display 

2047 requirement does not mandate how or where employers post the information. Rather, the information 

2048 must be displayed “where workers and handlers are likely to pass by and congregate and where it can 

2049 be readily seen and read” and workers and handlers must be able to access the information at all times 

2050 during work hours. This does not preclude the central display from being maintained in a location 

2051 sheltered from weather conditions, such as a bathroom, break area, or changing area, as long as the 

2052 requirements of this section are met. Nor does it preclude the information from being displayed in a 

2053 hard plastic holder or binder. In addition, the requirement for a “central” display does not limit the 
Page 47 of 176

2054 employer to only one location on the establishment. If workers and handlers are unlikely to congregate 

2055 in one place on the establishment, there may be several locations but all of the same information must 

2056 be present, accessible during work hours and be readily seen and read. Lastly, agricultural employers 

2057 may provide the information through electronic means (e.g., texts, scan codes, Internet sites), but they 

2058 must also display paper copies of the application information and SDS since workers and handlers may 

2059 not have regular, dependable Internet access or cellphone coverage. 

2060 EPA has been convinced by comments in support of retaining the option for a designated 

2061 representative to access hazard information (application information and SDS) on behalf of a worker or 

2062 handler. EPA agrees that including in the rule a requirement, based on OSHA’s rule at 29 CFR 1910.1020, 

2063 for employers to provide the information to a representative who has been designated to act on the 

2064 behalf of the worker or handler would give workers and handlers more access to information related to 

2065 pesticides used in their workplace. Also, EPA is aware that California and Texas regulations include 

2066 requirements for employee representatives’ to be given access to hazard information for farmworkers, 

2067 and comments from the Texas Department of Agriculture encouraged EPA to require the designation in 

2068 writing and to limit access to records to the retention timeframe of two years. EPA is unaware of issues 

2069 related to worker representatives having access to hazard information on behalf of workers in those 

2070 states. Under this provision, workers and handlers may also request the information directly from the 

2071 agricultural employer, either orally or in writing. 

2072 In response to the many comments opposing the establishment of the authorized or designated 

2073 representative based on concerns for the potential for anti-chemical activists fraudulently acquiring 

2074 records, the final rule includes a requirement for the representative to provide to the employer 

2075 documentation (written authorization) signed by the worker or handler that clearly designates that 

2076 person to act as his or her designated representative. The information that can be obtained is limited to 

2077 the application and hazard information that is required by § 170.311(b) of the final rule that was 

2078 required to be displayed while the worker or handler was on the establishment, and for the dates 

2079 applicable to the worker’s or handler’s dates of employment on the establishment. The employer must 

2080 provide the information regardless of the worker’s or handler’s employment status on that 

2081 establishment at the time of the request. 

2082 Although the existing WPS requires that agricultural employers provide the pesticide application 

2083 information under the emergency assistance provision, the difference is that the information can be 

2084 accessed before an emergency. Medical professionals may request the information if they suspect a 

2085 chronic exposure, for example. A designated representative may request the information to be able to 

2086 translate it for a worker, handler or a family member, or, as one commenter emphasized, to be able to 

2087 knowledgeably answer workers’ and handlers’ information about exposure during pesticide safety 

2088 training. These situations would not qualify for access to the information under the emergency 

2089 assistance provision. 

2090 EPA was convinced by comments about the need for the pesticide specific information by 

2091 medical personnel treating workers or handlers who may have been exposed to pesticides on the 

2092 establishment, and has added a requirement that employers promptly provide the information to the 

2093 requesting medical personnel or persons they supervise. The request may be made orally or in writing, 

2094 but in either case the information that must be provided to medical personnel is the same set that must 

2095 be provided to an employee or a designated representative. The information would help ensure that 

2096 the medical considerations would include the possibility that a pesticide exposure was involved in the 

2097 worker’s or handler’s illness. 

2098 B. Pesticide-Specific Hazard Communication Materials – General
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2099 1. Current rule and proposal. The existing WPS requires employers to provide workers and 

2100 handlers with specific pesticide application information, but not pesticide-specific hazard information,

2101 on the pesticides they may be exposed to in the workplace. 

2102 EPA proposed to require employers to provide workers and handlers with access to the SDSs 

2103 and pesticide labeling for products that have been applied on the establishment and to which workers 

2104 and handlers may be exposed, in addition to the pesticide application information already required to 

2105 be made available.

2106 2. Final rule. EPA has finalized the requirement for agricultural employers to display at a central 

2107 location pesticide application information and SDSs for pesticide products used on the establishment 

2108 (referred to as “pesticide application and hazard information” in the final rule). The same information 

2109 must be kept as records for two years from end date of the REI, and provided to designated 

2110 representatives, workers and handlers, and medical personnel upon request. EPA has not finalized the 

2111 proposal to require employers to provide access to pesticide labeling. The final regulatory text for this 

2112 requirement is available at 40 CFR 170.311(b).

2113 3. Comments and responses.

2114 Comments on providing safety data sheets and pesticide labeling. EPA received many comments 

2115 from farmworkers, farmworker advocacy organizations, unions, public health organizations, academics, 

2116 citizens, a grower organization and a few state regulatory agencies in support of providing information 

2117 on pesticide-specific health effects to workers and handlers. Most were in favor of providing both the 

2118 label and SDS. However, many commenters focused their comments on the SDSs because of their 

2119 information on the health effects of pesticides. It was asserted that migrant clinicians lack farm-specific 

2120 information for pesticides, and that SDSs would help them make correct and early diagnosis for the 

2121 treatment of pesticide-related illnesses. One point expressed repeatedly in letters from and surveys of 

2122 farmworkers, as well as supported by many farmworker advocacy organizations, was the desire of 

2123 farmworkers to have specific information on what is used, what they are exposed to, and potential 

2124 effects. Many farmworkers believe that agricultural employers don’t care about their health, and insist 

2125 that employers need to make employee/farmworker health a priority. One farmworker advocacy 

2126 organization argued the worth of providing the information if it has any possibility of helping workers 

2127 recognize symptoms of exposure and to seek timely medical care. Research by one academic 

2128 institution described the positive results of providing pesticide-specific hazard information to 

2129 farmworkers. First without the information, farmworkers often rely on lay knowledge and sensory 

2130 perception that can often be dangerous and misleading, such as assuming that no odor means no risk. 

2131 Second, there is a positive correlation between farmworkers’ access and receipt of health and safety 

2132 information and their safety behavior (e.g., hand washing). Along the same lines, one state regulatory 

2133 agency supports the belief that well-informed people are able to make better decisions. Furthermore, 

2134 according to a couple of farmworker advocacy organizations, providing such information would make 

2135 farmworkers feel more vested in their work and improve employer-employee relations. 

2136 On the other hand, a few grower organizations, a farm bureau, a pesticide manufacturer 

2137 organization and a couple of states were against a requirement to provide labeling and SDSs. These 

2138 commenters argued that EPA had not made a case strong enough to justify a need. An association of 

2139 pesticide manufacturers questioned the utility of requiring SDSs when labels or label information can 

2140 already be requested through the existing emergency assistance provision. At least one grower 

2141 organization thought it would only create confusion for agricultural employers to obtain and provide 

2142 SDSs since it is redundant with the OSHA Hazard Communication Standard. One state thought SDSs 

2143 were too complex and confusing for farmworkers, and using them could result in unintended 
Page 49 of 176

2144 consequences. Because of the complexity, employers who are not usually qualified to teach could feel 

2145 obligated to train workers on the health effects of pesticides. One commodity organization was 

2146 concerned that the information would be unduly alarming to workers without the proper context. One 

2147 grower organization said they witnessed workers claiming illness based on the power of suggestion 

2148 inherent in health effect information, rather than an actual exposure. They fear misdiagnoses since 

2149 symptoms of a foodborne illness, heat stress and the flu are similar to a pesticide poisoning. They also 

2150 opposed display of SDSs on the grounds that while the pesticide product label poses legally enforceable 

2151 requirements on users, SDSs do not. 

2152 Some farmworker advocacy organizations, public health organizations, a grower organization, a 

2153 farm bureau, an academic institution, unions, a state regulatory agency and others thought it would not 

2154 be much of a burden on agricultural employers to acquire the SDSs of pesticide products because they 

2155 are easily available online or can be requested from the pesticide manufacturer or distributor. One 

2156 farmworker advocacy organization gave the Washington State Hazard Communication rule (HC rule) as 

2157 an example that it is a feasible requirement for employers to make SDSs available to employees. 

2158 http://www.lni.wa.gov/IPUB/413-012-000.pdf. The Washington State HC rule applies to employers with 

2159 one or more employees who either handle or are potentially exposed to hazardous chemicals, including 

2160 pesticides, in their workplace. It requires employers to make SDSs for each chemical that employees 

2161 may encounter readily accessible and easily obtained without delay during each work shift, and to 

2162 ensure that employees traveling between workplaces during a work shift can immediately obtain the 

2163 SDS in an emergency. Several commenters suggested that EPA consider maintaining a repository of 

2164 SDSs. 

2165 In contrast, a couple of grower associations and one state regulatory agency thought it overly 

2166 burdensome for agricultural employers to obtain SDSs. One state thought it would be difficult for 

2167 employers to locate the correct SDS for pesticide products. They also noted that small businesses that 

2168 do not meet the OSHA threshold of 10 employees or more and private applicators would have the most 

2169 difficulty since they are not already accustomed to obtaining and keeping SDSs. 

2170 EPA received some comments both for and against providing pesticide product labeling. Many 

2171 farmworker advocacy groups and an association of pesticide manufacturers supported a requirement 

2172 for the employer to provide the labeling. These commenters maintained that workers and handlers 

2173 want more information on chemicals to which they may be exposed. One commenter favored providing 

2174 the label over the SDS because the label is the culmination of regulatory testing and specifies the use of 

2175 the product so as to mitigate risks to workers, handlers and applicators, and provides environmental 

2176 safety information for the pesticide and its use on crops. 

2177 On the other hand, farm bureaus, growers and grower organizations and states opposed a 

2178 requirement to provide the labeling. These commenters expressed concern that EPA is expanding its 

2179 mandate by requiring agricultural employers to provide the product “labeling” when it should be limited 

2180 only to the WPS portions of the “label.” They also were concerned that an agricultural employer could 

2181 easily violate this requirement by not having the most current or correct version of the labeling, such as 

2182 a specimen or technical label. They argued that workers and others could look up the label based on 

2183 application-specific information contained in the pesticide application record. 

2184 EPA Response. After consideration of the comments, EPA remains convinced that access to SDSs 

2185 offers significant health and safety benefits to workers and handlers. SDSs contain information that is 

2186 not generally included in pesticide labeling regarding chronic, developmental, and reproductive toxicity 

2187 that can be valuable to exposed and potentially exposed workers, and to medical personnel and others 

2188 who provide treatment to an ill or injured person. Moreover, given the ubiquity of chemicals subject to 
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2189 the OSHA Hazard Communication Standard that mandates the development and distribution of SDSs, it 

2190 is likely that many health care professionals are more familiar with SDSs than pesticide labeling. 

2191 Requiring the SDS as part of the central display facilitates a quicker identification of the pesticide 

2192 product used in case of an incident and may assist in diagnosis. The SDS contains information about 

2193 symptoms expected in a person exposed to the chemical (immediate, delayed and chronic effects) as 

2194 well as recommended treatment, whereas the label may not include detailed information on symptoms 

2195 or treatment. EPA recognizes that state pesticide regulatory agencies do not review, approve, or take 

2196 enforcement action based on the information in SDSs. However, comments from farmworker advocates 

2197 indicate that workers and handlers want to have more information on health effects, which is available 

2198 on SDSs and generally not available on the pesticide labeling. OSHA is requiring that all SDSs be in a 

2199 standard format, making it easier to locate health information (Ref. 17). Accordingly, EPA concludes that 

2200 a requirement to display and make available SDSs is an effective way to communicate pesticide hazard 

2201 information important to workers and handlers. EPA notes that under the final rule workers and 

2202 handlers will learn during pesticide safety training about SDSs, the information they contain, and their 

2203 availability at central display locations. This addition to the training will further reinforce workers’ and 

2204 handlers’ awareness and potential use of SDSs. 

2205 EPA is persuaded that access to SDSs is not a significant obstacle to requiring agricultural 

2206 employers to keep and display SDSs for pesticide products used on the establishment. Agricultural 

2207 employers can obtain SDSs from the distributor of the pesticide, online, or upon request from the 

2208 product manufacturer. For example, employers in industries other than agriculture – including retailers 

2209 and wholesalers of agricultural chemicals - are required by the OSHA Hazard Communication Standard 

2210 to make available SDSs to their employees. 

2211 Upon consideration of the comments, EPA has decided not to require agricultural employers 

2212 include the pesticide product label or labeling as part of the central display requirement. EPA recognizes 

2213 the burden on employers to provide both the SDS and label or labeling in addition to the pesticide 

2214 application information. As noted previously, the SDS contains the health-related information requested 

2215 in comments by worker advocates, and that would be most useful to persons providing treatment to 

2216 those who may have been exposed to pesticides. EPA agrees that if necessary, the labeling for a product 

2217 used for a specific application can be located using the application-specific information that employers 

2218 are also required to post. 

2219 Comments on the extent of the requirement. EPA received comments both to narrow and to 

2220 expand the scope of the proposal requiring employers to maintain SDSs and make them available to 

2221 employees. At least one association of pesticide manufacturers, a grower association and a few state 

2222 regulatory agencies thought the existing hazard communication requirements were sufficient. Among 

2223 the suggestions to narrow the scope of the proposal, one state and one academic institution wanted 

2224 EPA to keep a central repository of SDSs for agricultural employers to access. Another suggestion was to 

2225 require employers to keep the SDS only while the associated pesticide product remains on the 

2226 establishment. Farmworker advocacy organizations, public health organizations, and one academic 

2227 institution recommended expanding the proposed requirement to a full Hazard Communication (HC) 

2228 Standard as required by the Washington State HC for all hazardous chemicals, which requires employers 

2229 to develop a written Hazard Communication program, maintain availability and access to SDSs, provide 

2230 information and training on hazards in the workplace, translate certain documents upon request, and 

2231 keep and provide access to exposure records for at least 30 years. The academic institution explained 

2232 that employers could be more committed to having a more effective hazard communication program if 

2233 they had to put in writing. Furthermore, a written program would also serve as verification of 
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2234 compliance for enforcement staff. One suggestion from a farmworker advocacy organization was to 

2235 form a safety committee in each workplace to review and provide SDSs and other materials to workers. 

2236 The safety committee would include farmworkers, thus offering them an opportunity to be leaders at 

2237 the work site. 

2238 Many farmworker advocacy organizations, farmworkers, citizens and one academic institution 

2239 suggested EPA require that SDSs be available in the workers’ native language and provided examples of 

2240 similar requirements. First, one farmworker advocacy organization cited the Migrant and Seasonal 

2241 Agricultural Worker Protection Act (29 U.S.C. 1801, et seq.), administered by the DOL, which requires 

2242 written information on the terms of employment to be provided in English, Spanish or other language 

2243 common to workers. One farmworker advocacy organization noted that employers are required by the 

2244 Department of Labor to provide to workers in a language they understand information on wages and 

2245 working conditions, and that vital health information such as pesticide application records should 

2246 therefore be treated the same way. Along the same lines, one academic institution explained it is an 

2247 environmental justice issue not to make the information available in their native language. 

2248 Furthermore, one state regulatory agency thought it worthless to provide any information only in 

2249 English. 

2250 Many farmworker advocacy organizations, unions, citizens, academics, public health and 

2251 organizations commenters argued there is a minimal burden to translating SDSs. According to a 

2252 farmworker advocacy organization, the translation cost would be small compared to the benefits of a 

2253 more informed workforce and safer workplace. As one union pointed out, the burden to translate SDSs 

2254 would not be on the farmers, but on pesticide manufacturers who have the resources to do so 

2255 efficiently. Many gave the Washington state requirement as an example that it is feasible. In 

2256 Washington state, agricultural employers are required to provide translated documents if requested. 

2257 Farmworker advocacy organizations asserted that it would be easy to translate SDSs because of the 

2258 standard format required by OSHA’s adoption of the Globally Harmonized System of Classification and 

2259 Labeling of Chemicals. To address the complexity of information in SDSs, however, one academic 

2260 institution suggested they be rewritten at the reading level of pesticide handlers. There was also 

2261 opposition to mandatory translation of SDSs. One pesticide manufacturer organization was against 

2262 translating the SDS because of cost and the many languages used by agricultural workers. 

2263 EPA Response. After reviewing the comments, EPA has decided on an approach that will provide 

2264 workers and handlers with more information about the potential health effects associated with the 

2265 pesticides to which they may be exposed without overly burdening agricultural employers. Obtaining 

2266 the SDSs for products used on the establishment should not be overly burdensome to employers; SDSs 

2267 are available from pesticide dealers and the Internet. An EPA-managed repository of the SDSs of all WPS 

2268 pesticides would not significantly improve access and would be a significant burden for EPA because of 

2269 the number of pesticides used in agriculture. Stakeholders such as grower organizations are free to 

2270 voluntarily develop SDS repositories with assistance from members. Voluntary programs of this sort 

2271 would involve limited subsets of all WPS-scope pesticide products and could possibly be accomplished 

2272 within a short period in comparison to a national, full-scale repository program.

2273 EPA disagrees with commenters’ request to adopt a full hazard communication proposal as 

2274 required by the Washington State HC for all hazardous chemicals. The full set of the WPS requirements 

2275 in the final rule provide protections similar to those provided to workers in other industries under 

2276 OSHA’s Hazard Communication Standard, while recognizing differences between agriculture and other 

2277 industries. As discussed in the Agency’s 1992 proposed rule on the Worker Protection Standard; Hazard 

2278 Information (Ref. 18), in response to numerous concerns about potential overlap or conflict between 
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2279 EPA’s July 1988 proposed WPS (Ref. 18) and OSHA’s August 1988 proposed Hazard Communications 

2280 Standard (Ref. 19), EPA committed to work with OSHA to minimize confusion and avoid duplication 

2281 between the two agencies’ requirements. Rather than require agricultural establishments that may not 

2282 routinely use the same pesticides to develop and maintain a written Hazard Communication Standard 

2283 plan listing all chemicals that will be used in the workplace, EPA’s approach, in both the 1992 proposed 

2284 rule on Hazard Information (Ref. 20) and this final rule, has been to identify generally applicable 

2285 requirements, tailored to fit the context of pesticide use in agricultural production that serve a purpose 

2286 similar to the Hazard Communication Standard requirements in other industries. These requirements 

2287 include pesticide safety training, display of basic pesticide safety information, notification or posting of 

2288 treated areas, and access to information about pesticides used in the workplace at a central location.

2289 EPA notes that the WPS does not exempt employers with 10 or fewer employees, unlike OSHA’s Hazard 

2290 Communication Standard, and that the cost of a developing and implementing a full hazard 

2291 communication program specific to each establishment could be burdensome to small agricultural 

2292 establishments. 

2293 Lastly, although EPA is not requiring that SDSs be translated at this time, EPA encourages and 

2294 supports employers to display this information in such a way that workers and handlers can understand, 

2295 including translation. EPA is open to conferring with stakeholders on the need for translation and

2296 identifying content to be translated, if necessary. EPA notes that some pesticide manufacturers already 

2297 make pesticide product SDSs available in Spanish and EPA encourages employers to display Spanish SDSs 

2298 where available and appropriate.

2299 Comments on other forms of hazard communications materials. Many farmworker advocacy 

2300 organizations, public health organizations, unions, academics, citizens and a couple of state regulatory 

2301 agencies suggested EPA develop and provide crop sheets, booklets, or other types of materials that 

2302 describe the health effects of pesticides, either in lieu of or in addition to the SDS. These commenters 

2303 identified a need for a pictorial booklet that was culturally appropriate and designed for low-literacy 

2304 audiences on the health effects from exposure to pesticides, based on the information in SDSs. One 

2305 state suggested that a small booklet with basic pesticide exposure symptoms by classes of chemicals or 

2306 modes of action, described in layman’s terms would be more helpful to workers than SDSs. Many 

2307 commenters cited a study in Oregon as support for crop sheets, and gave experiences of California and 

2308 Texas as examples that crop sheets are feasible. The Oregon study claimed to have shown reductions in 

2309 pesticide exposure of farmworkers who received enhanced pesticide safety training in their native 

2310 languages. The enhanced training included a crop booklet in the workers’ native language with short 

2311 and long term health effects of pesticides used in the nursery industry. A couple of farmworker 

2312 advocacy organizations described an increase in interest and engagement by farmworkers when shown 

2313 sample crop sheets during pesticide safety training. 

2314 Commenters gave EPA suggestions. For example, EPA should develop and provide electronic 

2315 templates for crop sheets, and provide them at training and under PlexiGlas® boxes at field 

2316 decontamination sites. 

2317 Several commenters agreed with EPA’s decision not to require crop sheets. One pesticide 

2318 manufacturer organization and one commodity association opposed the development of crop sheets, 

2319 mostly because the benefits do not justify the cost. 

2320 EPA Response. EPA does not agree with commenters’ request to require crop sheets or similar 

2321 materials because, in EPA’s judgment, the benefits of such a requirement would not justify the 

2322 substantial costs associated with creating, updating, translating and distributing materials for every 

2323 crop, growing region, and WPS-scope pesticide product. As noted in the proposal for this rule, crop 
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2324 sheets and other types of material have been developed in the past, with very limited success. For 

2325 example, one state’s crop sheet program proved to be expensive and labor intensive, and the crop 

2326 sheets were left as litter in the fields, unused. 

2327 SDSs already contain information about the potential health effects (acute, delayed, and 

2328 chronic) associated with use of pesticide products and will be readily available in a uniform format, 

2329 including provide hazard information in words and in pictograms. Pesticide safety training and the 

2330 pesticide information display provide workers and handlers with information on the symptoms that may 

2331 be associated with exposure to the specific pesticides they may have had contact with. If workers or 

2332 handlers need information about the specific effects of a pesticide with which they have worked, they 

2333 can consult the SDS. 

2334 Comments on inconsistencies in information between labels and SDSs. A pesticide manufacturer 

2335 organization opposed any requirement by EPA to provide SDSs to worker and handlers upon request. 

2336 This commenter expressed concern about the confusion that may be caused by inconsistencies between 

2337 pesticide labels and SDSs. OSHA requires manufacturers to use GHS terms and chemical classification 

2338 criteria on SDSs whereas EPA does not require their use on pesticide product labels. As a result, SDSs 

2339 and pesticide product labels could have different hazard statements, pictograms and signal words. 

2340 EPA Response. EPA has not finalized the proposed requirement for the employer to make 

2341 available pesticide product labeling upon request. Instead, the final rule requires the employer to 

2342 display only pesticide application information and SDSs for pesticide products used on the 

2343 establishment. The SDS provides succinct information about the known health hazards of the product 

2344 that typically is not presented as part of the product label or labeling. Such information can be 

2345 invaluable to medical professionals for the diagnosis and treatment of certain pesticide-related illnesses 

2346 and injuries. Because EPA is not requiring the employer to display the labeling, EPA does not expect 

2347 issues with a perception of conflict between labeling and SDSs. The persons who wear PPE and have 

2348 access to the label are pesticide handlers who receive more thorough training than workers. If pesticide 

2349 handlers encounter conflicting information on labeling and SDSs, such as the PPE identified, they should 

2350 know they must follow the instructions on the pesticide labeling, as they are trained to do. For 

2351 information on OSHA’s adoption of the Globally Harmonized System of Classification and Labeling of 

2352 Chemicals for SDSs and the pesticide product labeling, see EPA’s Pesticide Registration (PR) Notice 2012-

2353 1, Material Safety Data Sheets as Pesticide Labeling (http://www2.epa.gov/sites/production/files/2014-

2354 04/documents/pr2012-1.pdf).

2355 C. Pesticide Application Information – Content of Pesticide Application Information

2356 1. Current rule and proposal. In the existing WPS, the agricultural employer must record and 

2357 display the following information about each pesticide application: The location and description of the 

2358 area to be treated, the product name, EPA registration number and active ingredient(s) of the pesticide 

2359 product, time and date the pesticide is to be applied, and REI for the pesticide. 

2360 EPA proposed to require the agricultural employer to record and make available, in addition to 

2361 the information required in the existing regulation: The specific crop or site treated, the start and end 

2362 dates and times of the application, and the end date and duration of the REI.

2363 2. Final rule. EPA has finalized the proposed requirements for the contents of pesticide 

2364 application information, with one change. The final rule requires agricultural employers to record and 

2365 display the following pesticide application information: Product name, EPA registration number, and 

2366 active ingredient(s) of the pesticide product applied; the crop or site treated and the location and 

2367 description of the treated area; the date(s) and times the application started and ended; and the 

2368 duration of the REI. The final rule does not require the employer to record the end date of the REI. The 
Page 54 of 176

2369 final regulatory text for this requirement is available at 40 CFR 170.311(b)(1)(ii)-(v).

2370 The agricultural employer must record and display the information about the crop or site 

2371 treated and the location of the treated area. EPA encourages employers to display the information in 

2372 such a way that workers and handlers can understand and distinguish each treated area from all other 

2373 areas on the establishment; in some cases, a map or diagram may be appropriate. 

2374 EPA encourages and supports the display of application information so it is most useful to 

2375 workers and handlers on the establishment. One such option is to separate the information about 

2376 treated areas, so those areas where an REI is in effect are distinct from those where the REI has expired, 

2377 allowing the viewer to more quickly identify areas where entry is restricted. Similarly, maps highlighting 

2378 areas where an REI is in effect and those where the REI has expired could also present the information in 

2379 a user friendly, pictorial manner. EPA also sees an opportunity for employers to provide information of 

2380 this nature through texting and other electronic means to their employees, and encourages such 

2381 communication, in addition to the requirement for maintaining this information as part of the central 

2382 display.

2383 3. Comments and responses.

2384 Comments. Many farmworker advocacy organizations, a few state regulatory agencies, a farm 

2385 bureau, an academic institution, a grower organization, a union and others supported the proposed 

2386 expansion of the content requirement for pesticide application information records. According to these 

2387 commenters, it would be a small burden to require additional application information, such as crops 

2388 treated, that could help workers proactively avoid exposure to pesticides. Many farmworker advocacy 

2389 organizations insisted that the additional information would have been helpful to state regulatory 

2390 agency investigations and for the ability of workers and their families to keep themselves safe. A few 

2391 state regulatory agencies agreed that the additional information is essential for enforcement, and one 

2392 remarked that their state already required this information. According to a public health organization, 

2393 the agricultural employer already has the information so there would be no additional burden. The 

2394 information would assist workers in proactively avoiding exposure as well as health care providers when 

2395 evaluating and determining treatment for non-emergency exposure. One state regulatory agency asked 

2396 EPA to parallel the information required by USDA to avoid confusion for the applicator, agricultural 

2397 employer and state enforcement personnel, while another suggested that more information be required 

2398 in addition to the information proposed to assist state pesticide regulatory personnel in determining 

2399 compliance. Along the same lines, a union wanted EPA to add all of the ingredients and the Chemical 

2400 Access Service registry number to the records. Lastly, many commenters including citizens, farmworker 

2401 advocacy organizations and unions also wanted the pesticide application information written, and/or 

2402 orally communicated, to workers in their native language. A few states, two farmworker advocacy 

2403 organizations and other commenters suggested various combinations of records limited to three or 

2404 fewer pieces of information.

2405 Several farm bureaus, a pesticide retail association, one grower organization and several states 

2406 opposed any changes. These commenters asserted that the content required by the existing regulation 

2407 is already too burdensome and amply fulfills the need. Many of these same commenters opposed EPA’s 

2408 proposed expansion of the content of records stating that EPA had not justified it with quantifiable 

2409 benefits. These commenters suggested that EPA’s expansion of content was merely for additional 

2410 enforcement actions, with little to no benefit to the health and safety of workers. Furthermore, another 

2411 grower organization pointed out that workers will receive oral and posted notification before entering a 

2412 treated area. One grower organization argued that only a record of the active ingredient is needed for 

2413 medical treatment. Lastly, these commenters maintained that recordkeeping of general use pesticide 
Page 55 of 176

2414 applications is not required by law, the proposed requirement is duplicative of state and federal 

2415 requirements, and commercial applicators already keep records.

2416 EPA Response. EPA agrees with the comments that adding more information to application 

2417 records is a small burden compared to the benefits of determining compliance and giving workers and 

2418 handlers information to verify the location of treated areas. The crop or site treated, start and end times 

2419 and date(s) of the application, and duration of the REI are important for protecting worker and handlers 

2420 and useful for determining compliance, for health care provider evaluations and treatment options, and 

2421 for workers and handlers to take preventative protection against exposure. Although workers and 

2422 handlers will see warning signs and/or be notified orally of treated areas, the application-specific 

2423 information will not be available to them under those specific provisions. The final rule requires that 

2424 certain application-specific information for the treated area for which the workers will be conducting 

2425 early-entry tasks must be communicated orally to early-entry workers in a manner they can understand. 

2426 Workers and handlers will be able to see the application information at the central display while the REI 

2427 is in effect and for 30 days thereafter (or until workers and handlers are no longer on the establishment, 

2428 if that is less than 30 days), and by requesting a copy during the two year recordkeeping period. Being 

2429 able to see and review the information allows for a better informed workforce which, in conjunction 

2430 with the other provisions, helps workers and handlers take preventative measures against exposure. 

2431 Workers and handlers who know what they have been exposed to and when, and are aware of the 

2432 potential symptoms and treatment, are more likely to recognize when they need medical care, and are 

2433 better equipped to provide their relevant histories to health care providers who have to choose a 

2434 treatment option. 

2435 Agricultural employers, compliance officers, workers, handlers and others will be able to 

2436 calculate the end date and time of the REI by having the end date and time of the application and the 

2437 duration of the REI included in the pesticide application information. The combined information will also 

2438 help workers and handlers identify the areas where an REI is in effect. EPA did not propose requiring 

2439 more information because the proposed content of application records fits the needs of stakeholders to 

2440 determine compliance and to give workers and handlers the ability to discern which area had been 

2441 treated. An arbitrary limit of only three or fewer pieces of information may not achieve the same 

2442 benefits. 

2443 EPA is not requiring agricultural employers to translate or interpret the pesticide application 

2444 information into the native language of workers. Although the translated information would provide 

2445 significant benefits, the burden of translation would be significantly higher than providing the 

2446 information in English, and it is not clear that the benefits would be so much greater than the 

2447 requirement to provide the information in English. EPA anticipates that the new requirement allowing 

2448 designated representatives access to the application-specific information will help convey that 

2449 information to workers and handlers who do not understand English. Also, it appears that some SDSs 

2450 are already being provided in Spanish, and perhaps other languages, as well as English, which may 

2451 benefit many employees. Lastly, the lack of a requirement does not preclude voluntary translations and 

2452 interpretations by farmworker advocacy organizations or agricultural employers. 

2453 The WPS requires agricultural employers to maintain records because those records provide 

2454 information that is important for the protection of their employees. While a significant number of 

2455 agricultural employers may also be certified as private pesticide applicators, their status as private 

2456 applicators does not exempt them from the WPS recordkeeping required of agricultural employers. The 

2457 WPS does not require private applicators to maintain records on account of their status as private 

2458 applicators. 
Page 56 of 176

2459 The risks of concern under the WPS include both RUPs and non-RUPs, while certification 

2460 requirements at the federal level, including recordkeeping, only apply to those using RUPs. Neither the 

2461 USDA application record requirements for private applicators of RUPs, nor state application record 

2462 requirements for commercial applicators fully cover the information needed under the WPS for the 

2463 protection of workers and handlers. The USDA required information does not include the active 

2464 ingredients, duration of the REI or the start and end dates and times of applications, nor does it apply to 

2465 applications of non-RUP pesticides. Commercial applicators would have to record the information 

2466 required by the state pesticide regulatory agency, which must at a minimum include the kinds, amounts, 

2467 uses, dates and places of RUP applications. 40 CFR 171.7(b)(1)(iii)(E). Also, state pesticide regulatory 

2468 agencies may or may not require records of non-RUP applications. Therefore, it is unlikely that all states’ 

2469 commercial applicator RUP application records will match exactly the record requirements of the WPS. 

2470 Because the records required to be maintained by USDA and the states do not include all of the 

2471 information needed for protection of workers and handlers, it is appropriate to require such 

2472 recordkeeping through the WPS. 

2473 D. Pesticide Application and Hazard Information –When Information Must Be Made Available

2474 1. Current rule and proposal. In the existing rule, the agricultural employer must record and 

2475 display the pesticide application information before the application takes place, if workers or handlers 

2476 are present on the establishment before the application begins. Otherwise, the information must be 

2477 recorded and displayed at the beginning of any worker’s or handler’s first work period. If the employer 

2478 posts warning signs for a treated area, the pesticide application information must be displayed at the 

2479 same time as, or earlier than, the warning signs. The information must remain on display when workers 

2480 are on the establishment and from the time of the application until 30 days after the REI expires or until 

2481 30 days after the application end date if the REI is 0 hours (or in the rare instance where a label might 

2482 not have an REI). 

2483 EPA proposed to eliminate the central display requirement and require the agricultural 

2484 employer to provide the pesticide application information, the SDS and labeling upon request from a 

2485 worker, handler or authorized (now “designated”) representative during normal work hours, no later 

2486 than the end of the day. 

2487 2. Final rule. The final rule keeps the central display requirement and requires the agricultural 

2488 employer to display the pesticide application information and the SDS (pesticide application and hazard 

2489 information) at the central display no later than 24 hours after the application is complete. Also, the 

2490 employer must display the pesticide application and hazard information for a treated area before any 

2491 worker is permitted to enter that treated area, and for thirty days after the REI has expired. If workers 

2492 will be in the area, they must be notified of the application before it starts, by posted signs or orally, and 

2493 warned not to enter the area. The application information and SDS must remain posted for 30 days from 

2494 the expiration date of the REI or from the application end date if the REI is 0 hours (or in the rare 

2495 instance where a label might not have an REI). EPA did not finalize the proposed requirement for the 

2496 agricultural employer to make available the pesticide application information and SDS no later than the 

2497 end of the day of the application. Instead, the agricultural employer must provide the pesticide 

2498 application information and hazard information within 15 days of a written or oral request from a 

2499 worker or handler, or a written request from a designated representative. This new requirement is in 

2500 addition to the requirement to make exposure information promptly available to treating medical 

2501 personnel. The final rule eliminates the existing requirement to display the application information 

2502 before or at the same time a warning sign is posted at a treated area. The final regulatory text for this 

2503 requirement is available at 40 CFR 170.311(b)(5) and 40 CFR 170.309(l).
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2504 3. Comments and responses.

2505 Comments. Many farmworker advocacy organizations, citizens, a state regulatory agency and 

2506 public health organizations requested that EPA keep the existing requirement to make information 

2507 available before the application so workers and handlers would be able to connect symptoms to an 

2508 application if the exposure occurred during the application. While many farmworker advocacy groups 

2509 supported the display of information before an application, some expressed concern about the accuracy 

2510 of the pesticide application information displayed when the application changed from what was planned 

2511 and the displayed information was not updated. 

2512 On the other hand, many comments from a pesticide manufacturer association, several farm 

2513 bureaus, and many state regulatory agencies, commodity organizations and applicator organizations 

2514 requested more time for the agricultural employer to post the information at the central display. They 

2515 also requested an enforceable time period for posting the information and providing it to designated 

2516 representatives, workers, and handlers. Several farm bureaus, an academic institution, and one 

2517 pesticide manufacturer organization requested that EPA require employers to make the information 

2518 available after the application. An academic institution noted that it is difficult for agricultural 

2519 employers, who often hire commercial applicators, to get the information by the end of the day. Several 

2520 farm bureaus, many commodity organizations and a pesticide applicator association wrote about the 

2521 complications of providing accurate and timely information when application plans are changed because 

2522 of the weather, the unexpected presence of people in the area, or other unforeseen events. Along with 

2523 multiple fields at any one establishment and multiple customers over many establishments, these 

2524 changes make it difficult for applicators to keep agricultural employers informed of up to date 

2525 information. According to a commodity organization and a grower, sometimes records are not 

2526 complete until the following day, or need to be verified and corrected. Also, more time helps with 

2527 scheduling other field activities around pesticide applications and avoids confusion when posting 

2528 multiple schedule changes. Several commodity organizations pointed out that there are applications 

2529 that take place at night and overnight, making it difficult to decide what “the end of the work day” was, 

2530 particularly when nobody is present for applications such as smoke or automatic fog. 

2531 EPA Response. EPA agrees with the commenters that it is important to provide workers and 

2532 handlers with accurate information about pesticide applications. Displaying the information after the 

2533 application is completed benefits workers and handlers because they can be confident the information 

2534 is correct, and the employer no longer has to change the information when application plans change. 

2535 Under the final rule, EPA expects all displays of pesticide application information will contain accurate 

2536 information. The final rule retains the requirement for workers to receive oral notification, or to see 

2537 posted warning signs, or both before an application begins, informing them to stay out of an area before 

2538 an application begins. Also, the final rule assists with compliance and enforcement by giving specific 

2539 time periods for displaying information at the central location and providing information at the request 

2540 of workers, handlers or designated representatives. 

2541 E. Pesticide Application and Hazard Information – Retention of Records

2542 1. Current rule and proposal. The existing WPS requires employers to maintain pesticide 

2543 application information at the central display from the time of application until 30 days after the REI 

2544 expires. There is no requirement for the employer to retain the pesticide application information in any 

2545 form after that time. 

2546 EPA proposed to require employers to retain, for each application of a WPS-covered pesticide, 

2547 the pesticide application information, labeling and SDS, for two years from the date of the end of the REI 

2548 for each product applied. 
Page 58 of 176

2549 2. Final rule. The final rule requires agricultural employers to retain the pesticide application 

2550 information and the SDS for the product used (pesticide application and hazard information) for two 

2551 years from the date of expiration of the REI applicable to the application conducted. EPA has not 

2552 included the proposed requirement for the employer to retain the pesticide labeling in the final rule. 

2553 The final regulatory text for this requirement is available at 40 CFR 170.311(b)(6). 

2554 3. Comments and responses.

2555 Comments - timing. EPA received many comments supporting a two-year recordkeeping 

2556 requirement from some state pesticide regulatory agencies, several grower organizations, a few 

2557 academic institutions, and a pesticide safety educator association. One of the grower associations 

2558 supported EPA’s assertion that two years was sufficient for employees to access records and states to 

2559 investigate complaints. An academic institution supported a two-year recordkeeping requirement, 

2560 stating it would improve the state’s ability to follow-up on referrals it makes on reported cases of 

2561 pesticide exposure. One state pesticide regulatory agency commented that it did not have a need for 

2562 the information after one year, but that two years was not much more of a burden. A state regulatory 

2563 agency and a grower organization commented that the records should be kept for two years from the 

2564 date of application, rather than from when the REI expires. Many commenters requested EPA to require

2565 records to be kept for longer than two years. There was support by an agricultural association and an 

2566 applicator for a four-year recordkeeping period if the minimum age requirement for early entry workers 

2567 and handlers was 16 years old. The commenters reasoned that a four-year requirement would mean 

2568 that records would remain available for two years after they turned 18 years old, in the event of a 

2569 lawsuit One academic institution and a farmworker advocate endorsed a five-year requirement to 

2570 coincide with the statute of limitations for civil violations as was suggested by EPA. Several farmworker 

2571 advocates supported keeping records for seven years, because illnesses may take longer than two years 

2572 to develop. These commenters also claimed that seven years was feasible because it is a requirement in 

2573 Washington. An academic association and many farmworker advocates supported a recordkeeping 

2574 period of at least 30 years, which is consistent with OSHA’s requirement, in order to help with the 

2575 diagnosis of chronic health effects that could be related to pesticide exposure. 

2576 Many commenters, including farm bureaus, grower associations, the SBA Office of Advocacy, a 

2577 few state pesticide regulatory agencies, a pesticide manufacturer and several agricultural organizations 

2578 opposed a two-year recordkeeping requirement. Some commenters opposed any recordkeeping 

2579 because they asserted that EPA could not show quantifiable benefits. These commenters argued it 

2580 would be a paperwork exercise without health and safety benefits driven based on the needs of 

2581 enforcement. Some other commenters shared these concerns and said that the proposed approach 

2582 should be replaced with a minimal, non-intrusive requirement such as a one-year time period. One 

2583 commenter suggested requiring employers to keep records only during the harvest season (crop year). 

2584 A grower organization argued that last year’s records have no bearing on worker protection in real time. 

2585 Several grower associations thought two years did not make sense, partly because the plants would no 

2586 longer be there. A state regulatory agency recommended limiting recordkeeping to only when the 

2587 pesticide product is on the establishment, either in use or available for use. One agricultural association 

2588 was concerned that an increase in documentation and recordkeeping would force state regulatory 

2589 agencies to divert scarce resources from compliance and enforcement to the auditing of records. 

2590 EPA Response. EPA has concluded that a two-year record-keeping requirement would be helpful 

2591 for health diagnoses and investigation purposes. EPA considered requiring the retention of records for 

2592 five years and asked state pesticide regulatory agencies about their needs for access to pesticide 

2593 application records. These enforcement agencies informed EPA that they rarely need to rely on records 
Page 59 of 176

2594 beyond the two-year timeframe. EPA agrees with the commenters who pointed out that two years 

2595 allows a reasonable amount of time for follow up by state inspectors because it can take some time for 

2596 incidents or cases of potential pesticide exposures to come to the attention of state pesticide regulatory 

2597 agencies. In addition, a two year time frame allows time for workers and handlers to obtain the 

2598 information if they develop an illness, which they may not associate with pesticide exposure when 

2599 symptoms first develop. EPA decided not to extend the recordkeeping period longer than two years to 

2600 find a balance between having the records available for a reasonable amount of time and minimizing the 

2601 burden on agricultural employers.

2602 Comments – format of records. A grower organization asserted that agricultural employers 

2603 generally keep two sets of records: one at the central location and one on file, and therefore would 

2604 need to keep both updated. Some commenters, including state pesticide regulatory agencies, applicator 

2605 organizations and a farm bureau urged EPA to allow records to be kept electronically to facilitate 

2606 compliance and minimize costs. The SBA Office of Advocacy commented that it would be difficult and 

2607 time-consuming for small businesses to obtain, print and file SDSs and labeling. They acknowledged, 

2608 however, that if EPA allowed electronic recordkeeping it would help alleviate the burden. A farm 

2609 bureau stated that keeping all SDSs and labeling on hand in paper form for two years could take a lot of 

2610 storage space and would be difficult to keep up to date, because labels are updated often and 

2611 sometimes products are discontinued. 

2612 EPA Response – format of records. EPA notes that this recordkeeping requirement does not 

2613 necessarily impose a duplicative burden on agricultural employers to obtain pesticide application 

2614 information and SDSs twice – once to satisfy the central display requirement and once to satisfy the 

2615 recordkeeping requirement. Agricultural employers may satisfy this recordkeeping requirement by the 

2616 removal of the pesticide application information and SDS from the central display 31 days from the 

2617 expiration of the REI (or from the end of the pesticide application if there is no REI) and retaining those 

2618 records for two years from the date of application. EPA recognizes that some employers may choose to 

2619 maintain electronic copies of pesticide application records and the product SDS to satisfy both the 

2620 central display and recordkeeping requirements. The WPS does not specify that records must be kept on 

2621 paper, so an employer can maintain records electronically as long as the employer satisfies all related 

2622 requirements of the WPS for both provisions, including keeping the pesticide application and hazard 

2623 information display accessible to workers and handlers, and being able to quickly access and provide the 

2624 required materials in the event of a pesticide emergency. 

2625 VIII. Information Exchange Between Handler and Agricultural Employers

2626 1. Current rule and proposal. The existing WPS requires handler and agricultural employers to 

2627 exchange information about pesticide applications. When handlers are employed by an employer other 

2628 than the agricultural employer, the existing WPS requires the agricultural employer to provide the 

2629 handler employer with information about treated areas on the agricultural establishment the handler 

2630 may be in (or may walk within one-quarter mile of), including specific location and description of any 

2631 such areas and restrictions on entering those areas. The existing WPS requires handler employers to 

2632 provide agricultural employers with the following information prior to making a pesticide application on 

2633 the agricultural establishment:

2634 • Location and description of the area to be treated.

2635 • Time and date of application.

2636 • Product name, active ingredient(s), and EPA registration number for the product.

2637 • REI for pesticide(s) applied.

2638 • Whether posted notification, oral notification, or both are required.
Page 60 of 176

2639 • Any other product-specific requirements on the product labeling concerning protection of 

2640 workers or other persons during or after application.

2641 The agricultural employer must display information about the applications for workers and 

2642 handlers employed by the establishment at the central location. The existing WPS requires handler 

2643 employers to inform agricultural employers before the application takes place if there will be changes to 

2644 scheduled pesticide applications, such as changes to scheduled pesticide application times, locations, 

2645 and subsequent REIs. 

2646 In addition to maintaining the current requirements, EPA proposed to require the agricultural 

2647 employer to also provide to the handler employer information about the location of “entry-restricted 

2648 areas” on the establishment. EPA also proposed to require the handler employer to communicate to the 

2649 agricultural employer the start and end times of pesticide applications and the end date of the REI. EPA 

2650 also proposed to relax existing WPS requirements by requiring handler employers to provide 

2651 information about any changes to pesticide application plans to the agricultural employer within two 

2652 hours of the end of the application rather than before the application. Changes to the estimated 

2653 application end time of less than one hour would not require notification. 

2654 Finally, in the proposal, EPA unintentionally omitted the provision in the existing WPS that the 

2655 agricultural employer need not provide information to the handler employer about treated areas if the 

2656 handler will not be in or walk within one-quarter mile of those treated areas. 

2657 2. Final Rule. Information exchange from agricultural employer to handler employer. The final 

2658 rule requires the agricultural employer to notify the handler employer of any treated areas where an REI 

2659 is in effect and any restrictions on entering those areas. EPA has not included in the final rule a 

2660 requirement for the agricultural employer to communicate to the handler employer information about 

2661 the location of “entry-restricted areas” on the establishment because of the changes to the requirement 

2662 concerning entry-restricted areas, as discussed in Unit IX.B. EPA has also revised the final rule to correct 

2663 the unintentional omission of the existing rule’s exception that the agricultural employer need not 

2664 provide information to the commercial handler employer about treated areas if the handler will not be 

2665 in, or walk within one-quarter mile of those areas. The final regulatory text for these requirements is 

2666 available at 40 CFR 170.309(k). 

2667 Information exchange from handler employer to agricultural employer. EPA has finalized the 

2668 proposal to expand and clarify the information the pesticide handler employer must provide to the 

2669 agricultural employer with minor modifications. The final rule does not require the handler employer to 

2670 convey the end date of the REI to the agricultural employer. The final regulatory text for these 

2671 requirements is available at 40 CFR 170.313(i).

2672 Timing of exchange of information from handler employer to agricultural employer. EPA has 

2673 modified the final rule to specify two situations where the handler employer must notify the agricultural 

2674 employer of changes to the application information before the application takes place. Changes to the 

2675 date(s) and start and estimated end times of application or to the product name, EPA registration 

2676 number, and active ingredient(s), must be communicated to the agricultural employer prior to the 

2677 application. Updates to any of the other information handler employers are required to exchange must 

2678 be provided to the agricultural employer within two hours after completing the application. The final 

2679 regulatory text for these requirements is available at 40 CFR 170.313(j).

2680 3. Comments and responses.

2681 Comments. Many states and a few farmworker advocacy organizations expressed general 

2682 support for the proposal to expand the information to be exchanged. These commenters agreed the 

2683 additional information would help agricultural employers protect workers, and reduce pesticide-related 
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2684 illnesses and exposure from drift during applications. Many farm bureaus, states, applicators and 

2685 applicator associations and an agricultural organization generally disagreed with the proposed 

2686 expansion. Some of these commenters argued that the proposed requirements are unrealistic and 

2687 impractical given the dynamics and unpredictable factors involved in a farming operation, such as pest 

2688 infestations and weather changes. In addition, they argued that the proposal would require multiple 

2689 parties to exchange information, resulting in the potential for miscommunication. Some commenters 

2690 also opposed the proposed expansion of information exchange because EPA did not provide 

2691 documented justification. Crop consultants, an applicator association and a farm bureau indicated the 

2692 proposal is unnecessary because close coordination of information already exists between applicators, 

2693 handlers, crop consultants, and growers. Furthermore, they stated that not only are handlers already 

2694 required to keep workers out of areas during applications, applications are often scheduled to take place 

2695 when workers are absent. A few states, farm bureaus and a crop consultant opposed EPA’s proposal to 

2696 add to the information the agricultural employer is required to give the handler employer. One crop 

2697 consultant indicated the information is already on purchase orders or sales agreements between 

2698 growers and commercial handlers or their employers. One state requested that EPA omit the application 

2699 start time because it is not used to calculate the REI. 

2700 EPA’s proposal on the timing to provide notice of a change in application plans elicited many 

2701 comments. Many commenters indicated that requiring handler employers to provide information about 

2702 any changes to pesticide application plans to the agricultural employer within two hours of the end of 

2703 the application would be impractical or impossible, and said that such a change would be an 

2704 unreasonable burden. One state and several farmworker advocacy organizations endorsed the 

2705 requirement because of the ease of providing the information in the timeframe by relying on existing 

2706 electronic capabilities. One farmworker advocacy organization urged EPA to require that changes be 

2707 communicated before the start of the application in order to enable employers to be able to keep 

2708 workers out of the treated area. 

2709 To prevent confusion about scheduled and actual start and end times and to avoid 

2710 miscommunication, one state suggested that EPA require the handler employer to inform the 

2711 agricultural employer of changes at any time on the application day. Two aerial applicators explained 

2712 that a two-hour window for notification of change sounds reasonable on paper, but not in practice. 

2713 During long workdays of the busy season, applicators would have to make phone calls in the middle of 

2714 the night and send text messages, usually from the airplane during or in between applications. Also, it 

2715 can take more than one day to complete an application because of factors such as the weather, a 

2716 change in wind direction, or verifying the presence of bystanders. These situations could require the 

2717 handler to give several updates to multiple parties, resulting in a greater chance for errors and 

2718 noncompliance. 

2719 One commenter requested that EPA require notification of a change within 24 hours from the 

2720 end of the actual application, while another advised EPA to require notification if the actual application 

2721 completion time is two or more hours later than the scheduled application time. Several farm bureaus, a 

2722 pesticide applicator and a crop consultant organization advised EPA to require that changes in 

2723 application plans be communicated: Before the scheduled date and times, if the application is going to 

2724 be made earlier than expected, or before the end of the REI as scheduled, if the application is made later 

2725 than expected. One aerial applicator stated that if an REI is greater than 24 hours, EPA should require an 

2726 information update before the scheduled REI expires or within 24 hours of the scheduled application 

2727 time. Another aerial applicator recommended the handler employer and handler give the agricultural 

2728 employer a window of estimated start and completion date(s) and time(s). In this situation, the handler 
Page 62 of 176

2729 would not make the application outside of that window without the approval of the agricultural 

2730 employer, who in turn must keep workers out of the area during that time, unless notified of a change in 

2731 the application start and completion date(s) and time(s). 

2732 Many commenters noted the absence of the existing provision that the agricultural employer 

2733 need not provide information to the commercial handler employer if the handler will not be in or walk 

2734 within one-quarter mile of an area that may be treated with a pesticide or under an REI, and noted this 

2735 could result in the need to provide excessive, unnecessary information.

2736 EPA Response. The information exchange requirements ensure that agricultural employers and 

2737 handler employers have the information they need to comply with the requirements for notifying 

2738 workers and handlers of risks associated with pesticide applications and treated areas (i.e., agricultural 

2739 employers are required to notify workers of treated areas and display pesticide application and hazard 

2740 information at the central location on the establishment for workers and handlers to see, and handler 

2741 employers must inform their handler employees of treated areas on the agricultural establishment near 

2742 where they work). 

2743 EPA has been convinced not to adopt the proposed change to expand the information required 

2744 to be communicated by the agricultural employer to the handler employer to include information about 

2745 the location of “entry-restricted areas” on the establishment. Requiring employers to exchange this 

2746 information would not be practical given other changes in the rule related to the “entry-restricted 

2747 areas” (replaced by “application exclusion zones” in the final rule) that make the tracking of such areas 

2748 infeasible. EPA also agrees that it is not necessary for the handler employer to calculate the end time of 

2749 the REI for each application and include it in the information conveyed to the agricultural employer. The 

2750 requirement to provide this piece of information has been deleted from the final rule.

2751 Most of the other information required to be exchanged by the final rule is already required to 

2752 be exchanged by the existing rule, and therefore EPA does not agree that this requirement presents a 

2753 substantially increased or unreasonable burden. Agricultural and handler employers are currently 

2754 required to exchange information so agricultural employers may provide notification of application and 

2755 treated areas under an REI to workers and handlers. Without this information transfer, accurate and 

2756 timely notification would be difficult to achieve, exposing workers and handlers to potential exposure to 

2757 pesticides. It is critical that the agricultural employer know the start times of applications in order to be 

2758 able to notify workers and handlers (when they are on the establishment) so they may avoid treated 

2759 areas. EPA recognizes that exchange of the expanded information may already occur on some 

2760 establishments and expects those entities to experience less burden than in situations where such 

2761 coordination has not already developed. 

2762 EPA recognizes that much of the information required may be available on sales agreements 

2763 and purchase orders between commercial pesticide handlers and agricultural employers, which will 

2764 reduce the burden for employers to gather it; however, without inclusion of the information exchange 

2765 requirements in the WPS there is no assurance of timely exchange of all of the necessary information. 

2766 EPA considered the range of options suggested for the timing of the information exchange. EPA 

2767 found it confusing that many commenters indicated that the proposal requiring handler employers to 

2768 provide information about any changes to pesticide application plans to the agricultural employer within 

2769 two hours of the end of the application would be impractical or impossible, because the proposal was 

2770 actually granting a relaxation of the existing requirements that the handler employer must provide 

2771 complete and accurate the information to the agricultural employer before the application takes place 

2772 in all cases. The burden of providing updated information within two hours after the application is 
Page 63 of 176

2773 significantly less than the burden of assuring that the application will be completed without change as 

2774 originally communicated.

2775 That so many commenters did not acknowledge that the proposal was granting a relaxation of 

2776 the current requirements for some situations indicates widespread misunderstanding of the current 

2777 rule’s requirements. Therefore, EPA will focus its outreach efforts during rule implementation to ensure 

2778 that the regulated community is aware of the rule’s requirements in this area, and that they understand 

2779 the importance of the information exchange requirement in protecting workers and handlers. 

2780 However, the comments convinced EPA that the proposed changes regarding information 

2781 exchanges between the handler and agricultural employer are important and necessary to 

2782 accommodate the unique situations involved in agricultural pesticide applications and to provide the 

2783 needed flexibility for the information exchange between the handler and agricultural employers. 

2784 Several of the recommendations for notification of application changes from the commercial pesticide 

2785 handler employer to the agricultural employer can be accommodated under the final rule. For example, 

2786 the applicator and agricultural employer can agree on a window of the estimated start and end times, 

2787 with the understanding that the application would be made during that period, unless the two 

2788 communicate and agree to a different timeframe. This would allow the agricultural employer to notify 

2789 workers of the treatment, keep them from the area, and create and post the application information, 

2790 satisfying the requirement. 

2791 EPA did not identify any suggestions from commenters apart from those that would be covered 

2792 by the final rule that would meet the needs for agricultural employers to provide employees notification 

2793 of the application and inform them of treated areas under an REI, and to record and display the 

2794 pesticide application information. Agricultural employers must have information about the start time of 

2795 the application before it begins to ensure they have the ability to notify workers of the application 

2796 before it commences. Agricultural employers must have the end time of the application to notify 

2797 workers that although the application has ended, entry to the treated area remains prohibited because 

2798 an REI is in effect. Without these details being provided prior to the application, agricultural employers 

2799 are not able to fulfill their responsibilities to protect workers. Therefore, EPA has retained the provision 

2800 of the existing WPS that requires the handler employer to notify the agricultural employer of changes to 

2801 the application information regarding timing and the product applied before the application takes place. 

2802 In regard to changes other than timing and the product applied, EPA has adopted the proposal to allow 

2803 the handler employer to provide updated information to the agricultural employer within two hours 

2804 after completing the application. The final regulatory text for this requirement is available at 40 CFR 

2805 170.313(j).

2806 EPA notes that the method for notification of changes to application information should be 

2807 agreed upon between the handler employer and the agricultural employer to ensure receipt, and can be 

2808 accomplished through electronic media, telephone, or other means. The agricultural employer must 

2809 receive the information in sufficient time to record and display the information for workers and 

2810 handlers. 

2811 Finally, EPA acknowledges that many commenters noted that the proposal omitted the 

2812 provision at § 170.120(b)(3)(i) of the existing WPS that said that the agricultural employer need not 

2813 provide information to the handler employer about treated areas on the establishment if the handler 

2814 will not be in or walk within one-quarter mile of those treated areas. EPA acknowledges this was an 

2815 inadvertent omission, and therefore EPA has included that provision in the final rule.

2816 IX. Drift-Related Requirements

2817 The requirements discussed in this section are intended to decrease the number of incidents in 
Page 64 of 176

2818 which workers and other persons are exposed to pesticides through unintentional contact during 

2819 application. Drift is the off-site movement through the air of pesticide droplets or particles originating 

2820 from pesticides applied as liquids or dry materials. Workers errantly in the area being treated may be 

2821 directly exposed to pesticides during application. In addition, bystanders (both workers and non2822 workers) located outside a treated area may be exposed when pesticide droplets or particles move 

2823 outside the area being treated through the air during and/or immediately after the pesticide application. 

2824 As used here, the term “drift” includes both of these modes of exposure, but does not include off-site 

2825 movement of pesticide-imbedded soil-borne particles by wind or vapor drift through volatilization of 

2826 applied pesticide, although these are often categorized as “drift” in other contexts. EPA has developed 

2827 methodologies for assessing the risks to bystanders from exposure to pesticides from drift and also from 

2828 volatilization, and addresses risks of concern and other issues via the registration review process. The 

2829 purpose of the requirements discussed in this section is to prevent workers and other persons from 

2830 being exposed to pesticides by unintentional contact during application. The term “drift” is used as 

2831 shorthand in this section to refer to unintentional exposure from both direct exposures to workers in 

2832 the area being treated and drift exposures to workers and bystanders. 

2833 A. Overarching Performance Standard

2834 1. Current rule and proposal. The existing WPS includes two related requirements that prohibit a 

2835 pesticide from being applied in a way that contacts workers or other persons. Agricultural products 

2836 subject to the WPS must have this statement on the label: “Do not apply this product in a way that will 

2837 contact workers or other persons, either directly or through drift. Only protected handlers may be in the 

2838 area during application.” 40 CFR 156.206(a). Also, the existing WPS requires the handler employer and 

2839 the handler to assure that no pesticide is applied so as to contact, either directly or through drift, any 

2840 worker or other person, other than an appropriately trained and equipped handler. These requirements 

2841 prohibit application in a way that contacts workers or other persons both on and off the agricultural 

2842 establishment where the pesticide is being applied.

2843 EPA did not propose any changes to the label statement. EPA proposed several minor wording 

2844 changes to the WPS requirement for the handler employer and the handler, but the impact of the 

2845 proposed requirement would be the same as under the existing WPS.

2846 2. Final rule. EPA has finalized the proposed changes to the requirement for the handler 

2847 employer and handler with a minor change. The final rule changes the language from the proposed 

2848 “handler located on the establishment” to “handler involved in the application.” As with the existing 

2849 rule, the final rule prohibits contact to workers and other persons regardless of whether or not they are 

2850 on the agricultural establishment. The final regulatory text for this requirement is available at 40 CFR 

2851 170.505(a). There are no changes to the label statement at 40 CFR 156.206(a). 

2852 3. Comments and responses.

2853 Comments. Many commenters, including states and their organizations, grower associations, 

2854 farm bureaus, pesticide applicators and their organizations and pesticide manufacturer associations, 

2855 stated that the existing two requirements adequately protect workers and bystanders from exposure 

2856 during applications. These commenters opposed the other drift-related requirements that EPA proposed 

2857 (entry-restricted areas for farms and forests and the requirement to suspend applications under certain 

2858 conditions) as unnecessary, asserting the proposed requirements do not provide any additional 

2859 protection.

2860 Many respondents from states and their organizations, grower associations, farm bureaus, 

2861 pesticide applicators and their organizations and pesticide manufacturer associations commented that 

2862 EPA’s risk assessments and pesticide labels include conservative protections for applicators, handlers, 
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2863 workers and bystanders. Some of these commenters argued that the existing restrictions on the labels, 

2864 including REIs and pesticide-specific buffers, provide sufficient protection to workers and bystanders.

2865 A farm bureau commented that the potential for drift is affected by many situational factors, so 

2866 it is better to rely on applicator training programs, state regulation of localized drift problems and 

2867 pesticide-specific label statements where appropriate.

2868 Many commenters, including farmworker advocacy organizations and a university, stated that 

2869 EPA should require agricultural employers to inform their neighbors when they are going to make a 

2870 pesticide application so workers and others can stay out of the area during the application.

2871 Many respondents from all commenter types commented on incidents where workers or 

2872 bystanders reported being contacted by pesticides that were being applied. Some of these incidents 

2873 involve workers in the areas where pesticides were applied and other incidents involve workers or 

2874 bystanders being exposed to pesticides that drifted off the target site. Many of the commenters cited 

2875 three broad studies that looked at data from SENSOR-Pesticides and California’s Pesticide Illness 

2876 Surveillance Program (Refs. 10, 11 and 12). A grower organization pointed out that the study of drift 

2877 incidents from 11 states (Ref. 12) found that, of the drift events with information on violations of 

2878 pesticide regulations, a majority had one or more FIFRA violations that may have contributed to the drift 

2879 exposure and suggested that better adherence to and enforcement of existing regulatory requirements 

2880 could decrease the number of drift exposures. The study found that applicator carelessness contributed 

2881 to almost half of the events where contributing factors were identified and noted that “applicators 

2882 should be alert and careful, especially when close to non-target areas such as adjacent fields, houses, 

2883 and roads” and that applicators “should use all available drift management measures and equipment to 

2884 reduce drift exposure.” Other commenters, including farmworkers, farmworker advocates, public 

2885 health organizations, a university and a state department of health, cited specific incidents of exposure 

2886 from drift to workers in the area being treated, or by being sprayed directly. Some applicator, retailer 

2887 and pesticide manufacturer associations cited state data showing that there has been a decrease in drift 

2888 complaints over time, dropping from an average of 333 complaints per year nationwide (from 1996 

2889 through 1998) to an average of 247 complaints per year (from 2002 through 2004). Some grower and 

2890 pesticide manufacturer associations cited an analysis by one of these commenters of incidents in 

2891 California in one year, which showed that there were over 2.4 million pesticide applications and 76 cases 

2892 of worker exposure to drift. These commenters claimed that none of the 76 cases of drift would have 

2893 been prevented by implementing the proposed entry-restricted areas. 

2894 EPA Response. EPA disagrees with the assertion that the “do not contact” requirements, along 

2895 with the other protections on pesticide labels, are by themselves sufficient to protect workers and 

2896 bystanders from being directly contacted by pesticides that are applied. First, many commenters cited 

2897 incidents where people were directly exposed to pesticide applications, even if there was disagreement 

2898 about how regularly these types of incidents happen. Second, EPA’s risk assessments and registration 

2899 decisions are based on the premise that the WPS protections effectively prevent people (workers and 

2900 bystanders) from being sprayed directly (Ref. 13). In other words, incidents where workers or 

2901 bystanders are sprayed directly result in people being exposed to pesticides in a way that is not 

2902 considered in EPA’s risk assessments or registration decisions. These types of incidents are misuse 

2903 violations but they continue to occur, as described in the following sections. Therefore, there is a need 

2904 to supplement the existing WPS protections to reduce exposures to workers and other persons from 

2905 being directly sprayed with pesticides. 

2906 EPA agrees with the farm bureau commenter that there are many factors that can cause 

2907 exposure to drift and there is no one solution that can prevent all drift incidents. It will take a 
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2908 comprehensive approach, including additional regulatory requirements, education, outreach, and some 

2909 common-sense voluntary measures to further reduce the number of people who are directly exposed to 

2910 pesticide spray/applications. The additional regulatory requirements include revised requirements for 

2911 entry restrictions during pesticide applications and for handlers to suspend applications in certain 

2912 circumstances. Common-sense voluntary measures include improving communications about when a 

2913 pesticide application will take place by a grower talking to his/her neighbors to let them know when 

2914 pesticides are being applied so the neighbors can keep workers and others away from the boundary of 

2915 adjacent establishments during that time, and by participating in voluntary communication programs 

2916 such as Spray Safe (http://www.spraysafe.org/) and Drift Watch (https://driftwatch.org/). 

2917 In response to the comments that EPA should require agricultural establishments to inform their 

2918 neighbors about pesticide applications, EPA notes that it did not propose such a requirement. Because 

2919 of the potentially far-reaching impact a broad notification requirement could have on all agricultural 

2920 establishments that apply pesticides, EPA believes that such a change would warrant public notice and 

2921 comment before being added to the WPS, and therefore has not included it in the final rule. EPA 

2922 intends to include notice to neighbors among information about good management practices during 

2923 outreach for implementation of the final rule. 

2924 It is also worth noting that EPA is working to assess and mitigate any product-specific risks from 

2925 exposure to pesticides from drift and from volatilization within the registration review process. Also, 

2926 EPA has proposed changes to the pesticide applicator certification regulations to include more training 

2927 and a requirement for applicators using certain higher risk application methods, such as aerial 

2928 application and fumigation, to obtain a specialized certification. (80 FR 51355, August 24, 2015) This 

2929 should improve the competency of applicators and decrease the incidents caused by applicator 

2930 carelessness. EPA agrees that rigorous enforcement of existing and new WPS provisions and label 

2931 requirements are necessary and has committed to a robust outreach, communication and training effort 

2932 to communicate the new rule requirements to state, tribal and regional staff as well as the affected WPS 

2933 stakeholders and will work closely with our state and tribal partners to enforce the WPS in the future. In 

2934 2014, EPA launched its voluntary drift reduction technology program (http://www2.epa.gov/reducing2935 pesticide-drift), which is intended to encourage the development and use of validated low drift 

2936 technologies.

2937 EPA has not reviewed the 76 drift cases from California that were mentioned by several 

2938 commenters in detail. However, it is possible that at least some of them would be prevented by the 

2939 final rule requirement for the handler to suspend application because that requirement extends beyond 

2940 the boundaries of the establishment, as explained in Unit VII.C.

2941 B. Entry Restrictions to Protect Workers and Other Persons During Application

2942 1. Current rule and proposal. The existing WPS establishes entry-restricted areas adjacent to 

2943 treated areas that apply during pesticide application for nurseries and greenhouses only. The existing 

2944 rule requires that the agricultural employer must not allow or direct any person, other than an 

2945 appropriately trained and equipped handler, to enter or remain in the entry-restricted area during a 

2946 pesticide application in a nursery or greenhouse. The size of the entry-restricted area depends on the 

2947 type of product applied and the application method. The entry restrictions for greenhouses also include 

2948 ventilation requirements. The existing entry restriction requirement applies only within the boundaries 

2949 of the agricultural establishment. The existing provisions at 40 CFR 170.110 regarding entering entry2950 restricted areas during application are different than the existing provisions at 40 CFR 170.112 regarding 

2951 entry into treated areas after the application of a pesticide and before the REI specified on the pesticide 

2952 labeling has expired. 
Page 67 of 176

2953 EPA proposed to establish entry-restricted areas during pesticide applications on farms and in 

2954 forests, while slightly modifying the requirement for entry-restricted areas for nurseries and 

2955 greenhouses. EPA proposed two types of entry restrictions: One for enclosed space production, which 

2956 would apply to greenhouses and other types of indoor production operations (e.g., mushroom houses, 

2957 hoop houses, polyhouses), and one for outdoor production, which would apply to farms, forests and 

2958 nurseries. In addition, EPA proposed to define the entry-restricted area as the area from which workers 

2959 or other persons must be excluded during and after the pesticide application. 

2960 2. Final rule. In regard to enclosed space production (e.g., greenhouses, mushroom houses, 

2961 hoop houses), EPA has finalized the requirements for entry restrictions during pesticide applications 

2962 with several minor changes. For the most part, the final rule incorporates the existing entry restriction 

2963 and ventilation requirements for greenhouses as the requirements for enclosed space production. The 

2964 final rule deletes the term “entry-restricted area” and adjusts the descriptions of the application types 

2965 to be consistent with the changes to the description of application exclusion zones for outdoor 

2966 production. In addition, EPA changed the definition of “enclosed space production” to clarify that it 

2967 applies only to areas with non-porous covering, so structures with a covering made of fencing or fabric 

2968 to provide shade on plants (no walls) such as shade houses, are not considered enclosed spaces under 

2969 the final rule. See the discussion of definitions in Unit XVIII.C. of this document for more information 

2970 about the changes to this definition. 

2971 In regard to outdoor production (e.g., farms, forests, nurseries, shade houses), the final rule 

2972 differs substantially from EPA’s proposed requirements. The final rule makes the following changes from 

2973 the proposal:

2974 • Replacing the phrase “entry-restricted area” with “application exclusion zone” to make it more 

2975 distinct from the requirements regarding REIs. The final regulatory text for this requirement is available 

2976 at 40 CFR 170.405(a).

2977 • Revising the corresponding definition to clarify that the application exclusion zone exists only 

2978 during (not after) a pesticide application. The final regulatory text for this definition is available at 40 

2979 CFR 170.305.

2980 • Revising the corresponding definition and regulatory description of an application exclusion 

2981 zone so it is a specified distance from the application equipment rather than from the edge of the 

2982 treated area, and clarifying that the application exclusion zone moves with the application equipment. 

2983 The final regulatory text for this requirement is available at 40 CFR 170.405(a)(1).

2984 • Revising some of the application methods in the description of the application exclusion zone 

2985 to reflect current application methods and to differentiate the distances based on the spray droplet size 

2986 rather than pressure. The final regulatory text for this requirement is available at 40 CFR 170.405(a)(1).

2987 • Adding a provision to the regulatory text to clarify that any labeling restrictions supersede the 

2988 requirements of the WPS, including those related to application exclusion zones. This was discussed in 

2989 the preamble of the proposed rule (Ref. 2 at 15490) but was inadvertently left out of the proposed 

2990 regulatory text. The final regulatory text for this requirement is available at 40 CFR 170.303(c) and 

2991 170.317(a).

2992 3. Comments and responses.

2993 Comments – supporting the proposal or more stringent measures. Many commenters, including 

2994 farmworkers, farmworker advocacy organizations, public health organizations, state pesticide regulatory 

2995 agencies and a university, generally supported the proposed requirement for entry-restricted areas. The 

2996 commenters stated that the proposed change should provide modest improvements in protecting 

2997 workers from pesticide drift during application if there is enough training and education of applicators. 
Page 68 of 176

2998 One farmworker advocacy organization described an incident where workers were in a field topping 

2999 tobacco at the same time a plant growth regulator with a 24-hour REI was being applied to the adjacent 

3000 row. The workers were close enough to have to move out of the path of the tractor. However, because 

3001 the treated area was defined to be only the rows being treated, this was permissible under the existing 

3002 WPS. Many commenters provided other examples of incidents where workers were unintentionally 

3003 exposed directly to the pesticide spray. A few farmworker advocacy organizations commented that 

3004 many workers say that they have felt the spray of pesticides from fields close to where they work. A 

3005 farmworker advocacy organization commented that in 2012, about 20% of farmworkers surveyed by the 

3006 organization in New Mexico reported that pesticides were applied to the fields at the same time that 

3007 they were working. Another farmworker advocacy organization stated that about half of the child 

3008 tobacco workers interviewed by the organization in 2013 reported that they saw tractors spraying 

3009 pesticides in the fields in or adjacent to the ones where they were working. 

3010 Many commenters, including farmworker advocacy organizations, public health organizations, 

3011 state departments of health and universities argued that EPA should revise the approach for entry 

3012 restrictions to protect workers on neighboring property and to increase the length of the entry3013 restricted area. The recommended distances ranged from 60 to 200 feet for ground application and 300 

3014 feet to a mile or more for aerial application. Many of these commenters also stated that EPA should 

3015 protect workers the day after the application, claiming that pesticide would be volatilizing off the field. 

3016 EPA addressed similar suggestions in its response to “Pesticides in the Air – Kids at Risk: Petition to 

3017 Protect Children from Pesticide Drift (2009)” by describing EPA’s current methodologies for assessing 

3018 the risks to bystanders from exposure to pesticides from drift and from volatilization and how EPA will 

3019 address risks of concern via the registration review process (Ref. 13).

3020 Comments – opposing the proposal. Many states and their organizations, grower organizations, 

3021 farm bureaus, applicators and their organizations, agricultural producer organizations, pesticide 

3022 manufacturer organizations, and the SBA Office of Advocacy opposed the proposed requirement to 

3023 apply the entry-restricted areas to farms and forests. Most of these commenters argued that the 

3024 approach is too complicated because it establishes another area to be controlled that varies by 

3025 application type, may include persons other than those employed by the agricultural establishment and 

3026 may be different than label restrictions. Some states and their organizations commented that the 

3027 requirement to keep individuals out of varying widths of areas surrounding treated areas would be 

3028 difficult for an agricultural employer to implement and even more difficult for a state to enforce. 

3029 Several state agencies and a farm bureau commented that the tables describing the entry-restricted 

3030 area are too complex to communicate and implement. Another state agency opposed the term “entry3031 restricted area” because it is not clear and recommended calling it exactly what it is, a restricted area. A 

3032 state pesticide regulatory agency in the Midwest commented that they have not documented an 

3033 incident of worker exposure from drift and suggested that the incident data from California should not 

3034 be the basis of a national requirement.

3035 Most of these commenters asserted that the proposed requirement to apply entry-restricted 

3036 areas to farms and forests would present some logistical issues that could effectively shut down parts of 

3037 the establishment. For example, many ground and aerial pesticide applications occur along rural roads 

3038 or near access points to the agricultural establishment. These roads and access points would be within 

3039 the proposed entry-restricted areas. On larger fields, pesticide applications could take several hours to 

3040 complete. Commenters claimed that prohibiting workers from using these roads or gaining access to 

3041 buildings on agricultural establishments such as farms or nurseries for long periods of time would be 

3042 impractical, could cause the establishment to shut down during applications and could have an adverse 
Page 69 of 176

3043 economic impact. Many commenters, including state pesticide regulatory agencies and their 

3044 organizations and grower organizations, opposed the proposal stating that work in nearby fields or 

3045 forest blocks would be impossible during pesticide applications. Many of the commenters stated that 

3046 EPA did not account for the cost of stopping business during some pesticide applications. Several 

3047 commenters, including state pesticide regulatory agencies, grower organizations, applicators and their 

3048 organizations, and a pesticide manufacturer organization, commented that the entry-restricted area 

3049 should account for the wind direction because any exposure would only occur downwind.

3050 A farm bureau commented that a buffer seems reasonable if workers are near a sprayer making 

3051 an application and suggested that the buffer should be from the sprayer, not the edge of the field. A 

3052 grower organization argued that the proposed entry-restricted area requirement is not necessary 

3053 because they already move workers away from areas being sprayed to avoid contact from overspray and 

3054 fumes. Several applicator organizations commented that aerial applicators often apply pesticides to 

3055 large farms and forests where workers are seldom present.

3056 Some of the comments appear to reflect a misunderstanding of the proposal, i.e., that the 

3057 entry-restricted areas would be “buffer zones” that would remain in effect after the application was 

3058 complete. As an example, one grower organization opposed the “worker buffers” because they could 

3059 take a lot of area out of cultivation on smaller farms, farms with widely varied crop maturities and farms 

3060 that are not laid out in large blocks that could not space crops to accommodate this restriction. Instead 

3061 of arbitrary buffers, this commenter argued to keep the standard as it is - do not apply where workers 

3062 are present and do not allow spray (or drift) to contact workers. Another commenter asked EPA to 

3063 revise the entry-restricted area to require workers to not be present when the application is occurring. 

3064 A farm bureau commented that there is little reason for the expanded entry-restricted areas to exist 

3065 once the pesticide has been applied. A state regulatory agency claimed that the proposed entry3066 restricted area would significantly impact agricultural practices and increase pest pressure due to 

3067 untreated areas. A grower organization and a farm bureau commented that the proposed entry3068 restricted area could cause concerns among neighbors of farms by encouraging the impression that 

3069 similar “buffer zones” are necessary between areas receiving pesticide applications and adjacent public 

3070 areas. 

3071 The SBA Office of Advocacy recommended that EPA remove the proposed entry-restricted areas 

3072 for farms for many of the reasons cited in this and the previous section: current regulations already 

3073 provide protections, EPA’s risk assessments include protections on the label, the requirement could be 

3074 confusing, and the proposed requirement could block roads which would disrupt operations on the 

3075 agricultural establishment.

3076 Comments on application types and distances. Some commenters addressed the specific 

3077 application methods and the distances of 100 feet and 25 feet in the proposed entry-restricted areas. 

3078 Some commenters, including states and their organizations, grower organizations, agricultural 

3079 organizations and pesticide manufacturer organizations commented that the distances of 25 to 100 feet 

3080 are not supported by drift reduction technologies, applicator standard operating procedures or incident 

3081 data. A pesticide manufacturer organization commented that fumigants should be excluded from the 

3082 entry-restriction area requirements because they are addressed individually with more detailed 

3083 restrictions. A state regulatory agency commented that the label should take precedence if it has 

3084 buffers for human exposure. A state commented that the table of application methods and distances is 

3085 flawed because it does not account for all application scenarios and does not logically apply distances. 

3086 For example, tower-type sprayers are generally at the height of the tree canopy and spray horizontally 

3087 into trees at a pressure under 150 psi. The proposed entry-restricted area for these would be 0 feet, 
Page 70 of 176

3088 although the state commented that there should be a buffer because of the height of the application. 

3089 The state also pointed out that some chemigation systems may require a 100-foot entry-restricted area. 

3090 This state and a grower organization pointed out that the distances do not account for canopy cover, 

3091 which can affect how far a spray droplet travels. 

3092 EPA Response. Based on the comments, EPA has made some changes in the final rule from the 

3093 proposed requirement to extend entry-restricted areas to farms and forests. However, experiences such 

3094 as those of workers having to move to get out of the way of the tractor that was applying pesticide 

3095 (described previously) and workers being directly sprayed confirm EPA’s position that additional 

3096 protections are necessary during pesticide applications on farms and in forests. The existing WPS 

3097 prohibits a farm or forest agricultural employer from allowing or directing any worker to enter or remain 

3098 in a treated area, which is defined to include areas being treated. The existing regulations require oral 

3099 notifications before pesticide applications to include the location and description of the treated area, 

3100 the time during which entry is restricted and instructions not to enter the treated area until the REI has 

3101 expired. The existing regulations require handler employers to ensure that pesticides are applied in a 

3102 manner that will not contact a worker either directly or through drift. Inasmuch as these requirements –

3103 clearly intended to prevent direct exposure of workers during pesticide applications – have proven 

3104 insufficient for that purpose, additional measures are needed. 

3105 EPA has changed the final rule in several ways to address some of the concerns expressed in the 

3106 comments about the logistical problems with the proposal. First, in the final rule EPA replaced the term 

3107 “entry-restricted area” with “application exclusion zone,” which more clearly associates this restriction 

3108 with the period during the pesticide application. This new term is also less likely to be confused with the 

3109 term “restricted-entry interval.” Second, EPA revised the requirements for the application exclusion 

3110 zone so that it is not based on the “treated area,” but instead a specified distance from the application 

3111 equipment as suggested by one of the farm bureau commenters. The application exclusion zone is 

3112 essentially a horizontal circle surrounding the application equipment that moves with the application 

3113 equipment. For example, if a pesticide is applied aerially, the border of the application exclusion zone is 

3114 a horizontal circle that extends 100 feet from the place on the ground directly below the aircraft, and 

3115 moves with the aircraft as the application proceeds. Third, EPA simplified the requirement for 

3116 application exclusion zones for outdoor production by deleting the table and simplifying the description 

3117 of the application exclusion zone.

3118 Because the application exclusion zone is based on the location of the application equipment, 

3119 rather than the location of the treated area, the application exclusion zone could extend beyond the 

3120 boundary of the agricultural establishment. However, in 40 CFR 170.405(a)(2), the final rule limits the 

3121 requirement for the agricultural employer to keep workers and other persons out of the treated area or 

3122 the application exclusion zone during application to areas that are within the boundaries of the 

3123 agricultural establishment, as proposed. The existing entry-restricted area requirement for nurseries is 

3124 also limited to areas that are within the boundaries of the agricultural establishment. EPA retained the 

3125 existing and proposed limitation because this requirement applies to the agricultural employer. The 

3126 agricultural employer can control what happens on the agricultural establishment but could have 

3127 difficulty limiting access to roads or fields that are beyond his property. 

3128 Limiting the application zone to the area closest to the application equipment eliminates the 

3129 concerns expressed by many commenters, including the SBA Office of Advocacy, about shutting down 

3130 roads or closing off buildings for the entire time the field or other area is being treated or preventing 

3131 work in nearby fields. The approach in the final rule does not account for wind direction, although the 

3132 final rule specifies a much smaller area that agricultural employers must keep workers and other people 
Page 71 of 176

3133 from than the existing WPS and the proposed approach. The approach in the final rule will be easy to 

3134 comply with for growers that already move workers away from areas to be sprayed to avoid contact. 

3135 Unfortunately, not all growers do this as shown by the example of the workers in the tobacco field who 

3136 had to move out of the way of the sprayer. Similarly, if workers are not present, it will be easy for 

3137 agricultural employers to keep them out of the application exclusion zone during the application.

3138 The comments reflected a general lack of understanding that the proposed entry-restricted 

3139 areas would exist only during application, and many comments anticipated conflicts between no-spray 

3140 buffers on some pesticide labels and the proposed entry-restricted area and expressed concern about 

3141 areas needing to be taken out of production to stay 25 feet or 100 feet away from the adjacent field. 

3142 However, these are two different types of requirements. If a label specifies a “no-spray” buffer, 

3143 pesticide cannot be applied in that area at any time. Under the final rule, a pesticide can be applied in an 

3144 application exclusion zone, and the requirement for agricultural employers is to keep workers and other 

3145 people out of this zone during the pesticide application. These two types of requirements are distinct, 

3146 and as a result should not be problematic to implement. Further, the application exclusion zone only 

3147 applies (and the proposed entry-restricted area would have applied) only during the pesticide 

3148 application and does not exist once the application is over. 

3149 EPA reassessed the application methods and distances in the proposed requirements for entry3150 restricted areas for outdoor production and made some changes in the description of application 

3151 exclusion zones in the final rule in § 170.405(a)(1). The final rule maintains the proposed distances of 

3152 100 feet and 25 feet but revises the application methods associated with each distance.

3153 The application methods that have an application exclusion zone of 100 feet are the ones where 

3154 pesticide is expected to move a longer distance from where they are applied. The changes include:

3155 • Adding air blast applications, to more accurately and more broadly describe current 

3156 application methods.

3157 • Deleting pesticides applied as an aerosol because it is unnecessary.

3158 • Including pesticides applied as a spray using a spray quality (droplet spectrum) of smaller than 

3159 medium (volume median diameter less than 294 microns). The volume median diameter refers to the 

3160 midpoint droplet size or mean, where half of the volume of spray is in droplets smaller, and half of the 

3161 volume is in droplets larger than the mean. EPA chose to establish this criteria based on the spray 

3162 quality rather than just the pressure because the drop size depends on a number of variables, including 

3163 the pressure, the nozzle type, liquid properties, and the spray angle. Focusing on the spray quality, 

3164 rather than pressure, is also consistent with EPA’s voluntary Drift Reduction Technology program and 

3165 current models of drift used in EPA’s risk assessments.

3166 The application methods that have an application exclusion zone of 25 feet are the ones where 

3167 pesticide is expected to move a shorter distance from where they are applied. The changes include: 

3168 • Replacing several of the proposed criteria with pesticides applied as a spray using a spray 

3169 quality (droplet spectrum) of medium or larger (volume median diameter of 294 microns or larger).

3170 • Eliminating the criterion based on the product label requiring a respirator because it is 

3171 intended to apply to enclosed spaces like greenhouses and was accidentally included in the proposed 

3172 criteria for outdoor production.

3173 • Eliminating the proposed requirement for the spray to be applied downward, so tower-type 

3174 sprayers would be subject to an application exclusion zone of 25 feet or 100 feet, depending on the 

3175 spray droplet spectrum. 

3176 The corresponding changes to application methods were made to the Table – Entry Restrictions 

3177 During Enclosed Space Production Pesticide Applications at 40 CFR 170.405(b)(4) for consistency.
Page 72 of 176

3178 EPA acknowledges that some pesticide labels will have restrictions that apply during 

3179 applications that are different than the application exclusion zones. For example, the restrictions on soil 

3180 fumigant labels are more restrictive than the application exclusion zone of 100 feet specified in § 

3181 170.405(a)(1)(i)(D). In situations like this, pesticide users must follow the product-specific instructions 

3182 on the labeling. As stated in §§ 170.303(c) and 170.317(a), when 40 CFR Part 170 is referenced on a 

3183 pesticide label, pesticide users must comply with all of the requirements in 40 CFR Part 170, except 

3184 those that are inconsistent with product-specific instructions on the pesticide product labeling.

3185 Although the size of the application exclusion zone does not vary based on the amount or type 

3186 of canopy cover, EPA believes that the changes from the proposed rule will provide appropriate 

3187 application exclusion zones in almost all use situations. While additional refinements to account for 

3188 canopy cover might offer some advantages, those advantages would be offset by the additional 

3189 complexity they would add to the rule. 

3190 C. Suspend Application

3191 1. Current rule and proposal. As discussed in Unit IX.A., the existing WPS requires handler 

3192 employers and handlers to assure that no pesticide is applied so as to contact, either directly or through 

3193 drift, any worker or other person, other than an appropriately trained and equipped handler. However, 

3194 the existing WPS does not include an explicit requirement for handlers to stop or suspend application. 

3195 EPA proposed to add a provision to require a handler performing a pesticide application to immediately 

3196 stop or suspend the pesticide application if any worker or other person, other than an appropriately 

3197 trained and equipped handler, is in the treated area or the entry-restricted area. Based on the 

3198 description of entry-restricted areas in the proposed rule, the requirement for handlers to stop or 

3199 suspend application in certain circumstances would apply only within the boundaries of the agricultural 

3200 establishment.

3201 2. Final rule. In the final rule, EPA has made several changes to the proposed requirement to 

3202 suspend applications. First, EPA revised the language to require a handler to “immediately suspend a 

3203 pesticide application” rather than to “immediately stop or suspend a pesticide application” to clarify 

3204 that the application must be suspended but can be restarted once workers or other persons are out of 

3205 the zone. Second, EPA changed the area that is covered by the requirement to suspend application in 

3206 two ways. EPA replaced “entry-restricted area” with “application exclusion zone,” decreasing the size of 

3207 the area that is covered by the requirement. See Unit IX.B. Also, EPA removed the treated area from the 

3208 requirement. For outdoor production, the area covered by the requirement is much smaller than the 

3209 area that would have been covered by the proposed rule, which would have been the treated area plus 

3210 up to 100 feet beyond the edge of the treated area. Third, the application exclusion zone can extend 

3211 beyond the boundaries of the agricultural establishment for the purposes of this requirement, i.e., the 

3212 handler must suspend application if any person other than another handler involved in the application is 

3213 in the application exclusion zone, regardless of whether the application exclusion zone extends off of 

3214 the employer’s property. 

3215 The final rule requires the handler performing the application to suspend application if people 

3216 who should not be present are in the application exclusion zone (which ranges up to 100 feet from the 

3217 application equipment for outdoor production) or in the area identified for exclusion for enclosed space 

3218 production (which ranges from 25 feet to the entire enclosed space plus any adjacent structure that 

3219 cannot be sealed off). The final regulatory text for this requirement is available at 40 CFR 170.505(b). 

3220 3. Comments and responses.

3221 Comments. Many commenters, including farmworkers, farmworker advocacy organizations, 

3222 public health organizations, academics, a public health agency and state pesticide regulatory agencies 
Page 73 of 176

3223 generally supported the proposed requirement for applicators to stop or suspend pesticide applications 

3224 under certain conditions. A farmworker advocacy organization supported the proposed requirement, 

3225 stating that current rules do not provide meaningful guidance on how applicators can prevent human 

3226 exposure during applications. Many commenters from farmworker advocacy organizations, public 

3227 health organizations, public health agencies and universities supported the proposed requirement but 

3228 urged EPA to extend the protections to workers at neighboring establishments. Many of these 

3229 commenters provided information suggesting that workers may be more likely to be affected by drift 

3230 from a different establishment. For example, commenters cited a Washington Department of Health 

3231 report that documented 43 workers in Washington being affected by drift from another farm while only 

3232 13 workers reported being affected by drift from the farm where they were working in 2010-2011. In 

3233 comments arguing against the need for entry-restricted areas, several applicator organizations provided 

3234 examples supporting the requirement to suspend applications, stating that it is standard operating 

3235 procedure for aerial applicators to temporarily avoid making passes adjacent to roads or other areas if 

3236 workers happen to be passing by in vehicles or on foot.

3237 Three comments from Washington – the state pesticide regulatory agency, the state farm 

3238 bureau and a grower organization – pointed out that the Washington drift incident cited in the 

3239 preamble of the proposed rule would not have been prevented by the proposed requirement for 

3240 applicators to cease or suspend pesticide application if workers or other people were in the entry3241 restricted area. This is because the workers were on a neighboring farm and under the proposal, the 

3242 entry-restricted area would stop at the border of the establishment where the pesticide is being applied. 

3243 Many states and their organizations, grower organizations, farm bureaus, applicator 

3244 organizations, agricultural producer organizations and pesticide manufacturer organizations opposed 

3245 the proposed requirement for handlers to stop or suspend pesticide applications in certain 

3246 circumstances. Most of these commenters argued that the provision is unnecessary because it would 

3247 not offer any protections or prevent contact from pesticide applications beyond the existing “do not 

3248 contact” requirement. Some commenters raised logistical concerns: Applicators may not be aware that 

3249 a person has entered a treated area or entry-restricted area in many situations, such as in a forest or an 

3250 orchard in full leaf, in a very large field, or if there are restricted sight lines or rolling hills; the proposed 

3251 requirement would impose unwarranted expectations for pilots, who would have to be fully aware of 

3252 boundaries 100 feet on all sides of the target area while traveling at 150 mph; as proposed, an 

3253 applicator would have to stop if a person is in an entry-restricted area even if it is not possible for that 

3254 person to encounter pesticides because of wind conditions. Many commenters, including state 

3255 pesticide regulatory agencies and their organizations, a grower organization, a farm bureau, a pesticide 

3256 manufacturer organization and applicator organizations, asked how an applicator would know if a 

3257 person in the entry-restricted area is an appropriately trained and equipped handler, who could legally 

3258 be in the entry-restricted area during application.

3259 A few grower organizations and farm bureaus commented that there is a difference between 

3260 stopping and suspending an application and asked whether this would require applicators to cease 

3261 application altogether or suspend the application until a person is no longer in the area.

3262 EPA Response. As stated in the proposal, EPA has identified a need to supplement the “do not 

3263 contact” performance standard because exposure to drift or direct spray events still happen despite the 

3264 “do not contact” requirement, and EPA’s risk assessments and registration decisions presume that no 

3265 workers or other persons are being sprayed directly. Therefore, the final rule includes an explicit 

3266 requirement for handlers to suspend pesticide applications under certain conditions, which mandates 

3267 applicators to take specified actions to prevent exposing people to pesticide during applications.
Page 74 of 176

3268 However, EPA revised the final rule in response to several points made by commenters. First, 

3269 the final rule requires a handler to “immediately suspend a pesticide application” rather than to 

3270 “immediately stop or suspend a pesticide application.” This change was made to clarify that the 

3271 application must be suspended immediately if workers or persons other than handlers are in the 

3272 specified areas but can be restarted once workers or other persons are out of the specified area.

3273 EPA was persuaded by the commenters who raised logistical concerns about the proposed 

3274 requirement, which were related to the handler not being able to see the person or a person entering 

3275 an edge of a large area that is not near the application equipment. EPA revised the requirement in the 

3276 final rule to decrease the size of the area that the handler must monitor for workers or persons other 

3277 than handlers by removing the treated area from the area covered by this requirement and by changing 

3278 the “application exclusion zone” so it is measured from the application equipment rather than from the 

3279 edge of the treated area. In the final rule, the handler performing the application must suspend 

3280 application if any of the identified people are in the application exclusion zone (which ranges up to 100 

3281 feet from the application equipment) rather than if any of the people are in the entire treated area plus 

3282 that distance (up to 100 feet) from the edge of the treated area. EPA acknowledges that there will be 

3283 situations where the handler (applicator) legitimately cannot see a person 100 feet away, such as in a 

3284 dense orchard or a forest. During the review of incident cases for the benefit analysis, there were 

3285 several cases where a person in an orchard was exposed to pesticides applied aerially. EPA assessed 

3286 those cases as not preventable by WPS because this requirement would not change the fact that the 

3287 applicator could not see the person in the orchard. When EPA updates the WPS Inspector Guidance, we 

3288 will discuss mitigating circumstances such as the inability of an applicator to see the worker or person in 

3289 the application exclusion zone, as well as information about how this requirement can be enforced.

3290 In response to the questions regarding how an applicator would know if a person in the entry3291 restricted area is an appropriately trained and equipped handler who could legally be in the entry3292 restricted area during application, the answer is that if the applicator is not certain, he or she must 

3293 suspend application. EPA presumes that the only trained handlers present in or around the treated area 

3294 and wearing the PPE appropriate for the pesticide being applied would be handlers who are 

3295 participating in the application, and further presumes that each handler should be aware of all other 

3296 appropriately trained and equipped handlers participating in that same application. EPA notes the idea 

3297 that an appropriately trained and equipped handler is in the existing WPS at §170.110(a) and 

3298 §170.210(a) so agricultural employers, handler employers and handlers should know how to identify an 

3299 appropriately trained and equipped handler after 20 years of experience with the WPS.

3300 EPA was also persuaded by the comments and incident information about workers at 

3301 neighboring establishments being directly contacted by drift and acknowledges that the Washington 

3302 State drift incident cited in the preamble of the proposed rule would not have been prevented by the 

3303 proposed entry-restricted area, which would have been limited by the boundaries of the agricultural 

3304 establishment. The incidents cited by commenters show that workers are directly exposed to pesticide 

3305 applications from neighboring establishments as well as from the establishment where they are 

3306 working. To reduce the number of incidents where workers are exposed to drift from neighboring 

3307 establishments, the final rule extends the application exclusion zone beyond the boundaries of the 

3308 agricultural establishment for this requirement, thus requiring applicators to immediately suspend 

3309 applications if people other than a properly trained and equipped handler are in the application 

3310 exclusion zone.

3311 EPA has decided to extend the application exclusion zone beyond the boundaries of the 

3312 agricultural establishment for the requirement to suspend applications for several reasons. First, this 
Page 75 of 176

3313 addresses more of the worker drift cases, where workers are within 100 feet of the agricultural 

3314 establishment to protect more workers. Out of 17 incidents identified in the comments, only one would 

3315 have been prevented if the application exclusion zone was limited to the boundaries of the agricultural 

3316 establishment as provided in the proposed rule. The requirement in the final rule would have prevented 

3317 at least four of the incidents reported in the comments, and possibly as many as 12, depending on the 

3318 actual distances between the workers and application equipment, which were not specified in the 

3319 comments. Second, the existing requirement that the handler must assure the pesticide is applied in a 

3320 way that does not contact workers or other persons already extends beyond the boundary of the 

3321 agricultural establishment. The new, explicit requirement to suspend application if people other than 

3322 handlers are in the application exclusion zone is intended to supplement the existing “do not contact” 

3323 requirement by giving the applicator specific criteria for suspending application. These specific criteria 

3324 should be equally useful to applicators attempting to comply with the existing “do not contact” 

3325 requirement beyond the boundaries of the agricultural establishment. Third, the application exclusion 

3326 zone would extend a maximum of 100 feet beyond the boundary of an agricultural establishment only 

3327 for the length of time it takes for the equipment applying the pesticide to pass by, so this should not 

3328 shut down roads or access points to the establishment for long periods of time. To reiterate a point 

3329 made in Unit IX.B., the final rule does not hold agricultural employers responsible for keeping workers 

3330 and other persons out of portions of the application exclusion zone that extend beyond the boundaries 

3331 of the agricultural establishment. On the other hand, this provision in § 170.505(b) of the final rule 

3332 imposes a requirement on the handler applying the pesticide to immediately suspend the application if 

3333 workers or persons other than handlers involved in the application are in the application exclusion zone, 

3334 whether on the establishment or beyond the boundaries of the establishment.

3335

3336 X. Establish Minimum Age for Handling Pesticides and Working in a Treated Area while an REI is in 

3337 Effect 

3338 A. Current Rule and Proposal. 

3339 The existing regulation does not establish any age restriction for handlers or early-entry work. EPA 

3340 proposed to prohibit persons younger than 16 years of age from handling pesticides, with an exception 

3341 for handlers working on an establishment owned by an immediate family member. EPA requested 

3342 comment on an alternative option of prohibiting any person under 18 years old from handling 

3343 pesticides.

3344 The existing WPS establishes conditions for when a worker may enter into a treated area under 

3345 an REI. The conditions are related to the type of work performed (often referred to as “early-entry” 

3346 tasks) and the length of time the worker may be in the treated area. However, the existing WPS 

3347 establishes no minimum age for workers entering a treated area under an REI to perform early-entry 

3348 tasks. EPA proposed to prohibit any worker under 16 years old from entering a treated area under an 

3349 REI to perform early entry tasks, with an exemption from this prohibition for persons covered by the 

3350 immediate family exemption. EPA requested comment on an alternative option of prohibiting any 

3351 person under 18 years old from entering treated areas during the REI to perform early entry tasks.

3352 B. Final Rule. 

3353 The final rule prohibits persons younger than 18 years old from handling pesticides. EPA has 

3354 retained the proposed exemption for handlers working on an establishment owned by an immediate 

3355 family member. The final regulatory text for the prohibition is available at 40 CFR 170.309(c) and 

3356 170.313(c). The final regulatory text for the exemption is available at 40 CFR 170.601(a)(1)(i). 
Page 76 of 176

3357 The final rule prohibits persons younger than 18 years old from entering treated areas during 

3358 the REI to perform early entry tasks, and retains the proposed exemption for persons working on an 

3359 establishment owned by an immediate family member. The final regulatory text for this prohibition is 

3360 available at 40 CFR 170.309(c) and 170.605(a). The final regulatory text for the exemption is available at 

3361 40 CFR 170.601(a)(1)(xii).

3362 C. Comments and Responses.

3363 Comments. Many commenters requested that EPA establish a minimum age of 18 for handlers 

3364 and early-entry workers. Commenters cited several reasons for their request. First, many commenters 

3365 noted that adolescents’ bodies are still developing and they may be more susceptible to the effects of 

3366 pesticide exposure. Second, commenters noted that adolescents are less mature and their judgment is 

3367 not as well developed as that of adults. This immaturity may mean that adolescents may be less 

3368 consistently aware of risks associated with handling pesticides or entering a treated area while an REI is 

3369 in effect, that they may not adequately protect themselves or other workers from known risks, and that 

3370 spills, splashes, and improper handling practices may be more likely. In addition, some of these 

3371 commenters noted that adolescents may lack the judgment or confidence to refuse to perform a task 

3372 that places them at risk if asked by an adult in authority. A few commenters submitted studies related to 

3373 development of maturity and decision-making skills in adolescents in support of this assertion. Third, 

3374 commenters asserted that restricting handling activities to persons at least 18 years old could result in 

3375 higher potential economic benefit from avoiding exposure and any potentially related chronic effects to 

3376 children, because they have a longer potential life span. Fourth, because information on the potential 

3377 chronic effects of pesticide exposure on developing systems is not known, commenters recommended 

3378 that EPA prohibit adolescents from handling pesticides and entering treated areas while an REI is in 

3379 effect as a precaution until it can be shown that they would not suffer adverse chronic effects from 

3380 potential exposure. Finally, a few commenters noted that persons under 18 years old are protected in 

3381 other industries by OSHA and should receive similar protections under the WPS, and that some states 

3382 have already prohibited handling of pesticides in agriculture by anyone under 18 years old.

3383 Some commenters expressed support for a minimum age of 16. States primarily supported 

3384 EPA’s proposal to establish a minimum age of 16, noting that establishing a minimum age of 18 would 

3385 require them to change their state laws. Other commenters supporting the proposed minimum age of 

3386 16 noted that this requirement would align with DOL’s restriction on handling pesticides in toxicity 

3387 categories I and II in agriculture. 

3388 A few commenters supporting establishing a minimum age of either 16 or 18 noted that a 

3389 specific minimum age requirement would be easy to remember and enforce.

3390 A few commenters suggested establishing a higher minimum age (either 20 or 21) for handlers 

3391 and early entry workers, or only for people using RUPs.

3392 A few commenters opposed establishing any minimum age. These commenters asserted that 

3393 EPA should not take any action because the DOL’s hazardous occupations orders under the Fair Labor 

3394 Standards Act (FLSA) already prohibit adolescents under 16 years old from handling pesticides in toxicity 

3395 categories I and II in agriculture with limited exceptions. Some commenters also asserted that 

3396 establishing any minimum age for pesticide handlers is a matter that should be handled by the states, 

3397 not EPA. A few commenters suggested that rather than EPA setting a minimum age, the WPS 

3398 requirements should be aligned with each state’s laws and regulations related to minimum age.

3399 Some commenters requested that EPA eliminate the exception from any minimum age 

3400 requirement for members of the owner’s immediate family. Commenters assert that adolescents’ 

3401 developmental status does not differ if they are an employee on a farm owned by an immediate family 
Page 77 of 176

3402 member or by someone unrelated to them. Other commenters supported EPA’s proposal or requested 

3403 that EPA establish a higher minimum age only if EPA also retains the exception for members of the 

3404 owner’s immediate family.

3405 EPA Response. Based on the comments received and an evaluation of existing literature related 

3406 to adolescents’ development of maturity and judgment, EPA has decided that the benefits of further 

3407 reductions in adolescent pesticide exposures justify their cost; the final rule generally prohibits persons 

3408 under 18 years old from handling pesticides or entering a treated area while an REI is in effect. EPA 

3409 recognizes that adolescents’ bodies and judgment are still developing. While studies have not 

3410 demonstrated a clear cut off point at which adolescents are fully developed, literature indicates that 

3411 their development may continue until they reach their early to mid-20s. EPA also agrees that research 

3412 has shown that adolescents may take more risks, be less aware of the potential consequences of their 

3413 actions on themselves and others, and be less likely to protect themselves from known risks. In addition, 

3414 EPA recognizes that adolescents may not feel empowered to question or refuse tasks assigned to them 

3415 that would put them at risk. All of this information supports establishing a higher minimum age than 

3416 proposed in order to allow those handling pesticides to develop more fully before putting themselves, 

3417 others, and the environment at risk, and to allow those performing early-entry activities to develop 

3418 more fully in order to adequately protect themselves from the risks of entering a treated area while an 

3419 REI is in effect. EPA agrees that establishing a consistent minimum age for handlers and early-entry 

3420 workers would be easy to remember and enforce. The final rule will reduce the potential for misuse by 

3421 adolescent handlers who may less consistently exercise good judgment when handling agricultural 

3422 pesticides.

3423 EPA notes commenters’ assertions that avoiding pesticide exposure in adolescents could result 

3424 in higher potential economic benefit because of adolescents’ longer potential lifespans. EPA agrees that 

3425 it is appropriate to take reasonable precautions to protect adolescents from pesticide exposures, both 

3426 because of the potential impact of pesticides on further development and because adolescents may not 

3427 properly appreciate (and take appropriate steps to avoid) the risks of potential pesticide exposure. 

3428 While statistical associations have been observed in studies that estimate the relation between pesticide 

3429 exposure and chronic health outcomes such as cancer, the causal nature of these associations has not 

3430 yet been determined; thus quantifying the magnitude of the chronic health risk reduction expected as a 

3431 result of pesticide exposure reduction is not possible. However, based on what is known about the 

3432 potential for biologically active chemicals generally to disrupt developmental processes, it is reasonable 

3433 to have heightened concern for adolescents under the age of 18 in situations where they face 

3434 particularly high pesticide exposures. Prohibiting adolescents under the age of 18 from handling 

3435 agricultural pesticides will protect them from any potential risks of pesticide use through handling 

3436 activities, ensuring that adolescents do not suffer unreasonable adverse effects from handling 

3437 agricultural pesticides. Prohibiting adolescents under 18 years old from entering a treated area while an 

3438 REI is in effect will protect them by delaying their entry into treated areas until residues are at a level 

3439 that should not cause unreasonable adverse effects.

3440 EPA recognizes that DOL prohibits persons under 18 years old from engaging in hazardous tasks 

3441 in other industries, and that some states have taken action to prohibit certain adolescents from handling 

3442 pesticides in agriculture (state minimum ages for pesticide handlers, where established, range from 16 

3443 years old to 18 years old). These examples of protections for adolescents in other industries or by states 

3444 indicate a recognition that different standards for certain adolescents and adults are appropriate. 

3445 EPA disagrees with commenters’ request to establish a minimum age higher than 18. While 

3446 research shows that brains continue to develop until people are in their early to mid-20s, the minimum 
Page 78 of 176

3447 age to engage in many hazardous activities has been established as 18 years old. For the reasons 

3448 outlined above, in addition to the lack of recognition in other industries that people must be at least 20 

3449 or 21 to conduct certain risky occupational tasks, EPA disagrees with commenters’ requests to establish 

3450 a minimum age higher than 18 years old. In addition, EPA notes that limitations on the use of RUPs falls 

3451 under a different regulation, the Certification of Pesticide Applicators rule. Persons using restricted use 

3452 pesticides in agriculture could be covered by both the WPS and the Certification of Pesticide Applicators 

3453 rule. EPA has proposed establishing a minimum age for all users of RUPs under that rule (80 FR 51355, 

3454 August 24, 2015). 

3455 EPA also disagrees with commenters’ assertions that EPA should defer to the states or the FLSA 

3456 and not establish any age-related restrictions on pesticide handling or early-entry activities. EPA has the 

3457 responsibility under FIFRA to regulate the use of pesticides to avoid unreasonable adverse effects, apart 

3458 from any requirements established by other federal or state laws. The DOL’s actions under the FLSA 

3459 limiting the use of certain pesticides to persons at least 16 years old do not preclude EPA from taking 

3460 actions to ensure that human health and the environment are protected from unreasonable adverse 

3461 effects. While DOL’s hazardous occupations order prohibiting those under 16 years old from handling 

3462 certain pesticides satisfies the purposes of the FLSA, those purposes are distinct from those of FIFRA. 

3463 EPA has concluded that because, as discussed previously, adolescents’ bodies, maturity, and judgment 

3464 are still developing, the handling of agricultural pesticides and entry into a treated area while an REI is in 

3465 effect by persons under 18 years old presents an unreasonable likelihood of adverse effects. Therefore, 

3466 the final rule generally limits pesticide handling and early-entry activities to persons who are at least 18 

3467 years old. 

3468 EPA agrees that adolescents’ developmental status does not differ if they are employees on a 

3469 farm owned by an immediate family or by someone unrelated to them. However, EPA recognizes that 

3470 imposing a minimum age for handling agricultural pesticides or performing early-entry tasks on owners 

3471 or members of their immediate families could significantly disrupt some immediate family-owned farms. 

3472 Given the high social cost of imposing a minimum age requirement on farms owned by members of the 

3473 same immediate family, EPA has finalized the proposed exemption to this requirement. See Unit XVII.A.

3474

3475 XI. Restrictions on Worker Entry into Treated Areas

3476 A. Requirements for Entry During an REI

3477 1. Current rule and proposal. The existing WPS establishes specific exceptions to the general 

3478 prohibition against sending workers into a treated area while an REI is in effect. Workers who enter 

3479 pesticide-treated areas during an REI (known as “early-entry workers”) without adequate protection 

3480 may face an elevated risk from pesticide exposure. Under the existing rule, the employer must: Ensure 

3481 that the worker has read or been informed of the human health hazards on the product labeling; 

3482 provide instruction on how to put on, use, and remove PPE; stress the importance of washing after 

3483 removing the PPE; and instruct the worker on how to prevent, recognize, and treat heat-related illness. 

3484 The employer must also implement measures to prevent heat related illness when workers must wear 

3485 PPE. 

3486 In addition to these existing requirements, EPA proposed to require employers to inform 

3487 workers sent into a treated area while the REI is in effect of the specific exception under which they 

3488 would enter, to describe the tasks permitted and any limitations required under that exception, and to 

3489 identify the PPE required by the labeling. EPA also proposed to require the employer to create a record 

3490 of the oral notification provided to early-entry workers, to obtain the signature of each early-entry 

3491 worker acknowledging the oral notification prior to the early entry, and to maintain the record for 2 
Page 79 of 176

3492 years.

3493 2. Final Rule. EPA has finalized the proposed requirements for the employer to inform the 

3494 worker of the type of exception which permits the entry into the area under an REI, to describe the tasks 

3495 that the worker may perform and other limitations under the exception, and to identify the PPE that 

3496 must be worn. However, EPA has decided not to require employers to create or maintain records of the 

3497 oral notification. The final regulatory text for this requirement is available at 40 CFR 170.605.

3498 3. Comments and responses.

3499 Comments on oral notification. Comments on the proposal to inform workers of the early-entry 

3500 exception and to explain the PPE were largely supportive, recognizing the reasonable nature of the 

3501 proposed information. Commenters in support of the proposal included a pesticide manufacturer 

3502 organization and farmworker advocacy organizations. One public health organization supported the 

3503 proposal, but recommended that the requirement be modeled after OSHA’s confined space regulations, 

3504 to include: Specific training for early entry, a requirement for workers to be provided respirators and 

3505 other necessary PPE, written emergency rescue procedures and resources in case of an overexposure or 

3506 other mishap, on-site monitoring of the worker from outside the entry zone, and recordkeeping of each 

3507 entry.

3508 Several agricultural producer organizations and pesticide manufacturer organizations supported 

3509 the proposal, but expressed concern for the requirement for employers to manage heat stress. 

3510 EPA Response. EPA has decided not to amend the final rule based on OSHA’s confined space 

3511 regulations. OSHA’s definition of a confined space is one in which there is limited or restricted means for 

3512 entry or exit. These characteristics exacerbate any hazard to the employee, in that the employee could 

3513 be overcome by a toxic atmosphere or by physical engulfment, such as in a grain storage bin, and be 

3514 unable to quickly exit. EPA recognizes a similar potential for pesticide handlers making fumigant 

3515 applications in greenhouses to be overcome by the fumigant. The WPS provides protections for such 

3516 scenarios by requiring PPE, including respirators where required by the label, and continuous monitoring

3517 by a handler outside of the treatment area. The handler entering the greenhouse would have specific 

3518 instructions on the labeled hazards. The monitoring handler must have access to the PPE required by the 

3519 product labeling in case they would need to enter the greenhouse for rescue of the applicator. However, 

3520 except for the use of fumigants, which have specific label requirements because of their increased 

3521 potential for inhalation risk, the more common scenario of a worker entering a treated area on a farm, 

3522 forest, or in a nursery during the REI would not pose such risks from a toxic atmosphere. It is unlikely 

3523 that there would be an environment that could concentrate the pesticide and produce a potentially life3524 threatening environment. The predominant component of exposure during work in a treated area 

3525 where an REI is in effect is dermal, with rare exceptions. Specific information about the entry must 

3526 include the human health hazards on the pesticide labeling, explanation of the required PPE and the 

3527 proper way to wear and remove PPE, description of the tasks that may be performed and any limitations 

3528 on the time permitted in the area. Workers directed to enter a treated area during the REI must have 

3529 had the pesticide safety training so they may protect themselves. Employers must provide the PPE 

3530 required by the product label for early entry to minimize exposure. Employers must provide early-entry 

3531 workers with the decontamination supplies appropriate for pesticide handlers. 

3532 EPA agrees with commenters that heat stress can be a problem for workers in warm, humid 

3533 climes and when employees must wear PPE. EPA notes that requirements related to heat stress for 

3534 early-entry workers are already included in the existing rule at 40 CFR170.112(c)(6)(x) and 170.112(c)(7), 

3535 and EPA did not receive comments to indicate this requirement has posed a problem for employers in 

3536 the past so EPA has retained in the final rule the requirement for employers to take appropriate 
Page 80 of 176

3537 measures to prevent heat-related illness. 

3538 Comments in opposition to the early-entry exceptions. A number of farmworker advocacy 

3539 organizations voiced opposition, in general, to most or all of the early-entry exceptions in the existing 

3540 rule, suggesting that workers should not be required to enter treated areas under an REI, due to risk of 

3541 exposure. 

3542 EPA Response. In deciding whether to allow workers to enter treated areas prior to the 

3543 expiration of the REI, EPA considered the risk to the workers and the benefits from the early-entry 

3544 activities. In each case, EPA determined that the potential risks to properly trained and equipped early3545 entry workers are reasonable in comparison to the significant economic impacts from delaying 

3546 necessary activities, provided that the required limitations to each exception are observed. 

3547 Comments on recordkeeping of oral notification. Several farmworker advocacy organizations 

3548 supported the recordkeeping requirement, stating that the “proposed changes will ensure early entry 

3549 workers are adequately informed about the risks of the work they are asked to do.” In contrast, several 

3550 states and their organizations expressed concern for the recordkeeping requirement, stating that it is 

3551 not practical and would result in technical violations, such as failures to obtain the necessary signatures, 

3552 without enhancing worker protection. The SBA Office of Advocacy also commented that the 

3553 recordkeeping and retention schedule would present a burden to small businesses. 

3554 EPA Response. EPA was convinced by the rationale provided by the states and the SBA Office of 

3555 Advocacy that the requirement for records of notification to early-entry workers was too burdensome 

3556 for agriculture, while adding little or no protections for the workers. There is typically some urgency to 

3557 the need for entry into a treated area while the REI is in effect; the added burden to create records 

3558 during this time could be unreasonable as it would not necessarily increase protection of early-entry 

3559 workers. 

3560 Comments on the use of the signal word to differentiate between handler and worker entry. 

3561 One academic suggested that handlers, having higher risk from pesticide exposure because they are in 

3562 close contact with the pesticide, should have separate re-entry intervals from workers. 

3563 EPA Response. EPA agrees that handlers may experience higher rates of exposure to pesticides 

3564 as a result of their direct contact with the concentrated form of pesticides as they mix, load, and apply. 

3565 As a result, handlers making application are often required to wear PPE for protection. In contrast, 

3566 workers are most likely to have only dermal contact with the dried pesticides on the plants (although 

3567 EPA’s risk assessments also account for possibility pesticide may contact their eyes) owing to the risk 

3568 management measures EPA imposes during the pesticide registration process; these include application 

3569 rates, application methods, and REIs based on degradation of the pesticide. Accordingly, the only 

3570 workers who should need to wear PPE are early-entry workers. 

3571 Comments on worker entry restrictions after applications. The commenter questions why EPA 

3572 has established new REI requirements at § 170.107 of the proposed rule (in this final rule, the provisions 

3573 appear at § 170.407(a) and (b)).

3574 EPA Response. The REI requirements identified in § 170.407 are similar to those in the existing 

3575 rule at § 170.112. The additional content of the requirement informs the reader that, in addition to the 

3576 requirement that the employer must not allow or direct any worker to enter or remain in the treated 

3577 area before the REI has expired, all treated area warning signs must be removed or covered before such 

3578 entry is permitted, except for early entry under § 170.303. This clarifies the responsibility of the 

3579 employer to ensure the posted information does not conflict with oral information.

3580 Comment on heat related requirements. A commenter agreed with the requirement for 

3581 protections of workers entering a treated area during an REI, but expressed concern for heat effects to 
Page 81 of 176

3582 workers in PPE. The commenter went on to state that incidence of heat stress is dependent on the 

3583 individual worker and their sensitivity to heat, and suggested that EPA acknowledge this subjectivity to 

3584 avoid legal jeopardy for employers. 

3585 A state regulatory agency commented on the requirement for PPE, stating that is it reasonable 

3586 to require the employer to provide the PPE, but the worker or handler may choose not to wear the PPE. 

3587 This commenter stated that the rule should also hold the employee responsible for wearing PPE.

3588 EPA Response. EPA agrees with commenters that heat stress can be a problem for workers in 

3589 warm, humid climes and when employees must wear PPE. EPA notes that requirements related to heat 

3590 stress for early entry workers are already included in the existing rule at 40 CFR 170.112(c)(6)(x) and 

3591 170.112(c)(7), and EPA did not receive comments to indicate this requirement has posed a problem for 

3592 employers in the past so EPA has retained in the final rule the requirement for employers to take

3593 appropriate measures to prevent heat-related illness.

3594 EPA disagrees with the comment that the rule should hold the worker responsible to wear PPE. 

3595 The employer must ensure that the worker or handler wears the required PPE, and because the 

3596 employer is making the pesticide use decision, the employer is responsible to ensure the required PPE is 

3597 worn.

3598 Comment on information for workers. A farm bureau representative agreed that workers should 

3599 have appropriate information to protect themselves, but questioned why the worker would need to 

3600 know what pesticide was used or which exception applied.

3601 EPA Response. Should a pesticide exposure occur, response time may be critical if the employee 

3602 is made ill. Informing the worker of the pesticide they may be exposed to may motivate the worker to 

3603 take appropriate precautions, and could be critical information should the worker later require medical 

3604 attention. Knowing the nature of the REI exception will help the worker understand the scope of the 

3605 tasks permitted under the exception, and empower the worker to question work assignments that go 

3606 beyond the scope of the particular exception. 

3607 B. Clarify Conditions of the “No Contact” Exception

3608 1. Current rule and proposal. The existing WPS allows workers to enter areas while an REI is in 

3609 effect for activities that do not result in contact with any treated surfaces. In the proposal, EPA sought to 

3610 clarify the “no contact” requirement of the exception by explaining that performing tasks while wearing 

3611 PPE does not qualify as “no contact.” The proposal offered three examples of acceptable “no contact” 

3612 activities. 

3613 2. Final rule. EPA has finalized the proposed clarification. The final rule adds to the exception the 

3614 following language: “This exception does not allow workers to perform any activities that involve 

3615 contact with treated surfaces even if workers are wearing personal protective equipment.” The final 

3616 regulatory text for this requirement is available at 40 CFR 170.603(a)(1).

3617 3. Comments and responses.

3618 Comments. One farm bureau stated that workers are prevented from having contact with 

3619 pesticides and their residues through the medium of PPE.

3620 EPA Response. Although PPE – when properly fitted, worn, removed, cleaned and maintained –

3621 can provide significant protection against pesticide exposures, it does not eliminate exposure. The 

3622 variation in exposure reduction offered by various types of PPE can be seen in EPA’s “Exposure 

3623 Surrogate Reference Table” (http://www.epa.gov/opp00001/science/handler-exposure-table.pdf). Use 

3624 of PPE for activities involving contact with pesticide-treated surfaces does not reduce risks to the same 

3625 level as no-contact activities. EPA has finalized the “no contact” exception as proposed because the PPE 
Page 82 of 176

3626 appropriate for early entry into treated areas under this exception is appropriate only for activities that 

3627 do not involve contact with treated surfaces. 

3628 Comments on the exception. One commenter stated that the exception cannot be considered 

3629 to be “no contact” because the worker may be exposed from contaminated air or dust, and if they must 

3630 dismount and repair the equipment they would be exposed to treated surfaces. The same commenter 

3631 stated that restricting entry until 4 hours after the REI does not prevent harmful levels of exposure 

3632 because pesticides continue to volatilize after application.

3633 EPA Response. EPA believes that the commenter may have misunderstood the extent of the no3634 contact exemption. The no-contact exception does not presume that there is no risk of exposure; in 

3635 recognition of those risks, early entry is only permitted subject to the protections required by § 170.605 

3636 (e.g., early-entry PPE, meeting the minimum age of at least 18 years old , access to decontamination 

3637 supplies). The no-contact exception is limited to persons working in a treated area during the REI only if 

3638 they will not contact, or be contacted by, pesticide residues from plants, from the soil or planting 

3639 medium, water with residues, such as water from a drainage ditch, or pesticides that remain suspended 

3640 in the air after application. 

3641 These conditions may be met by a worker performing tasks in a treated area after sprays, dusts, 

3642 and vapors have settled out of the air, and the worker is:

3643 1. wearing footwear and is walking in aisles or on roads or paths through the treated area where 

3644 plants or other treated surfaces cannot brush against the worker and cannot drop or drip 

3645 pesticide on the worker, or

3646 2. in an open-cab vehicle in a treated area where plants cannot brush against, or drop or drip 

3647 pesticides onto the worker, or

3648 3. in a treated area after an application that is incorporated or injected into the soil and the worker 

3649 is not disrupting the soil surface, or 

3650 4. in an enclosed cab on a truck, tractor, or other vehicle.

3651 Under the exception the worker may not enter the treated area if the pesticide is suspended in 

3652 the air, and may not contact any treated surfaces. 

3653 C. Limit “Agricultural Emergency” Exception

3654 1. Current rule and proposal. The existing WPS permits entry into a treated area during an REI 

3655 when a state, tribal, or federal agency having jurisdiction declares the existence of conditions that could 

3656 cause an agricultural emergency. EPA proposed that only agricultural emergency determinations by EPA, 

3657 state and tribal pesticide regulatory agencies, and state departments of agriculture, could authorize 

3658 early entry under the agricultural emergency exception. 

3659 In addition, EPA proposed to limit the time a worker may be in the treated area under the 

3660 agricultural emergency exception when the label of the product used to treat the area requires both 

3661 oral and written notification (“double notification”). Under the existing rule, there is no time limit; EPA 

3662 proposed to establish allowing workers to be in a treated area under this exception for a maximum of 4 

3663 hours in any 24 hour period. 

3664 2. Final rule. EPA has finalized the proposal, with one change. The final rule does not include EPA 

3665 as an agency with authorization to declare the existence of conditions that could cause an agricultural 

3666 emergency because EPA decided that States and Tribes are best situated to decide what conditions in 

3667 their respective jurisdictions could constitute an agricultural emergency. The final regulatory text for this 

3668 requirement is available at 40 CFR 170.603(c).

3669 3. Comments and responses.

3670 Comments on restricting the declaration of an agricultural emergency. One state supported the 
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3671 proposal, but recommended broadening the declaration of an agricultural emergency to include the 

3672 state governor. Another state found the proposal satisfactory. One grower organization opposed the 

3673 proposal, stating that pre-approval to enter the treated area would be cumbersome and unnecessary if 

3674 the criteria are clearly defined and documented. Another grower organization and a farm bureau from 

3675 the same state expressed concern that this change would seriously impact growers’ ability to enter a 

3676 treated area to manage fires, fix broken irrigation and chemigation pipes, and address other problems 

3677 that could pose risks to adjacent public areas and cause crop loss. These commenters recommended 

3678 that EPA develop guidance to instruct relevant municipal agencies such as local fire departments to 

3679 declare agricultural emergencies. 

3680 One department of agriculture stated that any entry into a treated area during the REI should be 

3681 subject to the early-entry restrictions. This commenter stated that workers entering the area during an 

3682 agricultural emergency exception should wear the PPE required by the labeling. 

3683 Commenters also suggested that there is a need for entities other than EPA, state departments 

3684 of agriculture and the state pesticide regulatory agencies to declare agricultural emergencies. In the 

3685 examples provided by commenters, fires and broken irrigation or chemigation pipes could pose risks to 

3686 the public and the crop.

3687 Two farm bureaus suggested that they did not receive specific information about the changes to 

3688 the agricultural emergency exception and could not characterize its potential impact on producers. They

3689 recommended that EPA consult with state departments of agriculture and stakeholders to evaluate the 

3690 impact and how the change would enhance worker safety.

3691 EPA Response. As described in the preamble to the proposed rule, EPA noted that entities other 

3692 than the state pesticide regulatory agencies, state departments of agriculture, and EPA might not have 

3693 the background and technical expertise to assess the benefits and risks to workers from the entry while 

3694 the REI is in effect, and might not understand the statutory requirement to consider both risks and 

3695 benefits when establishing conditions for early-entry workers. EPA decided not to include state 

3696 governors as an entity authorized to declare an agricultural emergency because it is not necessary; a 

3697 state governor could direct the state department of agriculture or pesticide regulatory agency to 

3698 determine whether conditions that could result in an agricultural emergency exist.

3699 The need for pre-approval for conditions that may result in an agricultural emergency is a 

3700 requirement in the existing rule. EPA has responded to the concern of the grower organization through 

3701 its Interpretive Guidance Workgroup on the existing WPS, which clarified that state pesticide regulatory 

3702 agencies may establish guidance or regulations describing the circumstances that could constitute an 

3703 agricultural emergency and for which entry into areas under an REI is permitted. If a grower determines 

3704 that such conditions exist at a site, then workers may enter the area while the REI is in effect under the

3705 agricultural emergency exception, consistent with applicable restrictions.

3706 EPA has decided not to expand the declaring agencies to include municipal agencies such as 

3707 local fire departments, but will work with state pesticide regulatory agencies and departments of 

3708 agriculture to support the identification of circumstances that could constitute an agricultural 

3709 emergency in their jurisdictions. EPA recommends that these entities identify, in their states, local 

3710 conditions that could constitute such emergencies. Through state regulation or by policy, these agencies 

3711 may pre-approve entry when such conditions occur. 

3712 EPA agrees with the department of agriculture that entry into a treated area during the REI must 

3713 be subject to the early entry restrictions, and that workers must wear the PPE described on the label 

3714 during their work periods. 

3715 Regarding the two responses suggesting that EPA consult with state regulatory agencies and 
Page 84 of 176

3716 stakeholders, EPA believes the comment opportunity associated with publication of the proposed 

3717 changes to the WPS addressed that need. 

3718 D. Codify “Limited Contact” and “Irrigation” Exceptions

3719 1. Current rule and proposal. EPA established exceptions from the REI for certain limited contact 

3720 and irrigation activities as administrative exceptions in 1995. Although these are noted in the existing 

3721 rule at 40 CFR 170.112(e)(7), the terms and conditions of these exceptions are not included in the 

3722 existing rule. These exceptions permit entry into a treated area under an REI for certain non-hand labor 

3723 activities, including irrigation. The existing exception for irrigation requires, among other things, that the 

3724 need for early entry be unforeseen. 

3725 EPA proposed to incorporate the terms and conditions for these exceptions into the final rule, 

3726 and to eliminate the requirement for the need for irrigation to be unforeseen. 

3727 2. Final rule. EPA has finalized the rule as proposed. The final regulatory text for this 

3728 requirement is available at 40 CFR 170.603(d).

3729 3. Comments and responses.

3730 Comments in support of the exceptions. Two farm bureaus and a state department of 

3731 agriculture specifically supported the codification of the limited contact and irrigation exceptions. 

3732 Comments in opposition to the exceptions. Two farmworker advocacy organizations expressed 

3733 concern for codifying these exceptions, stating that improvements in training and establishment of an 

3734 age restriction cannot adequately mitigate the risks. In addition, two such organizations opposed the 

3735 relaxing of the early reentry restriction for irrigators, allowing early reentry even if the need for 

3736 irrigation could have been foreseen before the pesticide application. They note that irrigators are at high 

3737 risk of pesticide poisoning because they tend to work long hours and because they also often work alone 

3738 with no coworker to assist in calling for help in case of pesticide or heat illness.

3739 These commenters also noted that the rule requires that contact be limited to the feet, lower 

3740 legs, hands, and forearms. They cited a California study of exposure to irrigators that indicated that 

3741 nearly 33% of exposure occurred to torso and arms after the REI had expired. One farmworker 

3742 advocacy organization urged EPA to prohibit early entry for all pesticide applications, given the high risks 

3743 for applicators. They stated that early entry should be only for true agricultural emergencies. Concerns 

3744 were also raised for the need for irrigation that is foreseeable, with comments suggesting that the 

3745 employer needs to be aware of the risks and should consider managing the timetable for irrigation so 

3746 workers can enter before the pesticide treatment.

3747 EPA Response. EPA agrees that there is risk to workers from early entry, but believes that the 

3748 new requirements of annual training and notification of the early entry that highlights the pesticides and 

3749 risks from exposure, combined with the existing PPE requirements and activity limitations, will 

3750 adequately protect workers in early-entry situations, including the limited contact and irrigation 

3751 exceptions. Awareness of the limitations of the exception, for example, the number of hours and type of 

3752 work the worker may perform, and requirements for PPE that are required, will help the worker 

3753 recognize risks and takes steps to minimize them. EPA’s general prohibition against early entry is 

3754 expected to limit worker exposure during the REI. In granting the exception for irrigation, EPA has 

3755 weighed the risk from exposure against the benefits of early entry irrigation and finds justification for 

3756 the exception.

3757 E. Eliminate the Option for an Exception Requiring Agency Approval

3758 1. Current rule and proposal. Under the existing rule, an applicant may request approval from 

3759 EPA for an exception to the prohibition on worker entry into a treated area during the REI for a specific 

3760 need. EPA proposed to eliminate the process for requesting an exception from the rule. 
Page 85 of 176

3761 2. Final rule. EPA is finalizing the proposal to eliminate the provision for exceptions requiring 

3762 Agency approval. 

3763 3. Comments and responses.

3764 Comment. One grower opposed the elimination of the provision, citing the evolution of farming 

3765 practices and the potential for conflict between new practices and the rule. The commenter stated that 

3766 there is no administrative burden to the EPA, except to evaluate requests if they are submitted.

3767 EPA Response. EPA included the administrative exception process into the WPS in 1992 in 

3768 recognition that the general prohibition on routine early entry might significantly affect various 

3769 agricultural entities or practices in ways that might only become apparent as the 1992 WPS was put into 

3770 effect. EPA created a small number of exceptions during the 1990s, but none since 1997. The effects of 

3771 reentry intervals on agricultural entities and practices are now sufficiently well understood that the 

3772 administrative exception process is no longer needed in the WPS. As explained in the preamble to the 

3773 proposed rule, EPA finds the pesticide re-evaluation process a more appropriate venue than the WPS for 

3774 considering the economic impacts of REIs on particular agricultural entities and practices. Under EPA’s 

3775 registration review process, applicants may request alternative REIs for specific needs for their crop. This 

3776 process takes into account the potential increased risk to workers and the benefits to the production of 

3777 the crop. In cases where EPA finds that the revision of an REI is warranted, the product label will be 

3778 amended to specify the REI for that particular use. 

3779

3780 XII. Display of Pesticide Safety Information

3781 A. Pesticide Safety Information Content

3782 1. Current rule and proposal. The existing rule requires employers to display a pesticide safety 

3783 poster containing the following information:

3784 • Avoid getting on your skin or into your body any pesticides that may be on plants and soil, in 

3785 irrigation water, or drifting from nearby applications.

3786 • Wash before eating, drinking, using chewing gum or tobacco, or using the toilet.

3787 • Wear work clothing that protects the body from pesticide residues (long-sleeved shirts, long 

3788 pants, shoes and socks, and a hat or scarf).

3789 • Wash/shower with soap and water, shampoo hair, and put on clean clothes after work.

3790 • Wash work clothes separately from other clothes before wearing them again.

3791 • Wash immediately in the nearest clean water if pesticides are spilled or sprayed on the body. 

3792 As soon as possible, shower, shampoo, and change into clean clothes.

3793 • Follow directions about keeping out of treated or restricted areas.

3794 • There are federal rules to protect workers and handlers, including a requirement for safety 

3795 training.

3796 The existing rule also requires the employer to provide contact information for the nearest 

3797 emergency medical care facility and to promptly update the safety information poster when any of the 

3798 required contact information changes. 

3799 EPA proposed changing the term for what employers must display from “pesticide safety 

3800 poster” to “pesticide safety information.” EPA proposed retaining the existing content requirements of 

3801 the existing rule, with one exception. EPA proposed removing the item regarding federal rules to allow 

3802 the other information to be more prominent. EPA proposed retaining the requirement to display the 

3803 contact information for the medical facility and amending the language from “nearest emergency 

3804 medical care facility” to “a nearby operating medical facility.” Finally, EPA proposed requiring the 
Page 86 of 176

3805 employer to provide on the display the name, address, and telephone number of the state or tribal 

3806 pesticide regulatory agency.

3807 2. Final rule. EPA has finalized the proposed requirements for content, and has added a point to 

3808 the proposed display requirements that advises workers and handlers to seek medical attention as soon 

3809 as possible if they believe they have been made ill from pesticides. EPA has also amended one of the 

3810 existing required points to clarify that if pesticides are spilled or sprayed on the body, workers and 

3811 handlers should rinse immediately in the nearest clean water if more readily available than the 

3812 decontamination supplies, and should wash with soap and water as soon as possible. The final rule 

3813 refers to the requirement as “pesticide safety information” and allows display of the information in any 

3814 format that meets the requirements of the rule, rather than only as a pesticide safety poster. EPA has 

3815 included a requirement in the final rule for the employer to update the pesticide information display 

3816 within 24 hours of notice of any changes to the medical facility or pesticide regulatory agency contact 

3817 information. Finally, EPA has provided an option in the regulatory text that allows employers to comply 

3818 by following the requirements at 40 CFR 170.311(a)(1)-(4) before they are fully implemented. The final 

3819 regulatory text for these requirements is available at 40 CFR 170.311(a)(1)-(4). 

3820 The final rule delays implementation of the changes to the required pesticide safety information 

3821 until two years after the rule is made final, in order to allow time for model pesticide safety information 

3822 display materials to be developed and distributed. 

3823 3. Comments and responses.

3824 Comments. Farmworker advocacy groups and public health organizations supported the 

3825 emergency medical care change and inclusion of the state or tribal agency responsible for enforcement. 

3826 However, they urged implementation sooner than the proposed two years from the effective date of 

3827 the final rule. One commenter reported that a recent survey they conducted indicated that 25% of 

3828 respondents did not complain about pesticide-related health problems or pesticide applications to the 

3829 fields while they were working because they did not know to whom to complain and 62% feared losing 

3830 their jobs if they were to complain.

3831 In general, agricultural producer organizations, states and a pesticide registrant organization did 

3832 not object to the proposed changes for providing emergency medical information but several 

3833 commenters were concerned about spurious reporting of alleged violations resulting from inclusion of 

3834 the state or tribal regulatory agency in the pesticide safety information. Commenters suggested that 

3835 EPA should carefully monitor any reports of alleged violations and work with state and tribal agencies to 

3836 monitor whether such reports are well-founded and whether the information is being used by others as 

3837 a means of pursuing agendas unrelated to worker protection. Several commenters interpreted the 

3838 proposal as requiring injured workers to contact state or tribal agencies responsible for enforcement for 

3839 emergency medical attention. Several commenters requested that EPA state and clarify the purpose for 

3840 posting the regulatory agency contact information (i.e., for worker protection). One state requested that 

3841 EPA be less prescriptive of which agency contact information is provided because in some states, the 

3842 lead agency for pesticide enforcement may have counterpart agencies that also enforce pesticide3843 related issues and jointly enforce the WPS. 

3844 A grower organization pointed out that the nearest operating medical facility might change 

3845 depending on the time of day and wondered if the employer would need to list hours of operation and

3846 addresses of all emergency medical care facilities in the area where the employer operates. 

3847 One grower organization objected to including the regulatory contact information as part of the 

3848 pesticide safety information display. One state argued that adding the regulatory agency contact 
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3849 information to the poster would be redundant, because it is already available from many different 

3850 sources, and impractical to implement at the state or employer level. 

3851 One commenter suggested the safety poster should always be in a standardized format and 

3852 requested that EPA not allow the information to be displayed in several different formats. 

3853 Several commenters suggested that in addition to requiring the pesticide safety information 

3854 display to contain information on the nearest medical facility, EPA should also require the display to 

3855 include instructions for workers and handlers to notify their employer as well in the event of a medical 

3856 emergency.

3857 EPA Response. EPA has concluded that there was general support for the proposed requirement 

3858 regarding the content of the safety information display, including the proposal to add contact 

3859 information for the pesticide regulatory agency. EPA has delayed implementation of the final 

3860 requirements for two years after publication of the final rule to allow time for display material to be 

3861 updated, printed and distributed. However, EPA encourages employers to implement the new 

3862 requirements prior to that date by allowing employers the option to use either the existing or the new 

3863 safety information content prior to the implementation date.

3864 In response to concerns about the placement of the medical facility information and the 

3865 inclusion of regulatory agency information in the display, EPA has revised the regulatory text to clarify 

3866 that the contact information about the medical facility must be clearly identified as the emergency 

3867 medical contact information on the display. Further, the regulatory text separates the requirements to 

3868 display the contact information for the medical facility and the contact information for the regulatory 

3869 agency information. Displaying the regulatory agency information is important for the ability of workers 

3870 and handlers to report possible violations, and in those states where it is already required, it does not 

3871 appear to have generated spurious reporting of alleged violations. EPA appreciates that some states 

3872 may already require employers to make such medical and regulatory information available and where 

3873 state requirements meet or exceed the federal requirement, they do not need to be duplicated. 

3874 However, EPA has added this requirement to the WPS to ensure the information is available to workers 

3875 and handlers in all states. 

3876 EPA will work with states during and after implementation of the WPS to identify issues, 

3877 including any problems with implementation of the revised pesticide safety information display 

3878 requirements. EPA does not anticipate any systematic monitoring of reports of alleged violations, either

3879 to determine whether such reports are well-founded or whether the information is being used by others 

3880 as a means of pursuing agendas unrelated to worker protection. If issues of abuse arise, EPA would 

3881 anticipate working with the pertinent state or tribal regulatory agency as needed.

3882 EPA disagrees with the request that the pesticide safety poster specify the purpose for providing 

3883 contact information for the regulatory agency. Workers and handlers will receive training on the 

3884 employer’s responsibility to provide pesticide safety information and on how to report suspected 

3885 pesticide use violations to the state or tribal agency responsible for pesticide enforcement (i.e., call the 

3886 number on the pesticide safety information display). EPA believes including this information in the 

3887 training for workers and handlers, rather than explaining on the display the rationale for including the 

3888 regulatory contact information, balances the need to provide workers and handlers with contact 

3889 information and the concerns of some stakeholders that providing this information will result in 

3890 spurious and unnecessary calls to regulatory agencies.

3891 EPA has not amended the final regulatory requirements in response to comments requesting 

3892 that the regulation be less prescriptive in requiring the display to include contact information for the 

3893 pesticide regulatory agency. The regulatory language does not specify that only a single agency 
Page 88 of 176

3894 responsible for enforcement of the WPS must be included on the display; rather, it requires “[t]he name, 

3895 address and telephone number of the State or Tribal pesticide regulatory agency.” 40 CFR 

3896 170.311(a)(3)(x). EPA interprets this requirement to be flexible enough to allow the inclusion of 

3897 information for multiple agencies when multiple agencies in the state are responsible for WPS-related 

3898 regulatory activities. 

3899 EPA disagrees with commenters who asserted that it is unnecessary to include the regulatory 

3900 agency contact information as part of the pesticide safety information display. While this information 

3901 may be available from multiple sources within the state, it may not be readily accessible to workers and 

3902 handlers. Workers and handlers receive training on reporting suspected violations and need to know 

3903 where and how to find the contact information in order to do so. Including the regulatory agency 

3904 contact information in a standard location, i.e., as part of the pesticide safety information display, 

3905 ensures that workers and handlers will know where to look for this information if and when they need 

3906 it.

3907 EPA is finalizing the proposed requirement to identify a nearby operating emergency medical 

3908 care facility to simplify the requirement in situations where the nearest operating emergency medical 

3909 facility varies with the location of workers and handlers.

3910 EPA disagrees with the comment requesting that the information be displayed in a standardized 

3911 format. As long as the information is provided in a way that workers and handlers can understand, EPA 

3912 sees no need to mandate a specific format.

3913 EPA disagrees with the requests to include in the pesticide safety information display 

3914 instructions for workers and handlers to notify their employer in the event of a medical emergency. 

3915 Workers and handlers may notify their employer, and many may do so to request transportation for 

3916 medical treatment or to report the incident. However, EPA has chosen not to include instructions to 

3917 contact the employer as part of the safety display because in the event of an emergency, the most 

3918 critical information for a worker or handler is the location of the nearest medical facility. EPA does not 

3919 want to give workers and handlers the impression that they must delay seeking treatment to inform 

3920 their employers that an incident has occurred.

3921 B. Location of Pesticide Safety Information Display

3922 1. Current rule and proposal. The existing rule requires agricultural and handler employers to 

3923 display the pesticide safety poster at a central location on the establishment. EPA proposed to require 

3924 that agricultural employers display the pesticide safety information at locations where decontamination 

3925 supplies must be provided, in addition to the existing requirement to display it at a central location. 

3926 2. Final rule. In the final rule, EPA has amended the proposal to require that in addition to 

3927 displaying pesticide safety information at a central location, employers must also display it at permanent 

3928 decontamination supply locations and where decontamination supplies are provided in quantities to 

3929 meet the needs of 11 or more workers or handlers. The final regulatory text for this requirement is 

3930 available at 40 CFR 170.311(a)(5).

3931 3. Comments and responses.

3932 Comments. Farmworker advocacy organizations and public health organizations supported 

3933 requiring display of pesticide safety information where decontamination supplies are provided for easy 

3934 access to safety information for farm workers and families at strategic locations. They asserted that this 

3935 would improve the ability of farmworkers and their families to stay healthy. They maintained that due to 

3936 language barriers, immigration status, and fear of retaliation, farmworkers are often reluctant to ask 

3937 their employers for information. Three individual farmworkers also commented on the proposed rule 

3938 and echoed concerns expressed by farmworker advocacy groups and public health organizations. The 
Page 89 of 176

3939 commenters requested clear information in Spanish and English at a central location with easy access 

3940 that includes telephone numbers, places to go for help, and hospitals in the area. They stated that it was 

3941 important that employers give farmworkers the necessary information about the pesticide application 

3942 without workers having to ask for information. About half of the grower organizations commenting had 

3943 no objection to the additional mandate on employers and agreed that the additional reminders at 

3944 decontamination sites have potential benefits. One farmworker advocacy organization recommended 

3945 that EPA also require pesticide safety information to be displayed near where workers enter treated 

3946 areas to remind workers to avoid coming into contact with pesticides before exposures occur.

3947 Some grower organizations asserted that the proposed requirement would pose a significant 

3948 burden. One commenter stated that duplicating the pesticide safety information at multiple sites 

3949 throughout an agricultural organization did not equate to a better training program and believed this 

3950 requirement would likely result in additional fines for noncompliance without raising safety awareness. 

3951 To support the claim of additional burden without commensurate benefit, a commenter asserted that if 

3952 a person views the same information in the same location repeatedly, he or she will soon disregard the 

3953 information. Some grower organizations pointed out that workers are bused in for a day in the field and 

3954 irrigators are sent to different areas by phone; none of these congregate at a central location. 

3955 Some grower organizations and a state supported only retaining the requirement to display 

3956 pesticide information at the central display. A few grower organizations recommended that EPA allow 

3957 for the pesticide safety information to be displayed either at a central location on the establishment or 

3958 at decontamination sites. One grower organization recommended that EPA require that only emergency 

3959 contact information, rather than the proposed pesticide safety information, be posted at 

3960 decontamination sites. 

3961 One grower organization raised concerns with the requirement for the pesticide safety 

3962 information display to be accessible when it is required to be posted, noting that it would be impractical 

3963 and troublesome for workers to have 24-hour access to vehicles and equipment where pesticide safety 

3964 information would be required to be displayed.

3965 Many states opposed displaying the pesticide safety information at all decontamination sites. 

3966 Because of the mobile nature of many decontamination sites, such as the back of a pickup truck, many 

3967 noted the proposed requirement would be burdensome. One indicated that it would be difficult for a 

3968 grower owning fields across multiple counties to keep the pesticide safety information accurate. States 

3969 generally supported displaying the pesticide safety information at permanent decontamination sites and 

3970 base of operation mix/load sites. Several states asked for clarification about what types of 

3971 decontamination sites would be required to display the pesticide safety information. States suggested 

3972 that permanent or fixed decontamination locations, such as portable toilet facilities and plumbed wash 

3973 sites would be more appropriate locations for displaying the pesticide safety information than portable 

3974 decontamination kits commonly carried by irrigation workers and others. 

3975 Other states mentioned the lack of protection from the weather of the pesticide safety 

3976 information at OSHA-required restroom facilities and the lack of access to this information when the 

3977 vehicles carrying decontamination supplies are locked up at night. Two states recommended different 

3978 sizes for the pesticide safety information. One state suggested that pesticide safety information displays 

3979 be no larger than 11 x 17 inches and laminated to withstand at least one year’s worth of weather 

3980 conditions for use at decontamination sites; this state also recommended resizing the existing pesticide 

3981 safety information to 8.5 x 11 inches or less and made of durable card stock or plastic for the agricultural 

3982 workers to take home. Another state recommended the safety sign be available in different sizes to 

3983 accommodate displaying it at various sites.
Page 90 of 176

3984 One state recommended providing different pesticide safety information displays for workers 

3985 and handlers, with information more specifically targeted to each audience. The commenter 

3986 recommended that a handler safety display include primary instructions on how to remove pesticide3987 contaminated clothing, how to properly wash off pesticide residues in the eyes and skin, and what to do 

3988 after these two processes are complete. Some states asserted that the poster is mainly targeted to 

3989 workers. 

3990 EPA Response. EPA agrees with the commenters who supported requiring safety information 

3991 displays at a central location and anywhere decontamination supplies must be provided because the 

3992 information is a useful reminder of the hygienic safety principles from their training. However, EPA was 

3993 persuaded by arguments that the burden to display the information at mobile decontamination sites 

3994 could be substantial, based on concerns for their ability to display the information so that it could be 

3995 easily seen by workers, such as by posting it on a vertical surface. The final rule requires employers to 

3996 display the information at the central display and all permanent sites, including a lavatory or bathroom, 

3997 where decontamination supplies are provided to meet the requirements of the rule. However, for other 

3998 locations where decontamination supplies must be provided (certain non-permanent sites), the 

3999 pesticide information display is required only when the supplies are provided for 11 or more workers or 

4000 handlers. This aligns with OSHA’s field sanitation standard that requires toilet facilities for 11 or more 

4001 workers. EPA notes that employers may use these portable toilet facilities or permanent wash sites to 

4002 display the information, as recommended by some states.

4003 EPA disagrees that with the request to require pesticide safety information to be displayed near 

4004 where workers enter treated areas. The final regulation, requiring the poster to be displayed at a central 

4005 location, at permanent decontamination sites, and at sites where decontamination supplies are being 

4006 provided for 11 or more employees, balances the burden on employers to post and maintain the display 

4007 with the need to provide workers and handlers with pesticide safety information where supplies for 

4008 addressing potential exposure are available. Workers and handlers receive training on the importance of 

4009 preventing exposure. Requiring the pesticide safety information to be displayed at each entrance to 

4010 treated areas would substantially increase the burden on employers to post and maintain the 

4011 information that would not be outweighed by benefits to workers.

4012 EPA does not agree with the contention that requiring the pesticide safety information display 

4013 at multiple locations would result in fines for noncompliance without greatly benefiting the employee. 

4014 The pesticide safety information display reinforces the hygienic training principles from the safety 

4015 training, and when coupled with access to decontamination supplies, offers a hands-on opportunity for 

4016 workers and handlers to adopt these practices. Additionally, information about medical facilities 

4017 available to workers and handlers where they may be exposed to pesticides may help them take steps to 

4018 respond to an emergency. 

4019 EPA disagrees with requests to require display of the pesticide safety information only at the 

4020 central display or to offer the option to display it at either a central display or decontamination sites. 

4021 Posting at decontamination sites is beneficial because the information would be readily available in an 

4022 emergency, because EPA assumes many emergencies may involve some decontamination efforts. 

4023 Having the display at the central location allows workers and handlers access to information such as the 

4024 emergency medical assistance and regulatory agency contact numbers at the same place they can find 

4025 information about pesticides recently applied on the establishment.

4026 EPA disagrees with the request to require only emergency contact information, rather than the 

4027 proposed pesticide safety information, to be posted at decontamination sites because the pesticide 

4028 safety information provides helpful information to workers and handlers about washing after potential 
Page 91 of 176

4029 exposure. Requiring this information at the site where supplies for decontamination are provided 

4030 reminds workers and handlers about these hygienic practices at the point where they can take action.

4031 In response to concern that requiring the pesticide safety information to be accessible could be 

4032 impractical and troublesome, and might result in employers having to ensure that workers have 24-hour 

4033 access to vehicles and equipment where pesticide safety information would be required to be displayed, 

4034 EPA notes that the pesticide safety information must be displayed only “if workers or handlers are on 

4035 the establishment and within the last 30 days a pesticide product has been used or a restricted-entry 

4036 interval for such pesticide has been in effect on the establishment.” 40 CFR 171.309(h). At times when 

4037 no workers or handlers are on the establishment, the employer would not need to provide or ensure 

4038 access to locations where the pesticide safety information is displayed. Further, the final rule 

4039 requirement limits the locations where pesticide information must be displayed to the central location, 

4040 permanent decontamination sites, and sites where decontamination supplies are being provided for 11 

4041 or more employees.

4042 EPA appreciates the comments regarding display size and options for lamination. The final rule 

4043 does not establish a specific size for the information or require it to be laminated. However, the final 

4044 rule requires the information to be legible at all times while it is displayed, and EPA expects that 

4045 employers will opt for the optimal size and protection from the elements for their specific needs. 

4046 Because the final rule limits the type of decontamination sites covered by this requirement and includes 

4047 flexibility for identifying the regulatory agency and a nearby operating emergency medical care facility, it 

4048 is possible but unlikely that some growers with larger establishments may need to provide different 

4049 specific contact information about the regulatory agency and/or the medical facility, depending on the 

4050 area where workers or handlers are working. 

4051 Commenters suggested the information be available in English and Spanish. EPA notes that the 

4052 requirement is for the information to be provided in a manner that the workers and handlers can 

4053 understand, which may include making it available in English and Spanish, or in other languages as 

4054 appropriate. 

4055 EPA plans to develop and make available to agricultural and handler employers posters bearing 

4056 the pesticide safety information, in a bilingual and pictorial format and with space for employers to add 

4057 the required regulatory agency and medical facility information. As discussed in the proposed rule, the 

4058 information does not have to be displayed as a poster as long as the display includes the required 

4059 information and meets the requirements of the section.

4060 EPA disagrees with the commenter’s request to provide different pesticide safety information 

4061 displays for workers and handlers. The pesticide safety information display reminds workers and 

4062 handlers about basic pesticide safety and hygienic principles that apply to both audiences. Developing 

4063 and maintaining separate pesticide safety information displays for workers and handlers could result in 

4064 a significantly higher burden on employers without providing substantial additional benefit to workers 

4065 and handlers.

4066

4067 XIII. Decontamination

4068 A. Clarify the Quantity of Water Required for Decontamination

4069 1. Current rule and proposal. The existing rule requires employers to provide “enough water for 

4070 routine washing and emergency eye flush” when workers are performing activities in areas where a 

4071 pesticide was applied and the REI has expired. For early-entry workers, the existing WPS requires 

4072 employers to provide “a sufficient amount of water” for decontamination. The existing WPS requires 

4073 employers to provide handlers with “enough water for routine washing, for emergency eye flushing and 
Page 92 of 176

4074 for washing the entire body in case of an emergency.” EPA proposed to require specific quantities of 

4075 water for workers, early-entry workers and handlers based on its 1993 guidance, “How to Comply with 

4076 the Worker Protection Standard for Agricultural Pesticides; What Employers Need to Know.” In the 

4077 guidance, EPA recommended one gallon of water per worker for routine decontamination, three gallons 

4078 of water for early-entry workers for decontamination and three gallons of water per handler for routine 

4079 handwashing and potential emergency decontamination. 

4080 EPA requested comment on the proposed quantities of water and the use of waterless cleansing 

4081 agents in place of soap, water, and single-use towels. EPA also requested information on the efficacy of 

4082 waterless cleansing agents for removing pesticide residues.

4083 2. Final rule. EPA has finalized the proposed decontamination water requirements. EPA has also 

4084 clarified that employers must make the required quantities of water and other decontamination 

4085 supplies available at the beginning of the work period. The final rule does not allow waterless cleansing 

4086 agents to be used in place of water, soap, and single-use towels. The final regulatory text for these 

4087 requirements is available at 40 CFR 170.411(b), 170.509(b) and 170.605(h). 

4088 3. Comments and responses.

4089 Comments. A majority of commenters supported the proposal to require one gallon of water 

4090 per worker for routine decontamination, three gallons of water for early-entry workers for 

4091 decontamination and three gallons of water per handler for routine washing and emergency 

4092 decontamination, but many requested clarification of the time frame associated with the supply. They 

4093 wondered if the prescribed amounts were the maximum quantity per site or per number of workers, the 

4094 minimum amount at the beginning of the day or at all times during the work period. Of the 14 state 

4095 pesticide regulatory agencies that commented, six supported the codification of the guidance to require 

4096 that employers provide 1 gallon of water per worker for decontamination and 3 gallons of water per 

4097 handler for routine washing and emergency decontamination. Eight agencies requested clarification of 

4098 these quantities; they recommended that the quantity be indicated as the maximum per site or per 

4099 number of workers; they also questioned whether the quantity was to be available at the beginning of 

4100 the day, throughout the day, or at the end of the day. A state department of agriculture pointed out that 

4101 requiring a change of clothing for workers will place a large burden on employers. Eight public health 

4102 agencies and academics commented on the proposed specific quantities for workers and handlers. Two 

4103 of the commenters recommended following the requirements in American National Standards Institute 

4104 (ANSI) Z358.1-2009 while one recommended that EPA follow the OSHA requirements (29 CFR 1928.110) 

4105 and the California field sanitation standards. One commenter did not believe water could remove oil4106 based pesticide products and would therefore not be effective for decontamination of oil-based 

4107 pesticide products. Eight farmworker advocacy organizations expressed support for the proposed 

4108 quantities of water but urged EPA opt for the stronger protections offered by OSHA and ANSI for 

4109 workers and handlers. Of the seven growers and grower organizations, four were generally supportive 

4110 but requested clarification of the time period in which the gallons per worker or handler would be 

4111 required. Two grower organizations urged coordination with the OSHA requirements or adoption of the 

4112 OSHA requirements. Only one grower organization believed that it was a mistake to specify quantities of 

4113 water for workers and handlers. Of the five farm bureaus that commented, four did not support the 

4114 proposed quantities of water; these four supported maintaining the existing rule requirements. Some of 

4115 the reasons the commenters included: a large number of workers would mean an impractical amount of 

4116 water; the existing language on a “sufficient” amount of water adequately addresses this problem; and a 

4117 “specific amount of water may re-direct compliance from actions that are clearly focused on worker 

4118 safety to merely technical considerations.” One farm bureau understood the proposal to be clarification 
Page 93 of 176

4119 and codification of existing compliance expectations. A pesticide manufacturer organization 

4120 commented that the quantities were reasonable but prescriptive. This commenter requested 

4121 clarification about the time period for the water requirements; as an example, the commenter 

4122 wondered whether the water for handlers would be required at the beginning of the day or at all times. 

4123 An agricultural organization was supportive and agreed with EPA that it is important to have proper 

4124 decontamination supplies available. Two other organizations recommended that EPA incorporate the 

4125 ANSI/OSHA standards.

4126 Two farmworker advocacy organizations, one public health organization, one farm bureau, one 

4127 pesticide manufacturing organization and one grower organization commented on whether waterless 

4128 cleansing agents should be used in place of soap, water, and single-use towels to remove pesticide 

4129 residues. Two commenters did not support replacing soap and water with the waterless cleansing 

4130 agents; they stated that alcohol- and chemical-based waterless cleansing agents were designed to kill 

4131 bacteria and not remove pesticide residues. Waterless wipes designed to remove dirt and grime were 

4132 also not an acceptable substitute for soap and plenty of clean water. The remaining commenters were in 

4133 favor of using the waterless cleansing agents. One commenter felt it would be reasonable for routine 

4134 worker decontamination but not practical for handler decontamination. Two commenters requested 

4135 that EPA evaluate the use of such agents, but did not provide any data on the efficacy of these agents to 

4136 assist in the evaluation. Only one commenter argued for use of the waterless cleansing agent if it was a 

4137 neutralizer. This particular commenter provided a reference indicating that Reactive Skin 

4138 Decontamination Lotion (RSDL©) would be effective against organophosphates.

4139 EPA Response. EPA notes that the proposed quantities of water for decontamination are 

4140 intended for agricultural settings that are not subject to the field standards of OSHA and ANSI. The WPS 

4141 requirements are meant to be protective, flexible and not overly burdensome in agricultural settings 

4142 where OSHA’s field sanitations do not apply. In the final rule EPA is requiring a minimum of 1 gallon of 

4143 water per worker and a minimum of 3 gallons of water per handler. Based on comments, EPA has 

4144 clarified that the specified amount of supplies be available at the beginning of the work period and that 

4145 they are to be calculated per worker and per handler. The final rule does not require the replenishment 

4146 of used supplies until the beginning of the next work period. As for the comment that water would not 

4147 remove oil-based pesticide products, that is why the rule requires soap be provided with the 

4148 decontamination supplies. The use of soap and water as a first response measure in the field should 

4149 help remove enough of these pesticides to provide some immediate removal and protection from 

4150 exposure before accessing more effective decontamination measures that may be more protective. EPA 

4151 acknowledges the proposed requirement for a change of clothing for workers was inadvertently 

4152 included in the proposed regulatory text and that was a mistake so it has been removed in the final rule. 

4153 The information supplied by commenters was insufficient to convince EPA to replace water, 

4154 soap, and single-use towels with a waterless cleansing agent. The reference provided for one waterless 

4155 cleansing agent was useful but not a practical solution because it appeared it would only be effective 

4156 against organophosphate pesticides, so this particular agent would be of limited use. Workers and 

4157 handlers are likely to encounter more than one family of pesticides in their work, so water and soap 

4158 would still be necessary for other pesticides. Therefore, EPA is requiring in the final rule that the 

4159 employer supply water, soap, and single use towels in quantities sufficient to meet the worker’s and 

4160 handler’s needs. Hand sanitizing gels and liquids or wet towelettes do not meet the requirement for 

4161 soap. Wet towelettes do not meet the requirement for single-use towels.

4162 B. Eliminate the Substitution of Natural Waters for Decontamination Supplies
Page 94 of 176

4163 1. Current rule and proposal. For sites where worker or handler activities are farther than one4164 quarter mile from the nearest vehicular access, the existing rule permits employers to allow workers and 

4165 handlers to use clean water from springs, streams, lakes or other sources (“natural waters” for the 

4166 purposes of this section) for decontamination, if such water is more accessible than the employer4167 provided water. The employer must ensure any water used for decontamination, including natural 

4168 waters, is of a quality and temperature that will not cause illness or injury. EPA proposed to eliminate 

4169 the provision that allows employers to permit workers and handlers to substitute natural waters for the 

4170 required decontamination supplies at remote sites. For remote sites, the proposal would have 

4171 maintained the existing requirement for employers to provide all decontamination supplies (soap, 

4172 single-use towels, clean change of clothing and water) at the nearest point of vehicular access. However, 

4173 the existing regulation does not permit substitution of waters from natural sources for the 

4174 decontamination water at the point of nearest vehicular access, and EPA’s proposed change 

4175 mischaracterized the existing requirements.

4176 2. Final rule. In the final rule, EPA has removed from the regulatory text the provision that allows 

4177 employers to permit workers and handlers to use clean water from springs, streams, lakes or other 

4178 sources if that water is more accessible in remote locations where the decontamination supplies are 

4179 farther than one-quarter mile from where workers and handlers are working. EPA is taking this approach 

4180 to remove confusion about the employer’s responsibilities. The employer must always provide the 

4181 decontamination supplies in quantities outlined in the regulation. When workers or handlers are 

4182 performing tasks at remote sites more than one-quarter mile from the nearest point of vehicular access, 

4183 employers must provide all required decontamination supplies (soap, single-use towels, and water, plus 

4184 clean change of clothing if required) at the nearest point of vehicular access. Under the final rule, 

4185 employers are required to make the decontamination supplies available as close as possible to the 

4186 remote site (as determined by how close a vehicle can get) and employers do not have to check or 

4187 confirm that water from springs, streams, lakes or other sources at remote sites meets the standard of 

4188 being of a quality and temperature that will not cause illness or injury. EPA has amended the training 

4189 requirements to cover the proper use of natural waters at remote sites by workers and handlers. EPA 

4190 believes that workers and handlers in these remote areas should primarily rely on the decontamination 

4191 water that is provided by the employer for routine washing and emergency decontamination because 

4192 the quality of the natural waters at the remote site is unknown. In case of an overexposure, such as a 

4193 spill, contact from drift, or direct spray, workers and handlers should always use the emergency 

4194 decontamination supplies if they are more readily available. However, training will emphasize that 

4195 workers or handlers should rinse immediately using the nearest source of clean water to mitigate the 

4196 exposure, and to use the nearest source of clean water, including springs, streams, lakes or other 

4197 sources, if more readily available than the decontamination supplies. Workers and handlers will be 

4198 advised through training that as soon as possible they should decontaminate thoroughly with the soap, 

4199 water and towels provided by the employer and, if available, change into clean clothes. EPA plans to 

4200 modify training materials to incorporate this information. The final regulatory text for worker and 

4201 handler decontamination is available at 40 CFR 170.411(d), 170.509(c), and 170.605(h)-(j). 

4202 3. Comments and responses.

4203 Comments. Many commenters supported not using natural waters to replace the required 

4204 decontamination supplies. Several commenters also supported the need for employees to access the 

4205 nearest clean water in case of an emergency or significant exposure. Seven state pesticide regulatory

4206 agencies commented on the proposal. Two of the agencies said they would support the proposal if use 

4207 of the natural waters were allowed for emergency decontamination. Five agencies supported the 
Page 95 of 176

4208 proposal but commented that the term “natural waters” was confusing; they suggested replacing the 

4209 term with “water of a quality and temperature that will not cause further injury.” One agency felt the 

4210 proposal complicated matters without a clear benefit. Three public health organizations and academics 

4211 supported the proposal. One suggested that the use of natural waters for decontamination should be 

4212 managed without letting the pesticides enter public waters. Another commenter suggested that in a 

4213 true emergency, it was important to use whatever water was available. Two farmworker advocacy 

4214 organizations supported the proposal to eliminate the exemption allowing employers to use natural 

4215 bodies of water in place of the required decontamination supplies. They suggested that the actual 

4216 cleanliness of the natural bodies of water was unknown and expressed concern that the quality of the 

4217 natural waters might be questionable and not the best choice for decontamination. Of the four growers 

4218 and grower organizations that commented, three did not support the proposal. One commenter said 

4219 the use of natural waters should be reserved for true emergency situations; for immediate 

4220 decontamination, the employee should use whatever water is available. Three farm bureaus 

4221 commenting on this proposal did not support the proposal and urged EPA to discard it. One farm bureau 

4222 suggested that employees be allowed to use natural water bodies to supplement needs in the event of 

4223 an emergency. Finally, one farm bureau commenter stated that large scale planting activities can place 

4224 workers more than one-quarter mile from vehicular access, and retaining the existing requirement is 

4225 more reasonable than expecting workers to carry washing water with them.

4226 EPA Response. EPA maintains its position that the employer-provided decontamination supplies, 

4227 provided within one-quarter mile of the workers and handlers – or in remote areas, at the nearest point 

4228 of vehicular access to worker and handler work sites – are the appropriate supplies for routine washing 

4229 and emergency decontamination. The employer must ensure this water meets the minimum criteria for 

4230 quality. However, EPA agrees with commenters that prompt washing in clean water is an important step 

4231 in reducing overexposure, for example, from a spill, contact from drift, or direct spray. EPA has identified 

4232 acute incidents that would have been mitigated if the exposed worker or handler had decontaminated 

4233 promptly. EPA is concerned that the existing requirements for employers to ensure the quality of natural 

4234 waters prior to their use and for employers to specifically permit the use of natural waters will prevent 

4235 workers and handlers from using these waters to decontaminate in case of an emergency. Ensuring the 

4236 quality of all natural waters on their establishment could be burdensome for employers, and as a result 

4237 they might not evaluate the quality or permit the use of natural waters. 

4238 To ensure that workers and handlers needing emergency decontamination can use water that is 

4239 more accessible than the decontamination water provided by the employer, the rule permits the use of 

4240 natural waters for emergency decontamination by not prohibiting the use of such waters by workers 

4241 and handlers. The employer is not required to predetermine that the quality of such water meets the 

4242 criteria for the rule since it is not provided as the water for decontamination supplies, but is merely 

4243 available for their employees to access in an emergency situation. The employer is still required to 

4244 supply separate water for decontamination and to assure that the quality of the supplied water meets 

4245 the criteria of the rule. Workers and handlers seeking to mitigate an emergency exposure will be 

4246 informed in their training to use the nearest clean water to immediately rinse off if such water is more 

4247 readily available than the employer-provided decontamination supplies, and then go to where the 

4248 employer-provided supplies are to fully decontaminate. EPA believes the benefits of using natural clean 

4249 waters to decontaminate immediately in an emergency pesticide exposure situation outweighs the 

4250 potential risks of making workers or handlers wait until they can use supplied decontamination water 

4251 that has been evaluated for quality but may be less available to immediately address the exposure. 
Page 96 of 176

4252 Although the quality of the natural waters is unknown, EPA thinks that washing in natural waters in any 

4253 agricultural area is unlikely to pose risks comparable to a significant direct pesticide exposure. 

4254 C. Requirements for Ocular Decontamination in Case of Exposed Pesticide Handlers

4255 1. Current rule and proposal. The existing rule requires employers to provide “enough” water to 

4256 handlers for routine and emergency washing and emergency eye flushing. For handlers who use 

4257 products that require eye protection, employers must provide each handler with at least one pint of 

4258 water that they can carry for use in the event of an ocular pesticide exposure. EPA proposed to require 

4259 employers to provide clean, running water at permanent (i.e., plumbed and not portable) mixing and 

4260 loading sites for handlers to use in the event of an ocular pesticide exposure when using a pesticide with 

4261 labeling that requires eye protection.

4262 2. Final rule. Under the final rule, employers must provide water for ocular decontamination 

4263 either through a system capable of delivering 0.4 gallons/minute for at least 15 minutes or from six 

4264 gallons of water able to flow gently for about 15 minutes. This water must be available at all mixing and 

4265 loading sites where handlers are mixing or loading a product that requires eye protection or when 

4266 closed systems, operating under pressure, are in use. The final rule amends the existing requirement for 

4267 employers to provide at least one pint of water per handler in portable containers that are immediately 

4268 available to handlers applying the pesticide, rather than to all handlers mixing, loading and applying 

4269 pesticides, if the pesticide labeling requires protective eyewear. The final regulatory text for these 

4270 requirements is available at 40 CFR 170.509(i). 

4271 The term “potable” in the preamble and regulatory text for the proposed rule was a 

4272 typographical error and has been corrected to “portable” in the final rule. 

4273 3. Comments and responses.

4274 Comments. There was general support for this proposal. Nine state pesticide regulatory 

4275 agencies supported the proposal but several requested definitions or clarifications and some supported 

4276 the proposal conditionally only if EPA allowed for certain types of water tanks. One pesticide 

4277 manufacturing organization stated the proposal was reasonable with certain understandings such as if 

4278 the water does not have to be potable, employers would be allowed 12 months to provide the eye 

4279 decontamination station, it was required only for permanent mixing/loading sites which already had 

4280 running water, and no recordkeeping of the water flows would be required. All four public health 

4281 organizations and academics that commented supported the proposal, saying it was “reasonable.” 

4282 However, they urged the adoption of the other ANSI requirements which included an emergency 

4283 eyewash and shower equipment capable of delivering 20 gallons per minute for 15 minutes. Seven 

4284 farmworker advocacy organizations commented they supported the requirement for ocular 

4285 decontamination of exposed handlers. All five farm bureaus commenting on the proposal generally 

4286 supported it. Four of the farm bureaus urged EPA to ensure that the “availability of potable water for 

4287 decontamination requirements apply only to permanent mixing and loading facilities.” 

4288 Many commenters from across all groups urged EPA to adopt or coordinate with ANSI standard 

4289 Z358.1-2009 and/or the OSHA requirements, 29 CFR 1928.110, as several states have done. Another 

4290 commenter felt the proposal was reasonable but EPA should follow the ANSI guidelines because running 

4291 water was not enough for ocular decontamination. The commenter noted that a faucet cannot be 

4292 turned on in one second or less, operated hands-free, or allow the injured person to hold eyes open and 

4293 have automatically tepid water flow. They said ANSI should be followed because it requires portable 

4294 gravity-fed eyewashes and portable pressurized eyewash/drench hose units and both keep the fluid 

4295 uncontaminated and portable. 
Page 97 of 176

4296 Several commenters from across multiple groups requested a definition of “permanent mixing 

4297 and loading site” and “a system capable,” and some state pesticide agencies suggested EPA use 

4298 “plumbed mixing and loading site” instead of “permanent mixing and loading site.” Two grower 

4299 organizations pointed out that permanent mixing and loading water sources are clean but not 

4300 necessarily potable; many remote locations without permanent plumbing have no potable water 

4301 because nursery and tree farm locations use ponds or reservoirs as their source of water.

4302 Several commenters from state pesticide regulatory agencies, grower organizations and farm 

4303 bureaus questioned whether the final rule included “nurse rigs,” “nurse tanks” and “gravity-fed tanks” 

4304 or similar types of water storage tanks, and many said they supported the proposal based on the final 

4305 rule permitting the inclusion of such sources as allowable sources of the water for eyeflush since many 

4306 permanent mixing and loading sites did not have running water but instead relied on these other types 

4307 of water sources. The commenters explained that much of the mixing and loading is done in the field 

4308 rather than at site with running water so it was important to be able to use this water for eyeflush to 

4309 minimize burden. One commenter pointed out that recharging a simple eyewash deluge station for 

4310 occasional use with 6 gallons of water, the proposed requirement, would not result in a significant 

4311 expenditure or additional labor. Other commenters wondered if the water for decontamination needed 

4312 to be potable.

4313 EPA Response. The OSHA standard at 29 CFR 1910.151(c) specifies that “... where the eyes or 

4314 body of any person may be exposed to injurious corrosive materials, suitable facilities for quick 

4315 drenching or flushing of the eyes and body shall be provided ...” The ANSI standard provides 

4316 specifications for two types of eyewash stations, plumbed and gravity-fed. The specifications describe a 

4317 system with a precise rate of flow (0.4 gallons/minute for 15 minutes), that can activate in 1 second or 

4318 less and does not require the user to control the flow of water. While the OSHA and ANSI standards are 

4319 very protective, EPA believes that it would be very costly and burdensome for employers to provide 

4320 eyewash systems that meet the OHSA and ANSI standards given the remote sites often encountered 

4321 with mixing/loading sites and agricultural operations and settings. The final rule requirements provide 

4322 handlers with mitigation appropriate to pesticide exposure in agricultural settings at significantly lower 

4323 costs than the ANSI standards. 

4324 Based on the comments, EPA realized that there might have been some confusion regarding the 

4325 nature of permanent mixing and loading sites, the plumbing associated with both permanent and non4326 permanent mixing and loading sites, and the quality of the water required. EPA proposed to require 

4327 eyewash systems only for permanent mixing and loading sites since EPA believed it was common for 

4328 most “permanent” mix/load sites to have running water and therefore it would be relatively easy to 

4329 provide eyewash systems that could meet the desired flow rate and standard. EPA received comments 

4330 indicating that was not the case. Therefore, in the final rule, EPA decided to apply the requirements for 

4331 eyewash systems to all mixing and loading sites where pesticides whose labeling requires protective 

4332 eyewear are handled because the risk to handlers who mix and load these products is the same, 

4333 regardless of whether they perform the mixing/loading tasks at a permanent site or a mobile site. 

4334 Additionally, rather than specify that eyeflush water must be running water and what types of water 

4335 tanks or eye wash systems would comply with the requirement, EPA opted for flexibility. The final rule 

4336 allows employers to provide either at least 6 gallons of water in containers suitable for providing a 

4337 gentle eye flush for about 15 minutes, or a system capable of delivering gently running water at a rate of 

4338 0.4 gallons per minute for at least 15 minutes to satisfy the requirement. EPA did not propose 

4339 recordkeeping of the water flows and there is no such requirement in the final rule. One emergency 

4340 eyewash system is required at each mixing/loading site where a handler is mixing or loading a product 
Page 98 of 176

4341 whose labeling requires protective eyewear for handlers, regardless of how many handlers are mixing or 

4342 loading at that site. Lastly, the final rule retains the existing requirement for water to be of “a quality 

4343 and temperature that will not cause illness or injury.” EPA did not propose to require “potable water” 

4344 for the eyeflush water as some commenters indicated, and there is no requirement in the final rule for 

4345 eyeflush water to be potable water, although the employer must ensure that it is of a quality and 

4346 temperature that will not cause illness or injury when it contacts the skin or eyes or if it is swallowed. 

4347 D. Showers for Handler Decontamination

4348 1. Current rule and proposal. The existing rule establishes specific requirements for routine and 

4349 emergency handler decontamination supplies, but these requirements do not include shower facilities. 

4350 EPA considered but did not propose a requirement for handler employers to provide shower facilities.

4351 2. Final rule. EPA has not included in the final rule a requirement for employers to provide 

4352 shower facilities for handlers.

4353 3. Comments and responses.

4354 Comments. Many commenters from growers and grower organizations, farm bureaus and 

4355 agricultural organizations supported the proposal’s omission of a provision requiring shower facilities for 

4356 handlers. They cited prohibitive costs and burden, and noted the provision would not necessarily 

4357 guarantee use, and therefore would not guarantee any reduction in take-home or handler exposure. 

4358 One state pesticide regulatory agency detailed its experiences after 10-15 years of shower use in 

4359 agricultural settings in the state and noted that their inspections revealed that showers were “largely 

4360 unused.” Several commenters from public health organizations, academia and farmworker advocacy 

4361 organizations requested that EPA require employers to provide shower facilities for handlers, and said 

4362 such facilities are important for emergency eyewash and decontamination. Those supporting a 

4363 requirement for shower facilities indicated that handlers would use them if they were provided, 

4364 especially with better training about the importance of using showers and reducing take-home pesticide 

4365 exposure. Worker advocacy organizations also thought showers should be provided for workers. 

4366 Commenters from both groups generally agreed that better training and adequate information on 

4367 reducing take-home exposure, as suggested by EPA, is needed. Several commenters from across both 

4368 groups said improved training would be a better, more reliable approach to addressing how to reduce 

4369 take home exposure.

4370 EPA Response. EPA agrees that the potential cost and burden of providing showers for handlers

4371 as described in the proposal, combined with the lack of confidence that most handlers would routinely 

4372 use showers if provided, led to the conclusion that a shower requirement would be unlikely to reduce 

4373 risks to an extent commensurate with the costs. EPA also believes that the additional training being 

4374 required for handlers, combined with clarified decontamination provisions such as the provision of at 

4375 least 3 gallons of water per handler for routine and emergency washing, will reduce take-home 

4376 exposure without requiring shower facilities. EPA also believes the new requirements for eyewash 

4377 systems will address concerns raised about the need for shower facilities to provide for eyewash in 

4378 ocular exposure emergencies. 

4379 XIV. Emergency Assistance

4380 A. Current rule and proposal. The existing WPS requires employers of workers or handlers, 

4381 including those handlers employed by the agricultural establishment or those working for a pesticide 

4382 handling establishment, to provide prompt transportation to an emergency medical facility to 

4383 employees who have been poisoned or injured by exposure to pesticides used on the establishment. 

4384 Emergency medical assistance under the existing rule consists of the prompt provision of transportation 

4385 to an emergency medical facility for the worker or handler and the provision of obtainable information 
Page 99 of 176

4386 about the exposure, including information about the product(s) that may have been used, to emergency 

4387 medical personnel or the exposed employee. 

4388 EPA proposed to require agricultural and handler employers to provide emergency medical 

4389 assistance within 30 minutes after learning that an employee may have been poisoned or injured by 

4390 exposure to pesticides as a result of his or her employment, replacing the current standard of “prompt.” 

4391 The proposed change was intended to ensure that the potentially injured party would be on route to a 

4392 medical facility within 30 minutes.

4393 EPA also proposed that the employer provide a copy of the pesticide label, or specific 

4394 information from the label, along with the SDS and circumstances of the pesticide use and potential 

4395 exposure, to employees potentially injured by exposure to pesticides and to treating medical personnel.

4396 B. Final rule. EPA has retained the existing requirement for providing transportation and 

4397 information promptly. The final rule clarifies that these requirements apply only to current or recently 

4398 employed workers, and that emergency assistance must be provided if there is reason to believe that a 

4399 worker or handler has been potentially exposed to pesticides or shows symptoms of pesticide exposure. 

4400 EPA has amended the requirement for the information that the employer must provide related 

4401 to emergency assistance. The final rule requires the employer to provide to treating medical personnel 

4402 a copy of the SDS, product name, EPA registration number and active ingredient for each pesticide 

4403 product to which the person may have been exposed, as well as the circumstances of application or use 

4404 of the pesticide on the agricultural establishment and the circumstances that could have resulted in 

4405 exposure to the pesticide. This is a slight change to the existing rule which makes the information 

4406 available to the worker or handler. In this final rule, the worker or handler has access to the information 

4407 through the hazard communications requirement. This provision deals specifically with meeting the 

4408 needs for medical assistance, and requires that the information be provided to the medical personnel.

4409 EPA has clarified in the final rule that the provision of the emergency assistance requirement for 

4410 transportation and information applies only to currently employed workers seeking emergency medical 

4411 assistance or recently employed workers within 72 hours after their employment for acute exposures 

4412 occurring on the agricultural establishment.

4413 Readiness is among the most important factors in an employer’s ability to promptly carry out 

4414 the emergency assistance requirements. EPA strongly encourages employers to develop an emergency 

4415 response plan and to address in such a plan details related to the emergency medical assistance 

4416 requirements of the WPS. EPA also encourages employers to periodically test, evaluate and, if 

4417 necessary, update the plan. EPA will develop a sample plan to help employers prepare for possible 

4418 pesticide-related emergencies. Employers can also find additional information concerning the 

4419 development and implementation of an emergency preparedness program at the U.S. Department of 

4420 Homeland Security’s web site, http://www.ready.gov/business/.

4421 Although EPA believes that it is important for employers to develop emergency response plans, 

4422 EPA has not made this a requirement of the final rule. EPA recognizes that pesticide exposure is just one 

4423 of many hazards that should be addressed in an emergency response plan, and that EPA has very little 

4424 information about the extent of emergency planning in the agricultural community. Accordingly, EPA 

4425 has decided that it would be unwise to address this issue in the WPS without the benefit of a more 

4426 robust dialogue with all stakeholders.

4427 The final regulatory text for these requirements is available at 40 CFR 170.309(f) and 170.313(k). 

4428 C. Comments and responses.

4429 Comments. Many private citizens and farmworker advocacy organizations, some pesticide state 

4430 regulatory agencies and several public health organizations supported the proposal to require 
Page 100 of 176

4431 agricultural employers and handler employers to provide emergency medical assistance within 30 

4432 minutes after learning that an employee may have been poisoned or injured by exposure to pesticides 

4433 as a result of his or her employment, replacing the current standard of “prompt.” They stated that the 

4434 clarification of time for the provision of transportation and information would improve the safety of 

4435 farmworkers. 

4436 Many farmworker advocacy organizations, academic institutions, public health organizations 

4437 and another organization expressed concern that the proposed emergency response time of 30 minutes 

4438 is too long and recommended that it should be further reduced. Commenters reasoned that pesticide 

4439 poisoning can be fatal or result in long-term effects if not quickly treated. 

4440 On the other hand, many commenters, mostly growers and farm bureaus, and some states and 

4441 agricultural producer organizations expressed opposition to the proposal and favored retaining “prompt 

4442 “ to allow more flexibility due to geographical constraints. The SBA Office of Advocacy stated that small 

4443 farms that are farther away from medical facilities would not be able to obtain emergency 

4444 transportation within the timeframe. Those with few employees and limited transportation options 

4445 would be overburdened in attempting to comply with a 30 minute timeframe. Commenters 

4446 representing many states, several agricultural industries, many growers and farm bureaus, and the SBA

4447 Office of Advocacy recommended that emergency response requirements should apply only to current 

4448 employees seeking emergency medical assistance for acute incidents.

4449 Additional comments from states and their organizations recommended that the agriculture 

4450 emergency requirement address only acute exposures to current employees of the establishment. They 

4451 raised concerns for the potential for former employees or those with exposures in the past to request 

4452 emergency assistance. One commenter stated that allowing any person who was ever employed by the 

4453 establishment the ability to demand emergency assistance could cause problems with compliance and 

4454 enforcement. Some of these organizations, including grower organizations claimed that the current 

4455 definition for “poison or injured” is vague and could cause agricultural employers to be required to 

4456 provide emergency assistance for minor health issues that may not be pesticide related. They also 

4457 requested clarification of the term “emergency medical facility.” 

4458 The grower and agricultural industry commenters expressed concern with the “proposed 

4459 provisions and interpreted the proposal as requiring injured workers to contact state lead pesticide 

4460 agencies responsible for enforcement for emergency medical attention. They stated that the proper 

4461 reaction to an incident remains the responsibility of the employer who can best respond to the needs of 

4462 their employees in a timely fashion. Commenters also recommended that the requirement allow, similar 

4463 to OSHA, trained first aid providers on the establishment to provide care, which could enable more 

4464 timely treatment. 

4465 Commenters noted that requiring the employer to provide the label to employees potentially 

4466 injured by exposure to pesticides and to treating medical personnel could lead to further exposure, if 

4467 the employee takes an open container of pesticides bearing the label. Further, commenters suggested 

4468 that the information outlined in the proposal could be obtained from sources other than the label.

4469 EPA Response. EPA was convinced by the concerns raised by members of the agricultural 

4470 community that geographical constraints, in some cases, would make the 30 minute response 

4471 timeframe for transportation difficult or impossible to meet. Agricultural establishments can be very 

4472 large and are often distant from population centers. Remote locations, including those in forestry, are 

4473 common; and the distance to an emergency medical facility or to an ambulance service can be 

4474 significant. 
Page 101 of 176

4475 The final rule requires employers to comply with the emergency assistance requirements by 

4476 promptly making transportation available to an emergency medical facility for potentially injured 

4477 employees and providing the SDS, specific product information, and information about the exposure to 

4478 the treating medical personnel. Because the information about the pesticide may be critical to 

4479 effectively manage the illness, EPA decided to focus the requirement to ensure that treating medical 

4480 personnel receive the information. The agricultural employer must provide that information in a way 

4481 that is reasonably expected to be accessible to the treating medical personnel. The requirement does 

4482 not preclude the employer providing the information to injured employees and does not prevent injured 

4483 employees from requesting this information. This requirement will allow continued flexibility for 

4484 employers and encourage timely medical treatment for potentially injured employees. 

4485 In deciding to retain the requirement for prompt provision of transportation, EPA also took into 

4486 consideration OSHA’s standard for the provision of transportation to persons in construction, which 

4487 requires “Proper equipment for prompt transportation of the injured person to a physician or hospital.” 

4488 29 CFR 1926.50(e).

4489 EPA agrees with the recommendation to clarify that the requirement applies only to current or 

4490 recently employed workers seeking emergency medical assistance for acute exposures occurred at the 

4491 agricultural establishment, and has revised the final rule accordingly. The final regulation also addresses 

4492 the comment regarding the vagueness of “poisoned or injured person” and clarifies that emergency 

4493 assistance must be provided to “a worker or handler that has been potentially exposed to pesticides or 

4494 shows symptoms of pesticide exposure as a result of his or her employment.” In response to the 

4495 requests for language clarifications, EPA notes that a hospital, clinic, or infirmary offering emergency 

4496 health services qualifies as an emergency medical facility for purposes of the WPS. EPA notes that for 

4497 some cases of suspected pesticide injury, the attention of a trained first aid provider can mitigate the 

4498 injury. Such treatment would not negate the obligations of the employer to provide transportation 

4499 promptly to an injured employee, or to provide information about the pesticide and exposure to 

4500 medical personnel, but is encouraged. Allowing a competent first aid provider to administer timely 

4501 treatment to an injured employee could offset complications from longer exposures. 

4502 EPA agrees with comments that a requirement to provide the label in the event of an 

4503 emergency could be burdensome and place employees at risk for additional exposure if the label is 

4504 attached to an open container of pesticides. EPA has not included the proposed requirement to provide 

4505 the label or information from the label; rather, the final rule requires the employer to provide the 

4506 necessary information, but does not specify the source of the information. EPA has removed from the 

4507 list of specific pieces of information the employer must provide information about antidote, first aid, 

4508 and recommended treatment because the SDS contains this information. EPA notes that the 

4509 information about the product and the SDS will be available as part of the pesticide application and 

4510 hazard information.

4511 Finally, the employer must provide information about the pesticide and the exposure to the 

4512 treating medical personnel. 

4513 XV. Personal Protective Equipment

4514 A. Respirators: Fit Testing, Training and Medical Evaluation

4515 1. Current rule and proposal. The existing regulation requires handler employers to ensure that 

4516 each handler’s respirator fits correctly. However, the existing rule does not provide specific details on 

4517 ensuring that a respirator fits properly, nor does it require employers to conduct medical evaluations of 

4518 the handler’s fitness for respirator use, provide training on the proper use of respirators, or retain fit 

4519 test records.
Page 102 of 176

4520 EPA proposed to require handler employers to comply with the respirator fit testing, training, 

4521 and medical evaluation requirements set by OSHA at 29 CFR 1910.134 whenever a respirator other than 

4522 a dust or mist filtering mask is required by the labeling. EPA did not propose any new requirements for 

4523 filtering facepiece respirators (OSHA’s term for dust or mist filtering masks). The OSHA standard includes 

4524 a specific standard for fitting a user for respirator use, training on recognizing when the respirator seal 

4525 may be broken, and what steps to take to properly use and maintain respirators. OSHA also requires 

4526 respirator users to be medically evaluated to ensure the respirator use does not cause undue stress on 

4527 their bodies. EPA proposed to require that employers comply with the OSHA requirements for fit 

4528 testing, training, and medical evaluation by cross-referencing 29 CFR 1910.134, in order to avoid 

4529 creating a duplicative regulation and to ensure that if technology advances lead OSHA to amend its 

4530 standard, the change would automatically apply to pesticide uses subject to the WPS as well. EPA also 

4531 proposed to require handler employers to maintain records of the fit test, training, and medical 

4532 evaluation for two years.

4533 2. Final rule. EPA has retained the proposed elements in the final rule, with some changes and 

4534 clarifications. Specifically, the final rule cross references and requires compliance with the OSHA 

4535 standards for fit testing, training, and medical evaluation when a respirator is required by the labeling. 

4536 The final rule expands from the proposal the types of respirators covered by the requirement to include 

4537 filtering facepiece respirators. The final rule also adds an additional item to the list of conditions that 

4538 would trigger replacement of the gas- or vapor-removing canisters or cartridges.

4539 In the final rule, EPA has retained the proposed requirement for handler employers to maintain 

4540 records of the fit testing, medical evaluation, and training. The final rule clarifies that the required 

4541 training is limited to the care and use of respirators, 29 CFR 1910.134(k)(1)(i)-(vi), and does not include 

4542 the training on the general requirements (i.e., 29 CFR 1930.134(k)(1)(vii)). 

4543 The final regulatory text for these requirements is available at 40 CFR 170.507(b)(10) and 

4544 170.507(d)(7).

4545 3. Comments and responses.

4546 Comments – support. EPA received many comments in favor of requiring handler employers to 

4547 comply with the respirator fit testing, training, and medical evaluation requirements established in the 

4548 OSHA standard. Many farmworker advocacy organizations and some PPE manufacturers asserted that 

4549 EPA should also apply the proposed standards for fit testing, training, and medical monitoring to users of 

4550 filtering facepiece respirators in addition to the other respirator types (e.g., tight fitting elastomeric 

4551 facepieces). Commenters suggested that filtering facepiece respirators are widely used and covered by 

4552 OSHA’s respirator requirements, and that their exclusion would result in inadequate protection for 

4553 many pesticide handlers. One state department of agriculture expressed support for the adoption of 

4554 OSHA respiratory standards with the exception of the recordkeeping requirement.

4555 EPA Response. In the final rule, EPA has required that employers comply with the respirator fit 

4556 testing, training, and medical evaluation requirements described in the proposed rule when the use of 

4557 respirators is required by the labeling. The final rule also expands its coverage to include filtering 

4558 facepiece respirators (referred to as dust/mist filtering respirators in the proposal). EPA included 

4559 filtering facepiece respirators in the final rule to ensure that handlers required to use any type of 

4560 respirator are adequately protected. Filtering facepiece respirators need to be fit tested and used 

4561 properly to provide the intended protection. In addition, this will ensure that respirators used under the 

4562 WPS provide the same level of protection as comparable respirators used under OSHA’s respiratory 

4563 protection requirements. EPA does not believe that the recordkeeping requirement for employers 

4564 impose unnecessary burden in comparison with the benefits.
Page 103 of 176

4565 Comments - adopt full OSHA respiratory protection program. Many farmworker advocacy 

4566 organizations stated that EPA should require compliance with all elements of 29 CFR 1910.134, rather 

4567 than the proposal to just include fit testing, training, and medical evaluation. Specifically, they urged EPA 

4568 to adopt OSHA’s requirements for employers to develop a respiratory protection program (29 CFR 

4569 1910.134(c)) and conduct a workplace hazard evaluation (29 CFR 1910.134(d)(1)(iii)).

4570 EPA Response. EPA acknowledges that, if the final rule were to require handler employers to 

4571 comply with the OSHA requirement to adopt a worksite-specific respiratory protection program, such a 

4572 requirement would address in detail the selection, cleaning, storing, repair and replacement of 

4573 respirators, as well as worksite-specific procedures when respirator use is required. EPA has decided not 

4574 to expand the final rule to include the OSHA requirement to adopt a worksite-specific respiratory 

4575 protection program because specific respirator requirements are described on EPA-approved, product4576 specific pesticide labeling. These product-specific respirator requirements are based on the acute 

4577 inhalation toxicity of the end-use product or a comprehensive risk assessment informed by incident 

4578 data, or on extensive pesticide active ingredient toxicology data, exposure science and epidemiology 

4579 data (if available), or on both. Therefore, requiring a general worksite-specific respiratory protection 

4580 program would duplicate the analysis underlying product-specific respirator requirements included on 

4581 pesticide labeling. In addition, the WPS includes requirements for providing, inspecting, cleaning and 

4582 maintaining PPE.

4583 However, in consideration of the commenters who asked that EPA require compliance with all 

4584 elements of OSHA requirements at 29 CFR 1910.134, the Agency re-evaluated other elements of that 

4585 regulation. As part of that re-evaluation, EPA identified an inconsistency between the Agency’s proposal 

4586 and OSHA’s requirements concerning a change schedule for the replacement of the gas- or vapor4587 removing canisters or cartridges. Specifically, OSHA requirements address change schedules that utilize 

4588 NIOSH end-of-service-life indicator designations (29 CFR 1910.134(d)(3)(iii)(B)(2)). To ensure respirator 

4589 protections are of greater consistency across industries, EPA has added the OSHA requirement that 

4590 triggers the replacement of the gas- or vapor-removing canisters or cartridges to the list of conditions in 

4591 the final rule at §170.507(d)(7) through an incorporation by reference.

4592 Comments - oppose. Nearly all commenters expressed support for a general requirement 

4593 related to proper respirator care and use, such as appears in the existing rule. However, many pesticide 

4594 manufacturers and their associations, state farm bureaus and agricultural producer organizations 

4595 questioned the feasibility of the proposed requirement for medical evaluations because locating 

4596 qualified physicians practicing in rural areas would be difficult. Other farm bureaus and the SBA Office of 

4597 Advocacy noted that the OSHA standard applies to general industries, shipyards, marine terminals, 

4598 longshoring and construction, and it would not likely be easily adopted in agricultural settings. 

4599 EPA Response. EPA acknowledges that implementing respirator fit testing, training, and medical 

4600 evaluation in agriculture will place additional burden on agricultural employers. However, the proper fit 

4601 and use of respirators is essential in order to realize the protections respirators are intended to provide. 

4602 EPA’s pesticide risk assessment process relies on NIOSH protection factors (i.e., respirators used 

4603 according to OSHA’s standards) when deciding whether handler inhalation exposure can be mitigated by 

4604 respirator use. If the handler inhalation exposure can be mitigated by a particular type of respirator, EPA 

4605 may require the use of that respirator on the pesticide label, among other risk mitigation measures. 

4606 Without the protection provided by the respirators identified on the label, use of those pesticides would 

4607 cause unreasonable adverse effects on the pesticide user, i.e., the handler. 

4608 EPA is aware of several states, including California, Oregon and Washington, that have 

4609 successfully incorporated all aspects of the OSHA standard for respirators in agriculture, demonstrating 
Page 104 of 176

4610 the feasibility of applying OSHA’s requirements in agriculture. North Carolina has incorporated many 

4611 innovative ways to facilitate the medical evaluation and fit testing process, and helped farmers 

4612 (including handler employers) locate reputable sources for online services for fit testing and medical 

4613 evaluation, and sources for NIOSH-approved respirators, filters, and cartridges. EPA plans to work with 

4614 stakeholders such as state regulatory agencies, universities, and others to provide outreach assistance 

4615 such as training programs and written materials and to encourage the dissemination of information 

4616 about fit testing and medical evaluation resources. 

4617 Comments - access to medical evaluation for respirator users. Many commenters, including 

4618 growers and their associations, states and their associations, pesticide applicators and the pesticide 

4619 industry, raised the issue of medical evaluation/clearance for respirator users, particularly for rural 

4620 farmers.

4621 EPA Response. EPA notes that many handler employers may be able to rely on online services 

4622 where medical evaluations can be performed by relying on medical questionnaires. The employee would 

4623 complete the medical questionnaire, which would be provided to the licensed medical professional for 

4624 review. If the employee is cleared by the review, he or she is approved to wear a respirator. If the 

4625 employee is not cleared through the review of the questionnaire, the employer may send the employee 

4626 for further medical review or the employer may identify a different employee to handle the pesticide. 

4627 EPA acknowledges the new respirator requirements will be a change for handlers and handler 

4628 employers, and EPA plans to work with stakeholders on outreach assistance addressing changes in 

4629 respirator requirements and the impacts on pesticide labeling. Since WPS enforcement is primarily a 

4630 state issue, various state agencies will have to be involved and communicate on appropriate training and 

4631 enforcement issues.

4632 Comments - alternative medical clearance for respirator use. Several organizations suggested 

4633 that an alternative to the medical evaluation requirement would be for EPA or CDC-NIOSH to develop an 

4634 agricultural respirator use medical screening questionnaire for potential respirator users, and then 

4635 respirator users could voluntarily comply. 

4636 EPA Response. The final rule cross references and requires compliance with the OSHA standards 

4637 for fit testing, training, and medical evaluation when a respirator is required by the labeling. By 

4638 referencing existing work by OSHA, EPA is leveraging existing health infrastructure (the medical 

4639 evaluation forms available for industry), which provides a consistent solution for general industry and 

4640 agriculture. The medical evaluation is important for assuring that a respirator will prevent, rather than 

4641 cause, adverse effects. OSHA has a medical evaluation questionnaire that is available on its web site, 

4642 and EPA will include this information in compliance assistance materials. 

4643 Comments - use of respirators in agriculture versus industry. One farmer alliance drew a 

4644 distinction between the use of respirators in a life threatening situations in industry versus the 

4645 incidental use of respirators in agriculture, and proposed a chemical-specific pathway to respirator 

4646 requirements based on acute toxicity. Similarly, one grower group and several state farm bureaus 

4647 provided a perspective that the need for respirators is infrequent in agriculture and that mixer/loaders 

4648 can take themselves out of harm’s way easier than persons in an industrial environment regulated by 

4649 OSHA requirements. 

4650 EPA Response. EPA notes that respirator requirements are established through the pesticide 

4651 registration process, and the respirator requirements on pesticide labeling reflect the toxicity (acute, 

4652 systemic, etc.) of its ingredients. When a respirator is required on pesticide labeling, EPA has conducted 

4653 a scenario-specific assessment for the occupational handler based on the active ingredient, the pesticide 

4654 formulation, and registered application rate. The final rule ensures that respirators used under the WPS 
Page 105 of 176

4655 provide the same level of protection as comparable respirators used under OSHA’s respiratory 

4656 protection requirements.

4657 Comments - respiratory protection during tank cleaning. One trade association identified 

4658 several situations and recommendations regarding handler respiratory protection. Specifically, the 

4659 comment noted that Immediately Dangerous to Life and Health (IDLH) precautions associated with 

4660 OSHA’s respirator regulations must be followed during pesticide tank or vessel cleaning.

4661 EPA Response. Pesticide product labeling identifies required respiratory protection for handlers 

4662 involved in mixing, loading, and applying a pesticide, or other activities associated with pesticide 

4663 handling (e.g., cleaning up a spill or repairing contaminated equipment). EPA recognizes that there are 

4664 other federal, state, or local regulations that may impact appropriate respirator use for confined space 

4665 work.

4666 Comments - medical records. One state department of agriculture expressed concern about the 

4667 records for medical evaluation being covered by the confidentiality provisions of the Health Insurance 

4668 Portability and Accountability Act (HIPAA), which would cause problems for state compliance officers.

4669 EPA Response. To the extent that the results of a medical evaluation to determine fitness to use 

4670 respirators would be considered medical records protected from disclosure under HIPAA, state 

4671 inspectors may obtain access with the handler’s authorization pursuant to 45 CFR 164.508, or without 

4672 the need for authorization pursuant to 45 CFR 164.512, particularly §§ 164.512(d) and 

4673 164.512(f)(1)(ii)(C).

4674 Comments - definition of “licensed health care professional.” Several agricultural industry 

4675 associations offered support for use and proper fit testing of respirators and requested a definition of 

4676 “licensed health care professional.” 

4677 EPA Response. The final rule requires “a medical evaluation by a physician or other licensed 

4678 health care professional that conforms to the provisions of 29 CFR 1910.134 ...” OSHA’s regulations at 

4679 29 CFR 1910.134(b) defines “Physician or other licensed health care professional” as an individual whose 

4680 legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to 

4681 independently provide, or be delegated the responsibility to provide, some or all of the health care 

4682 services required by 29 CFR 1910.134(e).

4683 Comments - cost estimation. Many commenters, including growers and their associations, 

4684 states and their associations, pesticide applicators and the pesticide industry, commented on EPA’s cost 

4685 estimation relating to respirator fit testing, training, and medical evaluation for respirator users. Many 

4686 of the comments pertained to concern over access to adequate medical evaluation for potential 

4687 respirator users in rural areas of the U.S. 

4688 EPA Response. EPA has reviewed and revised its cost estimates for fit testing, training and 

4689 medical evaluation. The cost estimate assumes that farms would designate one handler to be fit tested 

4690 so the incremental costs for the filtering facepiece respirators reflects the need to fit test and train on 

4691 multiple types of respirators. The increased costs also reflects the cost of the on-line medical evaluation, 

4692 which replaces the estimated time of a medical technician reviewing the evaluation, and the cost of the 

4693 employer’s time to arrange (if off-site) or oversee (if on-farm) the evaluation and fit test, which was 

4694 previously omitted. EPA has also updated wages, price of materials and services such as the cost of the 

4695 medical evaluation and the fit test materials. Details of the revised estimate are available in the 

4696 Economic Analysis for this final rule. 

4697 Comments - respirator selection. Many commenters, including growers and their associations, 

4698 states and their associations, pesticide applicators and the pesticide industry, raised issues pertaining to 
Page 106 of 176

4699 user safety and respirator selection, including 1) the types of respirators available for users, and 2) the 

4700 need to address heat stress as part of the overall respirator requirement.

4701 EPA Response. EPA recognizes that some handlers may not be able to use a tight-fitting 

4702 respirator. Tight fitting respirators include filtering facepiece respirators, full and half face elastomeric 

4703 respirators and tight fitting powered air purifying respirators (PAPR). EPA notes that the purpose of the 

4704 medical evaluation is to ensure handlers are able to tolerate the physical burden caused by the use of 

4705 respirators. Many medical conditions, such as cardiovascular diseases and the reduced pulmonary 

4706 function caused by smoking, could impede the ability of the handler to wear a respirator without 

4707 adverse health impacts. The medical evaluation should identify these potential issues and disqualify the 

4708 handler from using a tight-fitting respirator. However, for these handlers, loose-fitting PAPRs are an 

4709 option for respiratory protection because they do not require medical evaluations or fit testing. 

4710 EPA concurs that heat stress is an important element of worker protection and that heat stress, 

4711 PPE and health and wellness should be included in training on respirator use in agricultural settings (i.e., 

4712 outdoors). EPA anticipates that heat stress management will be included in its outreach assistance 

4713 between issuance of the final rule and the compliance date. 

4714 Comments - OSHA’s jurisdiction in agriculture. Some commenters, including a farm bureau, 

4715 raised concerns that EPA’s reference to OSHA’s regulations could give OSHA legal grounds to pursue 

4716 oversight of certain small farming operations, contrary to provisions of existing law. 

4717 EPA Response. EPA does not believe that including in the WPS a requirement that employers 

4718 must perform respirator fit testing, training, and medical evaluation in accordance with OSHA’s 

4719 requirements by cross-reference to 29 CFR 1910.134 affects the scope of OSHA’s jurisdiction. Today’s 

4720 final rule changes only the FIFRA WPS, which is implemented and enforced by EPA, states and tribes, 

4721 and not by OSHA. 

4722 Comments - respirator cartridge changeout. One farmworker advocacy organization 

4723 recommended that employers should be required to analyze work areas and processes in order to 

4724 develop change schedules for filter cartridges to ensure filters are changed before their end of service 

4725 life via one of the available tools available from OSHA and online advisors. 

4726 EPA Response. EPA acknowledges the utility in analyzing both work areas and/or similar job 

4727 tasks to help evaluate potential risk concerns. In the final rule, there are several provisions that trigger 

4728 replacement of filtering facepiece respirator and gas/vapor-removing canisters and cartridges. In 

4729 addition to the provisions in the proposed rule, the final rule requires replacement when the maximum 

4730 use time is reached, as determined by a change schedule conforming to the provisions of 29 CFR 

4731 1910.134(d)(3)(iii)(B)(2).

4732 Comments - respirator designation on pesticide labeling. One PPE manufacturer recommended 

4733 that EPA should take immediate action to update the pesticide labels to specify the current NIOSH4734 approved respirators under 42 CFR 84 because of confusion in EPA and stakeholder materials on 

4735 occupational handler respirator requirements.

4736 EPA Response. EPA is aware that some labels do not have the correct respirator designation. 

4737 The correct language is in EPA’s pesticide labeling guidance (the Label Review Manual) but has not been 

4738 incorporated onto all pesticide labels. As part of the WPS roll-out, EPA plans to work internally and with 

4739 stakeholders to raise awareness and understanding of the correct respirator designations in the Label 

4740 Review Manual to facilitate the adoption of the correct respirator designations on labels.

4741 Comments - respirator filter selection information. One PPE manufacturer identified a concern 

4742 about appropriate selection information for N-, R- and P-series filters for filtering facepiece respirators; 
Page 107 of 176

4743 specifically, that the selection criteria for the different series filters should be added to the regulatory 

4744 text. 

4745 EPA Response. Respirator selection depends on the pesticide product being applied, and the 

4746 user must comply with the respirator or replacement filter specifications in the pesticide product’s 

4747 labelling. It would be impractical to include in the WPS, or keep up to date, respirator selection 

4748 information for each pesticide product. 

4749 Comments – greenhouse respirator use. One state farm bureau urged EPA to consult with 

4750 respirator fitters and greenhouse plant growers in their expressed concern over 1) inadequate 

4751 information for fit testing requirements for greenhouse workers and 2) the burdensome nature of 

4752 meeting OSHA standards for respirators.

4753 EPA Response. EPA acknowledges that implementing respirator fit testing, training, and medical 

4754 evaluation in agriculture will place additional burden on agricultural employers. However, the proper fit 

4755 and use of respirators is essential in order to realize the protections respirators are intended to provide. 

4756 EPA recognizes the need to provide information on fit testing and medical evaluations to all sectors of 

4757 the agricultural industry subject to the WPS including greenhouses. As part of the WPS roll-out, EPA 

4758 plans to work with stakeholders to provide needed outreach assistance addressing changes in respirator 

4759 requirements and the impacts on pesticide labeling.

4760 B. Chemical-Resistant PPE

4761 1. Current rule and proposal. The definition for “chemical resistant” in the existing WPS is a 

4762 “material that allows no measurable movement of the pesticide being used through the material during 

4763 use.” Prior to the proposed rule, EPA received many comments from stakeholders suggesting that there 

4764 was no way for agricultural employers, handlers, early-entry workers, pesticide educators and inspection 

4765 personnel to ensure the PPE being used was “chemical resistant.” EPA proposed requiring employers to 

4766 provide PPE defined by its manufacturer as chemical resistant. 

4767 2. Final rule. EPA has rejected the proposed change. The final rule retains the existing definition 

4768 of chemical resistance. The final regulatory text for this requirement is available at in 40 CFR 

4769 170.507(b)(1). 

4770 3. Comments and responses.

4771 Comments – definition of chemical resistant. Some commenters, including two state pesticide 

4772 regulatory agencies, a university agricultural center, a farm bureau, a grower organization and a 

4773 farmworker advocate, supported the idea of PPE manufacturers defining chemical resistant in principle, 

4774 stating that this should clarify terminology and make it easier for agricultural employers to comply with 

4775 PPE requirements. However, many commenters opposed EPA’s proposed approach and questioned its 

4776 feasibility. Specifically, some state pesticide regulatory agencies and their organizations questioned 

4777 whether manufacturers can reliably designate PPE as chemical resistant in a permanent manner that 

4778 would be easy for enforcement personnel to check during inspections. Many commenters of all types, 

4779 including state pesticide regulatory agencies, grower organizations, farmworker advocates, pesticide 

4780 manufacturers and PPE manufacturers raised concerns about assessing chemical resistance for the wide 

4781 range of pesticide formulations and active ingredients. Some of the commenters stated that it is 

4782 unreasonable to expect PPE manufacturers to test their PPE against all pesticide formulations and active 

4783 ingredients. Other commenters suggested that the PPE manufacturers would have to identify the 

4784 specific chemicals to which the PPE is resistant. Some commenters asserted that establishing a standard 

4785 of chemical resistance is meaningless without defining permeation or test procedures. A few other 

4786 commenters pointed out that there are test methods and standard test substances available that EPA 

4787 could use. One PPE manufacturer asserted that the existing definition was purposefully worded to 
Page 108 of 176

4788 ensure worker protection and that EPA’s proposal over-simplifies a very complex and critical issue. 

4789 EPA Response. EPA recognizes the many comments highlighting the challenging issues involved 

4790 with having PPE being defined as chemical resistant by the equipment manufacturer, who does not 

4791 know the ingredients in every pesticide product. EPA agrees with commenters that the proposed 

4792 approach would create more problems than it would resolve. Therefore, the final rule retains the 

4793 existing chemical resistant definition. 

4794 Comments – other suggestions regarding chemical resistant or waterproof PPE. Some 

4795 commenters, including grower organizations, a pesticide manufacturer organization and a university, 

4796 urged EPA to reassess the situations where chemical resistant PPE is required by pesticide labels. In 

4797 general, the commenters questioned whether certain PPE, such as footwear and hats, needs to be 

4798 chemical resistant or if it is sufficient for the PPE to be waterproof. A few of these commenters pointed 

4799 out that revising the requirement from requiring that PPE be chemical resistant to being waterproof 

4800 goes beyond changing the WPS and would also involve revising the Label Review Manual and the 

4801 pesticide labels that specify chemical resistant PPE.

4802 EPA Response. EPA agrees that changing the label requirement for a certain piece of PPE from 

4803 being chemical resistant to being waterproof involves more than updating the WPS regulation. EPA is 

4804 currently reviewing the PPE statements in the Label Review Manual for accuracy and assessing whether 

4805 pesticide labels include the most current and accurate PPE descriptions, based on other discussions with 

4806 state regulatory agencies and other stakeholders. EPA will consider the comments on chemical 

4807 resistance and waterproofness in the context of that effort. In addition, EPA realizes that its outreach 

4808 associated with the WPS revision is a good opportunity to clarify confusion about what PPE is required, 

4809 and therefore plans to develop guidance and outreach material on PPE where appropriate.

4810 C. Contaminated PPE

4811 1. Current rule and proposal. The existing WPS requires employers to ensure that PPE is cleaned 

4812 before each day of reuse. If the article cannot be properly cleaned, the employer must dispose of it in 

4813 accordance with applicable Federal, State, and local regulations. EPA proposed to add a requirement for 

4814 employers to render unusable contaminated PPE that cannot be properly cleaned before it is disposed.

4815 2. Final rule. In the final rule, the employer must ensure that contaminated PPE is made 

4816 unusable as apparel or disposed of in such a way that it is unavailable for further use. EPA has also 

4817 included in the final rule a requirement for the person who cleans, disposes, or otherwise handles the 

4818 contaminated PPE to wear the gloves required for mixing and loading the pesticide that contaminated 

4819 the PPE. The final regulatory text for this requirement is available at 40 CFR 170.507(d)(2).

4820 3. Comments and responses.

4821 Comments. Prior to the proposed rulemaking, state pesticide regulatory agencies expressed 

4822 concern that unless proper measures are taken, contaminated PPE might be reused either as PPE or 

4823 simply as a garment, placing the person wearing it at risk from pesticide exposure. Many organizations, 

4824 including farmworker advocacy organizations, universities, public health organizations, a state 

4825 department of public health, as well as individuals through two mass comment campaigns, expressed 

4826 general support for the proposal to ensure that contaminated PPE be rendered unusable if it cannot be 

4827 cleaned properly before it is disposed of. In support of the proposal, several commenters noted that 

4828 rendering contaminated garments unusable would prevent adverse health effects. A state noted that 

4829 the proposal was an effective method to reduce the potential for access to contaminated PPE. One 

4830 grower organization noted that the potential for exposure exists when individuals cut or render 

4831 contaminated PPE unusable, and suggested a requirement to seal the contaminated PPE in a disposal 

4832 container and to dispose of the container in an appropriate manner.
Page 109 of 176

4833 In contrast, a state and some grower organizations stated that the current requirement is 

4834 adequate and EPA should not adopt the proposal. Some farm bureaus opposed the proposal and 

4835 thought the concern for individuals gaining access to contaminated PPE was well meaning yet 

4836 hypothetical. Some of these commenters suggested it could lead to confusing violation scenarios, 

4837 specifically from the interpretation of “render unusable.” 

4838 Some states requested that EPA delete the provisions requiring contaminated PPE and 

4839 contaminated glove liners to be disposed of in accordance with federal, state, or local regulations. They 

4840 noted that if such regulations exist, the WPS does not add regulatory authority and adds another 

4841 potential technical violation to the WPS. Further, they noted that states and localities can address 

4842 disposal regulations as appropriate.

4843 EPA Response. The final rule clarifies that the requirement is to make the PPE “unusable as 

4844 apparel.” EPA agrees that access to contaminated PPE might be prevented by sealing it in a container 

4845 and entrusting it to a waste disposal system that effectively prevents diversion of waste, and that such 

4846 an approach would reduce pesticide exposure to the person handling the contaminated article relative 

4847 to many methods of rendering the PPE unusable. EPA has included in the final rule a provision allowing 

4848 the PPE to be “made unavailable for further use” as an alternative to the proposed requirement to 

4849 render the contaminated PPE unusable. To reduce the potential exposure to a person handling 

4850 contaminated PPE, the final rule requires that a person must wear gloves while handling PPE covered by 

4851 40 CFR 170.507(d)(2).

4852 EPA disagrees with comments from farm bureaus suggesting that there is little likelihood of 

4853 persons accessing contaminated PPE. As mentioned in the preamble to the proposed rulemaking, state 

4854 pesticide regulatory agencies have raised concerns for the potential reuse of contaminated PPE to EPA. 

4855 EPA relies on state pesticide regulatory agencies to raise issues with implementation of the existing WPS 

4856 that arise when they conduct inspections of WPS establishments. EPA has chosen to amend the existing 

4857 rule in response to the input provided by the states.

4858 EPA disagrees with states’ request to delete provisions requiring contaminated PPE to be 

4859 disposed of in accordance with federal, state, or local regulations. Although the WPS reference to 

4860 federal, state, and local waste disposal regulations is somewhat duplicative, violations of those 

4861 regulations can hardly be dismissed as “technical” violations, regardless of whether they are prosecuted 

4862 under FIFRA or other authorities. However, the primary reasons for inclusion of these provisions in the 

4863 WPS are to make clear that the WPS does not supersede federal, state, and local waste disposal 

4864 regulations, and to remind employers of their responsibility to be aware of and comply with relevant 

4865 disposal regulations.

4866

4867 XVI. Decision not to Require Monitoring of Handler Exposure to Cholinesterase-Inhibiting Pesticides

4868 A. Current rule and proposal.

4869 The existing WPS does not have a requirement to monitor cholinesterase (ChE) levels in workers 

4870 or handlers. In the proposal, EPA invited comment on whether to require routine ChE monitoring of 

4871 handlers. However, because EPA’s initial judgement was that the benefits of routine ChE monitoring 

4872 would not justify the cost, EPA did not propose to add a requirement for routine monitoring of ChE 

4873 inhibition in handlers.

4874 B. Final rule.

4875 The final rule does not include a requirement for routine ChE monitoring for handlers. 

4876 C. Comments and responses.
Page 110 of 176

4877 Comments - general. In response to the proposal, several grower organizations, farm bureaus, 

4878 crop consultants and their organizations, and states and their organizations expressed support for EPA’s 

4879 decision not to require a mandatory routine ChE monitoring program as part of the WPS. Several 

4880 commenters stated that the most effective approach to prevent handler exposure to any pesticide 

4881 product is to address the potential for exposure in advance of use, rather than after exposure has taken 

4882 place. Many of these commenters agreed with EPA’s assessment in the proposal that EPA’s worker risk 

4883 assessments and mitigation measures are sufficient to provide the necessary protection from pesticide 

4884 exposure during handling. One commenter also suggested that requiring ChE monitoring may add to 

4885 confusion and provide a false sense of safety to workers, health care providers, and regulators because 

4886 it only measures exposure. These commenters suggested that the best approach that can be taken to 

4887 mitigate exposure would be to address it through product-specific risk assessments supporting the 

4888 registration of pesticide products, robust handler training on specific pesticides, and effective 

4889 enforcement of label requirements.

4890 In addition, some of the commenters objected that ChE monitoring is an invasive process, and 

4891 that routine ChE monitoring would be extremely time-consuming and costly and would provide 

4892 information of questionable value. One commenter stated that a proper ChE monitoring program would 

4893 require that a baseline be established for employees, and that it would be highly unlikely that a baseline 

4894 could be obtained for many workers because of previous exposure to organophosphate insecticides, 

4895 while another commenter suggested that exposure to other common materials can change the levels of

4896 ChE, especially in serum level measurements, making it difficult to establish a baseline. Another 

4897 commenter added that the timing of meals, stress, physical activity, and changes in body mass can cause 

4898 ChE levels to fluctuate within an individual, and that the baseline value should be taken on the day of 

4899 handling a ChE-inhibiting pesticide prior to exposure due to this intra-individual variability. The 

4900 commenter suggested that baselines established every 1 to 2 years, as currently recommended by 

4901 Washington State and California, respectively, would not provide meaningful information concerning 

4902 the degree of exposure due to these daily fluctuations. 

4903 Conversely, several commenters, including some members of Congress, the California 

4904 Department of Public Health, Washington State’s Department of Health and Department of Labor and 

4905 Industries, several public health organizations, academics, and farmworker advocacy organizations 

4906 supported the idea of adopting a routine ChE monitoring program as part of this rulemaking, particularly 

4907 for handlers who use ChE-inhibiting pesticides like organophosphates and N-methyl-carbamate 

4908 pesticides. Many of these commenters cited the existing ChE monitoring programs in California and 

4909 Washington State in their arguments for why ChE monitoring should be expanded nationally.

4910 Some commenters stated that California and Washington have longstanding medical monitoring 

4911 programs with proven track records in reducing exposure to, and illnesses from, highly neurotoxic 

4912 chemicals. These commenters stated that the successful implementation of these monitoring programs 

4913 has helped health professionals understand the effects of these classes of pesticides and prevent 

4914 poisoning by identifying overexposure. Two commenters stated that Washington’s program is effective 

4915 and protects workers as reflected by worksite field evaluations of action level ChE depressions, which 

4916 have identified multiple pesticide WPS violations that are believed to contribute to worker exposure. A 

4917 couple of commenters stated that the benefits realized by the state programs, which would expand 

4918 nationally if monitoring were to be required, include:

4919 • Greater certainty about the frequency of pesticide overexposure.

4920 • Avoidance of serious pesticide illness.

4921 • Improved compliance with the WPS.
Page 111 of 176

4922 • Identification of any existing PPE, work practice, and engineering control requirements that 

4923 are not sufficient to protect pesticide handlers from exposure.

4924 • Greater awareness of chemical and exposure hazards.

4925 Some commenters cited Washington State’s data that shows that the percentage of 

4926 overexposed participating handlers who required remedial action fell from 20% when the program 

4927 started in 2004 to 6% in 2013, for a reduction of 70%. These commenters stated that Washington’s 

4928 Department of Labor and Industries found that ChE monitoring helped identify the causes of 

4929 overexposure, which allowed for those causes to be corrected by alerting employers and handlers to 

4930 unsafe work practices, conditions, or equipment. Additionally, a couple of commenters stated that the 

4931 percentages of handlers who actually reached the removal level from handling ChE-inhibiting pesticides 

4932 remained consistently low after the implementation of the ChE monitoring program, with the 

4933 percentages being 3.8% in 2004, 0% in 2010 and 2011, 2.3% in 2012, and 4% in 2013. These commenters 

4934 believed that the sharp decline in the number of handlers needing remedial action, along with the 

4935 consistently low percentage of handlers who exceeded 20% below their baseline (i.e., those who reach 

4936 the evaluation level in the state programs), shows that the program has been effective in reducing 

4937 exposure to OPs and carbamates, and that monitoring should be implemented nationally so that all 

4938 workers receive similar benefits. 

4939 Some commenters in support of requiring ChE monitoring also discussed the costs associated 

4940 with ChE monitoring. They stated that the cost of implementation should not deter EPA from requiring 

4941 medical monitoring on a national level. A few commenters stated that EPA’s estimate that the cost of 

4942 ChE monitoring would average $53 per year per agricultural establishment was a small cost when 

4943 contrasted with the 70% reduction in overexposure according to Washington State’s data. A couple of 

4944 commenters also stated that monitoring in California and Washington has led to substantially fewer 

4945 pesticide poisonings and reduced use of these highly toxic pesticides, and can, in turn, reduce long-term 

4946 medical costs to farmworkers and the agricultural economy. Some commenters stated that EPA’s 

4947 analysis did not include an estimation of the medical expenses that were saved, the lost wages 

4948 prevented, and the pesticide-related illnesses avoided as a result of early detection and intervention. As 

4949 a result, the commenters believed that the benefits of a national ChE monitoring program would more 

4950 than justify the costs given the severe effects of overexposure to ChE-inhibiting pesticides.

4951 Other commenters supporting ChE monitoring stated that employees who handle ChE-inhibiting 

4952 chemicals in non-agricultural sectors routinely receive the protection of medical monitoring. For 

4953 example, some commenters stated that OSHA requires medical monitoring for workers who handle a 

4954 wide range of toxic substances. They also stated that USDA requires monitoring of its employees who 

4955 may be exposed to organophosphate or carbamate pesticides. These commenters stated that these 

4956 safeguards should be provided for all workers who handle these pesticides, and therefore should be 

4957 included in the final rule. 

4958 EPA Response. After reviewing the comments, EPA continues to believe that the expected 

4959 benefits of a routine ChE monitoring program for handlers are not sufficient to justify the costs. As 

4960 stated in the proposed rule, EPA believes that Washington State’s efforts have identified the primary 

4961 reasons for ChE inhibition among pesticide handlers. In many cases, ChE depression was caused by 

4962 handlers not following basic safety and hygiene procedures, e.g., not wearing the label-required PPE and 

4963 failing to wash before meals or bathroom breaks. Additionally, several handlers who did wear 

4964 respirators as required by labeling had beards, which compromised the seal between the face and the 

4965 respirator and reduced the protection intended to be afforded by the PPE. EPA believes that requiring 

4966 expanded and more frequent handler training, in combination with requirements for fit testing and 
Page 112 of 176

4967 training on proper respirator use for handlers, addresses the primary reasons for overexposure to ChE4968 inhibiting pesticides.

4969 The revised labeling with increased protections and new mitigation measures resulting from the 

4970 reregistration of organophosphates and carbamates will also result in lowered handler exposure. 

4971 Reregistration has resulted in some uses of the most acutely toxic organophosphates being phased out. 

4972 For the remaining uses, EPA has imposed additional PPE requirements, requirements for closed-system 

4973 mixing and loading, and reductions to rates of application and number of annual applications permitted. 

4974 As labels with updated PPE requirements for handlers are seen and followed in the field, EPA expects to 

4975 see reduced numbers of overexposures. Additionally, the organophosphates and carbamates that are 

4976 still registered are being used less frequently and being replaced by pesticides with lower risks, also

4977 reducing the potential for overexposure. 

4978 While EPA estimated the costs of a national, routine ChE monitoring program to be at least 

4979 $15.2 million annually, or about $53 per agricultural establishment per year and $120 per commercial 

4980 pesticide handling establishment per year, this estimate does not include the full costs that would be 

4981 expected of a national ChE monitoring program. As stated in the proposed rule, a national, routine ChE 

4982 monitoring program would likely include program components such as training, recordkeeping, clinical 

4983 testing, and field investigations, which were not included in the estimated costs because the initial $15.2 

4984 million estimate appeared by itself to be disproportionately high in comparison to the expected 

4985 benefits. Additionally, the estimated costs do not include the states’ costs to build infrastructure to 

4986 support ChE monitoring or to cover continued laboratory costs such as equipment maintenance and 

4987 administrative support. If EPA were to calculate these additional costs, the estimated costs would be 

4988 much higher than $15.2 million annually. Therefore, EPA stands by its assessment in the proposed rule 

4989 that the cost of implementing a national, routine ChE monitoring program is not justified by its limited 

4990 benefits. 

4991 EPA believes that the increased handler protections being finalized in this rulemaking, combined 

4992 with the product-specific risk mitigation measures, will appropriately address the elevated potential for 

4993 ChE inhibition in handlers. Moreover, the training and PPE elements of the final rule will have the 

4994 combined effect of providing important protective benefits to all pesticide handlers through increased 

4995 knowledge of exposure risks and prevention strategies. This approach will lead to a reduction of 

4996 pesticide exposures because it prevents handler exposure before it occurs. 

4997 Comments – monitoring handler exposure to cholinesterase inhibiting chemicals. Some 

4998 commenters, including a state regulatory agency, a public health organization, and various farmworker 

4999 advocate organizations disagreed with EPA’s proposed decision to not implement medical monitoring 

5000 for cholinesterase inhibiting pesticides, and noted that the concept of medical monitoring and the 

5001 preventative measures that EPA is implementing in the final rule are not mutually exclusive. One health 

5002 organization proposed the use of computerized Action Plans in conjunction with medical monitoring to 

5003 preemptively address worker exposure concerns. One farmworker advocate organization commented 

5004 that the only way to know whether the cumulative exposure to organophosphate pesticides has 

5005 depressed cholinesterase levels to dangerous levels in either handlers or workers is through monitoring.

5006 EPA Response. EPA acknowledges that monitoring employee exposures to organophosphate 

5007 pesticides through cholinesterase monitoring has been successfully implemented in some states and 

5008 may be a prudent occupational health practice in some occupational exposure situations. However, EPA 

5009 stands by its assessment in the proposed rule that the cost of implementing a national, routine ChE 

5010 monitoring program is not justified by its limited benefits. EPA believes that the increased handler 

5011 protections being finalized in this rulemaking, combined with the product-specific risk mitigation 
Page 113 of 176

5012 measures, will appropriately address the elevated potential for ChE inhibition in pesticide handlers. In 

5013 addition to the training and new protections in the rule, EPA also makes a regulatory decision on each 

5014 active ingredient and use site as part of the comprehensive occupational exposure and risk assessment 

5015 under the FIFRA registration process in order to address worker safety concerns. The findings of the risk 

5016 assessment are addressed in the registration decision for each pesticide product, and are manifested on 

5017 the pesticide product labeling (e.g. application rate, use site). EPA believes that the registration 

5018 decisions informed by the chemical-specific occupational risk assessment, in tandem with the training 

5019 and PPE elements of the final rule, will protect handlers from unreasonable adverse effects of 

5020 cholinesterase-inhibiting pesticides.

5021 Comments – national cholinesterase monitoring program. One pesticide manufacturer 

5022 organization commented on ChE monitoring programs noting that they not be used as a substitute for 

5023 adherence to pesticide labelling and sound handler safety practices. This commenter also stated that 

5024 the proposed enhancements of the WPS include aspects pertaining to training, communications, and 

5025 PPE that are important protective benefits for all pesticide handlers through increased knowledge of 

5026 exposure risks and prevention strategies, ultimately leading to reductions in potential exposure.

5027 EPA Response. EPA agrees that compliance with the requirements on pesticide labeling and 

5028 sound handler practices are important to limiting potential exposure to pesticides. 

5029 Comments – cholinesterase inhibition. One pesticide manufacturer organization commented on 

5030 the difference in ChE inhibition between ChE-inhibiting pesticides like organophosphates and N-methyl5031 carbamate pesticides.

5032 EPA Response. EPA thanks the commenter and agrees that there are toxicological differences 

5033 between the nature of ChE-inhibiting chemical classes. EPA makes regulatory decisions based on the 

5034 human health and ecological risk assessments for each active ingredient and cumulative chemical class, 

5035 if appropriate. The toxicological databases for both individual active ingredients and the cumulative risk 

5036 assessments for the organophosphate and N-methyl-carbamate chemical classes reflect differences 

5037 based on the toxicological data submitted to EPA. EPA also agrees that when medical monitoring occurs, 

5038 there may be logistical differences in the biological sampling to account for toxicological differences 

5039 between chemical classes. 

5040 Comments – overall protections. One farmworker advocate commented that EPA doesn’t 

5041 sufficiently test or understand the chemical pesticides on the market and that there may be adverse 

5042 effects for women and children as opposed to the protections provided by occupational exposure limits 

5043 like OSHA’s Permissible Exposure Limits (PELs) or NIOSH’s Recommended Exposure Limits (RELs) 

5044 established for given chemicals.

5045 EPA Response. Although the scientific community’s understanding of the biological and 

5046 physiological effects of pesticides is always expanding, EPA believes that the range of studies currently 

5047 required of applicants for pesticide registration provides an appropriate and reliable basis for 

5048 determining whether a product meets FIFRA’s registration standard of no unreasonable adverse effects 

5049 on man or the environment. EPA conducts a rigorous human health risk assessment based on a given 

5050 active ingredient’s toxicological database, and exposure scenarios reflective of the site and method of 

5051 each proposed use. For pesticide handlers, the exposure and risk assessment does not rely on 

5052 occupational exposure limits (e.g. PELs or RELs), but rather a comprehensive scenario-driven assessment 

5053 based on the use pattern identified on the product labeling to determine what use limitations, 

5054 directions, and precautions would be necessary in order to prevent unreasonable adverse effects to 

5055 handlers, other persons and the environment. Additional information on the assessment of pesticide 
Page 114 of 176

5056 handler risks is available on the Agency website: http://www.epa.gov/pesticides/science/handler5057 exposure-data.html.

5058 XVII. Exemptions and Exceptions

5059 A. Immediate Family

5060 1. Current rule and proposal. The WPS currently exempts the owners of agricultural 

5061 establishments from requirements to provide certain WPS protections to themselves and their 

5062 immediate family members. Owners are required to comply with all applicable provisions of the WPS for 

5063 any worker or handler employed on the establishment who is not a member of the owner’s immediate 

5064 family. The definition of “immediate family” in the existing rule includes only the owner’s spouse, 

5065 children, stepchildren, foster children, parents, stepparents, foster parents, brothers, and sisters. EPA 

5066 proposed to expand the definition of “immediate family” to add father-in-law, mother-in-law, sons-in5067 law, daughters-in-law, grandparents, grandchildren, brothers-in-law, and sisters-in-law.

5068 Note, too, that the WPS definitions of workers and handlers depend upon them being employed 

5069 for compensation. Therefore, any person performing worker or handler tasks who does not receive a 

5070 wage, salary or other compensation is not a worker or handler protected by the WPS, regardless of 

5071 familial relationship to the owner.

5072 EPA requested comment on but did not propose changes narrowing the immediate family 

5073 exemption in two ways: (1) Limiting it only to those immediate family members of an owner of an 

5074 agricultural establishment who are at least 16 years old, and (2) eliminating the exemptions from 

5075 requirements regarding emergency assistance for workers and handlers and regarding handler 

5076 monitoring during fumigant application.

5077 As part of the proposal to establish a minimum age for pesticide handlers and early-entry 

5078 workers, EPA proposed to add an exemption from the minimum age requirements to the immediate 

5079 family exemption.

5080 2. Final rule. EPA has finalized the definition of “immediate family” as limited to the owner’s 

5081 spouse, parents, stepparents, foster parents, father-in-law, mother-in-law, children, stepchildren, foster 

5082 children, sons-in-law, daughters-in-law, grandparents, grandchildren, brothers, sisters, brothers-in-law, 

5083 sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. “First cousin” means the child of a 

5084 parent’s sibling, i.e., the child of an aunt or uncle. The final regulatory text for this definition is available 

5085 at 40 CFR 170.305.

5086 EPA has amended the exemption from certain provisions of the WPS for owners and members 

5087 of their immediate families to include exemptions from the minimum age requirements for handlers and 

5088 early-entry workers. The final regulatory text for this exemption is available at 40 CFR 170.601(a)(1)(i) 

5089 and 170.601(a)(1)(xii).

5090 EPA has clarified the final regulatory text related to the exemption from certain provisions of the 

5091 WPS for owners and members of their immediate families. The exemption in the final rule will apply to 

5092 owners and members of their immediate family on any agricultural establishment where a majority of 

5093 the establishment is owned by one or more members of the same immediate family. The final 

5094 regulatory text for this exemption is available at 40 CFR 170.601(a)(1). 

5095 EPA has not included in the final rule any of the other changes to the owner and immediate 

5096 family exemption considered in the proposal.

5097 3. Comments and responses.

5098 Comments. Many commenters expressed general support for the proposed expansion to the 

5099 definition of immediate family and the inclusion of an exemption from the minimum age requirement. 

5100 Some commenters asserted that the definition provides greater clarity about who qualifies under the 
Page 115 of 176

5101 immediate family exemption and will assist both the regulated community and state regulatory agencies 

5102 in ensuring compliance with the proposed rule. One commenter noted that the proposed immediate 

5103 family exemption may not affect California employers or workers because California’s rules are more 

5104 prohibitive. Another commenter contended that the immediate family exemption does not undermine 

5105 the intent or protections of those the WPS is intended to protect but did not provide a specific rationale 

5106 for this assertion.

5107 Several commenters requested that EPA expand the definition to include cousins. Many 

5108 commenters, including the SBA Office of Advocacy, requested that EPA expand the definition further to 

5109 include aunts, uncles, nieces, nephews, and cousins. One commenter requested that EPA expand the 

5110 definition to include nieces, nephews, and extended family. Commenters requesting further expansion 

5111 of the definition noted that an expansion of the family members considered immediate family under the 

5112 WPS would better reflect the reality of the family farm in America. Commenters also requested that 

5113 EPA further expand the definition and exemption to recognize varying ownership patterns used to 

5114 assure the continued operation of the farm and the involvement of siblings and their heirs. One 

5115 commenter suggested that EPA align the exemption with USDA’s interpretation of farm ownership by 

5116 family members, which considers a “family farm” to be one where a majority of the farm is owned by 

5117 family members, rather than retaining EPA’s interpretation of the exemption as applying only on 

5118 establishments that are wholly owned by one or more members of the same immediate family.

5119 One commenter suggested that immediate family be determined by shared DNA, to be 

5120 evaluated by the enforcement agency on a case-by-case basis. Another commenter urged EPA to include 

5121 close-held corporate entities as family, if all workers are either parents or children of stock or share 

5122 owners. A third commenter requested that EPA amend the definition and exception to require that the 

5123 exemption would apply when the employee has an immediate family relationship with one of the 

5124 owners. One commenter suggested deleting from the definition foster children. 

5125 A few commenters requested that EPA delete the definition of immediate family and eliminate 

5126 the exemption. These commenters noted that risks from pesticide exposure are the same for family and 

5127 non-family members, so all persons need the same level of protection regardless of their familial 

5128 relationship to the owner. Other commenters requested that EPA eliminate the exemption for 

5129 immediate family members under 16 or 18 years old to provide WPS protections to all children working 

5130 with or around pesticides. One such commenter cited the number of injuries to working and non5131 working youth on farms in the U.S.

5132 EPA Response. EPA has further expanded the definition of immediate family to also include 

5133 aunts, uncles, nieces, nephews, and first cousins (i.e., child of a parent’s sibling, child of an aunt or 

5134 uncle) and is retaining the exemption in the WPS. EPA believes that the proposed definition of 

5135 “immediate family” represents an appropriate accommodation to the social costs of the WPS to farm 

5136 owners and members of their immediate families relative to FIFRA’s requirement to prevent 

5137 unreasonable adverse effects.

5138 EPA considered commenters’ requests to expand or contract the definition of “immediate 

5139 family.” Commenters suggested that a definition that includes cousins, or cousins, aunts, uncles, nieces 

5140 and nephews would better reflect the actual patterns of family-based farm ownership in the United 

5141 States. EPA agrees with commenters’ suggestions that farm ownership may extend beyond relationships 

5142 covered by EPA’s existing or proposed definition. To accommodate the reality of family-based farm 

5143 ownership patterns in the U.S., EPA agrees with commenters’ requests to expand the definition to 

5144 include aunts, uncles, nieces, nephews, and cousins. For clarity, EPA has chosen to include in the 
Page 116 of 176

5145 definition “first cousins.” A “first cousin” is defined as the child of a parent’s sibling, i.e., the child of an 

5146 aunt or uncle.

5147 EPA has clarified the applicability of the exemption in the final rule in response to comments. 

5148 The exemption in the final rule applies to the owners and their immediate family members on any 

5149 agricultural establishment where a majority of the establishment is owned by one or more members of 

5150 the same immediate family. A “majority of the establishment” means that more than 50 percent of the 

5151 equity in the establishment is owned by one or more members of the same immediate family as defined 

5152 in the WPS.

5153 EPA agrees that the risks associated with pesticide exposure do not vary based on a person’s 

5154 relationship to the owner of the establishment. However, EPA recognizes that family-owned farms need 

5155 flexibility and is relying on representations by family farm and small business advocates that those 

5156 family members (including children) working on an establishment covered by the immediate family 

5157 exception would be adequately prepared and supervised by family members. Although owners and their 

5158 immediate family members are exempted from certain provisions of the WPS (e.g., providing pesticide 

5159 safety training and specific decontamination supplies for immediate family members), they are 

5160 obligated to follow the pesticide labeling and other WPS provisions that are established to protect 

5161 workers and handlers from risks associated with specific pesticides. For these reasons, EPA has chosen 

5162 not to eliminate the definition of immediate family or the exemption from certain portions of the rule 

5163 for the establishment owner and members of his or her immediate family.

5164 Although owners of establishments and members of their immediate family are exempt from 

5165 some of the provisions of the rule, EPA expects that they will voluntarily follow the provisions from 

5166 which they are exempt, or achieve equivalent risk mitigations through other means. EPA encourages 

5167 owners and family members to carefully study the WPS requirements and assure themselves that they 

5168 are not placing each other at risk of unreasonable adverse effects.

5169 B. Crop Advisors and Employees

5170 1. Current rule and proposal. The existing rule exempts employers from complying with certain 

5171 handler requirements when the employee performs crop advising tasks in a treated area under an REI 

5172 and is a certified or licensed crop advisor or directly supervised by a certified or licensed crop advisor. A 

5173 certified or licensed crop advisor is one who has fulfilled the requirements of a program acknowledged 

5174 as appropriate in writing by EPA or a state or tribal agency responsible for pesticide enforcement. The 

5175 existing rule allows a certified or licensed crop advisor to make specific determinations regarding the 

5176 appropriate PPE, decontamination and safe method of conduct for themselves and those working under 

5177 their direct supervision. A person employed by a commercial pesticide handling establishment 

5178 performing crop advising tasks after expiration of an REI is not subject to any provisions of the WPS. The 

5179 rule also exempts employers from complying with worker requirements such as providing 

5180 decontamination supplies and emergency assistance for certified or licensed crop advisors and for 

5181 persons they directly supervise.

5182 EPA proposed to eliminate the exemptions for employees directly supervised by certified or 

5183 licensed crop advisors. EPA also proposed to eliminate the exemption from the worker decontamination 

5184 and emergency assistance provisions for certified or licensed crop advisors employed as workers on 

5185 agricultural establishments.

5186 2. Final Rule. EPA has eliminated both exemptions as proposed. However, EPA has included in 

5187 the final rule added flexibility in the PPE requirements for crop advisors and their employees. 

5188 Specifically, EPA has added language to the final regulation that allows crop advisors and their 

5189 employees who perform crop advising tasks while an REI is in effect to substitute the label-required 
Page 117 of 176

5190 handler PPE with either the label-required PPE for early-entry activities or a standard set of crop advisor 

5191 PPE. The standard set of PPE for crop advising tasks included in the final rule consists of coveralls, shoes 

5192 plus socks, chemical-resistant gloves made of any waterproof material and eye protection if the labeling 

5193 of the pesticide product applied requires protective eyewear for handlers. The final regulatory text for 

5194 this requirement is available at 40 CFR 170.601(b) and 170.607(g).

5195 3. Comments and responses.

5196 Comments in support of eliminating the exemption. Comments from several state regulatory 

5197 agencies, a farmworker advocacy organization and an independent crop consultant support EPA’s 

5198 proposal to eliminate the exemption currently in place for employees working under the direct 

5199 supervision of a certified or licensed crop advisor. The state regulatory agencies and farmworker 

5200 advocates stated that crop advisor employees should be provided protections consistent with other 

5201 agricultural employees. An independent crop consultant discussed the changing nature of the business 

5202 and noted:

5203 “I don't even allow my own son to undertake certain tasks without some sort of accredited training. 

5204 When something is going to unravel in this field, there is nothing a 'direct supervisor' can do to 

5205 prevent something terrible from potentially happening. I've seen it happen too often. DO NOT PUT A 

5206 WORKERS SAFETY IN THE HANDS OF A DIRECT SUPERVISOR.”

5207 EPA Response. EPA agrees that allowing workers to conduct crop advising tasks under direct 

5208 supervision but without the same basic protections provided for other agricultural employees would 

5209 establish a lesser standard of protection for similar types of work.

5210 Comments in opposition to eliminating the exemption. Crop consultant associations, several 

5211 state regulatory agencies, state farm bureaus, and one academic institutions objected to eliminating the 

5212 exemption currently in place for employees working under the direct supervision of a certified or 

5213 licensed crop advisor. They asserted that certified and licensed crop advisors often exceed the minimum 

5214 safety training requirements when educating their employees and those employees are aware of the 

5215 risks associated with their work. Some crop consultant associations noted that they are not aware of any 

5216 case of endangerment or harm that has occurred to any employee under the direct supervision of a 

5217 certified or licensed crop advisor. 

5218 The commenters also expressed concern that EPA underestimated the economic impact to crop 

5219 advisors, and in turn to farmers, of eliminating this exemption, citing specifically the increased costs of 

5220 additional PPE, the cost of work done by certified or licensed crop advisors instead of by their 

5221 employees, and the cost of increased management time. The commenters contended that these 

5222 increased costs could discourage investment in integrated pest management (IPM) and result in 

5223 increased pesticide use that might put persons performing crop advising tasks at increased risk of 

5224 pesticide exposure. 

5225 EPA Response. EPA has concluded that the burdens associated with eliminating the exemption 

5226 for employees of crop advisors are justified by the additional protections provided to persons 

5227 performing crop advising tasks who are not certified or licensed crop advisors. EPA has retained the 

5228 exemption to the WPS for certified or licensed crop advisors because these individuals are highly trained 

5229 about pesticide risks and how to protect themselves. EPA eliminated the exemption for crop advisors’ 

5230 employees because pest scouting tasks may result in substantial contact with a pesticide on treated 

5231 surfaces in pesticide-treated areas. The amount of contact with pesticides during scouting depends on 

5232 variables such as the height and density of the crop, the nature of the activity, the surface that contains 

5233 the pesticide residue, and whether residues are dry or wet. While EPA recognizes that the crop advising 

5234 industry has implemented a training program for employees, the program is not required and can vary 
Page 118 of 176

5235 in content and quality from employer to employer. Additionally, crop scouts and assistant crop advisors 

5236 are generally entry-level employees who may not feel empowered to ask an employer for PPE or other 

5237 protections and may not understand the complex factors influencing risk well enough to take 

5238 appropriate protective measures for themselves.

5239 The existing incident monitoring programs do not capture illness data specifically associated 

5240 with crop advising tasks because cases are categorized under a general “field worker” label. However, 

5241 EPA’s risk assessments indicate that people doing crop advising tasks during an REI are at risk of chronic, 

5242 low-level pesticide exposure over time. PPE requirements and availability of decontamination supplies 

5243 during and after an REI are fundamental to mitigating risks of concern for persons performing crop 

5244 advising tasks. 

5245 EPA understands that IPM programs require post-application entry and the timing is critical to 

5246 efficacy. By retaining the exemption for certified or licensed crop advisors to conduct crop advising tasks 

5247 during an REI and allowing flexibility for employers to substitute the label required PPE for handlers with 

5248 either PPE for early-entry workers or a standard set of PPE, the increased costs noted in comments are 

5249 reduced. Eliminating the exemption for a non-certified crop advisor to forgo wearing PPE based on 

5250 his/her employer’s recommendation seems misunderstood by those commenting on the perceived 

5251 impact. The WPS currently requires employers of non-certified crop advisors to make PPE 

5252 available. The final regulation requires that employees working under a certified crop advisor in a field 

5253 during an REI use a standard set of PPE (consisting of coveralls, shoes plus socks and chemical-resistant 

5254 gloves, and eye protection if the pesticide product labeling applied requires protective eyewear for 

5255 handlers) or label-required PPE. That is, the impact of the provision is that the non-certified crop 

5256 advisor may have to put on a pair of coveralls, gloves, and in some instances, eye protection. The 

5257 benefit of this revision is to remove a potential externality and protect employees who may not be fully 

5258 trained and may be unable to make appropriate judgments regarding personal risk.

5259 C. Closed Systems

5260 1. Current rule and proposal. The existing WPS permits exceptions to the label-specified PPE 

5261 when using a closed system for certain pesticide handling activities. The existing rule does not 

5262 adequately describe the specific characteristics of an acceptable closed system. EPA proposed to 

5263 establish specific design criteria and operating standards for closed systems based on California's 

5264 existing standards outlined in the California Department of Pesticide Regulation’s (CDPR) 1998 Closed 

5265 Systems Director’s Memo (http://www.cdpr.ca.gov/docs/whs/cac/cacwhs98-01.pdf).

5266 2. Final Rule. EPA has modified the proposed approach regarding closed systems. Specifically, in 

5267 the final rule EPA has adopted a broad definition, a performance-based standard, and basic operating 

5268 standards. The operating standards require the handler employer to ensure that written operating 

5269 instructions for the closed system are available, that the handler receives training on use of the closed 

5270 system, and that the system is maintained according to the written instructions. Specific design criteria 

5271 and recordkeeping requirements that EPA proposed are not included in the final rule. 

5272 The final rule retains the existing requirements for PPE when a closed system is used: Labeling5273 mandated PPE must be immediately available for use in an emergency and handlers must use protective 

5274 eyewear for closed systems that operate under pressure.

5275 The final regulatory text for the definition of closed systems is available at 40 CFR 170.305. The 

5276 final regulatory text for the closed system exception is available at 40 CFR 170.607(d)(3).

5277 3. Comments and responses.

5278 Comments. Most comments that addressed closed systems supported the goal of encouraging 

5279 their use as an engineering control through a WPS exception; however, very few individuals, states or 
Page 119 of 176

5280 organizations supported the proposal as written. Several farmworker advocacy organizations, public 

5281 health organizations, universities, and private citizens suggested that EPA require closed systems for all 

5282 Toxicity Category I pesticide products rather than continuing the voluntary system. 

5283 Comments from states and grower and industry associations supported the existing voluntary, 

5284 performance-based system and objected to the proposed specific design criteria, noting a number of 

5285 weaknesses in the criteria. Specifically, they noted that the pressure requirements were too prescriptive 

5286 and would not allow effective mixing, that the proposal did not address water soluble packaging or lock 

5287 and load systems used for dry formulations, and that the complicated requirements would be a 

5288 deterrent to increased adoption of closed systems. A number of commenters also noted that the design 

5289 standards are too restrictive to accommodate future innovation. States commented that assessing 

5290 compliance with the design standard would require extensive inspector training and could result in 

5291 technical violations without providing additional handler protection. Many commenters from the 

5292 pesticide industry and grower associations also stated that EPA underestimated the costs of closed

5293 systems in the proposed rule partly because existing closed systems would need to be upgraded to meet 

5294 the proposed standards. A number of commenters felt that EPA depended too heavily on CDPR’s 

5295 evaluation of closed systems. 

5296 EPA Response. EPA considered the comments submitted and was convinced that the 

5297 prescriptive requirements in the proposal would be a disincentive to the voluntary adoption of closed 

5298 systems. In response, EPA has finalized a closed system performance standard that will permit flexibility 

5299 for the system while meeting the protection goals. 

5300 In response to comments advocating that EPA require closed systems for all Toxicity Category I 

5301 pesticides under the rulemaking, EPA reminds the commenters that worker risk assessments and the 

5302 risk management processes establish the required protections that appear on product labels. EPA 

5303 identifies the basic protections, often PPE, to protect handlers from risks of concern. If handler exposure 

5304 during mixing and loading is above the established level of concern, and if PPE does not reduce exposure 

5305 to below the level of concern, the pesticide label may require a closed system for mixing and loading. 

5306 EPA has required the use of closed systems on some product labeling.

5307 EPA recognizes that the reduction in handler PPE alone is not likely to be enough incentive for 

5308 an employer to use closed systems. However, EPA is convinced that on larger establishments, the 

5309 efficiency and comparative protection value of a closed system, combined with the reduction in PPE that 

5310 must be worn by the handler, may induce users to adopt closed systems. Establishing requirements for 

5311 such closed systems – whether required or used voluntarily – is necessary to protect handlers, who 

5312 could be exposed to concentrated pesticides if they use poorly designed or constructed closed systems.

5313 EPA agrees with the comments that a broad definition of “closed system” will encourage 

5314 industry innovation better than the proposed prescriptive rule and will allow flexibility for employers to 

5315 design systems specific to their needs. A broad performance standard, along with requirements 

5316 concerning operating instructions, training and maintenance, will enable employers, handlers and 

5317 regulatory personnel to determine whether a closed system qualifies for the exemption. The operating 

5318 standards will ensure that the closed systems are used as intended and are adequately maintained.

5319 EPA considered CDPR’s proposed rule in the development of the final closed systems standard 

5320 because they are a nationally recognized expert in closed-system regulation. California is the only state 

5321 with specific closed system standards, and has required their use with certain chemicals since the 1970s. 

5322 EPA notes that CDPR no longer supports use of the prescriptive-based criteria upon which EPA modeled 

5323 the proposal outlined in the NRPM. In December 2014, CDPR published proposed regulations outlining a 

5324 simplified, performance-based criteria for closed system design. CDPR developed their revised closed 
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5325 systems standard and discussed the proposal with representatives from groups that will be directly 

5326 affected including agricultural producer organizations, manufacturers, applicators, and growers, as well 

5327 as at CDPR’s Pesticide Registration and Evaluation Committee and the Agricultural Pest Control Advisory 

5328 Committee and Pest Management Advisory Committee meetings. EPA’s final closed system 

5329 requirements were developed using CDPR’s proposal as a model and do not conflict with CDPR’s 

5330 proposed closed system requirements.

5331 Section 170.607(d)(2)(i) establishes a performance standard for closed systems. Specifically, a 

5332 closed system must remove the pesticide from its original container and transfer the pesticide product 

5333 through connecting hoses, pipes and couplings that are sufficiently tight to prevent exposure of handlers 

5334 to the pesticide product, except for the negligible escape associated with normal operation of the 

5335 system. This closed system performance standard is based on the criteria for closed systems in section 

5336 6746(f)(1) of CDPR’s proposed regulations with a few changes, partly to accommodate the different 

5337 terminology in the two sets of regulations. Also, EPA adjusted the requirement to apply to transferring 

5338 any pesticide product rather than a pesticide concentrate so the WPS criteria would apply to 

5339 transferring liquid formulations and dry formulations whereas California’s proposed requirements would 

5340 only apply to liquid formulations. Lastly, EPA added the phrase “except for the negligible escape 

5341 associated with normal operation of the system” to provide the flexibility intended in the proposed rule. 

5342 The existing WPS describes a closed system as preventing the pesticide from contacting handlers or 

5343 other persons, which is a very high standard because it does not allow any exposure. The phrase 

5344 “except for the negligible escape associated with normal operation of the system” is intended to 

5345 account for the expected or predictable small release of pesticides from existing closed systems when 

5346 hoses, pipes and couplings are disconnected. EPA recognizes that there will often be a small amount of 

5347 material in the hoses, pipes and couplings to which the handler possibly could be exposed. EPA has not 

5348 quantified the maximum amount of pesticide escape that is acceptable, but notes that it should be 

5349 consistent with the intent of a closed system, which is to prevent contact to the handlers or other 

5350 persons.

5351 EPA also adjusted the final regulatory text for closed systems to address the comments about 

5352 water soluble packaging. The regulatory text in the final rule was revised to state clearly that the closed 

5353 system exception from PPE applies when intact, sealed water soluble packaging is loaded into a mixing 

5354 tank or system. The regulation also clarifies that water soluble packaging is no longer a closed system if 

5355 the integrity of the packaging is compromised. This language in the final rule incorporates EPA’s current 

5356 position about water soluble packaging and closed systems, as established in the Interpretive Guidance 

5357 on the WPS (http://www.epa.gov/pesticides/safety/workers/wpsinterpolicy.htm).

5358 While the final rule includes only a performance standard, EPA recognizes that it may be helpful 

5359 to have guidance on how to construct a system to meet that standard. As part of California’s proposed 

5360 rulemaking, CDPR and the University of California, Davis (UC Davis) developed plans for building a closed 

5361 system to release along with the proposal. The “Overview of Closed Systems Components and User 

5362 Designs” document includes lists of component parts (and costs) for three levels of systems (basic, 

5363 medium and high). The design plans developed by CDPR and UC Davis will provide users with examples 

5364 of representative closed systems components so they can identify or develop acceptable closed 

5365 systems.

5366 The changes to replace the proposed specific design standards with a broad performance 

5367 standard in the final rule address commenters’ concerns with cost estimates in the proposal, because 

5368 employers will be able to continue using most existing closed systems with minimal adjustments. In 

5369 addition, EPA notes that the WPS does not require use of closed systems, so commenters who assumed 
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5370 many pesticide users would have to purchase expensive closed systems were incorrect. EPA adjusted 

5371 the closed system cost estimates from the proposed rule in several ways to reflect changes in the final 

5372 rule. The cost estimate in the proposed rule assumed that some users of closed systems would purchase 

5373 new systems while others would revert to using PPE. In light of the revised definition, the final cost

5374 estimate assumes that most users would simply purchase an adapter to connect their existing closed 

5375 system to the pesticide container, which is the part that most likely needs to be added to convert 

5376 existing mechanical transfer systems to be closed systems that meet EPA’s criteria. These changes and 

5377 costs are based on the CDPR and UC Davis document “Overview of Closed Systems Components and 

5378 User Designs,” which includes lists of component parts and their costs for three levels of systems. In 

5379 addition, the cost of developing operating instructions was added, assuming that most closed systems 

5380 are custom-made systems that would require the employer to develop operating instructions, while the 

5381 costs of keeping records of maintenance was deleted. EPA reduced the estimated number of farms using 

5382 closed systems based on information from the Agricultural Handler Exposure Task Force, which showed 

5383 that the limited number of pesticide users who use closed systems are primarily larger establishments 

5384 and commercial pesticide handling establishments. Therefore, the estimated costs of the closed system 

5385 criteria decreased from the proposed rule to the final rule.

5386 Using closed systems is preferred to wearing PPE as an approach for managing chemical 

5387 exposure in the “hierarchy of controls” established under standard industrial hygiene principles. 

5388 Enclosing the chemical and substantially reducing the potential for exposure at the source reduces the 

5389 potential for subsequent exposure to handlers, other people, and the environment. 

5390 EPA estimates the cost of the final closed system requirements will be $2.1 million annually. EPA 

5391 estimates that cost per agricultural establishment will range from $5-$30 per year, and the cost per 

5392 commercial pesticide handling establishment will be about $21 per year. EPA estimates that on family 

5393 establishments, the cost would range from $1-$30 per year. Many commenters from the pesticide 

5394 industry and grower associations stated that EPA underestimated the costs of closed systems in the 

5395 proposed rule partly because existing closed systems would need to be upgraded to meet the proposed 

5396 standards. The changes to replace the proposed specific design standards with a broad performance 

5397 standard in the final rule address these comments, because employers will be able to continue using 

5398 most existing closed systems with minimal adjustments. For details refer to the Economic Analysis 

5399 accompanying this rule (Ref. 1). In addition, EPA notes that the WPS does not require use of closed 

5400 systems, so commenters who assumed many pesticide users would have to purchase expensive closed 

5401 systems were incorrect.

5402 EPA adjusted the closed system cost estimates from the proposed rule in several ways to reflect 

5403 changes in the final rule. The cost estimate in the proposed rule assumed that some users of closed 

5404 systems would purchase new systems while others would revert to using PPE. In light of the revised 

5405 definition, the final cost estimate assumes that most users would simply purchase an adapter to connect 

5406 their existing closed system to the pesticide container, which is the part that most likely needs to be 

5407 added to convert existing mechanical transfer systems to be closed systems that meet EPA’s criteria. 

5408 These changes and costs are based on the CDPR and UC Davis document “Overview of Closed Systems 

5409 Components and User Designs,” which includes lists of component parts and their costs for three levels 

5410 of systems. In addition, the cost of developing operating instructions was added, assuming that most 

5411 closed systems are custom-made systems that would require the employer to develop operating 

5412 instructions, while the costs of keeping records of maintenance was deleted. EPA reduced the estimated 

5413 number of farms using closed systems based on information from the Agricultural Handler Exposure 

5414 Task Force, which showed that the limited number of pesticide users who use closed systems are 
Page 122 of 176

5415 primarily larger establishments and commercial pesticide handling establishments. Therefore, the 

5416 estimated costs of the closed system criteria decreased from the proposed rule to the final rule.

5417 D. Aerial Applications - Eyewear Protection for Open Cockpits

5418 1. Current rule and proposal. Under the existing WPS, where labeling requires eye protection, 

5419 the requirement may be satisfied by goggles, face shield, safety glasses with front, brow and temple 

5420 protection, or a full face respirator. The existing WPS allows aerial applicators applying pesticides from 

5421 open cockpit aircraft to substitute a visor for label-required eye protection. Because the term “visor” can 

5422 be used to refer to the brim of a cap that provides only shade and offers little eye protection from 

5423 pesticide sprays, EPA proposed to clarify the requirement by removing the term. EPA proposed to allow 

5424 aerial applicators to substitute a helmet with the face shield lowered for the label-required eyewear, 

5425 because this more clearly indicates EPA’s expectation of a clear visor that covers and adequately 

5426 protects the eyes. 

5427 2. Final rule. In the final rule, EPA has removed the term “visor.” The final rule allows the 

5428 substitution of a helmet with face shield lowered for labeled protective eyewear for aerial applicators in 

5429 aircraft with open cockpits. The final regulatory text for this requirement is available at 40 CFR 

5430 170.607(f)(2).

5431 3. Comments and responses.

5432 Comments. There were very few comments addressing this proposal. One state suggested EPA 

5433 consult with relevant aerial agencies responsible for overseeing the use of open cockpits for making 

5434 pesticide applications to see if the proposal is feasible. One state regulatory agency supported the 

5435 proposed changes along with a state academic institution and a farmworker advocacy organization. 

5436 Two farm bureau organizations said they had no objection the proposal, while another farm bureau 

5437 organization and a commodity group said they deferred to or supported comments from aerial 

5438 applicator associations.

5439 An aerial applicators association asserted that aerial applications of pesticides using open 

5440 cockpit aircraft are very rare and that EPA is solving a problem that does not exist. They objected to 

5441 handlers operating open cockpit aircraft being required to wear the same PPE as handlers operating

5442 open cab ground equipment. They did not highlight any specific issue with the helmet and visor being 

5443 lowered when protective eyewear are required, but generally objected to EPA proposing any rule that in 

5444 any way impacted aviation safety and recommended deleting this and other provisions applicable to 

5445 aerial applicators. 

5446 EPA Response. EPA acknowledges that while open cockpit aircraft may be rare, available 

5447 exposure data indicate that even pilots in enclosed cab aircraft are exposed to the pesticides they apply. 

5448 Ensuring that the eye is protected from pesticides is required by the product labeling. Helmets with face 

5449 shields in the lowered position provide acceptable eye protection, but many items referred to as 

5450 “visors” offer no eye protection from pesticide sprays. EPA believes it is common for some aircraft pilots 

5451 to wear helmets with face shields, so this practice should not present a hazard or safety issue for pilots. 

5452 Additionally, EPA is unaware of any adverse problems that have arisen because of the existing WPS 

5453 requirements related to aerial applicators and PPE; therefore EPA is retaining this provision as proposed 

5454 and the other related provisions for aerial applicators and PPE as they were in the existing rule. 

5455 E. Aerial Applications – Use of Gloves

5456 1. Current rule and proposal. In the existing rule, aerial applicators have the option of whether 

5457 to wear chemical resistant gloves to enter and exit the aircraft unless gloves are required by the product 

5458 labeling. In the proposal, EPA inadvertently inserted the regulatory language that existed prior to the 

5459 2004 rule revision that required pilots to wear chemical resistant gloves. 
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5460 2. Final rule. The final rule retains the exception in the existing WPS that offers aerial applicators 

5461 the option of wearing chemical-resistant gloves when entering and exiting the aircraft, except when the 

5462 product labeling requires that chemical-resistant gloves be worn when entering and exiting the aircraft. 

5463 The final regulatory text for this requirement is available at 40 CFR 170.607(f)(1). 

5464 3. Comments and responses.

5465 Comments. Several commenters, including aerial applicators, aerial applicator associations and 

5466 agricultural industry noted this inadvertent error in the proposal and noted that they had learned it was 

5467 an oversight, but they reiterated support for keeping the requirements the same as they are in the 

5468 existing rule. The commenters also asserted the use of gloves presents a hazard to pilots who may fall 

5469 when entering and exiting the aircraft when wearing gloves. They also suggested contamination from 

5470 contact with the exterior of the aircraft is minimized due to advances in application techniques (e.g., 

5471 GPS) that help pilots avoid flying through their spray.

5472 EPA Response. EPA agreed with commenters that said to keep the existing requirements for 

5473 gloves in cockpits without changes. The final rule retains the exception in the existing regulation that 

5474 offers aerial applicators the option of wearing chemical-resistant gloves when entering and exiting the 

5475 aircraft, except when the product labeling requires that chemical resistant gloves be worn entering and 

5476 exiting the aircraft. 

5477 F. Enclosed Cabs – Changes to Exceptions to PPE Requirements when Applying Pesticides from Inside an 

5478 Enclosed Cab

5479 1. Current rule and proposal. The existing WPS permits exceptions to the labeling-specified PPE 

5480 when handling tasks are performed from inside an enclosed cab that meets the specifications defined in 

5481 the rule. These exceptions are based on the dermal protection provided by the enclosed cab, which 

5482 prevents pesticides from contacting the body, and allow handlers to substitute a long-sleeved shirt, long 

5483 pants, shoes, and socks for the labeling-specified PPE. The existing rule requires persons occupying an 

5484 enclosed cab to use labeling-required respiratory protection, except where the cab has been certified by 

5485 the manufacturer to provide respiratory protection equivalent to the handler respiratory protection 

5486 required by the pesticide labeling. 

5487 EPA proposed to exempt handlers from all labeling-specified respiratory protection PPE 

5488 requirements when applying pesticides from inside an enclosed cab. This would have allowed handlers 

5489 to substitute a long-sleeved shirt, long pants, shoes, and socks for the labeling-specified PPE in all cases 

5490 no matter what type of respiratory protection PPE was required by the labeling.

5491 2. Final rule. In the final rule, EPA requires handlers in enclosed cabs to wear the labeling5492 specified respiratory protection except when the only labeling-specified respiratory protection is a 

5493 filtering facepiece respirator (NIOSH approval number prefix TC-84A) or dust/mist filtering respirator. In 

5494 the final rule, handlers in enclosed cabs may substitute a long-sleeved shirt, long pants, shoes and socks 

5495 for the labeling-specified PPE for skin and eye protection. If a filtering facepiece respirator (NIOSH 

5496 approval number prefix TC-84A) or dust/mist filtering respirator is required by the pesticide product 

5497 labeling for applicators, then handlers do not need to wear the respirator inside the enclosed cab 

5498 provided that the enclosed cab has a properly functioning air ventilation system that is used and 

5499 maintained in accordance with the manufacturer’s written operating instructions. If any other type of 

5500 respirator is required by the pesticide labeling for applicators, then the handler must wear the respirator 

5501 inside the enclosed cab during handling activities. 

5502 EPA has retained the other conditions of the existing WPS exception to PPE requirements for 

5503 handlers using enclosed cabs. Specifically, all of the PPE required by the pesticide product labeling for 

5504 applicators must be immediately available to handlers in an enclosed cab and be stored in a sealed 
Page 124 of 176

5505 container to prevent contamination. Handlers must wear the applicator PPE if they exit the cab within a 

5506 treated area during application or when a REI is in effect. Once PPE has been worn in a treated area, 

5507 handlers must remove it before reentering the cab to prevent contamination of the cab. 

5508 The final regulatory text for the enclosed cab exception is available at 40 CFR 170.607(e).

5509 3. Comments and responses.

5510 Comments. EPA did not receive any comments in opposition to the proposed changes to the 

5511 enclosed cab exception. One grower noted that the enclosed cab exception is an excellent component 

5512 of the proposal. Another commenter noted that respirator use is infrequent since the spraying 

5513 operation takes place from inside an enclosed, climate-controlled tractor cab. 

5514 EPA Response. EPA considered the comments submitted but has retained the existing 

5515 exceptions with minor changes. Although EPA considered a more expansive exception under its 

5516 proposal, after reevaluation of the potential exposure risks for handlers and the protections afforded by 

5517 enclosed cabs, EPA determined that enclosed cabs may not universally provide respiratory protection 

5518 necessary to mitigate inhalation risks for any pesticide product that required respiratory protection 

5519 greater than a filtering facepiece respirator (NIOSH approval number prefix TC-84A) or dust/mist 

5520 filtering respirator. EPA determined that enclosed cabs may not provide adequate protection from 

5521 inhalation exposure hazards when the inhalation exposure risk arises from vapors or other non5522 particulate inhalation hazards. Additionally, EPA has learned that there are no longer any enclosed cab 

5523 manufacturers certifying cabs to provide respiratory protection and the American Society of Agricultural 

5524 and Biological Engineers has withdrawn their enclosed cab standard. Based on this information, EPA has 

5525 removed provisions under the enclosed cab exception that permit persons occupying an enclosed cab to 

5526 eliminate certain labeling-required respiratory protection PPE if the cab has been certified by the 

5527 manufacturer to provide respiratory protection equivalent to the respiratory protection required by the 

5528 pesticide labeling. 

5529 XVIII. General Revisions

5530 A. Label vs. Labeling

5531 1. Current rule and proposal. FIFRA defines the label as “the written, printed, or graphic matter 

5532 on, or attached to, the pesticide or device or any of its containers or wrappers.” 7 U.S.C. 136(p)(1) For 

5533 reasons of space and user convenience, detailed use instructions and precautions often appear in 

5534 labeling provided with the pesticide product upon sale. As defined in FIFRA, “labeling” includes “all 

5535 labels and all other written, printed, or graphic matter accompanying the pesticide or device at any 

5536 time; or to which reference is made on the label or in literature accompanying the pesticide or device...” 

5537 7 U.S.C. 136(p)(2).

5538 Labeling may include booklets distributed with the product when such documentation is too 

5539 long to be included on the label that is securely attached to the container. For example, some products 

5540 have labeling that is 60 or more pages long. FIFRA and EPA regulations require certain information to 

5541 appear on the label – on or attached to the pesticide container. Other information necessary to use the 

5542 product safely, such as directions for use, may be included in a booklet distributed with, but not securely 

5543 attached to, the container (40 CFR 156.10(i)(1)(ii)); this information could also be available on the 

5544 Internet if the producer has decided to provide web-distributed labeling for the product (Ref. 21). In 

5545 either format, the information would be considered labeling. Labeling sometimes includes enforceable 

5546 references to other documents that do not physically accompany the container, such as the WPS. 

5547 The existing rule discusses employers’ responsibilities related to pesticide labels and labeling in 

5548 several places. The existing rule requires agricultural and handler employers to ensure that pesticides 

5549 are used in a manner consistent with the labeling. When the emergency assistance provisions of the 
Page 125 of 176

5550 WPS are triggered, the existing rule requires employers to provide information from the product 

5551 labeling to affected workers, handlers, and/or treating medical personnel. Handlers must receive 

5552 training on the format and meaning of information contained on pesticide labels and in labeling. Finally, 

5553 employers must ensure that handlers have either read or have been informed in a manner they 

5554 understand of all labeling requirements related to safe use of the pesticide, and that the handler has 

5555 access to the product labeling during handling activities.

5556 Although the proposal reorganized the rule, some of the requirements for the existing rule 

5557 outlined in the previous paragraph remained essentially unchanged in the proposed rule, e.g., 

5558 agricultural and handler employers’ responsibility to ensure that pesticides are used in a manner 

5559 consistent with the labeling. The proposal included a requirement for employers to maintain copies of 

5560 the pesticide labeling for each pesticide used on the establishment for 2 years from the date of 

5561 application. The proposal also would have required the employer to provide a copy of the label and the 

5562 product’s SDS when the emergency assistance provisions are triggered, rather than to provide 

5563 information from the pesticide labeling.

5564 2. Final rule. Where the proposed rule would have required the employer to provide a copy of 

5565 the pesticide label, or specific information from the labeling, and the SDS under the emergency 

5566 assistance provisions, the final rule only requires the employer to provide the SDS and specific 

5567 information, which can be obtained from the pesticide application and hazard information display, 

5568 rather than the label or labeling. See Unit XIV. for other comments, EPA’s responses and the final 

5569 regulatory text related to emergency assistance. The final rule eliminates the proposed requirement for 

5570 employers to maintain copies of the labeling, rather than the label, for each product bearing a WPS 

5571 requirement on the labeling, and replaces it with a requirement for the employer to retain specific 

5572 information about the product used and the application, as well as the SDS. See Unit VII. for other 

5573 comments, EPA’s responses and the final regulatory text related to this requirement.

5574 For handler training requirements, EPA has amended the language in the final rule to delete the 

5575 word “all” related to labeling. The final rule requires handlers to receive training on following the 

5576 portions of the labeling applicable to the safe use of the pesticide and on the format and meaning of 

5577 information contained on pesticide labels and in labeling applicable to the safe use of the pesticide. The 

5578 final regulatory text for these provisions is available at 40 CFR 170.501(c)(3)(iii)-(iv). 

5579 For labeling and application-specific information the employer must provide to the handler, EPA 

5580 has amended the final rule to require the employer to provide the handler with information on all 

5581 portions of the labeling applicable to the safe use of the pesticide, rather than on all labeling 

5582 requirements. The final regulatory text for this provision is available at 40 CFR 170.503(a). 

5583 3. Comments and responses.

5584 Comments. Commenters raised issues with EPA’s use of the term “labeling” in the proposed 

5585 rule. Commenters raised specific concerns with the use of the broader “labeling” in various 

5586 requirements instead of limiting those requirements to just the label. These concerns arose in regard to 

5587 agricultural and commercial pesticide handler employer duties, emergency assistance, hazard 

5588 communication, and handler training and establishment-specific information.

5589 Some commenters generally disagreed with EPA’s use of “labeling” and requested that EPA use 

5590 “label” instead throughout the rule. They asserted that labeling is too broad and that labeling includes 

5591 materials not attached to the container, such as advertisements, brochures and pamphlets. 

5592 Commenters assert that the broadness of “labeling” applied to requirements to provide or retain this 

5593 information could result in a requirement on employers to track down many ancillary pieces of 
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5594 information for a complete record, or to face a technical violation for failure to retain all elements of the 

5595 labeling.

5596 Under the agricultural and commercial pesticide handler employer duties, at 40 CFR 170.9(a) 

5597 and 170.13(a) of the proposal, commenters said that EPA’s use of labeling was too broad. They asserted 

5598 that employers’ liability should be only to comply with the WPS rather than with the label or all relevant 

5599 labeling because making the employer responsible for complying with all labeling exceeds the scope and 

5600 intent of the WPS. They also noted that certified applicators, those competent to use pesticides 

5601 according to the labeling instructions and who make the actual applications, should be required to 

5602 comply with the labeling, but that the agricultural employer should not. 

5603 In regard to emergency assistance, commenters requested that EPA delete the reference to 

5604 labeling and replace it with a requirement to provide the label and EPA registration number of the 

5605 product. Commenters note that this requirement would be sufficient to provide appropriate information 

5606 for emergencies. 

5607 Commenters also requested that in the section on pesticide application and hazard information, 

5608 EPA delete the requirement for the employer to maintain copies of the labeling for all WPS-labeled 

5609 pesticides used on the establishment, and instead to require the employer to maintain a copy of the 

5610 label and EPA-registration number. Again, commenters noted that such a requirement would likely 

5611 result in technical violations without providing benefit to workers or handlers.

5612 In the sections on handler training and establishment-specific information, commenters took 

5613 issue with requirements to train handlers on all labeling and to ensure that for specific applications 

5614 handlers have read the labeling or have been informed of all labeling requirements. Commenters noted 

5615 that a requirement for handlers to be trained on all labeling requirements, rather than those pertinent 

5616 to their specific tasks, would be overly broad and unnecessary. Commenters requested that EPA replace 

5617 “labeling” with “label” in these sections. A commenter also requested that EPA distinguish between 

5618 types of handlers and limit the requirement to provide access to labeling to handlers at mixing and 

5619 loading sites, rather than impose the same requirement in regard to all handlers, including those making 

5620 applications.

5621 EPA Response. EPA disagrees with commenters’ request to replace “labeling” with “label” 

5622 throughout the regulation because the broader term is appropriate in many provisions of the WPS. The 

5623 FIFRA scheme for managing the risks of pesticide products rests primarily on mandatory use directions 

5624 and precautionary statements approved by EPA in the registration process and communicated to users 

5625 through labels and labeling. Although in the case of lower risk products intended for general consumer 

5626 use, this information typically fits on the label, this is not the case for many agricultural and commercial5627 use pesticides.

5628 Labeling does not include advertisements, pamphlets or brochures unless they accompany the 

5629 product when sold or are referenced on the labeling. For instance, EPA has indicated that documents 

5630 such as marketing brochures used to sell the product and to provide information to customers and is not 

5631 labeling as defined by FIFRA section 2(p). 

5632 (http://www.epa.gov/pesticides/regulating/labels/labels_faq/lr_faq_10.html) If a document of this type 

5633 does not accompany the product when sold and there is no reference to the bulletin on the product 

5634 label, it is not “labeling.” Note though, that non-labeling documentation related to a product must not 

5635 have claims that differ from the product label. 7 U.S.C. 136j(a)(1)(B).

5636 Because mandatory use directions often appear in the labeling of agricultural pesticides, rather 

5637 than the label, some provisions of the WPS appropriately use the word “labeling.” Where the word 

5638 “labeling” appears in the WPS, employers are responsible for following or providing labeling as defined 
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5639 in FIFRA. This does not require employers to find, retain, or provide advertisements, pamphlets or 

5640 marketing brochures that do not meet the definition of “labeling.” 

5641 For example, it is appropriate that agricultural and handler employers’ duties under the final 

5642 rule include ensuring compliance with “labeling” rather than just the label. The existing regulation has 

5643 the same requirement under general duties and prohibited actions. 40 CFR 170.7(a)(2). The labeling may 

5644 include directions for use or other information essential to the safe and effective application of the 

5645 pesticide, or specific information related to WPS protections, such as the REI. For these reasons, EPA has 

5646 decided not to replace “labeling” with “label” throughout the final rule as suggested by the 

5647 commenters.

5648 Furthermore, the obligation of certified applicators (or any other person applying a pesticide) to 

5649 follow the labeling does not negate the obligation of agricultural and handler employers to comply with 

5650 the labeling. Requirements related to the WPS are found both in the regulation (e.g., training, 

5651 application-specific information) and on specific product labeling (e.g., directions for use, REI, PPE). In 

5652 addition, other non-WPS elements of the labeling, such as application rates and maximum number of 

5653 applications to a crop, are relevant to protecting workers and handlers from occupational exposure to 

5654 pesticides. When employers choose to use a pesticide that references the WPS on the labeling on their 

5655 establishment (either as the applicator or by directing another person to apply the pesticide on their 

5656 behalf), they are obligated to ensure that all requirements of the labeling are followed, not only those 

5657 related to the WPS, to ensure that workers and handlers are adequately protected. 

5658 However, EPA agrees that certain WPS requirements could be limited to the information on the 

5659 label or specific information from the label, and has specified “label” instead of “labeling” or specific 

5660 information from the label where appropriate. For example, EPA agrees with commenters that 

5661 employers need not provide all labeling in the event of the emergency. In the current rule, EPA lists 

5662 specific information that must be provided to a potentially injured worker or handler, or to treating 

5663 medical personnel: Product name, EPA registration number, active ingredients, antidote, and first aid 

5664 and medical treatment information. Since all of this information is required on the label (40 CFR 

5665 156.10(a)(1)), the final rule allows the employer to provide a copy of the label or this specific 

5666 information from the label, in addition to providing a copy of the SDS, when emergency assistance is 

5667 required. 

5668 EPA also agrees with commenters’ request to eliminate the requirement for employers to 

5669 maintain copies of the labeling for all pesticides with a WPS reference statement used on the 

5670 establishment. EPA agrees that if workers, handlers, or other persons need information on a specific 

5671 product that was used on the establishment, such information can be obtained using the EPA 

5672 registration number and product name. In response to comments received, EPA has replaced the 

5673 proposal with a requirement for the employer to retain only the EPA registration number, active 

5674 ingredient(s), product name, and other application-specific information for such products, in addition to 

5675 the SDS.

5676 Similarly, EPA agrees that if they are only using a product for a single type of application it may 

5677 be unnecessary to require handler employers to ensure that handlers have been trained generally on, 

5678 and for specific applications have read or been informed of, all labeling requirements. The labeling could 

5679 include directions for use covering multiple application methods and multiple crop sites, which may be 

5680 of no relevance to a particular handler. Although the final rule continues to refer to “labeling” in this 

5681 context, it now requires employers to ensure that for specific applications, handlers have read the 

5682 portions of the labeling applicable to the safe use of the pesticide or have been informed in a manner 

5683 they understand of all portions of the labeling applicable to the safe use of the pesticide. Further, EPA 
Page 128 of 176

5684 has amended handler training to require that handlers are instructed on their duty to follow the 

5685 portions of the labeling applicable to the safe use of the pesticide, and on the format and meaning of 

5686 information contained on pesticide labels and in labeling. 

5687 EPA disagrees with commenters’ request to distinguish between applicators who are mixing and 

5688 loading pesticides and handlers who are making pesticide applications for the requirement to ensure 

5689 that handlers have access to the product labeling. Regardless of the handling task being conducted 

5690 (mixing, loading or applying), the handler is working with a pesticide and needs to understand and 

5691 follow the applicable labeling instructions, for his or her own protection and the protection of others 

5692 and the environment. A person making an application may have questions about the application rate, 

5693 appropriate sites, handling precautions, practical treatment, or other information that could be found 

5694 on the pesticide labeling. Therefore, EPA has chosen to retain the requirement for the employer to 

5695 ensure that all handlers have access to the applicable pesticide labeling at all times during handler 

5696 activities.

5697 B. Regulating Other Persons

5698 1. Current rule and proposal. Some provisions in the existing WPS provide protections to 

5699 persons other than workers and handlers (“other persons”). For example, an existing requirement on 

5700 the label and in § 170.210(a) specifies that the applicator must apply the pesticide in a way that will not 

5701 contact workers or other persons. The existing requirement for entry-restricted areas on nurseries in § 

5702 170.110 specifies that an agricultural employer must not allow or direct any person, other than an 

5703 appropriately trained and equipped handler, to enter or remain in the restricted area. The existing 

5704 handler training content in § 170.230(c)(4) specifies that training must cover those requirements that 

5705 handlers must follow, including the prohibition against applying pesticides in a manner that will cause 

5706 contact with workers or other persons. The existing immediate family exemption in § 170.104(a)(2) 

5707 states that the owner of the agricultural establishment must provide protections to other workers and 

5708 other persons who are not part of his immediate family. The description of closed systems in § 

5709 170.240(d)(4) of the existing rule describes closed systems as systems that enclose the pesticide to 

5710 prevent it from contacting handlers or other persons. Also, the scope and purpose in § 170.1 of the 

5711 existing rule explains that the WPS is intended, in part, to reduce the risks of illness or injury resulting 

5712 from the accidental exposure of workers and other persons to pesticides.

5713 The proposed rule included these same protections for persons other than workers and 

5714 handlers and added several additional provisions that would affect “other persons.” The proposed 

5715 requirement for a handler to cease or suspend application if a worker or other person is in the treated 

5716 area or entry-restricted area was intended to supplement the existing “do not contact” requirements, 

5717 which already protect persons other than workers or handlers. In addition, EPA proposed to include 

5718 “other persons involved in the use of a pesticide to which this part applies” in the proposed anti5719 retaliation provision in § 170.15.

5720 2. Final rule. The final rule includes the protections and references to “other persons” that were 

5721 proposed, except that EPA removed the reference to other persons from the definition of closed 

5722 systems. The final rule’s prohibition against “other persons involved in the use of a pesticide” retaliating 

5723 against workers or handlers in § 170.315 of the final rule is consistent with OSHA’s non-retaliation 

5724 provision. The other sections that provide protections to other persons continue existing requirements 

5725 or supplement existing requirements and are discussed in detail in Unit IX. and Unit XVII.C.

5726 3. Comments and responses.

5727 Comments. Many commenters, including some grower organizations, states and their 

5728 organizations, a retailer organization, a few commercial applicators and two agricultural industry 
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5729 organizations, opposed including protections for “other persons” in the WPS. These commenters 

5730 argued that the proposal would extend the WPS to persons not currently covered and would result in an 

5731 unwarranted expansion of scope beyond workers, handlers and employee/employer relationships. The 

5732 grower, retailer, applicator and agricultural industry commenters stated that including “other persons” 

5733 could create the potential for frivolous legal challenges by anti-chemical activists seeking to prevent 

5734 pesticide applications. Many of the states and a state organization commented that pesticide labels 

5735 already protect other persons so it is unnecessary to include protections for them in the WPS. Some of 

5736 the states and their organizations claimed that including other persons in the WPS would complicate the 

5737 implementation and enforcement of the regulations. Most of the comments focused on the proposed 

5738 entry-restricted area requirements during pesticide applications in proposed § 170.105 and § 170.205, 

5739 although a few commenters also opposed including “other persons” in proposed § 170.1 regarding 

5740 scope and purpose, proposed §170.15 on prohibited actions, the proposed § 170.201(c)(3)(1) training 

5741 requirements for handlers, the immediate family exemption in proposed § 170.301(a)(2) and the 

5742 exception from some PPE when using closed systems in proposed § 170.307(d)(2).

5743 EPA Response. EPA disagrees with the comments on including protections for “other persons” 

5744 in the WPS. EPA already protects “other persons” in addition to workers and handlers in the existing 

5745 WPS, so there will not be major changes to implementing and enforcing the regulations with regard to 

5746 protecting “other persons” under the revised rule. EPA is not aware of anti-chemical activists using the 

5747 current protections to prevent pesticide applications and the final rule does not appear significantly 

5748 more likely to be used in that manner. EPA acknowledges that the labels of pesticides subject to WPS do 

5749 include a statement protecting “other persons” from being contacted with pesticide either directly or 

5750 through drift, because the worker protection label regulations in 40 CFR 156.200 – 156.212 require that 

5751 statement. As explained in Unit IX, however, the existing requirements for an applicator to prevent 

5752 pesticide contacting workers or other persons during application are insufficient because incidents 

5753 where workers and other persons are sprayed still occur. As explained in Unit Section XVII.B.1, nearly all 

5754 of the regulatory sections that include “other persons” are in the existing WPS. An exception is that the 

5755 anti-retaliation provisions in §170.315 of the final rule (which was proposed § 170.15) prohibits 

5756 retaliatory actions by an agricultural employer, commercial pesticide handler employer, or other person 

5757 involved in the use of a WPS-covered pesticide, which is broader than the existing anti-retaliation 

5758 provision in § 170.7(b), which cover agricultural employers and handler employers. The anti-retaliation 

5759 provisions in the proposed and final regulations are modeled on similar provisions in the DOL

5760 regulations to strengthen the protections.

5761 C. Definitions

5762 1. General 

5763 i. Current rule and proposal. The existing WPS provides definitions for certain terms for use in 

5764 the rule. In addition to the specific definitions for the twenty terms listed in 40 CFR 170.3, the WPS 

5765 defines the terms “closed system,” “enclosed cab,” “entry-restricted area,” “personal protective 

5766 equipment,” and “use” in other sections of the rule where those terms are used. EPA proposed to revise 

5767 certain existing definitions to provide greater clarity, to add several new definitions for terms used in the 

5768 rule, including definitions for the terms that had previously been defined elsewhere, and to eliminate 

5769 two unnecessary existing definitions for “greenhouse” and “forest.”

5770 ii. Final rule. In the final rule, EPA has adopted the revisions to the definitions as proposed 

5771 except for the definitions of the terms “agricultural establishment,” “agricultural plant,” “authorized 

5772 representative,” “closed system,” “commercial pesticide handler employer,” “commercial production,” 

5773 “employ,” “enclosed space production,” “entry-restricted area,” “farm,” “forest operation,” “hand 
Page 130 of 176

5774 labor,” “immediate family,” ”labor contractor” “outdoor production,” ”nursery,” and “use.” In the final 

5775 rule, EPA has deleted the definitions for the terms “greenhouse” and “forest” as proposed. EPA has also 

5776 deleted the existing definitions for the terms “farm,” “forest operation,” and “nursery,” as well as the 

5777 proposed definition for “commercial production.” Additionally, in the final rule EPA has added a new 

5778 definition for the term “application exclusion zone.” The discussions of the existing definitions and 

5779 proposal, final rule, comments and EPA response for these terms are contained in Units XVIII.C.2 –

5780 XVIII.C.8. The final regulatory text for these definitions is available at 40 CFR 170.305.

5781 iii. Comments and responses.

5782 Comments. EPA received comments on the proposed definitions of the terms “authorized 

5783 representative,” “closed system,” “enclosed space production,” “entry-restricted area,” “hand labor,” 

5784 “immediate family,” “outdoor production,” and “use”. EPA did not receive any substantive comments 

5785 opposed to the other proposed revisions related to definitions. EPA received several general comments 

5786 from state, grower and agricultural producer associations that supported developing improved 

5787 definitions because it would reduce the likelihood of alternative interpretations, while improving 

5788 compliance and enforceability. Many farmworker advocacy organizations and public health 

5789 organizations also supported EPA’s proposed revisions to improve definitions, commenting that it is 

5790 important to have clear and understandable language in order to avoid ambiguity.

5791 During USDA’s FIFRA section 25 review of the final rule, USDA commented that the definition for 

5792 “agricultural plant” depends on the definition for “commercial production,” and the definition for 

5793 “commercial production” depends on the definition for “agricultural plant” (Ref. 15). USDA said similar 

5794 issues exist in the definitions of “agricultural establishment” and “farm,” “forest operation,” and 

5795 “nursery.” USDA recommended resolving these circular dependencies. USDA also commented that the 

5796 proposed definitions of “employ,” “labor contractor,” and “commercial pesticide handler employer” 

5797 contained problematic language that could confusion as to who is ultimately responsible for providing 

5798 the handler protections in Subpart F of the proposed rule. 

5799 EPA Response. EPA agrees that improved definitions will reduce the likelihood of ambiguity and 

5800 alternative interpretations, while improving compliance and enforceability. EPA believes these proposed 

5801 revisions to the definitions adopt more widely used and commonly accepted “plain English” language, 

5802 and will add clarity and consistency to the rule. The proposed revisions to the definitions will also help 

5803 address regulatory or policy issues with the existing rule raised by state regulatory partners and other 

5804 program stakeholders. 

5805 In response to comments from USDA made during their FIFRA section 25 review of the final WPS 

5806 rule, EPA agrees that the definitions for “agricultural plant” and “commercial production,” and the 

5807 definitions for “agricultural establishment” and “farm,” “forest operation,” and “nursery” are circular

5808 (Ref. 15). While EPA is not convinced that serious confusion would result, EPA has eliminated some 

5809 definitions and revised others to address USDA’s concern. The terms “commercial production,” “farm,” 

5810 “nursery,” and “forest operation” appear only in the definition section and are not used elsewhere in 

5811 the regulation. Accordingly, EPA has deleted these definitions and merged their substantive content into 

5812 the definitions of “agricultural establishment” and “agricultural plant.” EPA also agrees that the current 

5813 definitions of labor contractor and commercial pesticide handler employer contain some problematic 

5814 language that could result in potential confusion and/or conflict regarding agricultural employer and 

5815 commercial pesticide handler employer duties under the rule. In the final rule, EPA has adopted revised 

5816 definitions for “employ,” “labor contractor,” and “commercial pesticide handler employer” to address 

5817 the potential confusion that could result from conflicting language in the existing proposed definitions. 

5818 EPA believes the revised regulatory text clarifies that CPHEs are responsible for the handlers they 
Page 131 of 176

5819 employ and agricultural employers would no longer be considered employers of CPHE handlers for the 

5820 purposes of the WPS, without overlooking the fact that some handlers are hired by agricultural 

5821 employers through labor contractors and not CPHEs. A copy of USDA’s comments and EPA’s responses 

5822 is available in the docket for this rulemaking. (Ref. 15).

5823 2. Authorized Representative.

5824 i. Current rule and proposal. The existing WPS does not contain a definition for “authorized 

5825 representative.” EPA proposed to add the term “authorized representative” to the rule and defined it as 

5826 “a person designated by the worker or handler, orally or in writing, to request and obtain any 

5827 information that the employer is required to provide upon request to the worker or handler.”

5828 ii. Final rule. The rule finalizes the proposed definition with changes. EPA has retitled the term 

5829 “authorized representative” to “designated representative” to better describe the relationship between 

5830 the representative and the worker or handler, and the definition narrows the information that is 

5831 required to be provided by the employer to the designated representative. In the final rule, “designated 

5832 representative” means “any persons designated in writing by a worker or handler to exercise a right of 

5833 access on behalf of the worker or handler to request and obtain a copy of the pesticide application and 

5834 hazard information required by § 170.309(h) in accordance with § 170.311(b) of this part.”

5835 iii. Comments and responses.

5836 Comments. EPA received many comments from states, growers, agricultural associations and 

5837 pesticide manufacturer associations objecting to the definition of “authorized representative.” Most 

5838 commenters objected to the proposed requirement for employers to make certain pesticide information 

5839 available to an “authorized representative” of their workers or handlers rather than the actual definition 

5840 of authorized representative. Several farm bureau commenters and grower groups stated that oral 

5841 designation of the representative could result in abuse, and would be unenforceable. One comment 

5842 from a farmworker advocacy organization stated that EPA should keep the definition for authorized 

5843 representative and clarify the range of representatives that could legitimately be asked to receive 

5844 information on behalf of a worker or handler (e.g., medical care provider, legal advocate, family 

5845 member, etc.).

5846 EPA Response. EPA has been convinced by comments that designation of the representative 

5847 must be in written form to protect employers from fraudulent claims. A written request that identifies 

5848 the worker or handler can be verified against employment records, and information about the dates of 

5849 their employ can be used to narrow the information needed to be provided. The final rule requires 

5850 employers to respond to written requests. 

5851 EPA disagrees with the recommendation to limit the definition to certain persons that could be 

5852 asked to request the information on behalf of the worker or handler. EPA believes that specifying classes 

5853 of persons permitted to serve as designated representative would unnecessarily limit worker and 

5854 handler access to needed information. The final rule requires employers to respond to such requests 

5855 within 15 days. However, to ensure that medical personnel treating a worker or handler have timely 

5856 access to information necessary for purposes of diagnosis or treatment, EPA has included a separate 

5857 requirement for employers to promptly provide the information to treating medical personnel or those 

5858 working under their direction, at 170.311(b)(8). 

5859 3. Closed System 

5860 i. Current rule and proposal. The existing WPS defines the term “closed system” as “a system 

5861 that encloses the pesticide to prevent it from contacting handlers or other persons.” EPA proposed to 

5862 move the definition of closed system to the definition section of the rule and to redefine a closed 

5863 system as “a system for mixing or loading pesticides that encloses the pesticide during removal of the 
Page 132 of 176

5864 pesticide from its original container and transfer, mixing, or loading of the pesticide product, mixtures or 

5865 dilutions, and any rinse solution, if applicable, into a new container or application equipment, in such a 

5866 manner that prevents the pesticide and any pesticide mixture or use dilution from contacting handlers 

5867 or other persons before, during and after the transfer, except for negligible release associated with 

5868 normal operation of the system.”

5869 ii. Final rule. In the final rule, EPA has defined “closed system” as “an engineering control used 

5870 to protect handlers from pesticide exposure hazards when mixing and loading pesticides.” The final 

5871 regulatory text for this definition is available at 40 CFR 170.305.

5872 iii. Comments and responses.

5873 Comments. EPA did not receive any specific comments on the definition of closed system.

5874 However, EPA received a number of comments related to EPA’s proposal on closed systems that 

5875 indicated the proposed requirements may be too prescriptive or limiting, could eliminate desired 

5876 flexibility for growers, and could discourage innovation and the adoption of closed systems. 

5877 EPA Response. EPA agreed with the comments that the proposed requirements related to 

5878 closed systems may be too prescriptive or limiting, could eliminate desired flexibility for growers, and 

5879 could discourage innovation and the adoption of closed systems. Although the comments did not 

5880 specifically mention the closed system definition, EPA reconsidered the proposed definition of closed 

5881 system in light of the overall comments on closed system requirements. EPA believes that a broader 

5882 definition of “closed system” will encourage industry innovation better than the proposed prescriptive 

5883 definition, and will retain flexibility for handler employers to design systems specific to their needs. In 

5884 the final rule, EPA has adopted a new definition of closed system that more accurately defines the 

5885 nature and intent of a closed system without inadvertently prescribing specific requirements and 

5886 operational components for such closed systems.

5887 4. Enclosed Space Production and Outdoor Production.

5888 i. Current rule and proposal. The existing WPS does not contain definitions for the terms 

5889 “enclosed space production” or “outdoor production.” Instead, the existing WPS defines the term 

5890 “greenhouse” to describe the type of WPS-covered agricultural establishments that produce agricultural 

5891 plants inside enclosed structures. The existing rule uses the terms “farm,” “forest” and “nursery” for 

5892 WPS-covered agricultural establishments that produce agricultural plants outdoors. Greenhouse is 

5893 defined in the existing WPS as “any operation engaged in the production of agricultural plants inside any 

5894 structure or space that is enclosed with nonporous covering and that is of sufficient size to permit 

5895 worker entry. This term includes, but is not limited to, polyhouses, mushroom houses, rhubarb houses, 

5896 and similar structures. It does not include such structures as malls, atriums, conservatories, arboretums, 

5897 or office buildings where agricultural plants are present primarily for aesthetic or climatic modification.” 

5898 EPA proposed to delete the definition of “greenhouse” because it would no longer be necessary as a 

5899 result of the proposed addition of a new definition for “enclosed space production.” EPA proposed to 

5900 define enclosed space production as “production of an agricultural plant in a structure or space that is 

5901 covered in whole or in part and that is large enough to permit a person to enter.” EPA also proposed to 

5902 add a new definition for the term “outdoor production” and defined it as “production of an agricultural 

5903 plant in an outside open space or area that is not enclosed or covered in any way.”

5904 ii. Final rule. In the final rule, EPA has deleted the definition of the term “greenhouse” as 

5905 proposed, and has adopted the definitions for “enclosed space production” and “outdoor production” 

5906 with modifications. The final rule defines “enclosed space production” as “production of an agricultural 

5907 plant indoors or in a structure or space that is covered in whole or in part by any nonporous covering 

5908 and that is large enough to permit a person to enter,” and defines “outdoor production” as “production 
Page 133 of 176

5909 of an agricultural plant in an outside area that is not enclosed or covered in any way that would obstruct 

5910 the natural air flow.” The final regulatory text for these definitions is available at 40 CFR 170.305.

5911 iii. Comments and responses.

5912 Comments. EPA received several comments from states and their organizations opposing the 

5913 definition of “enclosed space production” as written. A few other commenters also expressed concerns 

5914 with the definition of “outdoor production.” A state association noted that the proposed definition 

5915 could greatly expand areas covered under certain entry restrictions to include any covered area such as 

5916 fields or groves with shade covers and/or screen houses. The commenter expressed concerns that entry 

5917 restrictions currently applicable to greenhouses would be extended to these establishments, and is not 

5918 aware of any need for such an extension of these restrictions. States generally echoed these comments.

5919 One state requested clarification of whether the term “spaces covered in part” includes structures such 

5920 as “hoop houses,” and another state noted that the proposed rule did not define or reference high 

5921 tunnels and requested clarification of whether “high tunnels” are considered a greenhouse for the 

5922 purposes of WPS (i.e., would “high tunnels” be considered a type of enclosed space production?). One 

5923 state commented that the proposed definition expands areas covered under certain entry restrictions to 

5924 include shade houses and screen houses and this would have a major impact in on the state’s nursery 

5925 industry. Another state also expressed concerns that the proposed definition of enclosed space 

5926 production would expand restrictions beyond greenhouses, and suggested that EPA add the phase 

5927 “where the production of agricultural plants for research or commercial purposes occurs” to the 

5928 definitions of enclosed space production and outdoor production so that only those operations engaged 

5929 in the production of agricultural plants for commercial purposes would be covered by the WPS. Another 

5930 state commented that the term “outdoor production” is too broad and by misinterpretation, could 

5931 encompass a number of non-farm activities. 

5932 During USDA’s FIFRA section 25 review of the final rule, USDA commented that the inclusion of 

5933 the term “natural forest” in the definition of “outdoor production” creates confusion since there is no 

5934 explanation of what the term “natural forest” means and therefore the term is not needed (Ref. 15).

5935 EPA Response. EPA considered the comments submitted and agrees with the comments that 

5936 said the proposed definition of “enclosed space production” could expand areas covered under certain 

5937 entry restrictions to include any covered area such as fields or groves with porous shade covers and/or 

5938 screen houses where such restrictions are not necessary. EPA noted the potential impact of the 

5939 proposed definition on the nursery industry as raised by commenters. EPA also agrees that the proposed 

5940 definition of “outdoor production” could lead to some outdoor production being considered enclosed 

5941 space production because of the phrase “that is not enclosed or covered in any way.” EPA is convinced 

5942 that the definition of enclosed space production and outdoor production should be revised so that 

5943 operations that use non-porous coverings in their plant production operations, such as screen houses 

5944 and shade houses, are not covered by the entry restrictions deemed necessary for the protection of 

5945 workers and handlers that are working with pesticides or in pesticide treated areas in enclosed space 

5946 production operations. Therefore, EPA revised the definitions of enclosed space production and outdoor 

5947 production to clarify that enclosed space production only includes areas covered in whole or in part “by 

5948 any nonporous covering,” rather than “any covering” as in the proposed definition; and that outdoor 

5949 production will include areas that are covered only with coverings that are sufficiently porous that they

5950 do not obstruct the natural air flow typical of open fields or forests. It is intended that these definitions 

5951 of enclosed space production and outdoor production be complementary, such that all production 

5952 agriculture is either enclosed space production or outdoor production.

5953 EPA does not agree with the request to add the phrase “where the production of agricultural 
Page 134 of 176

5954 plants for research or commercial purposes occurs” to the definitions of enclosed space production and 

5955 outdoor production so that only those operations engaged in the production of agricultural plants for 

5956 commercial purposes would be covered by the WPS. EPA believes other definitions and language in the 

5957 rule already clearly limit the scope of the WPS to establishments where the production of agricultural 

5958 plants for research or commercial purposes occurs, so the addition of such language to these definitions 

5959 would be redundant and would not serve to further limit the scope of the rule in any way not already 

5960 accomplished through other means.

5961 Some commenters requested clarification of whether structures such as “hoop houses,” and 

5962 “high tunnels” are considered a type of enclosed space production. The term “greenhouse” in the WPS 

5963 has resulted in enforcement problems, because of the extreme variability in the types of structures that 

5964 might be considered greenhouses. This problem is compounded when considering the many 

5965 greenhouse-type structures (e.g., polyhouses, mushroom houses, hoop houses, high tunnels and similar 

5966 structures) that have come into use. This is why EPA has replaced the term greenhouse with enclosed 

5967 space production. EPA believes the new terms correspond more accurately to the nature of the risk that 

5968 EPA is concerned about mitigating (i.e., use of pesticides in enclosed spaces that could affect pesticide 

5969 inhalation exposure potential). Therefore, if a structure or space is covered in whole or in part by any 

5970 nonporous covering and is large enough to permit a person to enter, then the structure or space would 

5971 fall under the definition of enclosed space production in the final rule. EPA anticipates that most 

5972 greenhouses, hoop houses, high tunnels and similar structures will fall within the definition of enclosed 

5973 space production, but a final determination will be made on a case-by-case basis applying the 

5974 parameters of the definition to each situation.

5975 EPA agrees with USDA that the inclusion of the term “natural forest” in the definition of 

5976 “outdoor production” creates confusion and is not needed. In response, EPA has revised the final 

5977 definition of outdoor production accordingly (Ref. 15).

5978 5. Entry-Restricted Area and Application Exclusion Zone.

5979 i. Current rule and proposal. The existing WPS does not contain a definition for the terms “entry5980 restricted area” or “application exclusion zone.” Under the existing rule, the term “entry-restricted area” 

5981 is used to refer to areas on an establishment from which workers and other persons must be excluded

5982 during, and/or immediately after, an ongoing pesticide application to protect the workers or other 

5983 persons from being contacted by the pesticide (either directly or through drift). EPA proposed to define

5984 the term “entry-restricted area” as “the area from which workers or other persons must be excluded 

5985 during and after the pesticide application.”

5986 ii. Final rule. In the final rule, EPA has added the term “application exclusion zone” instead of the 

5987 proposed term “entry-restricted area.” EPA has defined the term “application exclusion zone” as “the 

5988 area surrounding the application equipment which must be free of all persons, other than appropriately 

5989 trained and equipped handlers, during pesticide applications.” The final regulatory text for this 

5990 definition is available at 40 CFR 170.305.

5991 iii. Comments and responses.

5992 Comments. EPA received several comments from states regarding the term “entry-restricted 

5993 area.” One commenter said the term was linguistically awkward and said EPA should instead use the 

5994 term “restricted area buffer.”

5995 EPA Response. EPA considered the comments submitted and agrees with the comments that the 

5996 term “entry-restricted area” was not clear and would be likely to cause confusion. In the final rule, EPA 

5997 has eliminated the use of that term and has therefore deleted the proposed definition. The final rule 

5998 adopts the term “application exclusion zone” to refer to the area from which persons must be excluded 
Page 135 of 176

5999 during applications. See Unit IX. for EPA’s response to the comments on the WPS requirements related 

6000 to entry-restricted areas. 

6001 6. Hand labor 

6002 i. Current rule and proposal. The existing WPS defines hand labor as “any agricultural activity 

6003 performed by hand or with hand tools that causes a worker to have substantial contact with surfaces 

6004 (such as plants, plant parts, or soil) that may contain pesticide residues. These activities include, but are 

6005 not limited to, harvesting, detasseling, thinning, weeding, topping, planting, sucker removal, pruning, 

6006 disbudding, roguing, and packing produce into containers in the field. Hand labor does not include 

6007 operating, moving, or repairing irrigation or watering equipment or performing the tasks of crop 

6008 advisors.” In the proposal, EPA intended to revise the definition by deleting the following sentence from 

6009 the existing definition, “These activities include, but are not limited to, harvesting, detasseling, thinning, 

6010 weeding, topping, planting, sucker removal, pruning, disbudding, roguing, and packing produce into 

6011 containers in the field.” In the proposed regulatory text for the definition of term “hand labor,” EPA 

6012 inadvertently deleted the phrase “except that hand labor does not include operating, moving, or 

6013 repairing irrigation or watering equipment or performing crop advisor tasks” from the end of the 

6014 definition. The erroneously proposed definition for the term “hand labor” was “any agricultural activity 

6015 performed by hand or with hand tools that cause a worker to have substantial contact with plants, plant 

6016 parts, or soil and other surfaces that may contain pesticide residues.”

6017 ii. Final rule. EPA has corrected the unintentional omission from the proposed definition of 

6018 “hand labor.” The final rule defines “hand labor” as “any agricultural activity performed by hand or with 

6019 hand tools that cause a worker to have substantial contact with plants, plant parts, or soil and other 

6020 surfaces that may contain pesticide residues, except that hand labor does not include operating, 

6021 moving, or repairing irrigation or watering equipment or performing crop advisor tasks.” The final 

6022 regulatory text for this definition is available at 40 CFR 170.305 for the final regulatory language for 

6023 definitions.

6024 iii. Comments and responses.

6025 Comments. One commenter objected to the proposed change to the definition of hand labor 

6026 that deleted the phrase “except that hand labor does not include operating, moving, or repairing 

6027 irrigation or watering equipment or performing crop advisor tasks” from the end of the definition. The 

6028 commenter indicated that removing this exception from the definition of hand labor would make the 

6029 irrigation exception for early entry unworkable and would disrupt irrigation operations.

6030 EPA Response. EPA agrees with the comment on the definition of “hand labor.” In the final, rule 

6031 EPA has deleted the sentence listing hand labor activities as proposed, but has retained the clause 

6032 excluding “operating, moving, or repairing irrigation or watering equipment or performing crop advisor 

6033 tasks” from being considered hand labor tasks 

6034 7. Immediate Family. See Unit XVII.A. for a complete discussion of EPA’s consideration of the 

6035 definition of “immediate family” in conjunction with the exemption from certain provisions of the WPS 

6036 for owners and members of their immediate families. 

6037 8. Use

6038 i. Existing definitions and proposal. The existing WPS provides a definition of the term “use” (as 

6039 in “to use any registered pesticide in a manner inconsistent with its labeling”) for the purposes of the 

6040 rule at 40 CFR 170.9, “Violations of this part.” For the purposes of the WPS, EPA has interpreted the 

6041 term “use” to cover a broad range of pesticide-related activities that are listed at 40 CFR 170.9. EPA 

6042 proposed to move the existing definition for “use” found at 40 CFR 170.9 into the definitions section of 

6043 the rule.
Page 136 of 176

6044 ii. Final rule. In the final rule, EPA has adopted the definition for “use” as proposed. The final 

6045 regulatory text for this definition is available at 40 CFR 170.305.

6046 iii. Comments and responses.

6047 Comments. EPA received several comments from states, growers, agricultural associations and 

6048 pesticide manufacturer associations objecting to the proposed definition of “use.” Most commenters 

6049 objected to the definition of use because they did not support inclusion of “arranging for application of 

6050 the pesticide” as part of the definition of “use.” Some commenters said they believed that this language 

6051 would greatly expand the scope of the WPS and would be unreasonable and unnecessary. Some 

6052 commenters noted that they could not see how “arranging for application of the pesticide” could be 

6053 considered use. During its review of the draft final rule under FIFRA section 25(a), USDA noted that the 

6054 term “arranging for the application of the pesticide” as part of the definition of the term “use” could 

6055 lead to persons that call on or answer the telephone and “arrange” for pest management by scheduling 

6056 the appointment on behalf of another to be covered by the rule and possibly have WPS responsibilities.

6057 EPA Response. EPA disagrees with comments that say the proposed definition for the term 

6058 “use” could or will expand the scope of the WPS because this interpretation has been in the WPS since 

6059 the rule first became effective. Moreover, EPA has not been made aware of any instances where this 

6060 interpretation of “use” has resulted in an unreasonable or inappropriate outcome. EPA believes that 

6061 “arranging for application of the pesticide” is appropriately part of the definition of “use” for the 

6062 purposes of the WPS because in production agriculture, the individual who physically “uses” a pesticide 

6063 almost always does so at the direction of another person who has substantially greater control over the 

6064 circumstances of the use. Thus the WPS is designed so that when an agricultural or handler employer 

6065 arranges for the application of a pesticide by a handler employee, it triggers certain WPS duties that are 

6066 properly the responsibility of the agricultural or handler employer. For instance, once the agricultural 

6067 employer arranges for a pesticide application by a commercial pesticide handling establishment, the 

6068 commercial pesticide handler employer must provide the agricultural employer with certain information 

6069 about the intended application before the application takes place (so the employer will be able to fulfill 

6070 WPS notification requirements and protect workers during application, etc.). In such circumstances, it is 

6071 reasonable and appropriate that the handler employer should be held responsible for the pre6072 application information exchange even though the application has not commenced and even though the 

6073 handler employer personally never physically “uses” the pesticide.

6074 EPA interprets “arranging for application of the pesticide” as used in § 170.9(a) and § 170.305 as 

6075 a means of assuring that the entities (generally the agricultural employer or handler employer) with the 

6076 most authority and control over WPS compliance would be legally responsible for WPS compliance. EPA 

6077 does not interpret “arranging for application of the pesticide” as making subordinate persons who 

6078 merely perform the clerical functions of arranging for application of the pesticide liable for WPS 

6079 compliance. Therefore, since EPA has not been made aware of any instances where the existing 

6080 interpretation of the term use has resulted in any problems for growers, states or the agricultural 

6081 industry, EPA has moved the definition for the term “use” into the definitions section of the rule without 

6082 any change from the proposal.

6083 D. Restructuring 40 CFR part 170

6084 1. Current rule and proposal. The existing WPS is organized into three subparts: “General 

6085 Provisions,” “Standard for Workers,” and “Standard for Handlers.” Content that applies to both workers 

6086 and handlers is repeated creating redundancy throughout the rule.

6087 EPA discussed renaming the regulation “Requirements for Protection of Agricultural Workers 

6088 and Pesticide Handlers” in the preamble of the proposal and proposed reorganizing the rule into four 
Page 137 of 176

6089 subparts: “General Provisions,” “Requirements for Protection of Agricultural Workers,” “Requirements 

6090 for Protection of Pesticide Handlers,” and “Exemptions and Exceptions.” EPA proposed creating the 

6091 “General Provisions” subpart to describe certain obligations for agricultural employers, handler 

6092 employers, and those requirements that apply to both. The proposal included subparts “Requirements 

6093 for Protection of Agricultural Workers” and “Requirements for Protection of Pesticide Handlers” to 

6094 provide information that supplements the general duties and obligations for employers and to outline 

6095 the content of the training and decontamination supplies that the employer must provide for workers 

6096 and handlers respectively. EPA proposed to consolidate most of the exceptions and exemptions into a 

6097 separate subpart titled “Exemptions and Exceptions” to make them easier to find and reference.

6098 2. Final Rule. In the final rule, EPA has retained the existing name of the regulation, “Worker 

6099 Protection Standard,” and has adopted the proposed restructuring of the rule with minor modifications.

6100 EPA has determined that it is appropriate to allow one year for employers, trainers, and state 

6101 and tribal regulators to prepare for the changes to the WPS. See Unit XIX. In order to allow the existing 

6102 WPS to remain in effect for one year and to make available the revised regulatory language in advance 

6103 of the implementation date, both the existing WPS and the revised WPS must appear in the Code of 

6104 Federal Regulations. Thus the final rule provides that Subparts A, B and C of part 170 will remain in 

6105 effect until one year after the effective date of this final rule. Subparts D, E, F and G of part 170 contain 

6106 the full text of the revised WPS; however, these subparts will not be implemented until one year after 

6107 the effective date of this final rule. Some provisions of subparts D, E, F and G, such as pesticide safety 

6108 training and the pesticide information display, will not be implemented until two years after the 

6109 effective date of this final rule. One year after the effective date of this final rule, subparts A, B and C will 

6110 no longer be effective. At that time, EPA intends to delete subparts A, B and C from part 170.

6111 In addition to finalizing the proposed structuring of the rule, EPA has added a new section 

6112 providing a process for allowing states and tribes to request equivalency determinations from EPA for 

6113 existing state or tribal laws or regulations that may provide protections equivalent to the WPS. EPA has 

6114 added this to a retitled subpart: “Exemptions, Exceptions and Equivalency.” 

6115 3. Comments and responses.

6116 Comments. EPA did not receive any comments opposed to the proposal to restructure the WPS.

6117 One commenter noted that the proposed restructuring of the rule increased the clarity of the rule and 

6118 the relationship among the components. Another commenter asserted that there was no need to 

6119 change the name of the regulation, and noted that if EPA was going to change the name of the rule, it 

6120 should more accurately represent the full scope of the rule and the impacted establishments.

6121 EPA Response. EPA agrees with the comment that it is unnecessary to change the name of the 

6122 rule. “Worker Protection Standard” and the abbreviation WPS are commonly used and associated with 

6123 the rule. Upon further consideration, EPA agrees that the existing name of the rule is very widely 

6124 recognized and that it will facilitate more effective communications on the rule to retain the current 

6125 name of the rule.

6126 EPA also agrees with the commenter that the proposed restructuring of the rule increases the 

6127 clarity of the rule and the relationship among the components. EPA is adopting the proposed 

6128 restructuring of the WPS in the final rule with the minor modifications noted. EPA expects the revised 

6129 part 170 will be easier to read and understand, thereby improving compliance by worker and handler 

6130 employers.

6131 4. Costs and benefits. EPA does not estimate any costs associated with the restructuring of the 

6132 rule. The benefits of the restructuring will be increased clarity and understanding of the rule which 

6133 should result in improved compliance and more consistent enforcement.
Page 138 of 176

6134 E. Equivalency Provisions

6135 1. Current rule and proposal. The current WPS does not contain equivalency provisions that 

6136 would permit EPA to potentially recognize, through a WPS-established regulatory mechanism, state or 

6137 tribal worker protection laws and/or regulations that may provide equivalent or significantly greater 

6138 protection in comparison to the provisions of the existing WPS, or provide equivalent protection at a 

6139 significantly lower cost. EPA did not propose to add equivalency provisions to the rule because it did not 

6140 receive information from states or tribes that such provisions were necessary, and had not been 

6141 informed by growers that WPS requirements conflicted with existing state or tribal worker protection 

6142 laws or regulations. 

6143 2. Final rule. In the final rule, EPA has included a section on equivalency because of comments 

6144 received that indicate provisions may be needed to address certain issues with the WPS potentially 

6145 conflicting with existing state and tribal worker protection laws or regulations. EPA recognizes that some 

6146 states and tribes have existing worker protection provisions in their own laws and regulations that may 

6147 be equivalent to the provisions of the existing WPS, that may provide significantly greater protection, or 

6148 may provide equivalent protection at a significantly lower cost, and decided it would be more practical 

6149 and efficient to establish a mechanism to evaluate specific state or tribal requirements and to make 

6150 equivalency determinations rather than relying on other EPA enforcement mechanisms or policies to be 

6151 able to allow such determinations. The final regulatory text for this requirement is available at 40 CFR 

6152 170.609.

6153 3. Comments and responses.

6154 Comments. Although EPA did not propose equivalency provisions, EPA received comments from 

6155 the California Department of Pesticide Regulation (CDPR) that indicated it would be beneficial if states 

6156 could be granted ‘equivalency’ as was done for the current WPS. The CDPR comment refers to an 

6157 independent enforcement discretion decision that was granted under the current WPS to recognize 

6158 CDPR’s requirement for the content of their field posting sign to be equivalent to the existing

6159 requirement at 40 CFR 170.120. Comments from some other state pesticide regulatory agencies 

6160 indicate there may be issues of equivalency between their regulations and the final WPS requirements. 

6161 Although these commenters did not specifically raise the need for equivalency provision, they indicated 

6162 a need for EPA to be aware of the issue and potentially identify solutions. 

6163 EPA Response. Based on the comments received and EPA’s experience with the current WPS 

6164 and requests from CDPR for equivalency on certain regulatory requirements, EPA agrees that there are 

6165 potential situations where states or tribes may request EPA to consider equivalency under the WPS for 

6166 their laws or regulations. Therefore, EPA believes it is prudent to consider an equivalency process under 

6167 the WPS, and feels strongly that it is more efficient and advantageous to establish a mechanism for 

6168 considering equivalency in the WPS rule rather than relying on other mechanisms. EPA has provided a 

6169 general equivalency process in the rule that is modeled on the provisions that were developed and 

6170 implemented for substantially the same reason and purpose under the pesticide containment 

6171 regulations in 40 CFR 165.97. (71 FR 47330, August 16, 2006).

6172 F. Clarifications 

6173 1. Scope and Purpose. In the final rule, EPA has clarified who the rule protects and that 

6174 agricultural and commercial pesticide handler employers are responsible for carrying out the 

6175 requirements of the rule. EPA has also clarified that handlers have responsibilities under the rule to 

6176 protect workers and other persons during pesticide applications. Refer to 40 CFR 170.301 for the revised 

6177 language.

6178 2. Applicability. In the final rule, EPA has clarified in 40 CFR 170.303(c) that users must comply 
Page 139 of 176

6179 with product labeling requirements where the labeling requirements differ from the rule, except as 

6180 provided in 40 CFR 170.601, 170.603, and 170.607, where the WPS provides exceptions to label6181 required PPE and REIs. 

6182 G. Anti-retaliation Measures

6183 The purpose of the requirements discussed in this section are to protect a worker’s or handler’s 

6184 right to pursue protections established by the WPS without fear of retaliation from their employer. 

6185 Retaliation occurs when an employer takes an adverse action against a worker or handler because he or 

6186 she engaged in an activity protected by the law. 

6187 1. Current rule and proposal. The existing WPS includes three related requirements intended to 

6188 protect workers and handlers from retaliation. The prohibited actions section of the existing WPS 

6189 directly prohibits agricultural employers from taking “any retaliatory action for attempts to comply” 

6190 with requirements of the rule but does not describe what those actions include. The existing rule also 

6191 requires employers to assure that workers and handlers are informed, as part of their pesticide safety 

6192 training, about the availability of pesticide specific information and that they have protection against 

6193 retaliatory acts for attempting to comply with the rule.

6194 EPA proposed modifications to the anti-retaliation provision to clarify the actions that are 

6195 prohibited. The proposed rule also expanded the training to highlight the anti-retaliation provisions of 

6196 the WPS.

6197 2. Final rule. The anti-retaliation measures proposed have been modified in the final rule. EPA 

6198 has modified the anti-retaliation provision based on comments provided from DOL on how EPA could 

6199 improve its retaliation provision by modeling it after language used in similar provisions in DOL 

6200 regulations. Moreover, EPA notes that this rule does not preempt the general anti-retaliation provision 

6201 in the DOL-administered Occupational Safety and Health Act, 29 U.S.C. 660(c). The final regulatory text 

6202 for the anti-retaliation provision is available at 40 CFR 170.315. The expanded training points intended 

6203 to address protection from retaliation were finalized as proposed. The final regulatory text for the 

6204 expanded training points is available at 40 CFR 170.401. 

6205 3. Comments and responses.

6206 Comments. Many commenters, including 71 Members of Congress, farmworker advocacy 

6207 organizations, Unions, Legal Aid organizations and private citizens stated that the existing language in 

6208 the WPS does not provide strong enough protections against retaliation for workers to feel safe asking 

6209 for information about pesticide applications, protective equipment or other protections required under 

6210 the WPS. Commenters noted that farmworkers are also afraid to report violations or file a complaint 

6211 with the employer or state pesticide regulatory agency because they fear the loss of their jobs or other 

6212 forms of retaliation. These commenters specifically asked EPA to adopt the same standard provided by 

6213 OSHA for employees to report unsafe working conditions and protect employee confidentiality. 

6214 Many state regulatory agencies, grower associations, and farm bureaus opposed the anti6215 retaliation measures as unnecessary, asserting the proposed requirements do not provide any additional 

6216 protection. State regulatory agencies specifically objected to including “other persons” in the prohibited 

6217 actions on the grounds that the definition is unclear and would result in overly burdensome 

6218 investigations. Other state pesticide regulatory agencies noted that retaliation investigations are 

6219 beyond the scope of pesticide use inspections and inspector training. 

6220 EPA Response. EPA understands the importance of establishing mechanisms for farmworkers to 

6221 get hazard information about their workplace, to request protections required under the WPS, or to file 

6222 complaints about workplace practices with their employer or a regulatory agency without risk of 
Page 140 of 176

6223 retaliation. The Agency disagrees with commenters that assert anti-retaliation provisions provide no 

6224 additional protections. 

6225 EPA recognizes the value of allowing workers to maintain confidentiality when requesting 

6226 information or filing complaints against employers and would refer anonymous tips or complaints about 

6227 workplace safety to the appropriate state enforcement agency. However, unlike the OSH Act, FIFRA 

6228 does not include a directive to ensure confidentiality for workers, handlers, or other complainants. The 

6229 OSH Act specifically establishes a worker’s right to file a complaint with OSHA about safety or health 

6230 hazards in their workplace and to request that their names not be revealed to their employer. EPA can, 

6231 and typically does, protect tips, complaints, inspection reports, etc., as “enforcement confidential.” 

6232 Although this is not an absolute protection, EPA typically continues to treat such information as 

6233 confidential until an enforcement case is underway. In addition, a number of states have established 

6234 laws or policies that direct inspection and enforcement personnel to maintain confidentiality of any 

6235 farmworkers who files a complaint.

6236 EPA recognizes the potential burden on state pesticide regulatory agencies of investigating 

6237 complaints and understands that proving retaliation claims is different than other pesticide use 

6238 violations. If retaliation is suspected or reported, EPA encourages state regulatory agencies to refer 

6239 investigations to EPA, or cooperate in the investigation of retaliation claims with another appropriate 

6240 regulatory agency.

6241 H. Comments Related to OSHA

6242 Comments. Many commenters suggested that EPA ensure that the WPS provides workers and 

6243 handlers with protections comparable to those provided to workers in other hazardous occupations 

6244 under OSHA. Commenters suggested that EPA increase requirements for safety training, 

6245 decontamination, emergency assistance, PPE (respirator safety), medical monitoring, and information 

6246 about chemicals being used in the workplace to match OSHA’s requirements. More specifically, many 

6247 commenters suggested that EPA require annual training for workers and full pesticide safety training 

6248 before workers and handlers are directed to work with pesticides or in pesticide-treated areas. Some 

6249 commenters suggested that EPA require an emergency shower within the work area for immediate 

6250 emergency use where there is potential for the eyes or body of any person to contact pesticides and 

6251 adopt OSHA standards related to eyewash stations. Further, they urged EPA to adopt OSHA 

6252 requirements related to the timing of providing transportation to employees in the event of a known or 

6253 suspected pesticide exposure or injury. Many commenters expressed support for EPA’s adoption of 

6254 OSHA’s standards for respiratory protection. Many commenters requested that EPA adopt medical 

6255 monitoring for handlers exposed to cholinesterase-inhibiting pesticides. Some commenters suggested 

6256 that EPA require records to be retained for 30 years and employers to maintain a written hazard 

6257 communication plan, as required under OSHA regulations. Some commenters requested that EPA adopt 

6258 OSHA’s standards for confined spaces for early-early entry workers. Many commenters suggested that 

6259 EPA adopt OSHA’s anti-retaliation provisions to allow workers and handlers to report suspected 

6260 violations of the WPS without fear of losing their jobs.

6261 Many commenters raised general concerns that incorporating into the WPS by reference 

6262 elements of OSHA’s regulations, i.e., some portions of the respirator standards at 29 CFR 1910.134, 

6263 would constitute an expansion of OSHA’s jurisdiction.

6264 EPA Response. EPA appreciates the commenters’ suggestions about incorporating OSHA6265 equivalent protections into the WPS. For comments and EPA’s responses related to specific areas of the 

6266 proposal, please see the appropriate sections of this document.
Page 141 of 176

6267 EPA has addressed concerns about jurisdictional issues related to the incorporation by reference 

6268 of some of OSHA’s respiratory protection standards in Unit XV.A.

6269 XIX. Implementation

6270 A. Proposal. EPA proposed to make the final rule effective 60 days after the date of publication 

6271 in the Federal Register; however, compliance with certain provisions, including the additional content of 

6272 pesticide safety training and pesticide safety information, and new signs for posting, would not be 

6273 required until 2 years after the effective date of the final rule. EPA proposed the 2-year delay between 

6274 effective date of the final rule and the implementation date to allow time for new training materials to 

6275 be developed and made available, and to give employers, trainers, and other affected stakeholders time 

6276 to make the necessary changes to their practices and operations to comply with the new training and 

6277 pesticide safety information requirements. EPA also linked the implementation date for the revised 

6278 pesticide safety training requirements for workers and handlers to the availability of new revised 

6279 training materials that satisfy the new rule requirements. Under the proposal, if EPA announced the 

6280 availability of such materials sooner than 18 months after the effective date of the final rule, then the 

6281 new training requirements would go into effect 2 years after the effective date of the final rule. If EPA 

6282 announced the availability of materials that comply with the requirements more than 18 months after 

6283 the effective date of the final rule, then the new training requirements would not take effect until 180 

6284 days after the announcement of availability of complying training materials published in the Federal 

6285 Register.

6286 B. Final rule. EPA has included in the final rule a one-year delay from the effective date of the 

6287 final rule before employers must comply with any of the new WPS requirements. Thus, on [insert date 

6288 one year and 60 days after the date of publication in the Federal Register], employers will be required to 

6289 comply with almost all of the new and revised WPS requirements. However, employers will not be 

6290 required to comply with certain new WPS provisions until two years after the effective date of the final 

6291 rule. This two year delay applies to the new requirements for pesticide safety training for workers and 

6292 handlers, pesticide safety information and handlers to suspend applications when workers or other 

6293 persons are in the application exclusion zone. As proposed, the final rule provides that compliance with 

6294 certain new training requirements will not be required until the later of two years after the effective 

6295 date of the final rule, or 180 days after EPA publishes in the Federal Register a notice of availability of 

6296 new revised training materials that satisfy the new rule requirements.

6297 The final regulatory text for these provisions is available at 40 CFR 170.2, 170.311(a)(3), 

6298 170.401(c)(3), 170.501(c)(3) and 170.505(b).

6299 C. Comments and responses.

6300 Comments. Most comments that addressed implementation focused on three main areas: 1) 

6301 The need for better and more effective enforcement of the revised rule once the new requirements are 

6302 effective; 2) the need for appropriate supporting communication, education, training and compliance 

6303 assistance materials to facilitate effective implementation; and 3) the need for additional time before 

6304 the final rule becomes effective to give regulators and the regulated community time to prepare for 

6305 compliance with new requirements.

6306 Many comments from states, pesticide safety educators, trainers, grower associations and 

6307 pesticide manufacturer associations pointed out a need for appropriate training and compliance 

6308 assistance materials to support effective implementation. Commenters indicated that it was essential 

6309 for EPA to have updated communications and compliance assistance materials, such as fact sheets and 

6310 the “WPS How to Comply” manual, developed and available to all affected parties in order for the 

6311 regulated community to be able to learn and understand new requirements. Several states, grower
Page 142 of 176

6312 associations and pesticide manufacturer associations commented that EPA should provide more time 

6313 before the new rule requirements become effective so that regulators and the regulated community can 

6314 more adequately prepare for compliance with new requirements. However, several farmworker 

6315 advocacy organizations urged EPA to implement the proposed training requirements for workers and 

6316 handlers sooner than the proposal of 2 years from the effective date of the final rule.

6317 EPA Response. EPA considered the comments submitted and agrees that after publication of the 

6318 final rule, some time is needed before the new WPS requirements are implemented. EPA understands 

6319 that State, tribal and federal regulators need time to become familiar with the new regulation, provide 

6320 training to pesticide inspectors, develop the capacity for enforcing the new rule requirements, establish 

6321 appropriate WPS inspection and enforcement policies, and conduct outreach to the regulated and 

6322 protected communities. In addition, agricultural employers will need time to become familiar with the 

6323 new requirements and implement any necessary changes. In the final rule, EPA has delayed the 

6324 implementation of the new WPS requirements for one year so that EPA can work with state and tribal 

6325 pesticide regulators and the regulated community to better prepare for compliance with new rule 

6326 requirements. The existing rule will remain in effect and be enforced during this time, as provided in 40 

6327 CFR 170.2. 

6328 EPA disagrees with comments that the compliance dates for the new worker and handler 

6329 training requirements should be implemented sooner than 2 years from the effective date of the final 

6330 rule as outlined in the proposal. EPA believes that up to 18 months could be needed in order to develop 

6331 and disseminate new, high quality, multi-lingual worker and handler training materials in multimedia 

6332 formats that comply with the new requirements. Additionally trainers will have to obtain the new 

6333 training materials, become familiar with the new training content and ensure that they continue to meet 

6334 any eligibility requirements to train. Therefore, EPA has decided to retain the proposed requirement to 

6335 delay the new training requirements for 2 years from the effective date of the final rule (or 180 days 

6336 after the announcement that training materials are available, whichever is later) to allow adequate time 

6337 for development and widespread distribution of the materials to trainers and employers. While EPA 

6338 agrees that it is important for workers and handlers to have the new safety training information as soon 

6339 as possible, time will be needed to create and distribute new training materials and to allow existing 

6340 trainers to familiarize themselves with those new materials. In order to maximize compliance with the 

6341 final rule, and in the interests of consistency and efficiency, EPA intends to develop and make available 

6342 suitable training materials. EPA intends to have new training materials developed and disseminated as 

6343 soon as practical and will encourage employers to begin using the new materials as soon as they 

6344 become available so that many workers and handlers will begin receiving the benefits of the new 

6345 training before the required date.

6346 EPA is committed to a robust outreach, communications and training effort to communicate the 

6347 new rule requirements to affected WPS stakeholders. To facilitate implementation, EPA plans to issue 

6348 plain language “how to comply” fact sheets and guidance materials once the final rule is published. EPA 

6349 plans to develop compliance assistance materials that are targeted to specific agricultural sectors and 

6350 rule requirements such as respirator requirements or the WPS exemptions and exceptions. EPA also 

6351 intends to develop and disseminate new worker and handler training materials, conduct outreach to 

6352 potentially affected parties, and provide assistance and resources to States and Tribes for WPS 

6353 implementation. EPA plans to hold Pesticide Regulatory Education Program courses for State and Tribal 

6354 pesticide program staff that will focus on WPS implementation, and Pesticide Inspector Residential 

6355 Training courses for State and Tribal pesticide inspectors that will focus on WPS inspection 

6356 requirements. 
Page 143 of 176

6357 XX. Economic Analysis

6358 A. Cost Assessment and Related Topics

6359 1. Estimation of Costs

6360 Comment. EPA has underestimated the cost of the proposed rule. (Comments in 

6361 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#0205, #1642, #1722, #1870, #2155, #2199, #2200, 

6362 #2207, #2208, #2209, #2225, #2238, #2239, #2242, #2252, #2258, #2269, #2282, #2293, #2303, #2304, 

6363 #2310, #2319, #2376, #2385, #2432, #2491, #2492)

6364 EPA Response. EPA appreciates the comment, but without additional information is unable to 

6365 determine how the estimated cost should be modified. In some cases, it appears that commenters 

6366 observed the reported $5 per worker and $60 per handler costs reported in the evaluation of the 

6367 impacts on jobs and did not realize that these costs represent only the portion of the costs accruing for 

6368 each employee; establishments will also bear certain costs less directly associated with the number of 

6369 employees. For example, posting hazard information is required if workers are present, regardless of 

6370 the number of workers on the establishment. In other cases, it appears that commenters confused the 

6371 requirements for obtaining certification to use restricted use products with the handler training 

6372 requirements under the Worker Protection Standard (WPS).

6373 Comment. EPA has underestimated the number of affected entities by 1) not counting contract 

6374 labor; 2) failing to count diversified and livestock operations; 3) underestimating overall numbers of 

6375 workers, including contract labor, by using outdated (2007 Census of Agriculture) data, rather than the

6376 most recent available (2012 Census of Agriculture); 4) failing to use current wage rates; 5) failing to 

6377 account for the seasonality of farm worker employment. (Comments in regulations.gov, docket EPA6378 HQ-OPP-2011-0184; ID#2200, #2206, #2286, #2294, #2439, #2442)

6379 EPA response. EPA disagrees that there has been an underestimation of affected entities. 1) 

6380 While the estimates of the numbers of entities and workers in EA for the proposed rule did not 

6381 specifically include contract labor, EPA relied on employment figures in the 2007 Census of Agriculture. 

6382 These figures include all employees, including those who are not engaged in hand labor activities nor 

6383 handle pesticides, and counts a person multiple times if employed at multiple establishments. As a 

6384 result, the number of affected workers was likely overestimated for the analysis of the proposed rule. 

6385 For the EA for the final rule, EPA relied on the 2012 Census of Agriculture, which resulted in an estimate 

6386 of almost two million workers. Relying on more detailed surveys of farm labor, USDA estimates that 

6387 there are just over one million workers, including 200,000 workers employed through contract services. 

6388 This indicates that EPA has overestimated the number of workers, and probably the number of entities, 

6389 that are affected by the final rule. 2) Using a special tabulation of data from the 2007 Census of 

6390 Agriculture, EPA specifically accounted for livestock operations (NAICS 112) that produce crops in the 

6391 analysis of the proposed rule and used the information to estimate the number of livestock operations 

6392 producing crops for analysis of the final rule. 3) For the final rule, EPA has used data from the 2012 

6393 Census of Agriculture, which was not published prior to the publication of the proposed rule. 4) For the

6394 final rule, EPA has updated wages and prices to estimate costs using data from 2014. 5) The seasonality 

6395 of farm worker employment leads to an overestimation of cost because EPA has assumed that all 

6396 workers are present on a farm for the entire season. This means, for example, that EPA assumes farms 

6397 are required to notify all workers of all pesticide applications when, due to seasonal employment, 

6398 workers may not be present for most applications and notifications are not required.

6399 Comment. The National Cotton Council believes that EPA has significantly underestimated the 

6400 costs to farmers that these additional regulations will impose. For example, EPA estimates a cost of 

6401 $5/worker/year. The wages alone for a four-hour training session – even at the current federal 
Page 144 of 176

6402 minimum wage – would be $29/worker and that does not include transportation or fees for the training. 

6403 Additional costs to farmers would include signs and postings, recordkeeping, and additional trips for sign 

6404 placement and maintenance. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1842)

6405 EPA Response. It appears that this commenter has confused the costs of obtaining certification 

6406 to use restricted use products with pesticide safety training under the WPS. Safety training is typically 

6407 conducted on-site, often by the employer if he or she is a certified applicator, and under the revised set 

6408 of topics, pesticide safety training will likely take 45 minutes to an hour.

6409 Comment. EPA has underestimated the costs of the revisions because some states have higher 

6410 labor costs, especially Hawaii. Average cost per farm does not reflect establishments with large 

6411 numbers of workers. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2200, #2282, 

6412 #2320)

6413 EPA Response. EPA acknowledges that there is a great deal of variability across states and 

6414 agricultural entities, but averages provide a powerful tool for calculating national-level impacts and for 

6415 providing basic information about the impacts of policy options and decisions. EPA used variations in 

6416 the number of workers across regions of the country to better understand the range of impacts to farms 

6417 of different sizes. Although the average cost per farm may underestimate the cost to establishments 

6418 with large numbers of workers, it also overestimates the impacts to establishments with few workers.

6419 Comment. By averaging the number of employees so broadly EPA has significantly 

6420 underestimated the total impact of compliance on growers of vegetable, fruit, and nuts, nurseries and 

6421 greenhouses – those that employ the vast majority of farmworkers that engage in hand labor activities. 

6422 (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2200)

6423 EPA Response. EPA disagrees. The analyses of both the proposed and final revisions include 

6424 discussions of the impacts on individual establishments across a range of farm types and sizes, including 

6425 different number of workers and handlers. This discussion is provided throughout Section 3.3 of the 

6426 Economic Analysis of the final revisions; see, for example, Table 3.3-56 in Section 3.3.8. Also see Section 

6427 3.5, Small Business Impacts.

6428 Comment. The US Census for Agriculture makes a distinction between hired farm labor and 

6429 migrant labor. To get an accurate assessment of the impact on employers, contract labor must be 

6430 included in the calculation. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2209, 

6431 #2296)

6432 EPA Response. EPA acknowledges that the Census of Agriculture does not account for contract 

6433 labor. However, employment figures in the Census of Agriculture include employees who do not engage 

6434 in hand labor activities or handle pesticides and count persons multiple times if employed at multiple 

6435 establishments. As a result, the number of affected workers is likely overestimated. For the EA for the 

6436 final rule, EPA estimates there to be almost two million workers, based on data from the Census, while 

6437 USDA estimates that there are just over one million workers, including 200,000 workers employed 

6438 through contract services, based on more refined data from farm labor reports (Ref. 24). As a result, 

6439 national and regional level impacts are likely overestimated.

6440 Comment. To try to better understand the details of the incremental cost increase claim, Bayer 

6441 Crop Science and CropLife America examined the estimated burden of the ongoing WPS by looking up 

6442 the most recently approved ICR, EPA No. 1759-06. The estimated annual burden to agricultural 

6443 employers for the existing WPS is actually 1,827,493 hours at a cost of $92,729,052. The expanded WPS 

6444 ICR proposal calls for 8,316,993 hours and $196,130,463, which appears to be a much higher dollar 

6445 value than the incremental increase put forward in the economic analysis document. (Comments in 

6446 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1763, #2209)
Page 145 of 176

6447 EPA Response. The Economic Analysis is the better source to understand the estimated 

6448 incremental cost of the rule. Comparing ICRs confounds different changes as explained in Chapter 7 of 

6449 the analysis of the proposed rule and in Chapter 4 of the analysis of the final rule. First, the ICRs capture 

6450 the ‘paperwork’ burden associated with the rule at different points in time. Thus, there will be 

6451 differences in key parameters such as the wage rates and the number of affected entities (e.g., farms 

6452 and workers). In contrast, the Economic Analysis is an assessment of the impacts of changes to the rule, 

6453 i.e., with and without revisions to the WPS holding other parameters constant. Second, in developing 

6454 the ICR to accompany the proposed (and final) rule revisions, EPA developed a more detailed accounting 

6455 of the activities employers and employees and revised many estimates of the time needed to comply 

6456 with the existing and new requirements. Finally, it should be noted that the ICR only captures the 

6457 ‘paperwork’ burden associated with the rule as a whole. Impacts of a minimum age, for example, will 

6458 not be captured through an evaluation of paperwork requirements.

6459 Comment. Costs associated with the record keeping provisions need further explanation. 

6460 (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#0153)

6461 EPA Response. Details on the activities associated with the record keeping requirements have 

6462 been provided in Appendix A of the analysis of the proposed revisions and in Appendix B of the analysis 

6463 of the final revisions.

6464 2. Training Costs

6465 Comment. EPA has underestimated the time required for training. Videos used run 35 minutes 

6466 for worker training and 50 minutes for handler training, respectively. Additional time beyond running 

6467 the video is needed. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2320)

6468 EPA Response. EPA acknowledges that training times may vary. However, using an average 

6469 facilitates estimation of the national level impact and provides a concise measure of the impact per 

6470 establishment.

6471 Comment. This year we have spent 2092.37 hours training 4456 employees on the 

6472 WPS/Pesticide function alone. If we use an average field wage of $11.00 per hour, that is $23,016.00 just 

6473 on WPS/Pesticides. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1871)

6474 EPA Response. EPA appreciates the information and notes that 2092 hours to train 4446 

6475 employees implies an average of 28 minutes of training per employee.

6476 Comment. USDA suggested that more sensitivity analyses should be conducted around 

6477 different training parameters such as the typical duration, the frequency at which workers are trained, 

6478 and the frequency different types of trainers are used. (Comment in regulations.gov, docket EPA-HQ6479 OPP-2011-0184; ID#0153)

6480 EPA Response. EPA conducted some sensitivity analyses for the proposed rule. Because the 

6481 baseline costs and costs under the alternative, proposed, and final requirements are influenced by the 

6482 same parameters, the incremental costs are often not substantially different. The number of affected 

6483 entities and workers/handlers carries the largest influence on the estimates of the total cost.

6484 Comment. The cost of developing the new material, either by the Agency or private entities, is 

6485 not included in the analysis but should be considered. (Comments in regulations.gov, docket EPA-HQ6486 OPP-2011-0184; ID#0153, #2209)

6487 EPA Response. EPA plans to develop revised materials for safety training and the safety 

6488 information display. This is part of EPA’s on-going work.

6489 Comment. The proposed expanded content covers areas that are included in most food safety 

6490 related training programs. The complexity and level of detail indicated in the proposed regulation would 
Page 146 of 176

6491 take much more than just an additional 15 minutes as suggested in the rule. (Comment in 

6492 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2452)

6493 EPA Response. EPA disagrees that the content is similar. The expanded content is primarily 

6494 about informing workers how they can avoid inadvertently carrying pesticide residues home with them. 

6495 EPA has pilot tested training using some of the material and has found that it can be covered in the 

6496 suggested time frame.

6497 Comment. The cost of providing training in different languages other than English should be 

6498 included in the estimates. The average 1.5 training sessions expected annually at a large WPS farm does 

6499 not appear to include sessions in different languages. (Comment in regulations.gov, docket EPA-HQ6500 OPP-2011-0184; ID#0153)

6501 EPA Response. Establishments are not required to provide training in different languages, only 

6502 in a manner that can be understood, which can include the use of imagery (posters or videos) as well as 

6503 select translations. The estimated average of 1.5 training sessions per year under the final requirements 

6504 is an average across all farms, considering different sizes of farms (according to the Small Business 

6505 Administration definition, which is based on value of production and different numbers of workers). For 

6506 example, a large farm (production value of at least $750,000/year) that employs an average of 50 

6507 workers is anticipated to hold six to seven training sessions, on average, under the new requirements. 

6508 This could include sessions in different languages, if the establishment found it convenient.

6509 Comment. EPA did not consider the costs for Train-the-Trainer programs. (Comment in 

6510 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2209)

6511 EPA Response. EPA did not estimate the cost of expanding Train-the-Trainer programs. The 

6512 final rule retains certified applicators as qualified trainers and EPA does not anticipate that an expansion 

6513 of Train-the-Trainer programs will be necessary.

6514 Comment. The American Farm Bureau (AFB) raised several general concerns and applied them 

6515 to the specific policy issue of Immediate Training (elimination of the grace period between beginning 

6516 field work and receiving pesticide safety training). (Comments in regulations.gov, docket EPA-HQ-OPP6517 2011-0184; ID#2200, #2206, #2439, #2442)

6518 General Concerns

6519 1. Underestimation of the number of farms

6520 • Census reports of hired labor do not include contract labor

6521 • Concern that EPA limited farms to those that derive their predominant source of revenue 

6522 from sales of fruits/nuts, vegetables, nurseries, and greenhouses

6523 • Use of 2007 Census data

6524 2. Underestimation of the number of workers

6525 • Census reports of hired labor do not include contract labor

6526 3. Underestimation of wage

6527 • Use of 2007 data

6528 • Use of national level data

6529 4. Farm structure

6530 • Use of average farm size (20 workers/large farm, 3.6 workers/small farm)

6531 • Assumption that all workers are present throughout the year (no seasonality of 

6532 employment)

6533

6534 Specific Concerns with Immediate Training (example in Section 3.3.3 of Economic Analysis of Proposed 

6535 Rule)
Page 147 of 176

6536 Under current requirements, workers must be trained every five years. EPA estimates that each 

6537 worker spends 30 minutes in training at a wage rate of $13.43 per hour including benefits. EPA 

6538 estimates that currently, 48.9 percent of workers need to be trained each year given the 

6539 assumptions that all new employees will take the training (16 percent of the workforce) and 40 

6540 percent of the returning workforce (84 percent of the workforce) will take full training each year . . . 

6541 . EPA notes that small farms with fewer than ten workers are likely to hold 0.7 training sessions each 

6542 year on average, small farms with more than ten workers hold an average of 2.2 training session per 

6543 year, large farms with fewer than ten workers will hold 0.9 sessions per year, and large farms with 

6544 more than ten workers hold 4.5 sessions per year. Despite these large differences, EPA’s calculations 

6545 are based on one full training session each year.

6546

6547 Under the proposed new requirements, workers must be trained every year. EPA estimates that 

6548 each worker will now spend 45 minutes in training . . . . EPA estimates that in the first year of the 

6549 new requirements 50.8 percent of workers need to be trained, and in each subsequent year 49.6 

6550 percent will need to be trained, again given the assumptions that all new employees will take the 

6551 training (16 percent of the workforce) and 40 percent of the returning workforce (84 percent of the 

6552 workforce) will take full training each year. EPA assumes that, on average, a WPS farm will need to 

6553 conduct 1.5 full trainings each year on average, over all farms, since workers may be hired at 

6554 different times during the year.

6555

6556 A. The amount of time a worker spends in training should also include travel time back and forth to 

6557 the training facility in addition to the actual length of the training. A likely scenario is that 

6558 workers will be called out of the field to complete the training, take some time to get seated and 

6559 prepared for the session, complete the training, and then travel back to the field to continue 

6560 work.

6561 B. EPA should use updated, regional wage data.

6562 C. The seasonal nature of agricultural work and the fact that many workers are employed through 

6563 labor contractors imply that the workers go through the WPS training several times. AFB 

6564 expects that employers will train every worker, every year.

6565 D. The use of a simple average of one training per year is misleading.

6566 EPA Response. 

6567 1. EPA acknowledges that the Census of Agriculture does not account for contract labor under 

6568 reports of hired labor and this could lead to an underestimation of the number of entities affected by 

6569 the rule. However, the Census reports of hired labor include many employees who are not covered by 

6570 the WPS because they are not engaged in hand labor activities or in handling pesticides for crop 

6571 production. Moreover, EPA estimated total costs over a range of assumptions about the affected farms, 

6572 nurseries, and greenhouses. EPA considered all farms regardless of the predominant source of revenue, 

6573 even including farms who primary production is livestock. For the final rule, estimates were updated 

6574 using data from the 2012 Census of Agriculture.

6575 2. Again, EPA acknowledges that the Census of Agriculture does not account for contract labor 

6576 under reports of hired labor, but it does include many employees who are not covered by the WPS. EPA 

6577 estimates costs across a range of values for the number of workers. Our primary estimate is almost two 

6578 million workers. This is in contrast to USDA’s estimate of just over one million workers, including 

6579 200,000 workers engaged through labor contracts (ERS, 2014). EPA is confident we have not 

6580 underestimated the number of workers in the cost estimation.
Page 148 of 176

6581 3. EPA has updated wages, using data from 2014 as reported by the Bureau of Labor Statistics 

6582 to estimate the cost of the final revisions to the WPS. Using national level data is appropriate for 

6583 estimating total national costs.

6584 4. Relying on the average number of workers per farm and assuming they are present the entire 

6585 year results in an overestimation of costs, both in total and per farm. EPA uses an average across farms

6586 accounting for all employees on the farm regardless of length of service. It is not the average workforce 

6587 per farm across time. We assume these employees are all workers and are present the full season. 

6588 However, many workers are present on a farm for a short period of time around harvest and certain 

6589 requirements, like notification and posting of pesticide applications, are only required for those 

6590 pesticide applications relevant for that period, not for applications when workers are not present. Thus, 

6591 EPA is overestimating the cost of complying with such requirements by assuming that workers are 

6592 present the entire season. Note that there are also exceptions for applications occurring on fields far 

6593 removed from workers’ location.

6594 A. EPA sees no reason to include travel time as part of the scenario for pesticide safety training. 

6595 Such a scenario would be highly inefficient; employers are highly likely to provide training prior to 

6596 the work day, not interrupting it. This is especially true under the final rule, which eliminates the 

6597 “grace period” and requires each worker to be provided with safety training prior to entering a 

6598 previously treated field. Finally, the requirement to provide safety training is not new. If it were a 

6599 normal practice for an employer to halt work for a training, this would be true in the baseline as well 

6600 as under the new provision. Thus, the incremental difference in time is still only the additional time 

6601 to cover a few additional training topic.

6602 B. EPA has updated wages, but is not using regional wage data. EPA acknowledges that there is a 

6603 great deal of variability across states and across agricultural entities, but averages provide a 

6604 powerful tool to understand the impacts of policy options. Although an average wage may 

6605 underestimate costs in some states, it will overestimate costs in others.

6606 C. EPA agrees that, because workers may be engaged by multiple employers, workers may attend 

6607 multiple WPS trainings each year. Since the Census surveys farms about the number of employees, 

6608 it will count such workers multiple times. Because EPA’s approach includes all employees 

6609 enumerated in the Census, we essentially account for multiple trainings. Training records and 

6610 documents may reduce repeated trainings, especially for workers engaged through labor 

6611 contractors. Finally, if employers are already training every worker every year, the impact of 

6612 requiring annual training will be negligible.

6613 D. EPA reiterates that use of averages simplifies many of the calculations, particularly for national 

6614 level costs. However, in estimating the impacts on farms of different sizes and types, EPA considers 

6615 that many farms will provide more than a single session while, currently, some farms may only be 

6616 providing safety training every few years.

6617 Comment. The Hawaiian Commercial and Sugar Company believes that the amount of time 

6618 needed to cover the additional topics proposed to be added has been underestimated, and that both 

6619 the additional time and additional expense of meeting the new training requirements will be higher than 

6620 EPA has estimated. It does not appear that EPA's estimate of $3 in additional annual training costs per 

6621 agricultural establishment is remotely reasonable, particularly for establishments with large numbers of 

6622 agricultural workers who must attend the training. (Comment in regulations.gov, docket EPA-HQ-OPP6623 2011-0184; ID#2320)

6624 EPA Response. EPA is unclear as to the referenced estimate of $3 in additional annual training 

6625 cost per establishment. EPA estimated that annual training would cost an additional $22 per 
Page 149 of 176

6626 establishment, on average, and that expanding the training content would cost an additional $11 per 

6627 establishment per year, on average (Section 3.3.3 of the EA for the proposed revisions to the WPS). 

6628 Based on data from the 2007 Census of Agriculture, the average establishment produced about 

6629 $470,000 in annual value of production and employed six workers and handlers. All proposed revisions 

6630 to the training requirements were estimated to cost about $240 for the average large farm, which 

6631 produced about $2.4 million in annual value of production and employed 20 workers and handlers 

6632 (Section 5.2.1 of the EA for the proposed revisions to the WPS). All final revisions to the training 

6633 requirements are estimated to cost about $210 for the average large farm, which, based on data from 

6634 the 2012 Census, produces approximately $2.4 million in annual value of production and employs 18 

6635 workers and handlers (Section 3.3.1 of the EA for the final revisions to the WPS).

6636 Comment. EPA asserts that tracking, maintaining, producing, and distributing training records 

6637 both for internal and employee use will cost establishments $4.00 a year. We find this number to be a 

6638 gross underestimate and plead with EPA to simplify the requirements for record keeping. (Comments in 

6639 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1879, #2222, #2377)

6640 EPA Response. EPA appreciates the comment, but without additional information is unable to 

6641 determine how the estimation should be modified. EPA notes that the cited cost of $4 to $5 per year is 

6642 for worker training only and did not account for the increase in the number of training sessions arising 

6643 from the annual training requirement. Considering the annual training requirement, EPA estimated 

6644 recordkeeping costs associated with worker safety training to be $5 to $11 per year, on average. The 

6645 final rule modifies the record keeping requirements somewhat, reducing some of the information that 

6646 must be kept and specifying that agricultural employers only have to provide a copy of the record to a 

6647 worker or handler if he/she requests a copy. Details of EPA’s estimation, including the time required for 

6648 record-keeping are found in Appendix B of the Economic Analysis for the final rule. Considering the 

6649 changes to the rule and new wage information, EPA is estimating that record-keeping costs associated 

6650 with worker and handler training may range from $5.60 to $14.20 per year.

6651 Comment. The estimated costs for creating worker and handler training records and retaining 

6652 them for two or five years is not well explained in the EA. Costs of producing and retaining the record 

6653 should be discussed. It is unclear how costs were derived. (Comment in regulations.gov, docket EPA6654 HQ-OPP-2011-0184; ID#0153)

6655 EPA Response. Details on the activities associated with the record keeping requirements have 

6656 been provided in Appendix A of the analysis of the proposed revisions and in Appendix B of the analysis 

6657 of the final revisions.

6658 3. Hazard Communication Costs

6659 Comment. The National Council of Agricultural Employers asked members about EPA’s 

6660 estimated time to comply with the proposed hazard communication requirements and provide the 

6661 Agency with the replies, three of which are relevant to the estimation of costs. (Comment in 

6662 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1871)

6663 1. Agency estimates employers will take 12 minutes to gather information and will do it an 

6664 average of 20 times annually. Do employers think this is reasonable?

6665 Our Safety Supervisor spent 2 days (16 hours or 960 minutes) compiling all MSDS/SDS and labels 

6666 for all locations.

6667 2. Agency assumes filing of record, label and SDS will take 1 minute per application (20 minutes 

6668 per year total. Do employers think this is reasonable?
Page 150 of 176

6669 Putting a MDSD/SDS or label in a book or binder may take 1 min each if they are in a stack 

6670 waiting for you and this is simply all that you are doing. That would never be a realistic 

6671 assumption.

6672 3. Agency assumes a worker, handler or representative for a worker or handler makes a request 

6673 for information on 25% of the applications and it requires 6 minutes of the employer’s time to 

6674 provide the information. Is 6 minutes enough to allow for discussion? Should it be recorded a 

6675 request was made and by whom and why?

6676 Again this would assume you are doing nothing else but sitting and waiting for a request and you 

6677 have the information in front of you. I think the request should be recorded and kept on file in 

6678 case something comes from that request. That way you could prove compliance with the 

6679 requirement.

6680 EPA Response. EPA appreciates the effort taken by NCAE to solicit information.

6681 1. The reported time appears to be substantially more than estimated by EPA (4 hours per year, 

6682 on average). However, without knowing the number of applications involved, EPA does not have 

6683 sufficient information to revise its estimates. In fact, it would seem that this situation involves an 

6684 employer much larger than average. Most farms do not have a dedicated safety supervisor. Further, it 

6685 appears that the farm is already collecting SDS so no additional effort would be required for the farm to 

6686 gather the information to provide to workers.

6687 2. As EPA has detailed in the cost estimate (see Appendix B of the Economic Analysis of the final 

6688 rule, Table B.2.b-1), filing the documentation is only one final step. Gathering and recording the 

6689 information is accounted for separately. The comment suggests that EPA’s estimate of filing the 

6690 documents is reasonable.

6691 3. EPA appreciates that the comment suggests that the time to respond to an employee’s 

6692 request for application information is underestimated in EPA’s analysis. For the final rule, EPA maintains 

6693 the estimate of 6 minutes to honor a request from a worker on site for the hazard information since it is 

6694 likely that the request can be easily clarified and, in fact, the information should be readily available and 

6695 easily provided to the employee. EPA revised the time needed to respond to a request from a former 

6696 worker or through a designated representative to 20 minutes per request since it may be more difficult 

6697 to identify the appropriate information for such a request and providing the information to the 

6698 employee/representative is more complicated.

6699 4. Notification Costs

6700 Comment. WPS warning signs commonly used in horticultural growing operations are reported 

6701 to cost around $6.00 each. Large operations may maintain 1000 or more signs. How did the Agency 

6702 arrive at the conclusion that the cost to implement the warning sign change would be $0.25 per 

6703 establishment? A requirement to change warning signs constitutes significant cost burden. (Comment 

6704 in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2287)

6705 EPA Response. EPA proposed a revision to the wording on the warning signs, but also proposed 

6706 a transition period so that signs with the former wording could be used until replacement due to wear 

6707 and tear, implying little cost to the grower. In the final rule, however, EPA is retaining current sign 

6708 format, so no new signs are required.

6709 Comment. The time required to travel to sites should be added to the cost of posting pesticide 

6710 safety posters. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1871)

6711 EPA Response. Since decontamination supplies must be provided at these sites, posting the 

6712 safety poster could reasonably be combined with delivering decontamination supplies, so no additional 

6713 travel time is needed to post a safety poster.
Page 151 of 176

6714 Comment. Required information to be included on safety posters will mean posters must be 

6715 replaced annually. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1871)

6716 EPA Response. The required information is contact information for a nearby medical facility and 

6717 for the state lead agency. This information is unlikely to change frequently. Further, updating contact 

6718 information may not necessitate replacement of the entire displays. The information can be written, 

6719 erased, and rewritten on some signs and updated information could taped over the old information.

6720 5. PPE Costs

6721 Comment. Current regulations require the handler employer to confirm that a respirator is fit 

6722 properly. The new regulations require fit test, training and medical evaluation conforming to OSHA 

6723 requirements and recordkeeping. The baseline estimate for obtaining a fit test is not well described and 

6724 it is unclear what assumptions were made for current practice. The incremental difference between the 

6725 baseline and new requirements doubles the baseline cost but may understate the difference as it is 

6726 unclear what current practice entails. Sensitivity analysis about the travel and wait time for medical 

6727 examinations and cost of follow-up medical examinations could provide a range of likely values for the 

6728 proposed alternative. The cost of travel, as well as time spent traveling should be included in the cost. 

6729 Presenting a range, rather than a point estimate, incorporates some acknowledgement of uncertainty in 

6730 these calculations. If the baseline is actually 'lower' than EPA is assuming, the benefits and costs of the 

6731 new requirements will both be higher. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; 

6732 ID#0153)

6733 EPA Response. EPA assumed very minimal procedures in the baseline for most situations. 

6734 Appendix A of the analysis of the proposed revisions described these as the employer and handler 

6735 checking the fit and going over the use instructions for a total of 12 minutes (0.2 hours) each year. If 

6736 anything, this probably understates the care employers take with the handlers in their employ. EPA also 

6737 assumed that less than 1,000 handlers followed OSHA-like procedures in the baseline because they are 

6738 required to do so by the labels of soil fumigant products. Cost of travel was and is included in the 

6739 estimation of costs under the proposed and final rule, for both obtaining a follow-up medical 

6740 examination, if necessary, and for the fit test, if conducted off-site. See Appendix B of the EA for the 

6741 final rule, Table B.6.a-1 and B.6.a-2.

6742 Comment. The following are the costs for a fit test and medical evaluation: For a qualitative 

6743 (smoke) fit test the cost is $12; For a quantitative computer fit test the cost is $24; Charges in the 

6744 amount of $30.00 is paid to obtain the medical evaluation paperwork. The person obtaining the fit test 

6745 and evaluation must then be signed off by a physician that they are physically able to use a respirator. 

6746 Routine visits to a medical provider start at $100 + per visit. Additional costs include employee wages 

6747 and benefits, plus travel costs to a certifying physician. (Comment in regulations.gov, docket EPA-HQ6748 OPP-2011-0184; ID#1843)

6749 EPA Response. EPA appreciates the information and has revised the scenario used to estimate 

6750 the cost for the respirator medical evaluation, fit testing and training. We found similarly priced 

6751 evaluation screens but note that it would generally not be necessary to visit a physician or clinic to 

6752 complete the evaluation. EPA also assumes that most agricultural establishments will send handlers to a 

6753 central location rather than purchase a test kit although fees may be somewhat higher than this 

6754 comment reports, given other comments received. EPA includes the cost of the employee’s time, 

6755 including travel, for the fit test as well as time for the employer to oversee the process. EPA estimates 

6756 the total cost of complying with the respirator fit test requirements to be about $180 per handler, on 

6757 average, who is tested. See Section 3.3.6 of the Economic Analysis for the final rule, including Appendix 

6758 B.6, Table B.6.a-1, for details.
Page 152 of 176

6759 Because there were many concerns raised for the respirator requirements, EPA plans to develop 

6760 detailed information describing the specifics for employers and their handlers. 

6761 Comment. Commenters believe the requirement for medical evaluation will be a significant cost 

6762 on handler employers and difficult to carry out. EPA’s cost estimate of $54 per agricultural 

6763 establishment is unrealistically low. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; 

6764 ID#1842, #1848, #1871, #2385)

6765 EPA Response. As indicated by the previous comment and explained in Section 3.3.6 of the 

6766 Economic Analysis for the final rule and Appendix B.6, the medical evaluation for a handler to safely 

6767 wear a respirator is not complicated. The evaluation is typically a questionnaire that can be completed, 

6768 submitted, and reviewed on-line. A visit to a physician is not necessary, unless the screening evaluation 

6769 indicates a more thorough physical examination is needed to ensure the handler can safely wear a 

6770 respirator. EPA estimates the cost of the respirator-related requirements to be about $150 for a 

6771 handler, on average, but could be around $270 if a more thorough medical examination is warranted. 

6772 Not every establishment will use products requiring a respirator every year, however, so the average 

6773 cost across all agricultural establishments is substantially lower.

6774 Comment. The OSHA standard requires the use of respirators certified by the National Institute 

6775 for Occupational Safety and Health (NIOSH). If EPA adopts the OSHA requirements then it needs to 

6776 document the cost of purchasing certified respirators (Comment in regulations.gov, docket EPA-HQ6777 OPP-2011-0184; ID#2385).

6778 EPA Response. The cost of respirators is not relevant to the requirement of proper fit 

6779 established in the WPS. Specific respirator requirements are already mandated on product-specific 

6780 pesticide labeling.

6781 Comment. Requiring noncertified crop advisors to wear PPE when entering fields under a REI 

6782 will weaken the producer’s ability to implement prevention-based IPM programs, and pesticide use, 

6783 including more toxic pesticides, will rise as a result. Independent crop consulting firms will have to 

6784 reduce reliance on uncertified employees, doubling labor costs and increasing fees. Growers will reduce 

6785 scouting and instead rely on more pesticides. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-

6786 0184; ID#2257, #2307)

6787 EPA Response. Comments appear to reflect a misunderstanding of the revision. PPE are 

6788 required by the pesticide label for individuals entering a field under a Restricted Entry Interval (REI) 

6789 immediately following a pesticide application. The existing WPS requires certified crop advisors to have 

6790 PPE available for themselves and non-certified crop advisors in their employ or under their supervision. 

6791 However, the WPS exempts certified crop advisors and non-certified crop advisors in their employ or 

6792 under their supervision from wearing it if they judge the risks to be acceptable. The revision simply 

6793 eliminates the exemption for a non-certified crop advisor to forgo wearing PPE in a field under a REI, 

6794 based on his/her employer’s recommendation. While the PPE specified in the existing WPS is the label6795 specified PPE for handlers, the revised rule would relax this requirement to allow crop advisors and 

6796 those in their employ or under their supervision to choose a reduced set of PPE. That is, the only impact 

6797 of the provision is that the non-certified crop advisor may have to put on available PPE (essentially 

6798 coveralls and gloves) if they enter a field under a REI.

6799 Comment. The National Alliance of Independent Crop Consultants expressed concern that 

6800 certified crop advisors or the establishments on which they are employed would need to furnish 

6801 additional PPE for employees if they are required to change or throw away PPE each day as disposable 

6802 PPE is not as durable as normal work wear that can be carefully washed and reused. “For example Tyvek 

6803 suits, which are the most common type of disposable PPE clothing, are extremely susceptible to rips and 
Page 153 of 176

6804 tears under normal levels of activity, especially the inseam. Due to the high temperatures and humidity 

6805 inside a Tyvek suit, employees often wear shorts under these suits, and a torn inseam then creates 

6806 greater potential for exposure than had they been wearing long pants, the minimal PPE recommended 

6807 by the NAICC’s position statement on Employees of Certified Agricultural Professionals.” (Comment in 

6808 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2307)

6809 EPA Response. In the final rule, EPA provides three PPE options for noncertified crop advisors 

6810 and employees entering areas during an REI that should minimize disruption in IPM practices. They may 

6811 wear the handler PPE from the labeling, the PPE for early entry, or they may wear coveralls, shoes and 

6812 socks, chemical resistant-gloves, and eye protection (if the label requires eye protection). It is worth 

6813 noting that the coveralls can be made of cloth and Tyvek suits are not required.

6814 Comment. Costs of retrofitting existing closed loading systems to meet the requirements of 

6815 California’s Director’s memo are underestimated. CropLife America estimates that converting an 

6816 existing system to meet the proposed standard would cost $25,000 to $100,000. (Comment in 

6817 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2209)

6818 EPA Response. Based on significant comments related to the closed system criteria in the 

6819 proposal, EPA has revised the final rule to provide a closed system performance standard. CropLife did 

6820 not provide a basis for the estimate of retrofitting costs. However, according to a study by Giles and 

6821 Billings (2013), a simple closed system meeting the standard in the final rule would cost about $330. 

6822 EPA estimates that retrofitting existing systems would likely mean purchasing an appropriate adapter to 

6823 connect the pesticide container to a mixing tank or to the application equipment at a cost of about 

6824 $150. See Section 3.3.6 of the Economic Analysis for the final rule.

6825 6. Cholinesterase Monitoring

6826 Comment. The Agency presented a simple cost analysis based on data collected in Washington 

6827 in 2009. In comparison to Washington’s total agricultural production value, the costs associated with 

6828 the state’s cholinesterase inhibition monitoring program are exceedingly small. More importantly, this 

6829 analysis does not include an estimation of the medical expenses that were saved, the lost wages 

6830 prevented, and the pesticide-related illnesses avoided as a result of early detection and intervention. 

6831 Washington State’s example shows that ChE monitoring program is not only cost effective but also 

6832 enhances the health and safety of workers who directly handle pesticide products. (Comment in 

6833 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2393)

6834 EPA Response. The comment’s description of the cost analysis omits the costs borne by the 

6835 employer and handler in terms of the time required for the program. EPA acknowledges that the 

6836 analysis did not attempt to quantify the benefits attributable to a monitoring program alone, primarily 

6837 because of the difficulty in isolating the effect of one particular program in terms of preventing 

6838 pesticide-related illnesses. As discussed in the Economic Analysis of the Proposed Revisions to the WPS, 

6839 Section 4.5.3, however, the benefits in terms of preventing pesticide-related illnesses may be small. 

6840 Instead of requiring medical monitoring, EPA is instituting better practices, such as improved training in 

6841 the use of PPE, which the Washington state program identified. These improved practices will be 

6842 required for all handlers, not just those handling pesticides that may inhibit cholinesterase.

6843 7. Employment Impact Analysis

6844 Comment. Current WPS regulations have had the unintended consequence of causing some 

6845 famers to avoid hiring workers and complying with the related WPS training and recordkeeping 

6846 requirements. This may be having a negative economic impact on the growth and competitiveness of 

6847 small Iowa farms. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2206)
Page 154 of 176

6848 EPA Response. EPA has seen no studies suggesting that farmers forego hiring workers or 

6849 handlers due to the cost of complying with the WPS. EPA estimates that the incremental cost of the 

6850 revisions will add about $5.00 per year to the cost of a worker, which is unlikely to have sizeable 

6851 consequences on farmers’ hiring decisions. See Section 3.3.4 of the Economic Analysis for the final rule.

6852 8. Small Business Impact Analysis

6853 Comment. Many small businesses believe that EPA’s anticipated impact of less than 0.1 percent 

6854 is understated and recommend that EPA perform an additional sensitivity analysis related to small 

6855 commercial entities before certifying the proposed action will not have a significant adverse economic 

6856 impact on them. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1843, #1870, 

6857 #1871)

6858 EPA Response. EPA has performed a sensitivity analysis around the estimated costs to small 

6859 businesses. The SBA defines a small agricultural establishment as producing less than $750,000 in 

6860 agricultural output. EPA examined the impact of the proposed and final rule changes on establishments 

6861 throughout the size distribution, including on establishments producing less than $10,000 in agricultural 

6862 output.

6863 Comment. EPA finds that estimated costs would equal to almost two percent of smaller small 

6864 entities’ revenues independent of other costs and economic circumstances that might be associated 

6865 with this rulemaking or the specific industry. Based on this average, which is greater than one percent, 

6866 EPA’s factual basis contained in the economic analysis does not provide adequate support for EPA’s 

6867 certification that the rule will not have a significant economic impact on a substantial number of small 

6868 entities. EPA should, therefore provide a full initial regulatory flexibility analysis, including regulatory 

6869 alternatives to reduce the adverse economic effects on the smaller small entities. (Comment in 

6870 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1848)

6871 EPA Response. EPA examined the estimated impacts of the revisions to the WPS in detail and 

6872 the results are presented in both the Economic Analysis of the Proposed Revisions and of the Final 

6873 Revisions. See Section 3.5 of the EA for the Final Revisions. EPA estimates that the smallest of farms, 

6874 given 3.7 workers on average and relatively low pesticide use, may face incremental costs of about $86 

6875 per year, but more likely costs of $30 to $50 per year given the seasonality of the labor they employ. 

6876 Impacts are compared to the value of agricultural production, but this measure understates the 

6877 establishment’s total income. According to the 2012 Census of Agriculture, 92 percent of 

6878 establishments producing less than $10,000 in agricultural production make less than 25 percent of their 

6879 income from farming. Farm-related income, which includes activities like agricultural services, land rent, 

6880 and agrotourism, account for 35 percent more income for these establishments than does agricultural 

6881 production. Further, EPA estimates that impacts of this magnitude or greater will be felt by those small6882 small farms that primarily produce fruits, nuts, and vegetables and small-small nurseries and 

6883 greenhouses. These entities number about 12,000, comprising only six percent of all WPS farms.

6884 Comment. Small businesses are concerned with the use of national averages across all farm 

6885 sizes. This is approach does not account for the seasonal nature of the workforce prevalent in most 

6886 small entities. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1848)

6887 EPA Response. The Census of Agriculture reports the total number of persons employed by an 

6888 establishment, regardless of the length of employment. Although the agricultural workforce is highly 

6889 seasonal, EPA assumed that all workers on an establishment were present for the majority of the time. 

6890 This assumption likely results in an overestimate of the cost of compliance, particularly compliance with 

6891 the hazard communication and notification requirements because it assumes that all workers are 

6892 informed of all pesticide applications made on the establishment.
Page 155 of 176

6893 Comment. EPA does not provide any cost adjustment for small agricultural entities nor provided 

6894 any alternative methods of compliance. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; 

6895 ID#2209)

6896 EPA Response. The Regulatory Flexibility Act (RFA) requires agencies to assess the impacts of 

6897 regulations on small entities and to consider ways in which the burden can be reduced. Neither the RFA 

6898 nor the Paperwork Reduction Act requires agencies to provide alternative methods of compliance. 

6899 Pursuant to the RFA, EPA assessed the impacts to small agricultural entities and considered several 

6900 recommendations made by a panel of small business representatives in developing the proposal and 

6901 final rule. Ultimately, EPA’s analysis indicates that there will not be a significant impact to a substantial 

6902 number of small businesses.

6903 9. State Costs

6904 Comment. EPA’s economic analysis does not fully and accurately account for the costs to the 

6905 FIFRA-state lead agencies. These costs will be significant, especially during the first several years of 

6906 implementation. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1763, #1870, 

6907 #1871, #1874, #2206, #2208, #2209, #2258, #2282, #2293, #2313, #2432)

6908 EPA Response. The Economic Analysis of the final rule includes a discussion of the impacts on 

6909 states.

6910 Comment. The Economic Analysis did not account for the increased cost of training sufficient 

6911 trainers to comply with the proposed requirement that worker safety training be conducted by trainers 

6912 of certified applicators or by persons who have completed a Train-the-Trainer course. (Comments in 

6913 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1870, #2293)

6914 EPA Response. EPA did not estimate the cost of expanding Train-the-Trainer programs. The 

6915 final rule retains certified applicators as qualified trainers and EPA does not anticipate that an expansion 

6916 of Train-the-Trainer programs will be necessary. 

6917 10. ICR

6918 Comment. CropLife America and Bayer CropSciences raised several concerns over the burden 

6919 and cost estimates of the proposed ICR. (Comments in regulations.gov, docket EPA-HQ-OPP-2011-0184; 

6920 ID#1763, #2209)

6921 • EPA used loaded wages (monetary compensation plus non-monetary benefits such as paid leave 

6922 and insurance) rather than fully loaded wages (monetary and non-monetary compensation plus 

6923 overhead for equipment and infrastructure).

6924 • EPA underestimated the number of greenhouses.

6925 • EPA should have used a minimum of five minutes for every record-keeping activity.

6926 o set-up costs to establish a record-keeping system if one has not already been 

6927 established

6928 o costs to develop internal record forms

6929 o printing costs for paper records

6930 o computer software/system costs for electronic records

6931 o storage costs

6932 o disposal costs of records with sensitive information

6933 o maintenance costs for records beyond the two-year minimum for longer-term 

6934 employees

6935 • Added costs for Train-the-Trainer programs.

6936

6937 EPA Response.
Page 156 of 176

6938 • EPA agrees that it is appropriate to use the fully loaded wage rates for employers and for 

6939 pesticide handlers, since these actors are using equipment and infrastructure that depreciates 

6940 and must be replaced. However, EPA thinks it appropriate to use loaded wage rates for 

6941 workers, since these employees typically are not using such equipment. Further, agricultural 

6942 workers often do not receive non-monetary benefits so any use of infrastructure is captured 

6943 within the loading factor.

6944 • EPA disagrees that the number of greenhouses is underestimated. Publicly available data from 

6945 the Census of Agriculture do not permit the identification of the number of farms that both use 

6946 pesticides and hire labor nor does it report greenhouses separately from nurseries and 

6947 floriculture production, which are all included under NAICS code 1114. For ICR, both for the 

6948 proposed and final rule, EPA estimated the number of farms, including greenhouses, that use 

6949 pesticides and/or hire labor based on publicly available data from the 2012 Census of 

6950 Agriculture and the information from the special tabulation of data from the 2007 Census. 

6951 Please see Appendix A of the Economic Analysis of the Agricultural Worker Protection Standard 

6952 revisions for details of the estimation procedure. EPA acknowledges that there are many more 

6953 greenhouses in operation than are reported under NAICS code 11141 because U.S. farms 

6954 typically produce a diverse array of crops and NAICS codes reflect only the primary source of 

6955 revenue for an entity. However, since those greenhouses are reported as part of other entities 

6956 listed under other NAICS codes, EPA is confident that this ICR accounts for the full burden of 

6957 compliance with the WPS.

6958 • EPA does not think a minimum of five minutes for each recordkeeping activity is warranted. EPA 

6959 has frequently defined very limited activities to separate the gathering of information, which 

6960 may vary by the type of information, from the filing and storing of the information, which is 

6961 likely similar across types of information and takes very little time once the information is 

6962 gathered. EPA also does not think it necessary to include set-up costs, since agricultural 

6963 establishments hiring labor will already have some recordkeeping system in place. The final rule 

6964 does not require collection of sensitive information and since the rule does not require 

6965 maintenance of records beyond two years the ICR should not include such costs.

6966 • EPA did not include costs for train-the trainer programs because most costs are covered by fees 

6967 paid by those participating in the course. However, EPA acknowledges the concerns raised by 

6968 stakeholders about the availability of trainers as well as the skills necessary to provide pesticide 

6969 safety training for agricultural workers. In the final rule, EPA is retaining the provision that 

6970 worker safety training may be conducted by certified applicators, so the cost of training 

6971 additional trainers is no longer relevant.

6972

6973 Comment. EPA’s analysis must meet data quality guidelines of objectivity, utility, and integrity. 

6974 While EPA’s FIFRA pesticide registration are based on individual and cumulative risk assessment, the 

6975 WPS analysis is not based on any risk assessments at all. OMB should not approve the WPS ICR because 

6976 the ICR does not meet IQA guidelines and practical utility. (Comment in regulations.gov, docket EPA6977 HQ-OPP-2011-0184; ID#0480)

6978 EPA Response. EPA’s analysis is based on the best and most appropriate data available and 

6979 meets the Agency’s as well as OMB’s quality guidelines. The WPS analysis is not based on chemical6980 specific risk assessments like pesticide registration decisions because it is not a chemical-specific rule.
Page 157 of 176

6981 Comment. The draft ICR does not account for the costs to the FIFRA-state lead agencies. These 

6982 costs will be significant, especially during the first several years of implementation. (Comments in 

6983 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1763, #2209)

6984 EPA Response. Neither the current WPS ICR nor the draft ICR includes a measure of the 

6985 paperwork burden for state lead agencies charged with enforcement of the WPS. The ICR for the WPS

6986 has always focused on the burden to agricultural establishments, commercial pesticide handling 

6987 establishments, workers, and handlers. In general, State reporting requirements are addressed in 

6988 “EPA’s General Regulation for Assistance Programs ICR” (OMB number 2030-0020; EPA No. 0938.18).

6989 Comment. Rule Familiarization is not a one-time review. Material must be reviewed 

6990 throughout the year. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1871)

6991 EPA Response. EPA agrees that an employer may review WPS material multiple times in the 

6992 year. The ICR estimates an annual average for a three-year period (the time period covered by the ICR) 

6993 that agricultural employers, as well as the operators of farms that do not hire labor, spend to familiarize 

6994 themselves with the rule. The estimate is for the average time annually, estimated at 30 minutes, but 

6995 does not specify the frequency of the rule reviews. The comment does not provide an estimate of the 

6996 time spent per review of the material or the number of reviews to inform whether the current estimate 

6997 is low or high. If such information is provided, EPA can consider this information to incorporate it into 

6998 future ICRs.

6999 11. Other

7000 Comment. Farmers’ ability to comply with immense quantities of regulations also differs from 

7001 other businesses since farmers do not set the price on their commodities and they sell their 

7002 commodities at a price determined by the market regardless of a farmer’s input costs. In some years, 

7003 when crop prices or crop yields or both are low, farmers have limited funds to purchase large amounts 

7004 of additional equipment or to pay an additional salary for someone to do additional EPA 

7005 recordkeeping. Commodities prices such as corn and sugar are significantly below average which means 

7006 farmers will have far fewer dollars to pay for additional EPA compliance costs. (Comment in 

7007 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2443)

7008 EPA Response. EPA recognizes that farmers face risks associated with price variability and 

7009 production variability. However, the revisions to the WPS do not entail investments in additional 

7010 equipment, except for, perhaps, an additional fitting to complete a closed pesticide delivery system, and 

7011 the recordkeeping requirements are unlikely to necessitate a dedicated employee. In the final rule, EPA 

7012 has eliminated some of the proposed recordkeeping requirements in order to focus those requirements 

7013 on areas of importance. The required safety training records and application records are not wholly 

7014 new; farmers already must keep employment records and often will maintain pesticide application 

7015 records for reasons such as resistance management.

7016 Comment. The significant added cost burden imposed by these revisions could be reduced by 

7017 focusing on the gaps in the implementation of the current WPS, rather than by adding layers of 

7018 bureaucracy and prescription. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2311)

7019 EPA Response. EPA appreciates the comment, but without additional information is unable to 

7020 address which gaps in the implementation of the existing WPS requirements the commenter identifies 

7021 as significant problems.

7022 Comment. The proposed changes to the WPS fail to adequately acknowledge the adverse 

7023 economic impact on small nursery, greenhouse, Christmas tree, and floriculture operations, which were 

7024 badly impacted by the economic downturn and the “great recession.” Many growers have gone out of 

7025 business; the recently-release Census of Agriculture suggests a nearly 25 percent decline in production 
Page 158 of 176

7026 of woody nursery crops. Many growers who survived have lost equity and are still vulnerable. In this 

7027 environment, increased regulatory compliance costs are destabilizing and often untenable. (Comment 

7028 in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2287)

7029 EPA Response. EPA considered the impacts to all small entities, including nurseries and 

7030 greenhouses. See Section 3.5 of the Economic Analysis of the final rule.

7031 Comment. An academic organization recommends that the WPS should protect the health of 

7032 vulnerable populations without regard to cost-benefit analysis, as is the case with health standards set 

7033 under the Occupational Safety and Health Act (OSH Act) to protect workers from toxic substances and 

7034 harmful physical agents, and dietary pesticide residue tolerances set under section 408 of the Federal 

7035 Food, Drug and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act. (Comment in 

7036 regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#1384)

7037 EPA Response. It is reasonable and appropriate to pay close attention to the anticipated costs 

7038 and benefits of FIFRA regulation, and EPA does so in accordance with Executive Order 12866 and 

7039 Executive Order 13563, among other applicable requirements. Unlike the certain regulatory standards 

7040 of the OSH Act and FFDCA section 408, the FIFRA “unreasonable adverse effects” standard expressly 

7041 requires that EPA take into account the economic, social, and environmental costs and benefits of the 

7042 use of any pesticide. See FIFRA section 2(bb).

7043 Comment. EPA should perform a retrospective analysis of the effects of the rule, including an 

7044 analysis of the costs. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#0444)

7045 EPA Response. EPA will consider such an analysis at the appropriate time.

7046 Comment. EPA has promulgated extensive regulations establishing other data requirements for 

7047 the regulation of pesticides under FIFRA. Subpart K of these regulations govern “Human exposure,” 

7048 including “Applicator exposure” and “post-application exposure.” Consequently, these EPA data 

7049 requirement regulations apply to the WPS. (Comment in regulations.gov, docket EPA-HQ-OPP-2011-

7050 0184; ID#0480)

7051 EPA Response. EPA’s data requirements at 40 CFR part 158, subpart K, apply to pesticide 

7052 registrants and specify the exposure data required to support a pesticide registration. Fulfillment of the 

7053 data requirements enable EPA to conduct chemical-specific risk assessments to inform chemical-specific 

7054 pesticide registration decisions. These requirements do not limit the Agency’s authority to consider 

7055 other reliable information that may be pertinent to a pesticide registration, or to the WPS.

7056 Comment. While we appreciate the effort that went into the analysis, we suggest that the 

7057 economic analysis section be subject to outside peer review to determine if the assumptions and 

7058 uncertainties used by the agency adequately represent the real world and the current state-of-the-art. 

7059 (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; ID#2310)

7060 EPA Response. Such a review is not a part of the regulatory review process. The analysis is 

7061 subject to the OMB-led inter-agency review and review by the public.

7062 Comment. One individual asked (Comment in regulations.gov, docket EPA-HQ-OPP-2011-0184; 

7063 ID#0136)

7064 1. What is the cost/benefit of implementing these new changes?

7065 2. Currently, what is the number and severity of any pesticide injuries for each of the last three 

7066 years?

7067 3. In comparison to other work place injuries, where does the pesticide injuries stand?

7068 4. What will be the economic impact of these new regulations if implemented?

7069 EPA Response.
Page 159 of 176

7070 1. The cost/benefit ratio is not defined, given the inability to estimate a monetary value for many 

7071 of the benefits anticipated.

7072 2. EPA provided the results of an analysis of incidents in Section 6.5 of the EA for the proposed rule 

7073 and updated the analysis for the final rule, presenting the results in Section 4.5.

7074 3. EPA did not compare other kinds of work place illness or injury to the incidence of pesticide. 

7075 EPA’s mandate under FIFRA is to protect human health, including the health of workers and 

7076 handlers, and the environment from unreasonable adverse effects of pesticide exposure.

7077 4. EPA estimates the cost of compliance with the revised WPS to be about $60 to $67 million per 

7078 year. EPA further estimates that the revisions will result in fewer occupational incidents 

7079 involving pesticides and will reduce day-to-day pesticide exposure to workers and handlers as 

7080 well as reducing the amount of pesticide residues inadvertently carried home by workers and 

7081 handlers.

7082 Comments in Unit XX.A.

7083 ID#0136. Anonymous Public Comment

7084 ID#0153. US Dept. of Agriculture

7085 ID#0205. Idaho Farm Bureau Federation

7086 ID#0444. George Washington University Regulatory Studies Center

7087 ID#0480. Center for Regulatory Effectiveness

7088 ID#1384. Center for Governmental Responsibility, Levin College of Law, University of Florida

7089 ID#1642. Texas Farm Bureau

7090 ID#1722. Elliot Gordon

7091 ID#1763. Bayer CropScience

7092 ID#1842. National Cotton Council

7093 ID#1843. Wyoming Dept. of Agriculture

7094 ID#1844. American College of Occupational and Environmental Medicine

7095 ID#1848. U.S. Small Business Administration, Office of Advocacy

7096 ID#1870. National Association of State Depts. of Agriculture

7097 ID#1871. National Council of Agricultural Employers

7098 ID#1874. Maine Dept. of Agriculture, Conservation, and Forestry, Board of Pesticides Control

7099 ID#1879. Wilbur-Ellis Company

7100 ID#2155. Minnesota Nursery and Landscaping Association

7101 ID#2238. Massachusetts Nursery and Landscaping Association

7102 ID#2199. USA Rice Federation

7103 ID#2200. American Farm Bureau Federation

7104 ID#2206. Iowa Farm Bureau Federation

7105 ID#2207. North Carolina Farm Bureau

7106 ID#2208. Pesticide Policy Coalition

7107 ID#2209. CropLife America

7108 ID#2222. North Carolina Dept. of Agriculture and Consumer Services

7109 ID#2225. Florida Nursery, Growers, and Landscape Association

7110 ID#2239. National Potato Council

7111 ID#2242. Utah Dept. of Agriculture and Food

7112 ID#2252. Ohio Farm Bureau

7113 ID#2257. Glades Crop Care, Inc.

7114 ID#2258. Georgia Dept. of Agriculture
Page 160 of 176

7115 ID#2269. Western Growers

7116 ID#2282. Hawaii Farm Bureau

7117 ID#2286. Wyoming Ag-Business Association, Wyoming Crop Improvement Association, Wyoming Wheat 

7118 Growers

7119 ID#2287. AmericanHort, Society of American Florists, National Christmas Tree Association, and 

7120 California Cut Flower Commission

7121 ID#2293. State of Pennsylvania Dept. of Agriculture

7122 ID#2294. Pennsylvania Farm Bureau

7123 ID#2296. Georgia Farm Bureau

7124 ID#2303. Washington Friends of Farms & Forests

7125 ID#2304. Plains Cotton Growers, Inc

7126 ID#2307. National Alliance of Independent Crop Consultants

7127 ID#2310. Northwest Horticultural Council

7128 ID#2311. South Dakota Agri-Business Association

7129 ID#2313. New Mexico Dept. of Agriculture

7130 ID#2319. Oregon Association of Nurseries

7131 ID#2320. Hawaiian Commercial and Sugar Company

7132 ID#2376. Kansas Dept of Agriculture

7133 ID#2377. African American Farmers of California, California Citrus Mutual, California Cotton Ginners 

7134 Association, California Cotton Growers Association, California Fresh Fruit Association, Nisei 

7135 Farmers League, Western Agricultural Processors Association

7136 ID#2385. Agricultural Retailers Association

7137 ID#2393. California Environmental Protection Agency

7138 ID#2432. Texas Dept. of Agriculture

7139 ID#2439. Michigan Farm Bureau

7140 ID#2442. MBG Marketing; Michigan Agricultural Cooperative Marketing Association; Michigan Apple 

7141 Committee; Michigan Asparagus Growers, Inc.; Michigan Cherry Committee; Michigan Farm 

7142 Bureau; Potato Growers of Michigan, Inc.

7143 ID#2443. Louisiana Farm Bureau Federation, Inc.

7144 ID#2452. Minor Crop Farmer Alliance

7145 ID#2491. National Agricultural Aviation Association

7146 ID#2492. New York Farm Bureau

7147 B. Benefits

7148 Comment. Several commenters dispute EPA’s findings that there will be benefits from the 

7149 changes to the WPS. These comments took several forms. Several commenters objected that EPA was 

7150 unable to quantify benefits for specific proposals that are part of the changes to the WPS (1805, 1430, 

7151 1012, 4529, 4543, 4531, 4533, 1369, 853, 697, 1809, 1436, 1809, 1436, 853, 4548, 4546). 

7152 EPA Response. There are many changes to the WPS, and the changes work together to increase 

7153 safety. For example the better communication of hazards works together with better training to ensure 

7154 that farmworkers and handlers know better how to protect themselves and their families. The changes 

7155 also work together with pesticide labels to ensure that pesticides can be used safely. For these reasons, 

7156 the benefits of individual proposals could not be estimated. Because of the nature of pesticide 

7157 exposure, the possible latency of effects, and the underreporting of pesticide incidents, it is difficult to 

7158 find precise estimates of the benefits of the WPS changes. The available evidence, however, is 

7159 convincing to EPA that the rule changes will result in benefits sufficient to justify the costs. 
Page 161 of 176

7160 Comment. Commenters also objected to the discussion of chronic disease reduction as a 

7161 potential benefit of the rule, doubting that the WPS changes will result in reduced chronic illness (4461, 

7162 4442); objected to EPA estimating the value of reduced cancers, when the association between illness 

7163 and exposure is speculative (576); and that the epidemiology literature cited only describes associations 

7164 between pesticide exposure and illness, rather than causal relationships (4544, 1107, 4540). Some 

7165 commenters objected that the epidemiology studies cited were old, and many were based on exposure 

7166 that happened prior to the registration of new, safer pesticides (1369, 348). 

7167 EPA Response. EPA acknowledges that the pesticides registered for use are generally safer than 

7168 in the past, and the Office of Pesticide Programs continually strives to strike an appropriate balance 

7169 between pesticide effectiveness and safety. Despite continual efforts to improve safety, risks to 

7170 farmworkers, handlers and their families remain. Studies of pesticide risks, such as epidemiology 

7171 studies, such as the Agricultural Health Study (AHS) are one of many lines of evidence that EPA used 

7172 when considering the rule changes, and EPA utilized the best available peer-reviewed scientific 

7173 information to qualitatively describe the potential chronic health effects of pesticide use. EPA has tried 

7174 to be clear in the EA about uncertainties in assigning causality based on epidemiological studies and that 

7175 the epidemiological results are suggestive, not conclusive, about links between specific pesticides. While 

7176 many of the cited epidemiological studies have found associations with particular chemicals, they also 

7177 provide valuable information about the potential impacts of chronic exposure in general. Evidence of 

7178 elevated risk from a high-quality cohort such as the AHS is a reasonable basis for taking preventative 

7179 measures. 

7180 As a result of an extensive review of the epidemiologic evidence published in the peer-reviewed 

7181 literature, EPA concludes that there is strong evidence that pesticide exposure contributes to adverse 

7182 human health outcomes. The environmental epidemiology literature is growing rapidly, however, in 

7183 terms of both quantity and quality of pesticide epidemiology studies. These illnesses were selected for 

7184 discussion in the Economic Analysis because they have been associated with pesticide exposures in 

7185 studies that meet EPA’s data quality standards, and due to either the relative strength and plausibility of 

7186 the hypothesized link, the number of studies available, or the relatively high prevalence of either the 

7187 health outcome or a particular pesticide exposure. Overall, the totality of reported findings suggests 

7188 long term health benefits from the rule, but, due to the state of scientific research and measures of 

7189 chronic exposure at this time, estimates of the quantitative benefits from the final rule are not possible.

7190 Comment. Other commenters suggested that current protections from label requirements are 

7191 sufficient, and that EPA has not pointed to an increase in exposures or health effects which would justify 

7192 the rule (1430, 1416, 4541, 1107, 1416).

7193 EPA Response. EPA has concluded that additional protections to workers, handlers and their 

7194 families are warranted to supplement current label requirements. The changes to WPS will work 

7195 together to ensure that the label requirements provide their intended protections, to improve pesticide 

7196 safety. Because of the nature of pesticide exposure, the possible latency of effects, and the 

7197 underreporting of pesticide incidents, it is difficult to identify reliable trends in pesticide incidents, or to 

7198 find precise estimates of the benefits of the WPS changes. The available evidence, however, is 

7199 convincing to EPA that the rule changes will result in benefits from reduced illness sufficient to justify 

7200 the costs. 

7201 Comment. One comment suggested that the evidence for health risks is weak, because the 

7202 agricultural population is healthier than the general population. The cohort in the Agricultural Health 

7203 Study has a lower frequency of cancers than the general population. (576). 
Page 162 of 176

7204 EPA Response. Although the cohort in the Agricultural Health Study is healthier than the general 

7205 population by some measures, such as heart disease, there are specific cancers where the cohort has 

7206 higher incidence of cancer. 

7207 Comment. One commenter wrote to say that despite the difficulty in quantifying benefits, the 

7208 likely increase in health, safety and the environment justify the rule under the precautionary principle 

7209 (2349).

7210 EPA Response. The FIFRA regulatory scheme of pre-market review of pesticide products is 

7211 inherently precautionary, however, it is not identical to the Precautionary Principle. Instead, the FIFRA 

7212 regulatory standard is intended to prevent unreasonable risk to man or the environment, taking into 

7213 account the economic, social, and environmental costs and benefits of the use of any pesticide. EPA is 

7214 confident that the adverse effects targeted by the revisions to the WPS are unreasonable when 

7215 compared to the costs associated with those revisions to the rule.

7216 Comment. Several commenters wrote to suggest additional literature that reports an 

7217 association between pesticide exposure and health risks, information on sources of exposure to 

7218 farmworkers, handlers and their families, and research that shows the importance of occupational 

7219 health and safety programs for protecting workers (2437, 2250, 4435, 182, 4586, 2376, 2305, 1965, 

7220 4464, 99, 2050, 79).

7221 EPA Response. EPA thanks the commenters for this information. 

7222 Comment. Several commenters who either provide health care for farmworkers or represent 

7223 organizations that do, discuss their experience with farmworkers made ill by pesticide exposure, or the 

7224 difficulties that farmworkers face in receiving health care (2315, 99, 4576, 4401).

7225 EPA Response. Thank you for this information. The WPS changes should reduce the exposure to 

7226 agricultural pesticides, which will reduce the need for expensive medical care.

7227 Comment. One commenter suggested that the demographic profile of farmworkers in Hawaii is 

7228 different than on the mainland, and that the risks of exposure based on the experience of mainland 

7229 agriculture do not reflect risks on Hawaii (4534).

7230 EPA Response. The demographic profile of farmworkers affects some requirements, like 

7231 providing training in a manner that can be understood, but is not a factor in the risks of pesticide 

7232 exposure. The basic protective requirements of pesticide labels and the WPS do not depend on the 

7233 demographics of the worker. 

7234 Comment. One commenter was concerned that EPA is primarily concerned with risks to 

7235 farmworkers, handlers and their families, while ignoring the potential effect on other rural residents 

7236 such as babies, children, pregnant women, and those who are already ill or disabled, along with those 

7237 taking medication, which the European Union defines as a “vulnerable group” (1886). 

7238 EPA Response. Although the WPS focuses on protecting workers and handlers, some revisions 

7239 may also reduce the potential for exposure to bystanders, i.e., people not employed by the 

7240 establishment making a pesticide application provide protection to bystanders. There is mention of 

7241 bystanders in the introductory material and in Chapter 4 of the Economic Analysis. See Units IX and 

7242 XVIII.B for an explanation about how the WPS protects bystanders from being sprayed, directly or 

7243 through drift, and the protections in WPS for people other than workers and handlers.

7244 Comment. One commenter requested information on EPA’s estimate of under-reporting of 

7245 pesticide incidents.

7246 EPA Response. There are few studies available that quantify the extent of underreporting, even 

7247 though the existence of pesticide incidents that are not reported in surveillance databases is widely 
Page 163 of 176

7248 acknowledged. The discussion of the basis for underreporting estimates is provided in Section 4.5.2 of 

7249 the Economic Analysis.

7250 Comment. One commenter suggested that there is vast under-reporting of pesticide-related 

7251 illness among farmworkers, partly due to fear of employer retaliation and the absence of a national 

7252 pesticide incident reporting system. Without reporting and basic protections, farmworkers and their 

7253 families are at risk for both acute illness and long-term health conditions associated with these 

7254 exposures and from take-home exposures (4418). 

7255 EPA Response. EPA agrees that under-reporting of pesticide incidents is substantial, and the 

7256 WPS changes are intended to reduce the risks to farmworkers and their families.

7257 Comment. A commenter provided incident data on pesticide exposure and illness from 

7258 Michigan, citing specific examples that the commenter suggests would have been prevented by the 

7259 changes to the WPS (87).

7260 EPA Response. Thank you for this information. Many of these incidents are similar to ones that 

7261 were included in EPA’s review of incidents in SENSOR-Pesticides from 2008 to 2011. The additional 

7262 protections in the WPS should help prevent incidents like many of these, for situations that are within 

7263 the scope of the WPS. 

7264 Comment. Commenters suggested that the number of incidents reported is low, and most are 

7265 do not result in high severity illnesses. The commenters also said that the number of incidents is small 

7266 when compared to the amount of pesticides applied nationally, and that most pesticides are applied 

7267 without incident (4549, 4561).

7268 EPA Response: EPA acknowledges that the vast majority of pesticides are applied without 

7269 significant adverse effects. However, there are risks from pesticide exposure, and there is evidence that 

7270 exposures occur among agricultural workers at levels that can cause adverse effects. There are few 

7271 studies available that quantify the extent of incident underreporting, even though the existence of 

7272 pesticide incidents that are not reported in surveillance databases is widely acknowledged. 

7273 Comment. A commenter reports that there is strong evidence that tracking pesticide illnesses in 

7274 a longitudinal fashion has probably significantly reduced pesticide risks in a number of settings, over 

7275 study intervals spanning a decade or more. The commenter encourages EPA to develop an improved 

7276 database of pesticide illnesses, and encourage state-level databases of pesticide illness similar to 

7277 California. As part of that database, a definition of “pesticide illness” is necessary, and the commenter 

7278 recommends the term be defined broadly, to capture known and suspected pesticide illnesses. One 

7279 commenter further notes that EPA is required under Section 20 of FIFRA to develop a national pesticide 

7280 incident reporting system (30, 4452). 

7281 EPA Response. EPA does maintain a database of reported pesticide incidents, the Incident Data 

7282 System (IDS). In addition to the IDS and NPIC, EPA looks at a variety of other databases for pesticide 

7283 incident information, such as those maintained by the American Association of Poison Control Centers, 

7284 the National Institute for Occupational Safety and Health’s Sentinel Event Notification System for 

7285 Occupational Risks (SENSOR) and California’s Pesticide Incident Surveillance Program (PISP). Each of 

7286 these databases has differences in scope, and there is significant overlap, but collectively, they provide a 

7287 useful perspective on pesticide exposure incidents. Given the availability of these databases, it is not 

7288 clear that developing another EPA database or requiring all states to develop pesticide surveillance 

7289 databases would produce information that is so much more reliable as to justify their costs. Requiring 

7290 employers to track and keep records of all pesticide illnesses on the farm or handler establishment 

7291 would be at least as expensive, and EPA is concerned that employers would not have the skill and 
Page 164 of 176

7292 information to record incidents reliably. More information on reporting pesticide incidents to EPA can 

7293 be found here: http://www2.epa.gov/pesticide-incidents.

7294 Comment. Commenters suggest that data from the SENSOR website suggests that there is no 

7295 difference between pesticide incidents for hispanics and non-hispanics, therefore the demographics of 

7296 the farmworker population does not require rule changes, and that there is no evidence of increasing 

7297 trends in pesticide incidents (1024). 

7298 EPA Response. The demographic profile of farmworkers affects some requirements, like 

7299 providing training in a manner that can be understood, but is not a factor in the risks of pesticide 

7300 exposure. The basic protective requirements of pesticide labels and the WPS do not depend on the 

7301 demographics of the worker.

7302 Comment. A commenter provided some statistics on the numbers of pesticide incidents that 

7303 occur, both in the US and nationally, and the number that are treated in health care facilities. The large 

7304 scale manufacture and use of pesticides can lead to many potential incidents (1). 

7305 EPA Response. Thank you for this information. 

7306 Comment. A commenter suggests that EPA has not been successful in preventing pesticide 

7307 incidents to date, and that the available data suggest that farmworkers face a much greater risk of 

7308 pesticide poisoning that other workers, and that the risks of long-term illnesses are substantial (4452).

7309 EPA Response. EPA disagrees that we have not been successful in preventing agricultural 

7310 pesticide incidents. As discussed in the preamble in Unit IV.B.2, the number of incidents has dropped 

7311 substantially in the years since WPS was first promulgated. However, we agree that more can be done 

7312 and these revisions to the WPS are intended to further reduce the number of incidents. 

7313 Comment. A commenter notes that EPA is unable to put a value on prevented chronic illnesses 

7314 from pesticide exposure, and does not believe that estimating the value of prevented illness from the 

7315 break-even analysis is realistic (425). 

7316 EPA Response. EPA agrees that it is very difficult to quantify the extent to which these WPS 

7317 revisions will reduce chronic illness, but nevertheless, it is reasonable to expect that the revised WPS will 

7318 reduce chronic illness among agricultural workers and handlers, and thereby make an important 

7319 contribution to the long-term health of workers, handlers and their families. The break-even analysis 

7320 acknowledges that exposure and risk information is unavailable to fully quantify the changes in chronic 

7321 illness from the rule, while providing a way for the public to understand the importance of potential 

7322 changes in risks from pesticide exposure. More information on the break-even approach can be found 

7323 in Section 7.5.2 of the EPA Guidelines for Preparing Economic Analyses, available here: 

7324 http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0568-50.pdf/$file/EE-0568-50.pdf.

7325 Comment. One commenter recommended an additional review of data from SENSOR-Pesticides, 

7326 state level incident data, and toxicology data from registrations with respect to specific questions. After 

7327 completing such a review, EPA will have sufficient data to support the rule changes. The questions 

7328 included were: How many illnesses were attributable to label violations? How many are attributed to 

7329 poor training? How many incidents or illness are attributed workers forgetting training in the fourth, 

7330 third year, or second year after their initial training? How often are these standards enforced? How 

7331 many violations are reported and for what? Is the EPA registration process not providing enough safety? 

7332 What percentages are attributed to each type of incident and what proposed rule change would inhibit 

7333 this type of incident? 

7334 EPA Response. EPA has updated the analysis for the final rule using the most recent data from 

7335 SENSOR-Pesticides. For that task, the information in SENSOR-Pesticides was reviewed, and estimates of 

7336 reduced incidents from the rule changes include only incidents where the WPS applies, and only 
Page 165 of 176

7337 incidents where there was sufficient information for EPA to determine that the incident could have been 

7338 prevented by the rule changes. The remaining questions, such as the number of incidents attributed to 

7339 workers forgetting training in specific years, are unanswerable without records of training for incident 

7340 investigators. Other questions, such as those concerning enforcement actions and recorded violations 

7341 are unlikely to change EPA’s conclusions that changes to the WPS are warranted, which were based on

7342 the evaluation of available incident data along with information on the effects of chronic pesticide 

7343 exposure.

7344 Comment. A commenter believes that the estimates of under-reporting of pesticide incidents 

7345 are in error and ambiguous. If true, this would negate much of the quantified benefits from the rule 

7346 (2971).

7347 EPA Response. EPA benefit estimates from prevented acute pesticide incidents are based on the 

7348 best available data collected by pesticide surveillance databases. There are few studies available that 

7349 quantify the extent of underreporting, even though the existence of pesticide incidents that are not 

7350 reported in surveillance databases is widely acknowledged. The discussion of the basis for 

7351 underreporting estimates is provided in Section 4.5.2 of the Economic Analysis.

7352 Comment. In the preamble to the proposed rule, EPA states that “changes to the current WPS 

7353 requirements are expected to lead to an overall reduction in incidents of unsafe pesticide exposure and 

7354 to improve the occupational health of the nation’s agricultural workers and pesticide handlers.” Yet a 

7355 full reading of the rule shows that in the overwhelming majority of instances, the agency can identify no 

7356 discernible or identifiable benefits that will result from the burdens and regulatory requirements it 

7357 proposes to impose on employers.

7358 EPA Response. There are many changes to the WPS, and the changes work together to increase 

7359 safety. For example the better communication of hazards works together with better training to ensure 

7360 that farmworkers and handlers know better how to protect themselves and their families. The changes 

7361 also work together with pesticide labels to ensure that pesticides can be used safely. Because changes 

7362 are meant to work together, and because it is impractical to test each of the element of the WPS is 

7363 isolation, EPA cannot quantify the benefits of individual proposals. Because of the nature of pesticide 

7364 exposure, the possible latency of effects, and the underreporting of pesticide incidents, it is difficult to 

7365 find precise estimates of the benefits of the WPS changes. The available evidence, however, is 

7366 convincing to EPA that the rule changes will result in benefits sufficient to justify the costs. 

7367 Comment. This shortcoming is nowhere more glaring than in the agency’s failure to use 

7368 relevant, recent information from the Sentinel Event Notification System for Occupational Risks 

7369 (SENSOR) Pesticide Program. SENSOR currently contains information from eleven states and has data 

7370 for pesticide exposures for the years 1998-2006, during which time approximately 5,200 cases of 

7371 individuals with acute occupational pesticide-related illness were identified.

7372 We have incorporated below three tables derived from the SENSOR website. These three tables 

7373 break out instances of acute occupational pesticide-related illness estimates by severity of exposure for 

7374 three categories: overall (Table 1); for Hispanics (Table 2); and for non-Hispanics (Table 3). What is 

7375 remarkable about all of them is the consistency they show. Trend lines do not indicate a worsening of 

7376 pesticide exposures, either in numbers or severity. Perhaps more importantly, they appear to show no 

7377 evidence between the types and severity of exposures between Hispanics (the predominant 

7378 demographic for agricultural workers) and others. This runs counter to the agency’s assumption that 

7379 the demographics of this population calls for stricter, tighter requirements on agricultural employers.

7380 EPA Response. The demographic profile of farmworkers affects some requirements, like 

7381 providing training in a manner that can be understood, but is not a factor in the risks of pesticide 
Page 166 of 176

7382 exposure. The basic protective requirements of pesticide labels and the WPS do not depend on the 

7383 demographics of the worker. EPA notes that the data cited by the commenter includes exposure 

7384 incidents to all kinds of pesticides, although the WPS is limited to agricultural pesticides.

7385 Comment. Assuming reductions in chronic illnesses caused by pesticide exposures resulting from

7386 labelled directions implies that EPA’s risk assessment and regulatory decision making processes are

7387 flawed. This is not the case. The benefits – i.e. the reductions in acute and chronic disease that EPA

7388 proposes, are inappropriately and unscientifically determined.

7389 EPA Response. EPA produces robust assessments of the potential occupational risks to 

7390 agricultural workers, considering the totality of known or predicted pesticide toxicities in the human 

7391 population (based upon animal studies); the type, timing and duration of exposure (based upon 

7392 registrant supported label uses and application practices); and the relationship between hazard and 

7393 exposure, based upon the nature of the quantitative relationship and science policy (uncertainty 

7394 factors). As a result of our assessments, EPA is able to adequately determine that anticipated pesticide 

7395 exposure in the occupational population is acceptable when label practices are followed, i.e., 

7396 anticipated exposure does not exceed that which would result in an adverse health effect under label 

7397 prescribed conditions. However, EPA neither states that pesticide exposure anticipated among 

7398 agricultural workers is absent (EPA aims to prevent unreasonable risk)), nor does the Agency predict risk 

7399 to human health in hypothesized instances in which the label directions are not followed. Despite the 

7400 efforts of pesticide registrants, growers and other members of the agricultural community to ensure 

7401 label conditions are followed in practice, given the magnitude and scope of pesticide use in the U.S., 

7402 some intentional or unintentional misuse of pesticides may be inevitable. 

7403 Comment. EPA admits that quantifying disease reduction is impossible. Their method to

7404 determine benefit makes it impossible to determine whether or not the revisions have been successful,

7405 and thereby determine if the cost was warranted. By using chronic disease as a metric for success, EPA

7406 has created an ever moving target and an endless requirement for revisions to the WPS without

7407 measurable performance metrics.

7408 EPA Response. EPA acknowledges its current inability to determine the number of illnesses that 

7409 will be reduced by changes to the WPS. For the analysis of the changes to the WPS, EPA follows 

guidelines from The Office of Management and Budget1 7410 which suggest using a threshold or “breakeven” 

7411 analysis when quantification of monetary benefits is not possible. 

7412 Comment. Again, EPA authors have left out important data on trends, data which demonstrate (i)

7413 ongoing reductions in acute poisoning, (ii) that agriculture workers are actually healthier relative than

7414 their non-farm worker peers, and (iii) which demonstrate significant improvements in farm worker

7415 demographics since 1992.

7416 EPA Response. EPA’s analysis for the final rule has been updated with the most recent SENSOR 

7417 data. EPA’s evaluation of the available incident data and information on the effects of chronic pesticide 

7418 exposure led the Agency to conclude the changes were warranted. Much of the information about the 

7419 health of the farm population is from the Agricultural Health Study. While the Agricultural Health Study 

7420 cohort of certified pesticide applicators and their families have lower rates of many diseases, such as heart 

7421 disease, than the general population, the cohort has higher risk than the general public of other chronic 

7422 diseases. The primary purpose of the rule, however, is to protect farmworkers, pesticide handlers and 

 1 OMB Circular A-4: https://www.whitehouse.gov/omb/circulars_a004_a-4/
Page 167 of 176

7423 their families. EPA has little information about how the health of current and former agricultural workers 

7424 compares to the general population or farm owners. 

7425 Comment. It is unclear how the recommended training and record keeping will result in a

7426 quantifiable and measurable reduction in acute incidents or chronic illness, and in particular how these

7427 reductions – on which the cost of these improvements are based – can or will be measured. Without

7428 this, EPA will be unable to make a future assessment as to whether these proposed revisions, if

7429 implemented, have been effective and the money well spent.

7430 EPA Response. There are many changes to the WPS, and the changes work together to increase 

7431 safety. For example the better communication of hazards works together with better training to ensure 

7432 that farmworkers and handlers know better how to protect themselves and their families. The changes 

7433 also work together with pesticide labels to ensure that pesticides can be used safely. For these reasons, 

7434 the benefits of individual proposals could not be estimated. Because of the nature of pesticide exposure, 

7435 the possible latency of effects, and the underreporting of pesticide incidents, it is difficult to find precise 

7436 estimates of the benefits of the WPS changes. The available evidence, however, is convincing to EPA that 

7437 the rule changes will produce benefits sufficient to justify the costs. 

7438 Comment. The costs of additional training should reflect reductions in acute illnesses only, and 

7439 reference to reducing chronic illness be removed as it is not supported by the scientific evidence, or by 

7440 the EPA risk assessments that have been conducted on all the pesticide products currently on the market.

7441 EPA Response. Despite continual efforts to improve safety, risks to farmworkers, handlers and 

7442 their families remain. Epidemiology studies of chronic health risks, such as the Agricultural Health Study 

7443 are one of many lines of evidence that EPA used when considering the rule changes. EPA utilized the best 

7444 available peer-reviewed scientific information to qualitatively describe the potential chronic health 

7445 effects of pesticide use. EPA has tried to be clear in the EA about uncertainties in assigning causality 

7446 based on epidemiological studies and that the epidemiological results are suggestive, not conclusive, 

7447 about links between specific pesticides. While many of the cited epidemiological studies have found 

7448 associations with particular chemicals, they also provide valuable information about the potential impacts 

7449 of chronic exposure in general. Information from such a high-quality cohort such as the AHS should not 

7450 be dismissed.

7451 Comment. CropLife America (CLA) rejects the implicit statement that the EPA has failed in its 

7452 mandate to protect farm workers. CLA instead contends that a thorough and accurate evaluation of the 

7453 alleged unreasonable adverse effects, through analysis of morbidity and mortality data, discredits the 

7454 Agency’s underlying assumption that current exposures under the WPS present unacceptable acute and 

7455 chronic health effects. Analysis of the illness data for agricultural workers suggest that the current WPS 

7456 and other changes in pesticide practices since 1992 have lowered the level of morbidity and mortality, 

7457 such that the proposed revisions, with their additional imposed burdens and costs to American 

7458 agricultural, are unlikely to yield additional reductions. CLA contends that a “modernization” of the 

7459 existing WPS and associated training to reflect the reality that exists today is not sufficient to continue 

7460 this downward trend in morbidity and mortality associated with acute pesticide exposures.

7461 EPA Response. EPA's pesticide registration, reregistration, and registration review processes 

7462 assess the specific risks associated with the particular uses of individual pesticides to ensure that people 

7463 and the environment do not suffer unreasonable adverse effects. EPA implements any risk reduction 

7464 and mitigation measures that result from the pesticide reregistration and registration review programs 
Page 168 of 176

7465 through individual pesticide product labeling. In doing so, EPA assumes that the labeling is followed. 

7466 Despite improvements in labels, however, incidents continue to occur and these incidents can be 

7467 serious. Moreover, the fact that avoidable incidents occur strongly suggests that applicators do not 

7468 always follow use directions precisely. Given that reported incidents are (a) underreported, and (b) 

7469 likely only be reported where there is an immediately notable adverse effect, it is reasonable to infer 

7470 that workers and handlers experience repeated exposures that do not, by themselves, rise to the level 

7471 of an identifiable incident. EPA has reviewed epidemiological studies, which are a type of retrospective 

7472 analysis, that focus on pesticide applicators to better understand the potential impacts associated with 

7473 such chronic exposure. While many of the cited epidemiological studies have sought to establish 

7474 associations with particular chemicals, it is also significant that they indicate elevated risks of certain 

7475 chronic illnesses are associated with exposure to pesticides in general. This may be the result of 

7476 cumulative or synergistic effects of different pesticides. Although EPA could require pesticide registrants 

7477 to generate studies on the vast number of pesticide combinations and exposure scenarios, the costs of 

7478 such studies appears prohibitive. 

7479 In the analysis for the Final Rule, EPA used the most recent available incident data to estimate 

7480 the reduction in illness from the rule, and concluded that the changes in the rule were warranted. EPA 

7481 can regulate prescribed pesticide use (i.e., enforce the pesticide label; the label is the law), however, 

7482 EPA cannot regulate human exposure (which reflects unintentional accidents, human error, off-label or 

7483 misuse) to pesticides. The break-even analysis demonstrates that avoidance of a small number of 

7484 possible cases of pesticide induced chronic disease outweighs the costs imposed by these commonsense 

7485 enhancements to the WPS. EPA believes it is good public health practice to amend the WPS for these 

7486 reasons.

7487 Comment. However, we question EPA’s assumption that only 25% of acute poisonings are

7488 reported, and that those which are under reported are sufficiently severe to incur a cost. EPA’s stated

7489 reason for under reporting is given as “many symptoms of pesticide poisoning, such as fatigue, nausea,

7490 dizziness and diarrhea may be confused with other illnesses and may not be reported by the workers as

7491 related to their occupational exposure.” But is this really under reporting, or is this because these

7492 symptoms are, in fact, caused by things other than pesticide exposure? Or is the under reporting a

7493 reflection of the symptoms not being severe enough to lead a worker to seek treatment, or prevent him

7494 from going to work? Without more information on the reasons why 75% of pesticide related illness goes

7495 unreported, it is not reasonable to assume – as the EPA does - lost wages and medical costs. In other

7496 words, increasing the cost burden associated with acute poisonings, based on an assumption of under

7497 reporting alone, is illogical and untenable.

7498 EPA Response. EPA benefit estimates from prevented acute pesticide incidents are based on the 

7499 best available data collected by pesticide surveillance databases. There are few studies available that 

7500 quantify the extent of underreporting, even though the existence of pesticide incidents that are not 

7501 reported in surveillance databases is widely acknowledged. The discussion of the basis for 

7502 underreporting estimates is provided in Section 4.5.2 of the Economic Analysis. This section details 

7503 reasons why experts in the field consider occupational pesticide incidents, especially agricultural 

7504 pesticide incidents to be underreported. A number of steps are necessary before a pesticide incident is 

7505 recorded; a breakdown in any one of which would cause an unreported pesticide illness. These include 

7506 (1) workers must perceive that they have treatable symptoms; (2) workers must seek medical attention; 

7507 (3) the physician must diagnose the symptoms as being pesticide related; and (4) the physician or the 

7508 injured person must report the incident to the correct recordkeeping system, and the incident must be 
Page 169 of 176

7509 recorded as pesticide related. There is another step whereby exposure incidents are not reported to 

7510 the SENSOR-Pesticides database used in this analysis. If a record does not meet the criteria for inclusion 

7511 in a surveillance database, it means that an exposure will not be recorded, reported and available for 

7512 review. This fifth step can exclude many potential cases that would be relevant to evaluating the 

7513 changes to the WPS. The information presented in Section 4.5.2 of the Economic Analysis of the final 

7514 rule has lead EPA to conclude that the underreporting estimates are reasonable.

7515 Comment. Information from a number of sources could assist in determining (i) the real

7516 magnitude of the problem to be addressed and (ii) the most appropriate training requirements in order

7517 to address it. Sources include California PISP data, NPDS, NIOSH SENSOR data and often provide detailed

7518 accounts of the circumstances under which the incidents took place, thus allowing for better

7519 tailoring of WPS training needs. EPA should examine the nature of pesticide related incidents and

7520 illnesses and their causes in greater detail before deciding possible solutions to put forward. EPA should

7521 reference its own data on real life exposures and reference doses as part of its analysis of the WPS.

7522 EPA Response. For the analysis of the final rule EPA used the most recent available data from 

7523 SENSOR-Pesticides, and was careful to only include incidents that could be prevented by the changes to 

7524 the WPS. EPA has relied on the best currently available information on pesticide incidents, and 

7525 considers it, in combination with the epidemiology literature on the effects of pesticide exposure to be 

7526 sufficient justification to support the WPS revisions. 

7527 Comment. The break even analysis suggests that the benefits are limited to very few cases and 

7528 reduced cancer and illness rates will be too small to be measured. This also means it will not be possible 

7529 to judge whether the revised WPS have worked or not. The causal evidence between exposure to 

7530 pesticides and the chronic diseases cited has not been demonstrated. In light of the extensive controlled 

7531 and laboratory studies available for individual pesticides the Agency should not be including cancer rates 

7532 in their benefit analyses, even for illustrative purposes. Of great concern is a tacit admission that the 

7533 Office of Pesticide Programs has failed in its primary mission under the Federal Insecticide, Fungicide, 

7534 and Rodenticide Act (FIFRA) to only register a pesticide the Agency determines that when used in 

7535 accordance with the label it will not generally cause unreasonable adverse effects to handlers and 

7536 workers. Specifically CLA supports efforts of the WPS to comply with the label.

7537 EPA Response. EPA does not use the breakeven analysis to estimate the number of incidents of 

7538 chronic illness that will be reduced because of the changes to the WPS. The breakeven analysis was 

7539 used to show that only a very small reduction in the number of chronic illnesses would equal the cost of 

7540 the WPS.

7541 EPA’s Economic Analysis presented information from epidemiology studies on the potential for 

7542 adverse chronic health effects from pesticide exposure. EPA relied on these studies due to the relative 

7543 strength of the hypothesis (plausibility), and the quality and quantity of the epidemiological research in 

7544 the human population, as well as other scientific information. These data (peer-reviewed, published 

7545 epidemiology studies) were reviewed by EPA in accordance with our stated data quality practices, and 

7546 reflected in the qualitative conclusions of the chronic health benefits section.

7547 EPA understands the limitations with epidemiological literature. EPA concurs that it would be 

7548 imprudent to characterize any of the statistical associations referenced in the chronic benefits section of 

7549 the EPA economic analysis of the WPS rulemaking between a specific pesticide exposure and a specific 

7550 chronic disease outcome as causal in nature. For this reason, EPA repeatedly stated in the document 

7551 that it is premature to make this conclusion for any specific pesticide-disease association. But the 
Page 170 of 176

7552 absence of a pesticide-specific conclusion does not diminish the significance of the association between 

7553 specific chronic health problems and elevated exposure to pesticides generally.

7554 EPA produces robust chemical-specific assessments of the potential occupational risks to 

7555 agricultural workers, considering the totality of known or predicted pesticide toxicities in the human 

7556 population (based upon animal studies); the type, timing and duration of exposure (based upon 

7557 registrant supported label uses and application practices); and the relationship between hazard and 

7558 exposure, based upon the nature of the quantitative relationship and science policy (uncertainty 

7559 factors). As a result of our assessments, EPA is able to adequately determine that anticipated pesticide 

7560 exposure in the occupational population is acceptable when label practices are followed, i.e., 

7561 anticipated exposure does not exceed that which would result in an adverse health effect under label 

7562 prescribed conditions. However, registration does not signify the absence of pesticide exposure or 

7563 pesticide risk among agricultural workers (EPA aims to prevent unreasonable risk), and the Agency does 

7564 not routinely predict the full extent of the risk to human health in hypothesized instances in which the 

7565 label directions are not followed. If all users scrupulously followed label requirements and the best use 

7566 practices regarding training, notification, and hygiene at all times, acute poisoning incidents among 

7567 occupationally exposed persons should be low and would only include accidents. However, acute 

7568 poisoning surveillance databases suggest otherwise, indicating that further improvements are possible. 

7569 Further, while difficult to capture in a pesticide surveillance database, it is possible that an 

7570 accumulation of acute exposures over time could lead to long-term health effects that are outside the 

7571 scope of the studies EPA requires in support of registration. EPA considers the results of both acute 

7572 poisoning surveillance data and chronic disease epidemiology studies to offer valuable insight into the 

7573 actual risk in “real world” circumstances. EPA does consider the epidemiological findings presented in 

7574 the WPS EA to be an important part of the body of evidence that supports the suite of proposed 

7575 regulatory amendments that, taken together, will provide protections that will lead to an overall 

7576 reduction in the burden of disease among the exposed population. 

7577 This conclusion is qualitatively supported by evaluating the studies in which use of any pesticide 

7578 or any member of a large group of pesticides such as organophosphates or pyrethroids have been 

7579 positively associated in the literature with chronic disease. Furthermore, review articles and/or meta7580 analytic results evaluating all pesticides have also observed significant relationships, potentially 

7581 suggesting a generalized role for pesticide exposure in the agricultural environment as a risk factor for 

7582 disease.

7583 Comment. CLA proposes that costs associated with revisions to the WPS can only be 

7584 meaningfully balanced by reductions in the incidence of acute poisonings and that reference to chronic 

7585 disease should be excluded from the cost estimates. The causal role of pesticides in chronic disease is 

7586 unfounded and reductions in chronic disease due to reductions in chronic exposure are therefore 

7587 unlikely and un- measurable. Referencing chronic disease in the preamble becomes unnecessary and 

7588 should be removed, or at least rebalanced by (i) using a scientific literature review that includes 

7589 toxicological data as well as epidemiology data, and (ii) which follows recommended best practice 

7590 including the EPA Office of Pesticide Programs recommendations and guidelines such as their 2010 

7591 document “Incorporation of Epidemiology and Human Incident Data into Human Health Risk 

7592 Assessment”, http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2009-0851, or the Weight of 

7593 Evidence process EPA follows when incorporating other scientifically relevant information into a risk 

7594 assessment.

7595 EPA Response. EPA disagrees with the commenter’s characterizations of the evidence of chronic 

7596 illnesses associated with general pesticide exposure, and disagrees with the contention that such 
Page 171 of 176

7597 evidence may not be used to support regulatory action. In the economic analysis and preamble of the 

7598 proposed rule, EPA explained the possible risks from chronic pesticide exposure, and discussed the peer7599 reviewed, scientific literature exploring possible associations between chronic pesticide exposure and 

7600 illness. In this process, EPA was careful to identify the relevant studies, and describe the possible 

7601 associations in line with EPA’s Principles of Scientific Integrity (http://www.epa.gov/osa/pdfs/epa7602 principles-of-scientific-integrity.pdf). Much effort was expended to ensure that the cited studies were 

7603 presented in such a way that the public could clearly understand any uncertainties that necessarily 

7604 remain in such a field. These works were all from peer-reviewed journals, and meet EPA standards for 

7605 peer reviewed work (http://www.epa.gov/peerreview/pdfs/peer_review_handbook_2012.pdf). The 

7606 WPS analysis was careful to note the difficulty of moving from epidemiological results indicating an 

7607 association to the determination of a causal link between specific pesticide exposures and chronic 

7608 health effects. Only a subset of possible associations in the literature were included. Several other 

7609 associations have been measured in the literature, and the ones selected for discussion in the WPS 

7610 analysis were chosen due to either the relative strength and plausibility of the hypothesized link, the 

7611 number of studies available, or the relatively high prevalence of either the health outcome or a 

7612 particular pesticide exposure. Also important to EPA is the role of describing potential risks in a way 

7613 that can be understood by both scientists and the general public while being clear about scientific 

7614 uncertainty. To that end, OPP follows the standards in the EPA Science Policy Council Risk 

7615 Characterization Handbook (http://www.epa.gov/spc/pdfs/rchandbk.pdf), which provides guidance on 

7616 how to achieve the goals of “transparency, clarity, consistency, and reasonableness” when conveying 

7617 the risk assessors’ judgement to the public. For this purpose, the Agency also follows the EPA and OMB 

7618 data quality guidelines. These include the EPA Office of Environmental Information Guidelines for 

7619 Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by 

7620 the Environmental Protection Agency: 

7621 (http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf) as well 

7622 as the Office of Management and Budget Guidelines for ensuring and maximizing the quality, objectivity, 

7623 utility, and integrity of information disseminated by federal agencies 

7624 (http://www.whitehouse.gov/omb/fedreg/reproducible2.pdf). 

7625 Whether evaluating data, analyzing EPA policy, or presenting results to the public, peer review 

7626 plays an important role at OPP, where we follow the guidance in the EPA Science Policy Council Peer 

7627 Review Handbook (http://www.epa.gov/peerreview/pdfs/peer_review_handbook_2006.pdf), and abide 

7628 by EPA's Principles of Scientific Integrity (http://www.epa.gov/osa/pdfs/epa-principles-of-scientific7629 integrity.pdf).

7630 Comment. However, the preamble narrative implying an estimated number of chronic illnesses 

7631 are linked to various pesticide exposures is not supported by scientific data and is in conflict with the 

7632 Agency’s registration and reregistration review programs.

7633 EPA Response. EPA has tried to be clear in the Economic Analysis and preambles to the 

7634 proposed and final rule about uncertainties in assigning causality based on epidemiological studies and 

7635 that the epidemiological results are suggestive, not conclusive, about links between specific pesticides. 

7636 While many of the cited epidemiological studies have found associations with particular chemicals, they 

7637 also provide valuable information about the potential impacts of chronic exposure in general. Evidence 

7638 of elevated risk from a high-quality cohort such as the AHS is a reasonable basis for taking preventative 

7639 measures. 

7640 As a result of an extensive review of the epidemiologic evidence published in the peer-reviewed 

7641 literature, EPA concludes that there is strong evidence that pesticide exposure contributes to adverse 
Page 172 of 176

7642 human health outcomes. The environmental epidemiology literature is growing rapidly, however, in 

7643 terms of both quantity and quality of pesticide epidemiology studies. These illnesses were selected for 

7644 discussion in the Economic Analysis because they have been associated with pesticide exposures in 

7645 studies that meet EPA’s data quality standards, and due to either the relative strength and plausibility of 

7646 the hypothesized link, the number of studies available, or the relatively high prevalence of either the 

7647 health outcome or a particular pesticide exposure. Overall, the totality of reported findings suggests 

7648 long term health benefits from the rule, but, due to the state of scientific research and measures of 

7649 chronic exposure at this time, estimates of the quantitative benefits from the final rule are not possible.

7650 Comment. EPA has embraced the arguments and objectives of farmworker organizations, while 

7651 apparently overlooking the input from actual state co-regulators; based many arguments on outdated 

7652 worker demographics; and made unfounded assumptions regarding worker exposures and chronic 

7653 illnesses, without supporting scientific evidence. Had the Agency cited current literature, it would have 

7654 acknowledged significantly improved farmworker demographics and safety since 1992; a steep and 

7655 ongoing reduction in incidents of acute poisoning; and a lack of evidence of elevated levels of chronic 

7656 illnesses among farmworkers. EPA cites a reduction in such illnesses and associated risks under the 

7657 estimated benefits to the Proposed Rule, but admits it is “not able to quantify the benefits expected to 

7658 accrue from the proposed WPS changes that would reduce chronic exposure to pesticides.” The PPC is 

7659 very concerned that the assumptions and rhetoric of the Preamble discredit the rigor of EPA’s pesticide 

7660 registration and registration review processes; overlooks the many advances in new pesticide products 

7661 and application technologies made since 1992; and dismisses the extensive worker-protection 

7662 stewardship programs of states, registrants, professional applicators and agricultural producers.

7663 EPA Response. For the final rule, EPA has updated the data on pesticide incidents, and updated 

7664 the information on farmworker demographics.

7665 Despite continual EPA efforts to improve safety, risks to farmworkers, handlers and their 

7666 families remain. Studies of pesticide risks, such as epidemiology studies, such as the Agricultural Health 

7667 Study (AHS) are one of many lines of evidence that EPA used when considering the rule changes, and 

7668 EPA utilized the best available peer-reviewed scientific information to qualitatively describe the 

7669 potential chronic health effects of pesticide use. EPA has tried to be clear in the EA about uncertainties 

7670 in assigning causality based on epidemiological studies and that the epidemiological results are 

7671 suggestive, not conclusive, about links between specific pesticides. While many of the cited 

7672 epidemiological studies have found associations with particular chemicals, they also provide valuable 

7673 information about the potential impacts of chronic exposure in general. Information from such a high7674 quality cohort such as the AHS should not be dismissed. 

7675 As a result of an extensive review of the epidemiologic evidence published in the peer-reviewed 

7676 literature, EPA concludes that there is strong evidence that pesticide exposure contributes to adverse 

7677 human health outcomes. The environmental epidemiology literature is growing rapidly, however, in 

7678 terms of both quantity and quality of pesticide epidemiology studies. These illnesses were selected for 

7679 discussion in the Economic Analysis because they have been associated with pesticide exposures in 

7680 studies that meet EPA’s data quality standards, and due to either the relative strength and plausibility of 

7681 the hypothesized link, the number of studies available, or the relatively high prevalence of either the 

7682 health outcome or a particular pesticide exposure. Overall, the totality of reported findings suggests 

7683 long term health benefits from the rule, but, due to the state of scientific research and measures of 

7684 chronic exposure at this time, estimates of the quantitative benefits from the final rule are not possible.

7685 Comment. A business advocacy organization asserted that EPA's statements about the WPS 

7686 reducing chronic diseases, and about pesticide exposure being associated with chronic disease, are 
Page 173 of 176

7687 inaccurate, misleading, unreliable, biased, and not based on reproducible studies. This commenter 

7688 asserted that the studies and data supporting the break-even analysis in the EA, and therefore the 

7689 proposed rule, violate EPA’s IQA Guidelines and EPA’s other data requirements for pesticides. 

7690 The commenter argues that there is no scientifically supportable correlation between general 

7691 pesticide exposure, as currently regulated, and chronic disease, and that any chronic disease concerns 

7692 are adequately addressed during pesticide registrations. Consequently, the commenter contends that 

7693 there is no rational basis for counting reduction of chronic disease as a benefit of the WPS, and thus no 

7694 rational basis for the Agency’s Economic Analysis. 

7695 The commenter also argues that EPA’s assumption of an association between chronic human 

7696 disease and general pesticide exposure is irreconcilable with EPA’s conclusions during FIFRA 

7697 registrations that individual pesticides do not pose any significant risk of human chronic disease. The 

7698 commenter argues that any chronic disease concerns are adequately addressed during pesticide 

7699 registrations, and that the Economic Analysis therefore ignores or contradicts EPA’s previous 

7700 determinations in individual pesticide registration decisions.

7701 The commenter further argues that the Economic Analysis is also inconsistent with OMB 

7702 guidance because it does not include a Monte Carlo Analysis of Uncertainty, as required by OMB Circular 

7703 A-4. 

7704 EPA Response. The commenter’s view of the Information Quality Act (IQA) is mistaken. EPA has 

7705 fully adhered to the IQA and to both OMB’s government-wide guidance and EPA’s own information 

7706 quality guidelines (IQGs).

7707 The proposed and final WPS are each an ordinary exercise of the Administrator’s rulemaking 

7708 authority pursuant to FIFRA section 25(a), typical of similar exercises of authority. In exercising that 

7709 authority here, the Agency reasonably relied on reliable, objective evidence, including the best available 

7710 science, consistent with Executive Order 13563. The thorough consideration provided by the public 

7711 comment process serves the purposes of the Guidelines, by providing an opportunity for correction of 

7712 any information that does not comply with the Guidelines. Thus EPA’s actions in regard to the WPS 

7713 revision are fully in accord with both the spirit and the letter of the IQA.

7714 EPA disagrees with the commenter’s contention that evidence of the association between 

7715 general pesticide exposure and chronic health risks does not meet adequate standards of quality 

7716 required by the IQGs, and as a consequence the Cost-Benefit Analysis also fails to meet the IQGs. To the 

7717 contrary, the evidence supporting this action includes reliable, objective, peer-reviewed studies showing 

7718 well-documented associations between pesticide exposure and certain cancer and non-cancer chronic 

7719 health effects. 

7720 Studies of pesticide risks, including epidemiology studies such as the Agricultural Health Study,

7721 are one of many lines of evidence that EPA used when considering the rule changes. EPA presented 

7722 information from epidemiology studies on the potential for adverse chronic health effects from 

7723 pesticide exposure. EPA utilized the best available peer-reviewed scientific information to qualitatively 

7724 describe the potential chronic health effects of pesticide use. 

7725 In this process, EPA was careful to identify the relevant studies, and describe the possible 

7726 associations in line with EPA’s Principles of Scientific Integrity (http://www.epa.gov/osa/pdfs/epa7727 principles-of-scientific-integrity.pdf). Much effort was expended to ensure that the cited studies were 

7728 presented in such a way that the public can clearly understand and evaluate any uncertainties that 

7729 necessarily remain. The cited literature were all from peer-reviewed journals, and meet EPA standards 

7730 for peer reviewed work (http://www.epa.gov/peerreview/pdfs/peer_review_handbook_2012.pdf). The 

7731 WPS analysis was careful to note the difficulty of moving from epidemiological results indicating an 
Page 174 of 176

7732 association to the determination of a causal link between specific pesticide exposures and chronic 

7733 health effects. Only a subset of possible associations in the literature were included. 

7734 These studies were identified due to the relative strength of the hypothesis (plausibility), and 

7735 the quality and quantity of the epidemiological research in the human population, as well as other 

7736 scientific information. These data (the peer-reviewed, published epidemiology studies) were reviewed 

7737 by EPA in accordance with our stated data quality practices, and reflected in the qualitative conclusions 

7738 of the chronic health benefits section. The illnesses were selected for discussion in the Economic 

7739 Analysis because they have been associated with pesticide exposures in studies that meet EPA’s data 

7740 quality standards, and due to either the relative strength and plausibility of the hypothesized 

7741 association, the number of studies available, or the relatively high prevalence of either the health 

7742 outcome or a particular pesticide exposure. Overall, the totality of reported findings suggests long term 

7743 health benefits from the rule, but, due to the state of scientific research and measures of chronic 

7744 exposure at this time, estimates of the quantitative benefits from the final rule are not possible.

7745 EPA understands the limitations with epidemiological literature and does not characterize the 

7746 statistical association in referenced studies as causal in nature. This conclusion is qualitatively 

7747 supported by evaluating the studies in which use of “any pesticide” or “any member of a large group of 

7748 pesticides such as organophosphate or pyrethroid” have been positively associated in the literature with 

7749 chronic disease. Furthermore, review articles and/or meta-analytic results evaluating “all pesticides” 

7750 have also observed significant relationships, potentially suggesting a generalized role for pesticide 

7751 exposure in the agricultural environment as a risk factor for disease.

7752 EPA has tried to be clear in the EA about uncertainties in assigning causality based on 

7753 epidemiological studies and that the epidemiological results are suggestive, not conclusive, about 

7754 associations between disease and specific pesticides. The environmental epidemiology literature is 

7755 growing rapidly, however, in terms of both quantity and quality of pesticide epidemiology studies. Also 

7756 important to EPA is the role of describing potential risks in a way that can be understood by both 

7757 scientists and the general public while being clear about scientific uncertainty. To that end, OPP follows 

7758 the standards in the EPA Science Policy Council Risk Characterization Handbook 

7759 (http://www.epa.gov/spc/pdfs/rchandbk.pdf) which provides guidance on how to achieve the goals of 

7760 “transparency, clarity, consistency, and reasonableness” when conveying the risk assessors’ judgement 

7761 to the public. For this purpose, the Agency also follows the EPA and OMB data quality guidelines. These 

7762 include the EPA Office of Environmental Information Guidelines for Ensuring and Maximizing the 

7763 Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection 

7764 Agency: 

7765 (http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf) as well 

7766 as the Office of Management and Budget Guidelines for ensuring and maximizing the quality, objectivity, 

7767 utility, and integrity of information disseminated by federal agencies 

7768 (http://www.whitehouse.gov/omb/fedreg/reproducible2.pdf).

7769 EPA disagrees with the commenter’s contention that any chronic disease concerns are 

7770 irreconcilable with the registrations of the individual pesticides and are adequately addressed during 

7771 pesticide registrations. First, EPA requires applicants for registration to submit a wide range of data to 

7772 support the registration, typically including several types of chronic toxicity studies. While the studies 

7773 EPA does require generally provide a sufficient basis for the Agency to draw reasonable conclusions 

7774 about the likelihood of the pesticide causing chronic adverse effects, they are not sufficient to rule out 

7775 the possibility that the pesticide may contribute to chronic effects under certain conditions. Second, 

7776 EPA does not ordinarily require registrants to test for chronic effects resulting from simultaneous or 
Page 175 of 176

7777 sequential exposure to multiple pesticides, with other environmental stressors that may be present in 

7778 agricultural situations, or with genetically susceptible sub-populations. Relatively little is known about 

7779 the cumulative or synergistic effects of different pesticides, but such effects may be a factor in the 

7780 elevated incidence of certain chronic illnesses observed in epidemiology studies of farm populations,

7781 like the Agricultural Health Study. In most cases, EPA’s registration decisions are not designed to protect 

7782 agricultural workers against cumulative or synergistic effects of different pesticides unless they have a 

7783 common mechanism of action. Thus, the WPS provisions work in concert with the individual labels to 

7784 generally reduce and mitigate multiple pesticide exposures. Third, the fact that a pesticide is registered 

7785 does not mean that it poses no chronic risk when used according to the label. The FIFRA registration 

7786 criteria do not set a zero risk standard; instead, FIFRA only requires that a pesticide not generally cause 

7787 unreasonable adverse effects, taking into account the economic, social, and environmental costs and 

7788 benefits of its use. As a result, it is to be expected that registered pesticides will cause some measure of 

7789 adverse effects including as chronic illnesses. These adverse effects would be greater in both frequency 

7790 and severity without the general workplace practices, precautions, and hygienic measures mandated by 

7791 the WPS.

7792 EPA disagrees with the commenter’s contention that Circular A-4 requires a Monte Carlo 

7793 analysis. EPA notes that the annual costs associated with the WPS revisions are well below those for 

7794 which Circular A-4 requires a formal quantitative analysis of uncertainty: “For rules that exceed the $1 

7795 billion annual benefits or costs, a formal quantitative analysis of uncertainty is required. For rules with 

7796 annual benefits or costs in the range from $100 million to $1 billion, agencies should seek to match the 

7797 more rigor of their approach with the magnitude of a rule’s consequences.” OMB Circular A-4, p. 41. 

7798 The WPS EA was reasonable and appropriately rigorous for the magnitude of the rule’s consequences. 

7799 In any case, a Monte Carlo simulation would not be an appropriate tool in this situation. EPA 

7800 acknowledges that there are no estimates of reduction in exposure for the multitude of potential 

7801 chemical combinations, nor estimates of a dose-response curve between general pesticide exposure and 

7802 incidence of various chronic disease. The break-even analysis itself is a tool for understanding the level 

7803 of uncertainty by estimating the minimum number of cases of chronic illness that must be avoided to 

7804 equal the cost of the rule.

7805 XXI. References 

7806 The following is a listing of the documents that are specifically referenced in this document. 

7807 1. EPA. Economic Analysis of the Agricultural Worker Protection Standard Revisions. Washington, 

7808 D.C. 2015.

7809 2. EPA. Pesticides; Agricultural Worker Protection Standard Revisions; Proposed Rule. Federal 

7810 Register (79 FR 15444, March 19, 2014) (FRL-9395-8).

7811 3. EPA. Final Report: Small Business Advocacy Review Panel on EPA Planned Revisions to Two 

7812 Related Rules: Worker Protection Standard for Agricultural Pesticides (RIN 2070-AJ22); and Certification 

7813 of Pesticide Applicators (RIN 2070-AJ20). November 3, 2008. 

7814 4. EPA. Response to Comments on Proposed Changes to the Worker Protection Standard. 2015.

7815 5. U.S. Senate. S. Rep. No. 92-883 (Part II), 92nd Congress, 2nd Session at 43-46 (1972). U.S. 

7816 Code Congressional and Administrative News 1972, p. 4063.

7817 6. DOL. 2011-2012 NAWS data - public set. http://www.doleta.gov/agworker/naws.cfm#d-files. 

7818 Retrieved April 24 2015. 

7819 7. USDA Economic Research Service. Kandel, W. Profile of Hired Farmworkers, A 2008 Update. 

7820 Economic Research Report No. 60. U.S. Department of Agriculture. Economic Research Service. 2008.

7821 8. EPA. Worker Protection Standard: A Summary of the Public's Comments and the Agency's 
Page 176 of 176

7822 Response. 1992.

7823 9. Burke, L., Hutchins, H. "A Study of Best Practices in Training Transfer and Proposed Model of 

7824 Transfer." Human Resource Development Quarterly. Vol. 19 no. 2, Summer 2008.

7825 10. Calvert, et al, 2008. “Acute pesticide poisoning among agricultural workers in the United 

7826 States, 1998-2005.”American J Ind Med 51, no. 12: 883-898. December 2008.

7827 11. Kasner, et al. "Gender differences in acute pesticide-related illnesses and injuries among 

7828 farmworkers in the United States, 1998-2007. American J Ind Med 55, no. 7: 571-583. July 2012.

7829 http://onlinelibrary.wiley.com/doi/10.1002/ajim.22052/full. Retrieved April 24, 2015. 

7830 12. Lee, S-J, Mehler, L, Beckman, J, Diebolt-Brown, B, Prado, J, Lackovic, M, et al. “Acute Pesticide 

7831 Illnesses Associated with Off-Target Pesticide Drift from Agricultural Applications.” Environ Health 

7832 Perspect 119:1162-1169. 2011.

7833 13. EPA. Response to “Pesticides in the Air – Kids at Risk: Petition to Protect Children from 

7834 Pesticide Drift (2009)." 2014.

7835 14. EPA. Economic Analysis of the Proposed Agricultural Worker Protection Standard Revisions. 

7836 Washington, D.C. 2014. 

7837 15. EPA. USDA Comments on the Draft Final Agricultural Worker Protection Standard Revision 

7838 Rule and EPA Responses. 2015.

7839 16. EPA. Pesticides; Procedural Regulations for Registration Review; Final Rule. Federal Register

7840 (71 FR 45720, August 9, 2006) (FRL-8080-4).

7841 17. OSHA. Hazard Communication; Final Rule. Federal Register (77 FR 17574, March 26, 2012).

7842 18. EPA. Worker Protection Standards for Agricultural Pesticides; Proposed Rule. Federal 

7843 Register (53 FR 25970, July 8, 1988) (FRL 3314-4).

7844 19. OSHA. Hazard Communications Standard; Proposed Rule. Federal Register (53 FR 29822, 

7845 August 8, 1988). 

7846 20. EPA. Worker Protection Standard; Hazard Information; Proposed Rule. Federal Register (57 

7847 FR 38167, August 21, 1992) (FRL-3793-1).

7848 21. EPA. Pesticides; Final Guidance for Pesticide Registrants on Web-Distributed Labeling; Notice 

7849 of Availability. Federal Register (79 FR 18908, April 4, 2014) (FRL-9905-60).

7850 22. EPA. Pesticide Management and Disposal; Standards for Pesticide Containers and 

7851 Containment; Final Rule. Federal Register (71 FR 47330, August 16, 2006) (FRL-8076-2).

7852 23. EPA. Information Collection Request Supporting Statement: Agricultural Worker Protection 

7853 Standard Training and Notification (Final Rule). EPA ICR No. 2491.02 and OMB Control No. 2070-0190. 

7854 2015.

7855 24. ERS. 2014. Farm Labor, Number and Geographical Distribution of Hired Farmworkers. 

7856 Economic Research Service, U.S. Department of Agriculture. Updated October 30. 

7857 http://ers.usda.gov/topics/farm-economy/farm-labor/background.aspx#Numbers.