*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

RIN2070-AJ22_EO12866_AgWPS_NPRM_2013-09-25.docx



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

13P-0940 Page 1 of 340 [RIN 2070–AJ22] BILLING CODE 6560–50–P ENVIRONMENTAL PRO TECTION AGENCY

40 CFR Part 170

[EPA–HQ–OPP–2011–0184; FRL–9395–8]

RIN 2070–AJ22

Pesticides; Agricultural Worker Protection Standard Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing updates and revisions to the existing worker protection 1

regulation for pesticides. The pr oposed changes are in response to extensive stakeholder review 2

of the regulation and its implementation since 1992, and reflect curren t research on how to 3

mitigate occupational pesticide exposure to agricultural workers and pesticide handlers. EPA is 4

proposing to strengthen the protections provided to agricultural workers and handlers under the 5

worker protection standard by improving elements of the existing regula tion, such as training, 6

notification, communication materials, use of personal protective equipment, and 7

decontamination supplies. EPA expects the revisi ons, once final, to prevent unreasonable adverse 8

affects from exposure to pesticides among ag ricultural workers and pesticide handlers; 9

vulnerable groups, such as minority and low- income populations, child farmworkers, and 10

farmworker families; and the general public. EPA recognizes the importance and independence 11

of family farms and is proposing to expand the immediate family exemption to the WPS. 12

DATES: Comments must be recei ved on or before [ insert date 90 days after date of publication 13

in the Federal Register ]. 14

15*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 2 of 340 [RIN 2070–AJ22] ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA16

HQ-OPP-2011-0184, by one of the following methods: 17

• Federal eRulemaking Portal : http://www.regulations.gov. Follow the online 18

instructions for submitting comments. Do not subm it electronically any information you consider 19

to be Confidential Business Information (CBI) or ot her information whose disclosure is restricted 20

by statute. 21

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), Mail 22

code: 28221T, 1200 Pennsylvania Ave., NW, Was hington, DC 20460. In addition, please mail a 23

copy of your comments on the information collecti on provisions to the Office of Information and 24

Regulatory Affairs, Office of Ma nagement and Budget, Attn: De sk Officer for EPA, 725 17th 25

St., NW, Washington, DC 20503. 26

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed 27

information, please follow the instructions at http://www.epa.gov/doc kets/contacts.htm. 28

Additional instructions on commen ting or visiting the docket, al ong with more information about 29

dockets generally, is availabl e at http://www.epa.gov/dockets. 30

FOR FURTHER INFORMATION CONTACT: Kathy Davis, Field an d External Affairs 31

Division, Office of Pesticide Programs, Envi ronmental Protection Agency, 1200 Pennsylvania 32

Ave., NW., Washington, DC 20460–0001; teleph one number: (703) 308-7002; fax number: 33

(703) 308-2962; e-mail address: davis.kathy@epa.gov

. 34

SUPPLEMENTARY INFORMATION: 35

I. General Information 36

A. Does this Action Apply to Me? 37*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 3 of 340 [RIN 2070–AJ22] You may be potentially affected by this ac tion if you work in or employ persons working 38

in production agricultu re where pesticides are applied. 39

The following list of North American Industr ial Classification Syst em (NAICS) codes is 40

not intended to be exhaustive, but rather provides a guide to help readers determine whether this 41

document applies to them. Potentially affected entities may include: 42

• Agricultural Establishments (NAICS code 111000), establishments or persons, such as 43

farms, orchards, groves, greenhous es, and nurseries, primarily enga ged in growing crops, plants, 44

vines, or trees and their seeds. 45

• Nursery and Tree Production (NAICS code 111421), e.g., establishments or persons 46

primarily engaged in (1) grow ing nursery products, nursery st ock, shrubbery, bulbs, fruit stock, 47

sod, and so forth, under cover or in open fields and/or (2) growing short rotation woody trees 48

with a growth and harvest cycle of 10 years or less for pulp or tree stock. 49

• Timber Tract Operations (NAICS code 113110), e.g., establishments or persons 50

primarily engaged in the operation of timber trac ts for the purpose of selling standing timber. 51

Forest Nurseries and Gathering of Forest Produ cts (NAICS code 113210), e.g., establishments or 52

persons primarily engaged in (1) growing trees for reforestation and/or (2) gathering forest 53

products, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and 54

truffles. 55

• Farm Labor Contractors and Crew Leaders (NAICS code 115115), e.g., establishments 56

or persons primarily engaged in supplying la bor for agricultural production or harvesting. 57

• Farm Workers (NAICS codes 11511, 115112, and 115114), e.g., establishments or 58

persons primarily engaged in providing support ac tivities for growing crops ; establishments or 59

persons primarily engaged in performing a soil pr eparation activity or cr op production service, 60*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 4 of 340 [RIN 2070–AJ22] such as plowing, fertilizing, seed bed prepar ation, planting, cultivat ing, and crop protecting 61

services; and establishments or persons prim arily engaged in performing services on crops, 62

subsequent to their harvest, with the intent of preparing them for market or further processing. 63

• Pesticide Manufacturers (NAICS code 325320), e.g., establishments primarily engaged 64

in the formulation and prepara tion of agricultural and household pest control chemicals (except 65

fertilizers). 66

• Farm Worker Support Organizations (NAICS codes 813311, 813312, and 813319), e.g., 67

establishments or persons primarily engaged in promoting causes associated with human rights 68

either for a broad or specific constituency; es tablishments or persons primarily engaged in 69

promoting the preservation and protection of the environment and wildlife; and establishments 70

primarily engaged in social advocacy. 71

• Farm Worker Labor Organizations (NAI CS code 813930), e.g., establishments or 72

persons primarily engaged in promoting the in terests of organized la bor and union employees. 73

• Pesticide Handling in Forestry (NAICS c ode 115310), e.g., establishments or persons 74

primarily providing support ac tivities for forestry, such as forest pest control. 75

• Administration of Conservation Programs (NAICS code 924120), e.g., government 76

establishments primarily engaged in the admini stration, regulation, superv ision and control of 77

land use, including recreational ar eas; conservation and preservation of natural resources; erosion 78

control; geological survey program administratio n; weather forecasting program administration; 79

and the administration and protec tion of publicly and privately ow ned forest lands. Government 80

establishments responsible for planning, manageme nt, regulation and conser vation of game, fish, 81

and wildlife populations, including wildlife ma nagement areas and field stations; and other 82*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 5 of 340 [RIN 2070–AJ22] administrative matters relating to the protection of fish, game, and wildlife are included in this 83

industry. 84

• Pesticide Handling on Farms (NAICS code 115112), e.g., establishments or persons 85

primarily engaged in performing a soil preparation activ ity or crop production service, such as 86

seed bed preparation, planting, cultiv ating, and crop protecting services. 87

• Crop Advisors (NAICS codes 115112, 541690, 541712) e.g., establishments or persons 88

who primarily provide advice and assistance to bu sinesses and other organi zations on scientific 89

and technical issues related to pesticide use and pest pressure. 90

B. What Should I Consider as I Prepare My Comments for EPA? 91

1. Submitting CBI . Do not submit this information to EPA through regulations.gov or e92

mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI 93

information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD94

ROM as CBI and then identify electronically within the disk or CD-ROM the specific 95

information that is claimed as CBI. In addition to one complete version of the comment that 96

includes information claimed as CBI, a copy of the comment that does not contain the 97

information claimed as CBI must be submitted for inclusion in the public docket. Information so 98

marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 99

2. Tips for preparing your comments . When submitting comments, remember to: 100

i. Identify the document by docket ID number and other identifying information (subject 101

heading, Federal Register date and page number). 102

ii. Follow directions. The Agency may ask you to respond to specific questions or 103

organize comments by referencing a Code of Federal Regulations (CFR) part or section number. 104*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 6 of 340 [RIN 2070–AJ22] iii. Explain why you agree or disagree; suggest alternatives and substitute language for 105

your requested changes. 106

iv. Describe any assumptions and provide a ny technical information and/or data that you 107

used. 108

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in 109

sufficient detail to allow for it to be reproduced. 110

vi. Provide specific examples to illustra te your concerns and suggest alternatives. 111

vii. Explain your views as cl early as possible, avoiding the use of profanity or personal 112

threats. 113

viii. Make sure to submit your comments by the comment period deadline identified. 114

II. Background 115

A. Executive Summary 116

1. Purpose of the regulatory action . The Environmental Protection Agency (EPA or the 117

Agency) proposes to revise th e existing Worker Protection Sta ndard (WPS) at 40 CFR part 170 118

to reduce the incidence of occ upational pesticide exposure and re lated illness among agricultural 119

workers (workers) and pesticide handlers (handl ers) covered by the rule. This regulation, in 120

combination with other components of EPA’s pe sticide regulatory progra m, is intended to 121

prevent unreasonable adverse e ffects of pesticides among pes ticide applicators, workers, 122

handlers, the general public, a nd vulnerable groups, such as minority and low-income 123

populations. 124

2. Summary of the major provisions. This proposal revises th e existing WPS in several 125

areas: Training, notification, hazard communicat ion, minimum age, and personal protective 126

equipment. The key changes are described below. 127*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 7 of 340 [RIN 2070–AJ22] For training, the proposal requires employers to ensure that workers and handlers receive 128

pesticide safety training every ye ar. The content of the training is expanded to include how to 129

reduce take-home exposure to pesticides, as well as other topics. Employers are required to retain 130

records of the training provided to workers and ha ndlers for 2 years from the date of training. 131

For notification, the proposal requires employers to post treated areas when the product 132

used has a restricted-entry interval (REI) grea ter than 48 hours. It also requires that workers 133

performing early-entry tasks, i. e., entering a treated area when an REI is in effect, receive 134

information about the pesticide used in the area where they will work, the specific task(s) to be 135

performed, and the amount of time the worker may remain in the treated area. Finally, the 136

proposal requires employers to keep a record of the information provided to workers performing 137

early-entry tasks. 138

For hazard communication, the proposal elimin ates the requirement for a central display 139

of pesticide application-specifi c information. The proposal require s the employer to maintain and 140

make available upon request the pesticide appl ication-specific information, as well as the 141

labeling and safety data sheets for pesticid es used on the establishment for 2 years. 142

For minimum age, the proposal requires that handlers and workers performing early-entry 143

tasks be at least 16 years old. This minimum ag e does not apply to immediate family members 144

working on an establishment owned by another immediate family member. 145

For personal protective equipment (PPE), th e proposal adopts the Occupational Safety 146

and Health Act requirements for respirator use by handlers, i.e., fit test, medical evaluation, and 147

training. In addition, the proposal adopts the existing California st andard for closed systems. 148

3. Costs and impacts . Under section 3(f)(4) of Executive Order 12866 (58 FR 51735; 149

October 4, 1993), this action is a "significant regulatory action" because it may raise novel legal 150*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 8 of 340 [RIN 2070–AJ22] or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth 151

in the Executive Order. Accordingly, EPA submi tted this proposed rulemaking to the Office of 152

Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 153

3821; January 21, 2011), and any changes made in response to OMB recommendations have 154

been documented in the public docket for this action. 155

EPA has prepared an analysis of the potenti al costs and impacts associated with this 156

rulemaking. This analysis is summarized in gr eater detail in Unit II.G. of this proposal. The 157

following chart provides a brie f outline of the costs and impacts of this proposal: 158

Category Description Source

Monetized Benefits $75 – 80 million/year

 Avoided acute pesticide

incidents $10 – 15 million/year EA Chapter 6.5

 Reduced effects of chronic

pesticide exposure at least $64.8 million/year EA Chapter 6.8

Qualitative Benefits  Willingness to pay to avoid acute effects of pesticide exposure beyond cost of treatment and loss of productivity

 Reduced latent effect of avoided acute

pesticide exposure

 Reduced chronic effects from lower

chronic pesticide exposure to farmworker families EA Chapter 6

Monetized Costs $62 – 72 million/year EA Chapter 5.2

Small Business Impacts No significant impact on a substantial number of small entities.

 The rule will affect over 300,000 small

farms, nurseries, and greenhouses and several hundred small commercial entities that are contracted to apply pesticides.

 Impact less than 0.1% of the annual value

of sales or revenues for the average small entity. Highest anticipated impact less EA Chapter 5.4*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 9 of 340 [RIN 2070–AJ22]

than 1% of annual sales.

Impact on Jobs The rule will have a negligible effect on jobs and employment.

 The marginal cost of a typical

farmworker is expected to increase $5/year.

 The marginal cost for a more skilled

pesticide handler is e xpected to increase by $60 per year, but this is less than 0.3 percent of the cost of a part-time employee. EA Chapter 5.3

159

B. What Action is the Agency Taking? 160

The WPS is a regulation intended to reduce th e risks of injury or illness resulting from 161

agricultural workers’ and handlers’ use and contact with pesticides on farms, forests, nurseries 162

and greenhouses. The rule does no t cover persons working directly with livestock. The existing 163

regulation has provisions for empl oyers to provide workers and ha ndlers with pesticide safety 164

training, posting and notification of treated areas , entry restrictions, and PPE for workers who 165

enter treated areas after pesticide application to perform crop-related tasks, as well as for 166

handlers who mix, load, and apply pesticid es. The rule was promulgated in 1992 and 167

implementation was delayed until 1995. 168

The changes in this proposed revision of the WPS are intended to address shortcomings 169

in the current regulations, such as: 170

• Absence of a minimum age for handlers of pe sticides and agricultural workers engaged 171

in early-entry activities, 172

• Inadequate hazard communication provisions, 173

• Insufficient training of agricultural worker s before they face potential pesticide 174

exposure, 175*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 10 of 340 [RIN 2070–AJ22] • Unclear requirements regarding the dec ontamination supplies the WPS requires 176

employers to provide, and 177

• Insufficient recordkeeping to veri fy compliance with regulations. 178

EPA believes that the proposed changes offe r targeted improvements that would reduce 179

risk through protective requireme nts and improve operational e fficiencies. EPA expects the 180

proposed changes to: 181

• Improve effectiveness of wo rker and handler training, 182

• Improve protections to workers during restricted-entry intervals (REIs), 183

• Improve protections for workers duri ng and after pesticide applications, 184

• Expand the information provided to workers, thus improving hazard communication 185

protections, 186

• Expand the content of pesticide safety information displayed, thus improving the 187

display’s effectiveness, 188

• Improve the protections for crop advisor employees, 189

• Increase the amounts of decontaminati on water available, thus improving the 190

effectiveness of the decontamination process, 191

• Improve the emergency response when wo rkers experience pesticide exposures, 192

• Improve the organization of the WPS, thus improving employers’ ability to understand 193

and comply with the provisions, 194

• Clarify the coverage of the WPS to those employed and receiving a salary or wage to 195

ensure protection for occupa tional pesticide workers, 196*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 11 of 340 [RIN 2070–AJ22] • Protect children by establishing a minimum age for handlers and for workers who enter 197

a treated area during an REI while maintaining an exemption to the minimum age requirement 198

for children working on the establishment of an immediately family member, and 199

• Improve flexibility for small farmers and members of their immediate family by 200

expanding the definition of immediate family me mbers to be more inclusive and retaining the 201

exemptions from almost all WPS requirements fo r owners and their immediate family members. 202

C . What is the Agency's Aut hority for Taking this Action? 203

This action is issued under the authority of sections 2 through 35 of the Federal 204

Insecticide, Fungicide, and R odenticide Act (FIFRA), 7 U.S.C. 136-136y, and particularly 205

section 25(a), 7 U.S.C. 136w(a). 206

D. Related Rulemaking 207

EPA is also considering a proposed rule to amend 40 CFR part 171, titled “Certification 208

of Pesticide Applicators.” Since parts 170 and 171, along with other components of the pesticide 209

program, work together to reduce and prevent un reasonable adverse effects to pesticides, EPA 210

may use any comments received on the proposed am endments to part 171 when formulating a 211

final rule to amend the current WPS at part 170. 212

E. Benefits of the Proposal 213

The proposed changes to the current WPS require ments are expected to lead to an overall 214

reduction in incidents of unsafe pesticide exposure and to improve the occupational health of the 215

nation’s agricultural workers and pesticide handler s. This section provides an overview of the 216

qualitative benefits of the propos al and the estimated benefits that would accrue from avoiding 217

acute pesticide exposure in the population protecte d by the WPS. It also provides an estimate of 218

the number of chronic illnesses with a plausible association with pestic ide exposure that would 219*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 12 of 340 [RIN 2070–AJ22] have to be prevented by the proposed changes in or der for the total estimated benefits to meet the 220

estimated cost of the proposal. 221

A sizeable portion of the agricultural wo rkforce may be exposed occupationally to 222

pesticides and pesticide residues. These expos ures can pose significant long- and short-term 223

health risks. It is difficult to quantify a specific level of risk and project the ri sk reduction that 224

would result from this proposal because workers and handlers are potentially exposed to a wide 225

range of pesticides with varyi ng toxicities and risks. However, there is strong evidence that 226

workers and handlers may be exposed to pesticides at levels that can cause adverse effects and 227

that both the exposures and the risks can be s ubstantially reduced. EPA be lieves the provisions in 228

the proposed rule would reduce pesticide exposures and the associated risks. 229

The estimated quantified benefits from reduc ing acute worker and handler exposure to 230

pesticides total about $11.4 million annually (Ref . 1). This conservative estimate includes only 231

the avoided costs in medical care and lost product ivity to workers and handlers and assumes that 232

just 25% of acute pesticide in cidents are reported. It does no t include quantification of the 233

reduction in chronic effects of pesticide exposure to workers a nd handlers, reduced effects of 234

exposure including developmental impacts, to ch ildren and pregnant workers and handlers or 235

willingness to pay to avoid symptoms of pestic ide exposure. Because the chronic effects of 236

pesticide exposures are seldom attributable to a specific cause, and thus are unlikely to be 237

recorded in pesticide poisoning da tabases, EPA is not able to qua ntify the benefits expected to 238

accrue from proposed WPS changes that would re duce chronic exposure to pesticides. However, 239

associations between pesticide exposure and certain cancer and non- cancer chronic health effects 240

are well documented in the peer-reviewed literatur e, and reducing these chronic health effects is 241

an important FIFRA goal. 242*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 13 of 340 [RIN 2070–AJ22] Even if the lack of quantitativ e data impairs the reliability of estimates of the total 243

number of chronic illnesses avoided, it is reasonabl e to expect that the proposed changes to the 244

WPS will reduce the incide nce of chronic disease resulting fr om pesticide exposure. Therefore, 245

EPA conducted a “break even” analysis to consider the plausibility of the proposed changes to 246

the WPS reducing the incidence of chronic dise ase enough to cause the net benefits of the 247

proposed rule to exceed its anticipated costs. Under this analysis, EPA looked at the costs 248

associated with non-Hodgkin’s lymphoma, pros tate cancer, Parkinson’s disease, lung cancer, 249

bronchitis, and asthma and their frequency amon g agricultural workers, and found that reducing 250

the incidence of lung cancer by 0.08% and the incidence of the other chronic diseases by 0.8% 251

per year (about 53 total cases per year among the population of workers and handlers protected 252

under the WPS) would produce quantified benefits sufficient to bridge the gap between the 253

quantified benefits from reducing acute incident s and the $62 million to $72 million cost of the 254

proposed rule. Overall, the weight of eviden ce suggests that the propos ed requirements would 255

result in long-term health benefits to agricultu ral workers and pesticide handlers in excess of the 256

less than 1% reduction in just six diseases thatcorresponds with the break-even point for the 257

proposed rule, not only by reduci ng their daily risk of pesticid e exposures, but also by improving 258

quality of life throughout th eir lives, resulting in a lower cost of health care and a healthier 259

society. 260

The proposed changes to the current WPS re quirements, specifically improved training on 261

reducing pesticide residues brought from the trea ted area to the home on workers and handlers’ 262

clothing and bodies and establishi ng a minimum age for handlers a nd early entry workers, other 263

than those covered by the immediate family exem ption, mitigate the potential for children to be 264

exposed to pesticides directly and indirectly. The unquantified benefit to adolescent workers and 265*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 14 of 340 [RIN 2070–AJ22] handlers, as well as children of workers and handlers is great; reducing exposure to pesticides 266

could translate into fewer sick days, fewer da ys missed of school, improved capacity to learn, 267

and better long-term health. Parents and caregivers reap benefits by having healthier families, 268

fewer missed workdays, and better quality of life. 269

By proposing several interrelate d exposure-reduction measures, th e revised rule is expected 270

to mitigate approximately 56% of reported acute WPS-related pesticide incidents. EPA believes 271

the proposed rule would substant ially mitigate for these workers and handlers the potential for 272

adverse health effects (acute a nd chronic) from occupational expos ures to such pesticides and 273

their residues. These measures include re quirements intended to reduce exposure by: 274

• Ensuring that workers and handlers are inform ed about the hazards of pesticides –the 275

proposed rule changes the content and frequency of required pestic ide safety training, as well as 276

proposing changes to ensure that the pesticid e safety training is more effective. 277

• Reducing exposure to pesticides – among othe r things, the proposed rule changes and 278

clarifies the requirements for pers onal protective equipment. It also makes changes to the timing 279

of applications when people are nearby. These and other provisions s hould directly reduce 280

exposure in the agricultural workforce. 281

• Mitigating the effects from exposures that occur – some accidental exposures are 282

inevitable. EPA expects the proposed rule to m itigate the severity of health impacts by updating 283

and clarifying what is requi red to respond to exposures. 284

Further detail on the benefits of this proposal is provided in the document titled 285

“Economic Analysis of Proposed Revisions to the Worker Protecti on Standard” which is 286

available in the docket for this rulemaking (Ref. 1). The following briefly highlights the 287

anticipated benefits: 288*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 15 of 340 [RIN 2070–AJ22] 1. Reduce incidents of expos ure and illness through: 289

a. Expanded and more frequent training for workers and handlers . EPA’s current 290

requirement for training workers an d handlers fails to address or to highlight the importance of 291

some self-protective practices, such as reducing pesticide expos ure to workers, handlers, and 292

their families by avoiding bringing pesticide re sidues home on clothing, shoes, or skin. The 293

existing regulation requires employers to provid e training every 5 years. Today’s proposal, if 294

finalized, would expand the content of the traini ng, increase the frequency of training to every 295

year, and set higher standards for trainers. Prov iding workers and handlers with information on 296

reducing pesticide exposure in a ma nner they understand, e.g., in a language they speak and at an 297

appropriate education level, and at intervals more likely to result in rete ntion of the information, 298

would benefit workers and handlers. Thus, EP A believes today’s proposal would reduce overall 299

pesticide exposure among workers, handlers, and their families. 300

b

. Improved posting of pesticide-treated areas . The current WPS allows growers to 301

provide either an oral or poste d warning to workers about which areas have been treated with a 302

pesticide and are under an REI unless the pesticid e label requires both an oral and posted 303

warning. Many of the occupational pesticide illnesse s reported to state health agencies have 304

occurred when workers entered a treated area before the REI expired. The proposed regulation 305

would require posting of all treate d areas with an REI of greater than 48 hours, providing a visual 306

reminder to workers not to enter the specific pe sticide-treated area wit hout proper protection. 307

c. Additional information before entering a pesticid e-treated area under an REI . As 308

mentioned above, many incidents of pesticide ex posure among workers result from entering an 309

area while an REI is in effect. The proposed ru le would require that worker training include 310

information about the limited circumstances in which workers may enter a treated area under an 311*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 16 of 340 [RIN 2070–AJ22] REI, the hazards workers may face, and that the employer must provide the proper PPE. 312

Employers would also have to inform workers entering a treated area under an REI about the 313

conditions under which they enter the treated area and the maximum time they are permitted to 314

stay in the treated area. Providing workers with general information about working in a treated 315

area under an REI as well as with specific inform ation about the circumstances of each instance 316

should make them aware of the elevated risks an d the steps necessary to protect themselves. 317

d. Access to more information about ch emical hazards in the workplace . The current 318

WPS requires the employer to maintain records of wh at pesticides have been used or have had an 319

REI in effect on the establishment in the last 30 days. The employer must provide the name of 320

the pesticide, EPA registration number, and other general information at a central location on the 321

establishment. Today’s proposal wo uld require employers to mainta in a copy of pesticide labels, 322

the application records, and the Safety Data Shee t (SDS, formerly known as Material Safety Data 323

Sheet, or MSDS), as well as the information cu rrently required under the WPS, for 2 years after 324

the product was applied on the esta blishment. The employer would be required to provide this 325

information upon request and to ensure that heal th care providers treatin g a worker or handler 326

who was exposed on the establishment receive a copy of this information. The more specific 327

information required, longer retention period, and provision to provide addi tional information to 328

health care providers should assist the health car e provider in determining the specific types of 329

pesticides to which a worker or handler may have been exposed and in more effectively treating 330

the injured person. 331

e. Strengthened requirements for handlers dur ing applications . The risk of illness 332

resulting from exposure to pesticides through dr ift is largely borne by agricultural workers. A 333

recent study estimates that 37% to 68% of acute pesticide-related illnes ses in agricultural 334*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 17 of 340 [RIN 2070–AJ22] workers are caused by spray drif t (Ref. 2). The proposed rule would require handlers to 335

immediately stop an application if, during the applicat ion, anyone other than a properly equipped 336

handler enters the entry-restricted area or the area treated with pesticides. This, together with the 337

proposal to create entry-restrict ed areas around the treated area for farms, forests and nurseries, is 338

expected to result in reduced incidents of worker exposure through unintentional contact during 339

application or through drift. 340

2. Strengthen protection for children through: 341

a. Implementing a minimum age of 16 for handlers and early-entry workers . The current 342

WPS does not have a minimum age for handlers or early-entry workers. These tasks involve 343

contact with concentrated forms of pesticides, applying pesticides, or en tering pesticide-treated 344

areas before the REI has expired. Children may be more susceptible to the effects of pesticide 345

exposure because their systems are developing, a nd research shows that adolescents have not 346

fully developed informed decision-making skill s. The Fair Labor Standards Act (FLSA) 347

establishes a minimum age of 16 for persons hand ling toxicity category I and II pesticides (29 348

U.S.C. 213(c)(2)). Implementing a requirement fo r handlers and early-entry workers to be at 349

least 16 years old would ensure th at all persons handling pesticid es, regardless of the toxicity 350

level, are protected, thereby reduc ing their overall risk of pesticide exposure and illness. Persons 351

under the age of 16 working on th e establishment of an immediate family member would be 352

exempt from both minimum age requirements. 353

b. Improving training for workers and handlers on reduc ing take-home pesticide 354

exposure . The current WPS training does not provide specific information on how workers and 355

handlers can minimize the possibi lity for transferring pesticid e residues from their clothing, 356

bodies, and shoes to their homes, vehicles, and family members. Although studies documenting 357*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 18 of 340 [RIN 2070–AJ22] the effects of take-home pesticide exposure ar e not conclusive, EPA has a reasonable concern 358

about the potential for unreasonable adverse eff ects caused by exposure to workers, handlers, 359

and their families. The proposed modest addition to training would educate workers and handlers 360

on how to protect themselves and their fa milies from take-home pesticide exposure. 361

3. Reduce some burdens on growers by: 362

a. Eliminating duplicative respirator requirements. Agricultural worker and handler 363

employers may also be subject to regulations issued by other federal agencies, such as the 364

Occupational Safety and Health Administration (OSHA). The current WPS standard for proper 365

use and maintenance of a respir ator differs from the standard established by OSHA. Today’s 366

proposal harmonizes the requirement s for agricultural employers th at may be required to provide 367

a respirator for their employees using pesticid es under the WPS with those issued by OSHA for 368

respirator use in agriculture beyond pesticide use in order to reduce the burden on employers to 369

comply with two separate standards. 370

b. Providing a national mechanism to verify worker and handler training. Under the 371

current WPS employers may be uncertain about what measures they must take to verify whether 372

a worker or handler has alrea dy received the required pestic ide safety training on another 373

establishment. EPA administers a voluntary traini ng verification system, butit is not used nation374

wide or consistently. As a result, many employers provide pesticide safety training to all new 375

employees. The proposed revisions include a provis ion for the employer to provide the worker or 376

handler with a copy of the record of the trai ning, including worker or handler name, employer, 377

trainer name, and date of training. Workers and ha ndlers can provide this record to their next 378

employer as proof of valid training and for the new employer to maintain a copy in his or her 379*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 19 of 340 [RIN 2070–AJ22] records. EPA believes a reliable training ve rification system will reduce overall burden on 380

agricultural and handler employers. 381

c. Streamlining notification requirements between handler employers and agricultural 382

establishment employers. Under the current WPS, handler em ployers are required to notify the 383

owner of the agricultural establishment about the start and en d time of applications, as well as 384

changes to the application start time and end time or application duration, before the application 385

begins. The proposed changes woul d require handlers or their em ployers to provide changes to 386

pesticide application plans to the agricultur al employer within 2 hours of the end of the 387

application rather than before the application. Changes to the es timated application end time of 388

less than one hour would not require notification. 389

d. Improving clarity of the regulation. The Agency proposes to re vise and reorganize the 390

WPS to enhance the ability of employers to understand their res ponsibilities under the regulation, 391

which could lead to increased compliance with the rule. Today’s proposal, if finalized, would 392

reorganize the rule into four sections: (1) general requirements, (2) responsibilities of agricultural 393

employers, (3) responsibilities of handler employers, and (4) exceptions. Employers’ greater 394

understanding and compliance with the WPS w ould ensure that workers and handlers are 395

provided with the information and equipment they need to protect themselves. In turn, this 396

should contribute to reduced incidents of unreason able adverse effects fr om pesticide exposure. 397

F. Request for Comments 398

The Agency invites the public to provide it s views and suggestions for changes on all of 399

the proposals in this document. Specifically, the Agency requests the public to consider and 400

provide input on the followi ng when providing comments: 401

• The need for, value of, and any alternativ es to the requirements described in this 402*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 20 of 340 [RIN 2070–AJ22] document. 403

• The studies and scientific articles used as the basis of this proposed rule. 404

• The clarity of the proposed revisions. 405

• The ability to effectively en force the proposed regulation. 406

• The economic analysis of the proposed ru le, including its unde rlying assumptions, 407

economic data, high- and low-cost opti ons and alternatives, and benefits. 408

Additionally, in other parts of this pro posed rule, EPA is specifically requesting 409

comments on certain issues. EPA welcomes comments on these topics of particular interest to 410

the Agency. 411

Commenters are encouraged to present any data or information that should be considered 412

by EPA during the development of the final rule . Describe any assumptions and provide any 413

technical information and data used in prep aring your comments. E xplain evaluations or 414

estimates in sufficient detail to allow for them to be reproduced for validation. Commenters are 415

reminded that the submission of data derived fr om human research should include information 416

concerning the ethical conduct of such research, in compliance with the requirements at 40 CFR 417

26.1303. 418

G. Reasons for Today’s Action 419

The WPS is more than 20 years old and EP A believes it can be improved. Since the late 420

1990s, EPA has engaged a wide range of stakeholde rs to evaluate the e ffectiveness of the WPS 421

and to determine if improvements are necessar y. EPA met with groups including, but not limited 422

to, farmworker organizations, he alth care providers, state regula tors, pesticide manufacturers, 423

farmers, organizations repres enting agricultural commodity producers, and crop advisors. 424

Through public meetings and federal advisory committees, and as individuals and small groups, 425*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 21 of 340 [RIN 2070–AJ22] a broad spectrum of stakeholders provided re commendations to EPA. Many of the proposed 426

changes address their recomm endations and concerns. 427

EPA has also reviewed available informa tion about occupational pesticide exposure in 428

agriculture. The Agency’s review of these reports indicates that many incidents might have been 429

avoided if workers and handlers had better training, were better notified of treated areas, and 430

used PPE properly when required. For example, workers became ill after entering a treated area 431

before the REI expired or without wearing the pr oper equipment, and through drift from a nearby 432

pesticide application. EPA believes these types of incidents could be significantly reduced by 433

enhancing the training for worker s and handlers and strengthening provisions of the regulation 434

designed to keep workers and handl ers out of pesticide- treated areas unless th ey have the proper 435

information and PPE. 436

The great majority of agricultural worker s and handlers are disadvantaged. The National 437

Agricultural Worker Survey (NAWS) data i ndicate the median family income range was $12,500 438

- $14,999, many do not speak English and are not lite rate in their native language, and workers 439

face challenges accessing health care and housin g (Ref. 3). Workers and handlers experience 440

risks from occupational pesticid e exposure that are greater than those faced by the general 441

population because workers and handlers work with and around pesticides on a daily basis, and 442

language and literacy barriers make effective ha zard communication a challenge. EPA is paying 443

special attention to the dispropor tionate burden or risk carried by this disadvantaged community. 444

Today’s proposal as a whole addresses many wo rker safety concerns; throughout this document 445

the environmental justice concerns relativ e to specific changes will be highlighted. 446

In conjunction with various non-regulato ry programs, the WPS requirements are 447

intended, among other things, to reduce the risks of illness or injury to workers and handlers 448*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 22 of 340 [RIN 2070–AJ22] resulting from occupational exposure to pestic ides on agricultural es tablishments. Broadly 449

speaking, the WPS provisions are meant to (1) in form workers and handlers about the hazards 450

and risks from pesticides they use or to which they come into contact in the workplace, (2) 451

protect workers and handlers from occupational e xposure to pesticides an d the potential adverse 452

effects of pesticides, and (3) mitigate the potential adverse effects of unavoidable pesticide 453

exposure, including accidents. Within these categor ies, EPA evaluated the costs and benefits of 454

alternative requirements and is proposing a set of requirements that, in combination, is expected 455

to achieve substantial benefits at minimum cost. 456

The overall costs of the proposal range fr om $62 to $72 million annually. These costs 457

would be borne almost entirely by agricultural establishments, those who employ workers and 458

handlers and use pesticides. Although the cost per establishment will vary by the number and 459

type of employees, EPA estimates that the annual cost to large establishments would be $350 to 460

$400 per year. Small establishments would incu r a lower cost of $130 to $150 per year, which 461

amounts to less than 0.1 percent of their annual revenue. Presented differently, the additional 462

cost of employing a worker is estimated at le ss than $5 per year and the additional cost of 463

employing a handler is estimated at about $60 pe r year. EPA does not believe the cost of the 464

regulation will have a negative impact on employment. 465

The proposal, if finalized, would reduce the disproportionate risks associated with 466

occupational pesticide exposure that currently fall on workers, handlers, and their families. 467

Agricultural and handler employers are the group responsible for, a nd that benefit from, pesticide 468

application on their establishments . Therefore, EPA believes it is appropriate for these employers 469

to bear the cost of the protections for their empl oyees, rather than to im pose the costs on workers 470

and handlers themselves. Through the WPS and these proposals, EPA seeks to have those 471*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 23 of 340 [RIN 2070–AJ22] responsible for making pesticide use decisions and applying pesticides inte rnalize the effects of 472

their decisions. This would minimize the exte rnalities, i.e., unde sirable or unintended 473

consequences of decisions that re sult in negative consequences fo r other parties, to workers and 474

handlers. 475

The benefits of the proposed rule primarily accr ue to workers, handlers and, indirectly, to 476

their families. EPA estimates the quantitative valu e of avoided acute incidents as a result of the 477

proposed rule to be between $1.2 million to $2.8 million annually (Ref. 1). However, EPA 478

recognizes that this estimate is biased downward by an unknown degree. First, pesticide 479

incidents, like many illnesses and accidents, are underreported because sufferers may not seek 480

medical care, cases may not be correctly diagnos ed, and correctly diagnosed cases may not be 481

filed with the central reporting database. Also, many symptoms of pesticide poisoning, such as a 482

fatigue, nausea, rash, dizziness, and diarrhea, ma y be confused with other illnesses and may not 483

be reported by the workers as re lated to their occupational exposure. Studies estimate that 484

underreporting of pesticide exposure by workers and handlers ranges from 20 to 90 percent. 485

Adjusting the estimate based on a reasonable as sumption that only 25% of acute incidents are 486

reported brings the estimated benefits from re ducing acute pesticide incidents to $11.4 million 487

annually (Ref. 1). 488

Second, EPA’s approach to estimating the qua ntitative benefits of the proposal only 489

measures avoided medical costs and lost wage s, not the willingness to pay to avoid possible 490

symptoms due to pesticide exposure, which could be substantially higher. It also does not take 491

into account the disenfranchised na ture of this population and the re lative impact that lost work 492

time would have on their incomes and family healt h. An increase in protections across the entire 493

worker population would be more beneficial and likely to effect positive change than requiring 494*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 24 of 340 [RIN 2070–AJ22] individuals to value and pay for their own incr ease in safety. Workers and handlers may not be 495

able to pay for the improvements to thei r own safety, necessita ting intervention by the 496

government to ensure these popula tions are adequately protected. 497

Well-documented associations between pest icide exposure and cer tain cancer and non498

cancer chronic health effects exist in peer-rev iewed literature; however , the wide range of 499

employment histories and pesticide exposures characteristic of the agricultural workforce 500

generally prevents reliable estimat es of the full impact of chronic pesticide exposure. In order to 501

account for the reduction in chronic diseases expe cted as a result of the proposed WPS changes, 502

OPP used a “break-even” analysis. Based on a literature review, EPA evaluated the costs 503

associated with six chronic illnesses that have well-documented association with agricultural 504

pesticide exposure: non-Hodgkin’s ly mphoma, prostate cancer, Park inson’s disease, lung cancer, 505

bronchitis, and asthma. Owing to the high costs associated with these chronic illnesses, 506

improvements to the WPS that could reduce the frequency of these illnesses among workers and 507

handlers by less than 1% (53 total ca ses per year) would result in su fficient benefits to bridge the 508

gap between the estimated costs of the revisions and the anticipa ted benefits associated with 509

reducing acute pesticide exposures. For the reasons identified belo w, it is reasonable to expect 510

that the proposed changes to the WPS will redu ce chronic pesticide exposures enough to reduce 511

the frequency of chronic illnesse s by at least 0.08% for lung cancer and at least 0.8% for the 512

other illnesses considered. 513

EPA believes the qualitative bene fits of the proposed rule ar e substantial. The proposals 514

for more frequent, expanded training, better identification of treated areas, strengthened 515

requirements for PPE, and clarifying the response s and information required in the event of an 516

emergency exposure all provide workers and handle rs with more information and a better ability 517*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 25 of 340 [RIN 2070–AJ22] to protect themselves from risk s associated with pesticide ex posure. The proposals complement 518

each other and the resulting bene fits are derived from implemen tation of the whole package. 519

Overall, the weight of evidence suggests that th e proposed requirements will result in both short520

and long-term health benefits to agri cultural workers and pesticide handlers. 521

In addition, many of the proposed change s to current WPS requirements would 522

specifically mitigate risks to children. The pr oposal would implement a minimum age of 16 for 523

most handlers and early-entry workers; the mini mum age would not apply to handlers and early524

entry workers on an establishment owned by an immediate family member. EPA believes that 525

these two tasks present a higher ri sk of exposure than do the gene ral tasks assigned to a worker. 526

Since children’s bodies are still developing, they may be more sus ceptible to these elevated risks 527

and therefore would benefit from strengthene d protections. In addi tion, the proposal seeks 528

through additional training to re duce the potential for workers to transport pesticide residues 529

home to their families. Although studies are in conclusive about the effects of pesticides 530

transferred from the treated area to the home, EPA believes that provid ing additional general 531

information to workers and handlers about steps that may mitigate any potential risk would be 532

prudent. Thus, the proposed cha nges are expected to reduce childre n’s exposure to pesticides. 533

In the almost two decades since the 1992 WPS was implemented, EPA has learned from 534

the Pesticide Program Dialogue Committee, National Assessment of the Pesticide Worker Safety 535

Program process, meetings with state regulators, and other stakeholder interaction, that the 1992 536

rule needs improvements. EPA believes that the data available to the Agency supports this 537

conclusion. Today’s proposal reflects the Agency’s commitment to pay particular attention to the 538

health of children and envir onmental justice concerns. The pr oposal also aligns with the 539

President’s January 18, 2011 Executive Order 13563 (76 FR 3821), reques ting that agencies 540*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 26 of 340 [RIN 2070–AJ22] review existing regulations to improve the effi cacy of their protection, to balance costs and 541

benefits, and to maximize their efficiency. 542

In proposing this revision, the Agency is mindf ul of the effects on small business, family 543

farms, and other affected parties. The Agency ha s attempted to keep the costs to the regulated 544

community as low as practicable, so that they are reasonably ba lanced against the anticipated 545

risk reduction benefits of the measures proposed below. 546

G. Summary of Proposed Changes 547

EPA proposes to revise the WPS by: 548

• Changing the pesticide safety training conten t, retraining interval , and eligibility of 549

trainers, 550

• Ensuring workers receive safety information before entering any pe sticide treated area, 551

• Establishing a minimum age of 16 for handler s and for workers who enter an area under 552

an REI, 553

• Establishing requirements for specific trai ning and notification for workers who enter 554

an area under an REI, 555

• Restricting persons’ entry into areas adjacent to a treated area during an application, 556

• Enhancing the requirement for employers to post warning signs around treated areas, 557

• Modifying the content of the warning sign, 558

• Adding information employers must keep under the requirement to maintain 559

application-specific information, 560

• Requiring recordkeeping for pesticide safety training and worker entry into areas under 561

an REI, 562*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 27 of 340 [RIN 2070–AJ22] • Ensuring the immediate family exemption includes an exemption from the proposed 563

minimum age requirements for handl ers and early-entry workers, 564

• Expanding the definition of “immediate family ” to allow more family-owned operations 565

to qualify for the exemptions to the WPS requirements, 566

• Revising definitions to improve clarity and to refine terms, and 567

• Restructuring the regulation to make it easier to read and understand. 568

III. Statutory Authority and Framework 569

This unit discusses the legal framework within which EPA regulates the safety of those who 570

work with and around pest icides in agriculture. 571

A. FIFRA 572

The Federal Insecticide, Fungi cide and Rodenticide Act (F IFRA) of 1947 established a 573

framework for the regulation of pesticide produ cts. Major amendments in 1972 by the Federal 574

Environmental Pesticide C ontrol Act (7 U.S.C. 136 et. seq .) broadened federal pesticide 575

regulatory authority to make it “unlawful for a ny person to use any registered product in a 576

manner inconsistent with its labeling” (7 U.S.C. 136i (a)(2)(G)). The 1972 amendments provided 577

civil and criminal penalties for violations of the Act (7 USC 136l) and authorized the 578

Administrator to provide regula tions to carry out the Act (7 U.S.C. 136w (a)). The new and 579

revised provisions directed EPA to protect humans and the environment from unreasonable 580

adverse effects of pesticides. 581

The legislative history of the 1972 amendments to FIFRA reflects the clear intent of 582

Congress that farmers and agricultural workers were among those intended to be afforded 583

protection under FIFRA. In discussing th e 1972 amendments, the Senate Committee on 584*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 28 of 340 [RIN 2070–AJ22] Agriculture noted its intent of FIFRA to protect farmworker s and others from contacting 585

pesticides or their residues. (Ref. 4) 586

EPA has implemented many protections for work ers through use instru ctions on pesticide 587

labeling, which have been legally binding on pe sticide users since the 1972 amendments. See 588

FIFRA section 12(a)(2)(G), which makes it unlawful “to use any re gistered pesticide in a manner 589

inconsistent with its labeling”. In order to expand these protective measures without making 590

individual product labels inor dinately complex, the Agency decided to consolidate common 591

requirements in a single, uniform standard that c ould be incorporated into agricultural pesticide 592

labels by reference, the Worker Protection St andard (WPS). In 1992, the Agency issued the 593

WPS, which, where mandated on a pesticide label, provides a uniform system of protections to 594

workers and handlers on farms, forests, nurseri es, and greenhouses from occupational exposure 595

to the pesticide product. The WPS establishes un iform requirements for practices that minimize 596

exposure, regardless of the risks of specific pest icides, and the individual pesticide labels provide 597

the specific requirements appropriate to each pes ticide product. The WPS sets basic requirements 598

for notification of a treated area, limited entr y into a treated area, supplies related to 599

decontamination and maintenance of PPE, and access to information about pesticides used on the 600

agricultural establishment. It also requires that workers and handlers receiv e basic safety training 601

to inform them about ways to minimize their exposure and risk. 602

B. EPA Regulation of Pesticides 603

In order to protect human health and the e nvironment from unreasonable adverse effects 604

that might be caused by pesticides, the Agen cy has developed and implemented a rigorous 605

process for registering and re-e valuating pesticides. The regist ration process begins when a 606

manufacturer submits an application to regist er a pesticide. The application must contain 607*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 29 of 340 [RIN 2070–AJ22] required test data, including information on th e pesticide’s chemistry, environmental fate, 608

toxicity to humans and wildlife, and potential for human exposure. The Agency also requires a 609

copy of the proposed labeling, including direct ions for use, and appropriate warnings. 610

Once an application for registration of a new pesticide product is received, EPA conducts 611

an evaluation, which includes a detailed review of scientific data to determine the potential 612

impact on human health and the environment. Th e Agency considers the risk assessments and 613

results of any peer review and evaluates potentia l risk management measures that could mitigate 614

risks above the Agency’s level of concern. Ri sk management measures could include, among 615

other things, extending the restri cted-entry interval (REI), th e period during which people are 616

prohibited from entering the treated area, to allow the pesticide resi dues to reach an acceptable 617

level before worker reentry is permitted. They co uld also require certain engineering controls, 618

such as use of closed mixing systems to reduce potential exposure to those who mix and load 619

pesticides, or specific PPE, such as respirators, to protect users against risks associated with 620

inhalation of the product. 621

In the decision-making process, EPA evaluate s the application to determine whether the 622

proposed use(s) meets the Agency’s standards for registration. FIFRA is a risk-benefit statute. In 623

evaluating the impact of a pesticide on occupati onal health and safety, EPA weighs the risks 624

associated with use of the pesticide (occupationa l, environmental) and the benefits associated 625

with use of the pesticide (economic, public heal th, environmental). FIFRA does not require EPA 626

to balance the risks and benefits for each audience. For exampl e, a product may pose risks to 627

workers, but risks may nevertheless be reason able in comparison to the economic benefit of 628

continued use of the produc t to society at large. 629*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 30 of 340 [RIN 2070–AJ22] If the application does not contain enough evid ence to prove that the pesticide meets all 630

of these standards, EPA communicates to the appli cant the need for more or better refined data, 631

labeling modifications, or additiona l use restrictions. Once the applicant has demonstrated that a 632

proposed product meets the statutory standards, a nd, if the pesticide is intended to be used on 633

food, a tolerance or exemption from the requir ement of a tolerance under the Federal Food, 634

Drug, and Cosmetic Act can be established, EPA w ill approve the registration, subject to any risk 635

mitigation measures necessary to achieve that ap proval. EPA devotes significant resources to the 636

regulation of pesticides to ensure that each pe sticide product meets the FIFRA requirement that 637

pesticides not cause unreasonable adverse e ffects to the public and the environment. 638

When EPA approves a pesticide, the label refl ects the risk mitigation measures required 639

by the Agency. Since users must comply with th e directions for use and use restrictions on a 640

product’s labeling, EPA uses the labeling to esta blish and convey mandatory requirements for 641

how the pesticide must be used to protect peopl e and the environment fr om pesticide exposure. 642

As discussed in Unit III.A., above, the labeling for agricultural pestic ides requires compliance 643

with the WPS, in order that workers, handlers, and their employers have a single, uniform set of 644

specific requirements for the protection of wo rkers and handlers that complement the product645

specific labeling requirements. 646

C. EPA’s Pesticide Reregistration and Registration Review Programs 647

FIFRA requires EPA to review periodically the registration of pesticides currently 648

registered in the U.S. The 1988 FIFRA amendmen ts required EPA to establish a pesticide 649

reregistration program. Reregist ration was a one-time comprehensiv e review of the human health 650

and environmental effects of pesticides firs t registered before November 1, 1984 to make 651

decisions about these pesticides' future use. The Food Quality Protection Act of 1996 required 652*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 31 of 340 [RIN 2070–AJ22] that EPA establish, through rule making, an ongoing “registration revi ew” process of all 653

pesticides at least every 15 years. The final rule establishing the registration review program was 654

signed and published in August 2006. The purpose of both re-evaluation programs is to review 655

all pesticides registered in the U.S. to ensure th at they continue to meet current safety standards 656

based on up-to-date scientific approaches and data. 657

Pesticides reviewed under the re registration program that met cu rrent scientific and safety 658

standards were declared "eligible" for rere gistration. The results of EPA's reviews are 659

summarized in Reregistration Eligibility Decision (RED) documents. The last RED was 660

completed in 2008. Often before a pesticide coul d be determined “eligible,” certain risk 661

reduction measures had to be put in place. For a number of pesticides, measures intended to 662

reduce exposure to handlers and workers were ne eded and are reflected on pesticide labels. To 663

address occupational risk concerns, REDs include mitigation measures such as voluntary 664

cancellation; limiting the amount, frequency or timing of applications; other application 665

restrictions; classificatio n of a product or specific use as a "Restricted Use Pesticide" (RUP); 666

PPE; specific REIs; user safety requir ements; and improved use directions. 667

Rigorous education and enforcement are needed to ensure that these mitigation measures 668

are appropriately implemented in the field. The framework provided by the WPS is critical for 669

ensuring that the improvements brought about by re registration, including worker risk mitigation 670

measures, are realized. The rule changes being proposed in this notice are designed to enhance 671

the effectiveness of the existing structure. 672

In summary, EPA’s pesticide reregistration and registration reviews assess the specific 673

risks associated with particular chemicals a nd ensure that the public and environment do not 674

suffer unreasonable adverse effects from the ri sks. EPA implements the risk reduction and 675*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 32 of 340 [RIN 2070–AJ22] mitigation measures that result from the pesticid e reregistration and registration review programs 676

through individual pesticide product labels. 677

D. Existing Worker Protection Standard 678

The WPS currently covers pest icide use at establishments engaged in the production of 679

agricultural commodities: Farms, forests, nur series, and greenhouses. The WPS does not cover 680

persons working directly with livestock. WPS regulations are directed toward the working 681

conditions of two types of employees: Workers and handlers. 682

• Workers perform tasks related to the cultivation and harves ting of agricultural products 683

on agricultural esta blishments. Typical tasks include thinning, pruning, and harvesting 684

commodities. 685

• Handlers mix, load, and apply pesticides, a nd do other activities linked to pesticide 686

application on agricultural establishments. 687

The WPS defines general protections that co ver all workers or handlers employed on an 688

establishment that uses a pesticide that refe rences the WPS on the label and complements the 689

specific risk mitigation measures implemented through individual pesticide labels. The existing 690

WPS requires agricultural employers to provi de certain protections to their employees. 691

Agricultural employers are required to notify work ers of areas treated with pesticides so workers 692

may avoid inadvertent exposures. Employers also must provide to all workers that may enter a 693

treated area pesticide safety tr aining that covers common routes of exposure, how to protect 694

oneself from pesticide exposure, informati on on decontamination, and what to do in an 695

emergency. Handlers receive more detailed training on using PPE , conducting pesticide 696

application, and following safety principles. A central location on the establishment must have a 697*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 33 of 340 [RIN 2070–AJ22] pesticide safety poster and information on recen t pesticide applications. Handlers and workers 698

must be informed of specific requirements on the pesticide label related to the WPS. 699

The labels of agricultural pe sticides generally specify RE Is (a time during which entry 700

into a treated area is strictly limited) for areas treated with pesticides. The existing WPS 701

regulation provides detailed require ments regarding identifying area s under an REI and notifying 702

workers about them, excluding workers and others from the treated areas, and the limited 703

circumstances under which early entry may o ccur. The WPS provides detailed information 704

concerning the types of PPE necessary for handler s and early-entry workers, if not specified on 705

the label, and instruction that employers mu st provide to workers entering under an REI 706

exception. The existing WPS also prohibits applicat ors from applying a pesticide in a way that 707

will expose workers or other persons and excludes workers from areas while pesticides are being 708

applied. These general requirements serve as a co unterpart to the product- specific risk reduction 709

measures implemented through the pesticide label. 710

The WPS also mitigates the risks associated with pesticide exposure by requiring 711

agricultural employers to provide workers and handl ers with water, soap, and towels for routine 712

washing after working in or around areas where pe sticides have been applied. There are also 713

provisions for decontamination in the event of an emergency. The employer must provide 714

transportation to a medical care facility for a worker or handle r who may have been poisoned or 715

injured, and provide information to the worker, ha ndler, or medical personnel about the pesticide 716

to which the person may have exposed. 717

A detailed history of the development of the 1992 WPS and the process leading to 718

today’s proposal appears in Unit V. 719

IV. Overview of EPA’s Protect ion of Pesticide Workers 720*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 34 of 340 [RIN 2070–AJ22] A. Demographics of Agricult ural Workers and Handlers 721

The task of protecting workers and handlers from occupational exposure to pesticides 722

presents a challenge, given the complexity of the science issues involving pesticide use, 723

variability of pesticide use patt erns, and the diversity of the labor population being served and 724

the tasks they perform. 725

According to information published by the Depa rtment of Labor’s National Agricultural 726

Workers Survey (NAWS) in 2001-2002, 75% of agri cultural workers in the United States were 727

born in Mexico and 2% in Central America (Ref. 3 p. 3). A majority (81%) of this group speaks 728

Spanish as a native language, but a growing pe rcentage speaks langua ges such as Creole, 729

Mixteco, and indigenous languages (Ref. 3 p. 17). Approximately 44% could not speak English 730

at all, and 53% could not read any English (R ef. 3 p. 21). Many have received minimal formal 731

education; the foreign born workers, on average, completed no more than a sixth grade education 732

(Ref. 3 p. 18). 733

Approximately 43% of the survey respondents we re classified as migrant, having traveled 734

at least 75 miles in the previous year to find a job in agriculture (Ref . 3 p. 7). Over 20% of 735

respondents lived in housing provi ded by their employer and 58% rented housing from someone 736

other than their employer (Ref. 3 p. 43). In gene ral, agricultural workers surveyed by NAWS do 737

not use health care facilities. Estimates of agri cultural workers lacking health insurance range 738

from 77% to 85% and estimates from the late 199 0s indicate only 20% of those surveyed had 739

visited a health care facility in the preceding 2 years (Ref. 5 pp. 12-13). U.S. Department of 740

Agriculture (USDA) research, ba sed on NAWS data, also reports that workers have difficulty 741

entering the health care system to receive treatmen t. Cost was a significant barrier for two-thirds 742

of farmworkers, while about a third listed language barriers as an impedime nt to receiving care. 743*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 35 of 340 [RIN 2070–AJ22] The problem is more severe among undocumented wo rkers because they fear seeking treatment 744

will lead to deportation or other adverse legal action (Ref. 6). 745

USDA issued a report indicating that the f actors mentioned above contribute to the 746

disadvantaged status of hired workers in agricu lture (Ref. 6). Unemployment rates, counting both 747

crop and livestock workers (livestock workers are outside the scope of the WPS), are twice that 748

of all salary and wage workers. The NAWS found crop workers’ aver age annual income was 749

between $10,000 and $12,499, with total family income averaging between $15,000 and $17,499 750

(Ref. 3 p. 47). 751

B. Incident Data Sources and General Information 752

Incident monitoring programs have provided th e Agency with a bett er understanding of 753

common types of pesticide exposures and th eir outcomes. In 2007, EPA released a report 754

detailing the coverage of all pesticide exposur e incident reporting data bases considered by the 755

Agency (Ref. 7). EPA consults two major data bases for information on occupational pesticide 756

exposure incidents. 757

The first database, the Sentinel Event Notification System for Occupational Risk 758

(SENSOR), is maintained by the Centers for Di sease Control and Prev ention (CDC) /National 759

Institute for Occupational Safety and Health (NIOSH). SENSOR c overs all occupational injuries 760

and has a specific component for pesticides (SENSOR-Pesticides). EPA uses SENSOR761

Pesticides to monitor trends in occupational heal th related to acute exposures to pesticides, to 762

identify emerging pesticide problems, and to build and maintain state surveillance capacity. 763

SENSOR-Pesticides is a state-ba sed surveillance system with el even state participants. The 764

program collects most poisoning incident cases from: 765

• Department of Labor workers’ compensati on claims when reported by physicians, 766*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 36 of 340 [RIN 2070–AJ22] • State Departments of Agriculture, and 767

• Poison control centers. 768

A state SENSOR-Pesticides contact specialist follows up with workers and obtains medical 769

records to verify symptoms, circumstances su rrounding the exposure, severity, and outcome. 770

Using a standardized protocol and case definitions derive d from poison center reporting, 771

SENSOR-Pesticides coordinators enter the inci dent interview descri ption provided by the 772

worker, medical report, and physician into th e SENSOR data system. EPA believes that 773

SENSOR-Pesticides provides the most compre hensive information on occupational pesticide 774

exposure, but coverage is not nationwide and a majority of the data comes from California and 775

Washington State. 776

The American Association of Poison Control Centers maintains the National Poison Data 777

System (NPDS), formerly the Toxic Effect s Surveillance System (TESS). NPDS is a 778

computerized information system with geogra phically specific and n ear real-time reporting. 779

While the main mission of Poison Control Ce nters (PCC) is helping callers respond to 780

emergencies, not collecting specific informati on about incidents, NPDS data help identify 781

emerging problems in chemical product safety. Hotlines at 61 PCCs nationwide are open 24 782

hours every day of the year. There are many bili ngual PCCs in predominantly Spanish speaking 783

areas. Hotlines are staffed by toxicology specialists to provide poisoning in formation and clinical 784

care recommendations to callers with a focus on tr iage to give patients appropriate care. Using 785

computer assisted data entry, sta ndardized protocols, and strict da ta entry criteria, local callers 786

report incidents that are retained locally and updated in summary form to the national database. 787

Since 2000, nearly all calls in th e system are submitted in a computer-assisted interview format 788

by the 61 certified PCCs, adhering to clinical criteria designed to provide a consistent approach 789*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 37 of 340 [RIN 2070–AJ22] to evaluating and managing pesticide and drug rela ted adverse incidents. Information calls are 790

tallied separately and not counted as incidents. The NPDS system covers nearly the entire United 791

States and its territories, but the system is clini cally oriented and not designed to collect detailed 792

occupational incident data. 793

Three studies showing undercountin g of poison control data indi cate the magnitude of the 794

problem. The studies each focus on a specific region and compare cases reported to poison 795

control with those poisonings for which there are hospital records. In all three cases, the studies 796

indicate a substantial un derreporting of poisoning incidents to poison control, especially related 797

to pesticides (Ref. 8) (R ef. 9) (Ref. 10). Underreporting of pe sticide incidents is a challenge for 798

all available data sources for a number of reasons, as discussed below. 799

Symptoms of acute pesticide poisoning are of ten vague and mimic other causes, leading 800

to incorrect diagnoses, and chroni c effects are difficult to iden tify and track. The demographics 801

of the worker population also contribute to unde rreporting of incidents. Many incident reports 802

lack useful information, such as the exact pr oduct that was the sour ce of the exposure, the 803

amount of pesticide involved, or the circumst ances of the exposure. There may not be enough 804

information to determine if the adverse effects note d were in fact the resu lt of pesticide exposure 805

and not another contributing fact or. A more complete discussion of the underreporting and its 806

effect on pesticide incident reporting is located in the Economic Analysis for this proposal (Ref. 807

1). 808

The data available do provide a snapshot of the illnesses faced by workers and handlers 809

in the field and the likely avenues of exposure. Review of these data sources shows that workers 810

and handlers continue to face avoidable occ upational pesticide exposure. The most common 811

types of incidents are related to pesticide drif t and unpermitted entry into an area under an REI 812*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 38 of 340 [RIN 2070–AJ22] (Ref. 11). Often handler exposure occurs when handlers are using PPE and do not wear the PPE 813

properly or the PPE malfunctions. Generally, report s on the data note that many of the incidents 814

could be prevented with st rengthened training for handl ers and workers and improved 815

notification when an applicati on is occurring or a treated ar ea is under an REI (Ref. 11). 816

C. Other Worker Protection Programs 817

EPA’s Pesticide Worker Safety Program is comprised of three major components: 818

protections for agricultural la bor through the WPS (40 CFR part 170), described in Unit III.D.; 819

certification of RUP applicator s; and the National Strategies for Health Care Providers: 820

Pesticides Initiative (Health Care Providers Initiative). EPA uses its field programs and 821

cooperative agreements to distribute informati on on the risks associated with pesticides, 822

developing technology, and self-prote ction to avoid pesticide expos ure. All three field programs 823

solicit feedback from the regulated and affected communities to EPA about the effect of the 824

pesticide labels and mitigation measures. To impl ement these programs, the Office of Pesticide 825

Programs works with an extensive network of pa rtners, including state and tribal pesticide 826

regulatory agencies; USDA’s Nati onal Institute of Food and Agri culture (NIFA) (formerly the 827

Cooperative State Research, Education, and Extension Service (CSREES)); university 828

cooperative extension se rvices; farmworker groups; and th e regulated community. EPA funds 829

collaborative field projects and activities through grants with governmental and non830

governmental organizations with the goal of improving the health of workers, handlers, 831

applicators, the public, and the environment. 832

Under the Certification of Pesticide Applicators rule , 40 CFR 171, EPA establishes 833

standards for the competency of applicators w ho use RUPs. The rule requires applicators to 834

demonstrate competency to become certified to apply RUPs. Part 171 also has a section outlining 835*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 39 of 340 [RIN 2070–AJ22] the requirements for states, federal agencies, a nd tribes to administer a program to certify 836

applicators in their jurisdictions. All states and several tribes, territories, and federal agencies 837

administer their own applicator certificati on programs. EPA provide s funding through an 838

interagency agreement with USDA to support the training of app licators using RUPs through the 839

cooperative extension serv ices in each state. 840

The third prong of the Pesticide Worker Safe ty Program is the Health Care Providers 841

Initiative, aimed at improving the training of h ealth care providers in the recognition, diagnosis, 842

and treatment of occupational pesticide poisoning s. EPA collaborated in the development of a 843

manual for health care providers called “Recogni tion and Management of Pesticide Poisonings” 844

(Ref. 12). This resource outlines the health effects associated with different classes of pesticides 845

and suggests treatments based on the suspected exposure. 846

Under this initiative, EPA also works closel y with the Migrant Clinicians Network, an 847

organization of health care pr oviders serving the migrant comm unity, on a project to improve 848

pesticide education and awarene ss and to train health care pr oviders to recognize and treat 849

pesticide-related conditions. This project also includes the developm ent of relevant resources and 850

tools that health care providers can use to de al effectively with pesticide-related health 851

conditions, and the distribution of these products through training sessi ons, the Internet, and 852

continuing educati on opportunities. 853

D. EPA-OSHA Relationship 854

The Occupational Safety and Health Act, 29 U.S.C. 651 et. seq., grants the Occupational 855

Safety and Health Administration (OSHA) auth ority to promulgate regulations to mitigate 856

significant risks that may occur in the occupati onal setting. Under its st atutory authority, OSHA 857

promulgated a Hazard Communication Standa rd (HCS) (29 CFR 1910.1200) to protect 858*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 40 of 340 [RIN 2070–AJ22] employees from general chemical hazards in th e workplace. OSHA also establishes industry, 859

chemical, and process-specific standards to ad dress workplace hazards that warrant additional 860

regulatory measures to ensure employ ees’ occupational safety and health. 861

Except as limited by section 4( b)(1) of the Occupational Safe ty and Health Act, which 862

prohibits OSHA from regulating working conditions or hazards where other federal agencies 863

exercise statutory authority to prescribe or to enforce standards for occupational safety and 864

health, OSHA’s HCS covers all industries in wh ich an employee may be exposed to a chemical 865

hazard in the workplace. OSHA based the HCS on employees’ right to know about chemical 866

hazards in the workplace in order to make inform ed decisions about their work practices, to 867

better protect themselves, and to reduce their chances of illness or injury from a workplace 868

accident. OSHA determined that employees are at a significant risk of experiencing adverse 869

health effects in the absen ce of knowledge of workplace hazar ds. Among other things, the HCS 870

requires employers to provide the foll owing protections in the workplace: 871

• Develop, implement, and maintain a wr itten hazard communication program; 872

• Maintain a written list of all hazardous chemical products and substances known to be 873

present; 874

• Ensure labeling of all chemical containers; 875

• Provide employees with effective informa tion and training on chemical hazards; and 876

• Maintain a copy of the safety data sheet (S DS, formerly known as Material Safety Data 877

sheet, or MSDS) containing the chemical and phy sical hazard information for each hazardous 878

chemical, and ensure that SDSs are readily a ccessible to employees when they are at the 879

workplace. 880*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 41 of 340 [RIN 2070–AJ22] To address the statutory limitation in section 4(b)(1) and to ensure workplace protections 881

of agricultural workers and ha ndlers, OSHA and EPA formed a working group to discuss the 882

jurisdictional overlap between OSHA’s authorit y over workplace safety and health and EPA’s 883

mandate to protect those who work with and aro und pesticides from the risks associated with 884

exposure. OSHA and EPA sought to coordinate regulations rela ted to workplace safety and 885

health and to ensure that they were within th e scope of each agency’s statutes. EPA and OSHA 886

agreed that OSHA’s Field Sanitation Standard ad dresses general sanitary standards, while EPA’s 887

WPS decontamination requirements are specific to pesticide hazards. EPA stated that the 888

intended reach of the WPS was limited to occupati onal safety for pesticides and that OSHA was 889

not preempted from regulating any non-pesticid e chemical or other workplace hazards in 890

agriculture. OSHA established a policy not to cite employers covered under the WPS for 891

pesticide-related HCS standards. The policy also defers to EP A’s regulatory authorities for 892

pesticide labeling and use, certific ation of pesticide applicators, and protection of handlers and 893

workers on establishments c overed by the WPS (Ref. 13). 894

V. Sources of Information for Improvement of Worker Protection 895

A. History of the WPS Regulation 896

In 1974, EPA promulgated the first versi on of the WPS (39 FR 16888; May 10, 1974). 897

The regulation provided health protections for wo rkers exposed to pesticides from hand labor 898

activities during and afte r applications. The 1974 regulations contained four basic elements: 899

• A prohibition against spraying workers, 900

• Specific reentry intervals for 12 pesticides and a general reentry interval for all other 901

agricultural pesticides, prohibi ting entry until sprays had drie d or dusts had settled; 902*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 42 of 340 [RIN 2070–AJ22] • A requirement for protective clothing for any worker who had to reenter treated areas 903

before the specific reentry in terval had expired; and 904

• A requirement for “appropriate and timely” warnings. 905

A 1983 review of the WPS concl uded that the 1974 re gulation did not adequately protect 906

workers (49 FR 32605; August 15, 1984). New info rmation was becoming available about the 907

use of pesticides and the impact on occupati onal safety and health. OSHA had promulgated 908

occupational health standards for workers in non -agricultural industries that provided greater 909

protections than those containe d in the WPS. The OSHA Standa rds included requirements for 910

notifying workers of workplace chemicals to which they are exposed, personal protective 911

equipment to mitigate risks of exposure, hygiene f acilities, medical survei llance, worker training 912

programs, and recordkeeping. EPA considered the addition of similar protections to the WPS. 913

In addition to the shortcomings of the protectio ns in the 1974 rule, there were legal issues 914

with respect to the enforcement of the prot ections. EPA realized that the four existing 915

requirements of the WPS were not typically incl uded on the pesticide labels. Without a reference 916

to the regulation on the labeling, the requirement s were not legally enforceable. Moreover, the 917

regulation itself did not clearly assign responsibility for compliance with the requirements; for 918

example, workers were prohibited from ente ring treated areas, but nobody was charged with 919

communicating the prohibition to the workers or ensuring that th ey did not enter. 920

The Agency also wanted to expand the scope of the regulation to cover sites that had 921

been exempted but were similar to farms, i.e ., forests, nurseries, and greenhouses, and to add 922

another group of people facing occupational pest icide exposure in agriculture - handlers who 923

mix, load, or apply pesticides. Their occupationa l exposure profile is distinct from that of 924

workers protected by the initial WPS. When mixing, handlers may face exposure while pouring 925*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 43 of 340 [RIN 2070–AJ22] the concentrated pesticide or stirring the di luted mix. Loaders and applicators handle many 926

gallons of the diluted pesticide and may experience exposur e while transferring the pesticide 927

mixture into the application equipment or maki ng the application. The Agency believed that 928

expanding the WPS to include the additional site s and adding specific protections for handlers 929

was necessary. 930

In 1984, the Agency published an Advance Notice of Proposed Rulemaking (49 FR 931

32605; August 15, 1984), announcing its intention to revise th e 1974 rule for the reasons 932

outlined above and soliciting public comment. EPA also initiated a process of regulatory 933

negotiation with parties interested in or aff ected by the WPS. Stakeholders with competing 934

interests worked to resolve issues through collaboration and compromise. EPA convened a 935

Federal Advisory Committee Act (FACA) work group, “The Advisory Committee on WPS for 936

Agricultural Pesticides,” that had members repr esenting a spectrum of st akeholder perspectives 937

from 25 entities. Certain labor representatives discontinued their participation early in the 938

process. As a result, the full committee did not participate in decision making; therefore, a 939

consensus on proposed changes to th e regulation could not be reached. 940

The public comments helped the Agency refi ne the areas for proposed change. In 1988, 941

EPA published a Notice of Proposed Rulemaking (NPRM) (53 FR 25970; July 8, 1988) that 942

proposed significant changes to the then existing WPS, including the following: 943

• Expansion of the scope of establishments covered; 944

• Revision of reentry intervals to correlat e with risks posed by each pesticide; 945

• Revision to the PPE requirements; 946

• Improvement to worker notif ication provisions; and 947*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 44 of 340 [RIN 2070–AJ22] • Strengthening compliance with the regulation by designating specific responsibilities of 948

agricultural employers. 949

Following the publication of the NPRM, EPA held public meetings across the country, primarily 950

in major agricultural areas, to explain the proposed rule and to respond to questions. EPA 951

received 380 written comments from the public on the proposed rule. 952

After review and careful analysis of the public comments, the Agency promulgated the 953

final rule, revising the WPS and adding Subpart K (Labeling Requirements for Pesticides and 954

Devices) to 40 CFR part 156 in August 1992 (57 FR 38101; August 21, 1992). Shortly after 955

publication of the final rule, agricultural groups raised concerns related to the availability of 956

materials necessary to implement the rule and insufficient numbers of qualified trainers. Based 957

on these concerns, Congress enacted legislation de laying implementation of the final rule. EPA’s 958

revisions to the WPS were fully implemen ted in 1995. The expanded regulation provided 959

protections for agricultural workers from pesticid e exposure on farms and in forests, nurseries, 960

and greenhouses; included agricu ltural handlers; and held agricu ltural employers and pesticide 961

applicators responsible for complying with specific portions of the regulation. 962

Since promulgating the WPS in 1992, EPA ha s made several minor amendments. In 963

1995, EPA published a series of Fe deral Register notices: (1) re ducing the grace period for 964

agricultural employers to provide pesticide safety training to workers from 15 days to 5 days (60 965

FR 21943; May 3, 1995), (2) establishing a 5-year re training interval for workers and handlers 966

(60 FR 21943; May 3, 1995), (3) ex empting certain persons performing crop advisor tasks from 967

WPS provisions except for pesticide safety tr aining, (60 FR 21948; May 1995), and (4) creating 968

exceptions to the WPS to allow workers to en ter pesticide-treated areas during an REI under 969*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 45 of 340 [RIN 2070–AJ22] specified conditions to perfor m irrigation tasks (60 FR 21960; May 3, 1995) and tasks that 970

involve limited contact with pesticide-tr eated surfaces (60 FR 21955; May 3, 1995). 971

In 1996, EPA amended the regulation to: (1) re duce the number of days employers must 972

provide to workers decontamination supplies (soa p, water, paper towels) after application of 973

pesticides that are low risk a nd have REIs of four hours or le ss (61 FR 33207; June 26, 1996), (2) 974

allow substitution of the language commonly spoke n and read by workers for the Spanish portion 975

of the warning sign (61 FR 33202; June 26, 1996), and (3) allow the use of smaller signs in 976

nurseries and greenhouses (61 FR 33202; June 26, 1996). 977

Lastly, in 2004, EPA pub lished a notice in the Federal Register revising the WPS glove 978

requirements. This notice allowed all early-entry workers and handlers to wear disposable glove 979

liners under chemical-resistant gloves and eliminated the requirement for aerial applicators to 980

wear chemical-resistant gloves when entering and ex iting aircraft that have been used to apply 981

pesticides unless required by the labe ling (69 FR 53341; September 1, 2004). 982

During the course of the states' implemen tation of the 1992 WPS regulation, regulatory 983

partners, the regulated community, and othe r stakeholders raised numerous policy and 984

enforcement questions. EPA addressed most of th ese questions through refe rence to the official 985

rule text or the Agency’s responses to public comments on the proposed rule. Some questions, 986

however, raised interpretive issues that requ ired the Agency to develop and issue interim 987

guidance. EPA coordinated the development of guidance through an interpretive guidance 988

workgroup (IGW) using a collaborative process th at included all releva nt and affected EPA 989

offices, and state regulatory partners from the Florida Department of Ag riculture and Consumer 990

Services and the New Mexico De partment of Agriculture. The St ate FIFRA Issues Research and 991

Evaluation Group nominated the stat e participants on the IGW. 992*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 46 of 340 [RIN 2070–AJ22] The IGW addressed the questions raised by stakeholders. The final IGW guidance 993

clarified definitions for terms used in the rule, the scope of the WPS exceptions, and the intended 994

scope and/or limits of provisions. The final IG W guidance has been compiled into a document 995

available to the public (Ref. 14). 996

Although the IGW document provided answer s to many of the issues raised by 997

stakeholders to EPA, it is only guidance. Ther efore, the IGW document is not legally binding on 998

EPA, workers, handlers, agricultu ral establishments, and others. EPA proposes to codify certain 999

of the elements in the IGW guidance document, as discussed in Units VII through XVIII. 1000

At the same time EPA published the 1992 WPS, the Agency also published an NPRM on 1001

a Hazard Communication/Right-to-Know program for agricultural workers (57 FR 38167; 1002

August 21, 1992). This NPRM responded to comme nts received in re sponse to the 1992 1003

proposed rule noting that protecti ons for agricultural workers coul d not be considered complete 1004

until workers were provided with specific hazard information. Many comments called for EPA to 1005

adopt requirements parallel to those imposed by OSHA rules. In the 1992 proposed rule, EPA 1006

proposed options for providing written inform ation about the specific hazards posed by 1007

pesticides in the workplace, for alleviating confusion about possible conflict and duplication 1008

between EPA and OSHA regulation of occupationa l safety and health in pesticides, and for 1009

supporting states in developing their own hazard communication programs. EPA never 1010

promulgated a rule finalizing a Hazard Communi cation/Right-to-Know pr ogram for agricultural 1011

workers because Agency resources were diverted to develop training and compliance assistance 1012

materials to implement the WPS as mandated by C ongress. The Agency also wanted to solicit 1013

more stakeholder feedback about states’ expe riences implementing different approaches to 1014

hazard communication before moving fo rward with a final regulation. 1015*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 47 of 340 [RIN 2070–AJ22] B. Stakeholder Engagement 1016

Over the last 20 years, the Agency has repe atedly engaged the public and particularly 1017

affected stakeholders in the assessment of the 1992 WPS and its implementation. This 1018

stakeholder engagement process has provided EP A with a deep appreciation of the complex 1019

challenges facing federal, state a nd tribal authorities, agricult ural employers, and workers and 1020

handlers in the ongoing effort to ensure pesticide use is safe. 1021

Immediately following full implementation of the 1992 WPS, EPA began the Pesticide 1022

Dialogue Process. From 1996 to 2000, EPA held public meetings across the country for open 1023

dialogue on rule implementation, challenges in co mpliance, and perceived effectiveness. The 1024

meetings were open to the general public. 1025

The Agency initiated the National Assessment of EPA’s Pesticide Worker Safety 1026

Program (National Assessment) in 2000. Through this process, EPA convened stakeholder 1027

meetings in Texas, California, and Florida. Participants included representatives from 1028

farmworker organizations, cooperative extensi on services, commodity organizations, state 1029

regulatory agencies, federal agencies, pesticide manufacturers and distri butors, and individual 1030

workers, handlers, and growers. Stakeholders provided information about the strengths and 1031

weaknesses of the WPS’s protections and impl ementation. EPA established three workgroups: 1032

general training (Ref. 15), train-the-trainer (Ref. 16), and h azard communication. Each of the 1033

workgroups met apart from the public meetings to assess specific aspect s of the WPS and to 1034

recommend improvements. EPA held a final meeting in Washington, DC at which the 1035

workgroups presented th eir findings to EPA. 1036

The assessment concluded in 2005 with the pr esentation of the “Report on the National 1037

Assessment of EPA’s Pesticide Worker Safety Program” (Ref. 17). The opinions and suggestions 1038*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 48 of 340 [RIN 2070–AJ22] made during the course of the assessment centered on a few broad improvement areas: the 1039

expansion and upgrade of applicator competency a nd worker safety and promotion of safer work 1040

practices, improved training of and communication with all pesticide workers, increased 1041

enforcement efforts and improved training of insp ectors, training of hea lth care providers and 1042

monitoring of pesticide incident s, and finally, program operati on, efficiency, and funding (Ref. 1043

17 p. 1). While EPA addressed some of the reco mmendations through grants, program guidance, 1044

and other outreach, others require d regulatory change (Ref. 17 p. 26). 1045

During the initial stages of the framing of this proposal, EPA’s Federal Advisory 1046

Committee, the Pesticide Program Dialogue Co mmittee (PPDC), formed a workgroup in 2006 to 1047

provide feedback to EPA on different areas for change. The workgroup had over 70 members 1048

representing a wide range of stakeholders. EPA shared with the workgroup suggestions for 1049

regulatory change identified through the Na tional Assessment and solicited comments. The 1050

workgroup convened for a series of meetings a nd conference calls to get more information on 1051

specific parts of the regulation and provided it s thoughts to the Agenc y. The workgroup never 1052

reached consensus; it focused on evaluating possible changes under consideration by EPA 1053

providing feedback from each member’s or or ganization’s perspective. Comments from the 1054

PPDC workgroup members have been compiled into a single document and pos ted in the docket. 1055

EPA convened a Small Business Advocacy Revi ew (SBAR) Panel on potential revisions 1056

to the WPS in 2008. The SBAR Panel was conve ned under section 609(b) of the Regulatory 1057

Flexibility Act as amended by the Small Busi ness Regulatory Enforcement and Fairness Act 1058

(SBREFA). As part of the SBAR Panel’s activities, EPA consulted with a group of Small Entity 1059

Representatives (SERs) from small businesses an d organizations that could be affected by the 1060

potential revisions. EPA provided the SERs with information on the WPS and potential revisions 1061*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 49 of 340 [RIN 2070–AJ22] and requested feedback on the proposals under co nsideration. EPA asked the SERs to offer 1062

alternate solutions to the potential proposals pres ented to provide flexibility or to decrease 1063

economic impact for small entities while stil l accomplishing the goal of improved safety. 1064

The SERs provided feedback on the following areas: Requiring all tr eated areas to be 1065

posted, requiring pesticide safety training more frequently than every 5 years, eliminating the 1066

grace period between hiring a worker and provi ding pesticide safety training, and requiring 1067

showers on establishments that employ handlers. EPA compiled the responses from the SERs in 1068

an Appendix to the final Panel Report and poste d the full report and appendix in the docket (Ref. 1069

18). EPA considered the input from the SERs as part of the evaluation of available options for 1070

this rulemaking, and where appropriate, feedback from the SERs is discussed in various 1071

descriptions of proposed changes in this preamble. 1072

In addition to formal stakeholder ou treach, EPA met with numerous individual 1073

stakeholders when requested to discuss concerns and suggestions in detail. Stakeholders included 1074

farmworker organizations (Farmworker Justice, Migrant Clinicians Network, and El Comité de 1075

Apoyo a los Trabajadores Agrícolas [Far mworker Support Committee]); the National 1076

Association of State Departments of Agricult ure (NASDA); the Association of American 1077

Pesticide Control Officials (AAPCO); Crop Life America (CLA); and others. 1078

C. GAO Audits 1079

In 1992, prior to the promulgation of the am ended WPS, the General Accounting Office 1080

(now the Government Accountability Office; GAO) published “Hired Farmworkers: Health and 1081

Well-Being at Risk” (Ref. 19). The report discussed a number of services, such as social 1082

security, housing, field sanitati on, job training and employment programs, children’s education, 1083*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 50 of 340 [RIN 2070–AJ22] and other issues that the government would need to address to provide better conditions for 1084

farmworkers. 1085

The 1992 report noted that at that time, EPA lacked an understa nding of the health risks for 1086

many older pesticides, placing workers at risk from potentially unsafe expos ure. The report also 1087

noted that the 1974 rule requirement to limit work er entry into treated areas was difficult for 1088

workers to follow. It prohibited reentry until “s prays have dried or dusts have settled,” language 1089

that involved subjective judgments. The 1992 amendm ents to the WPS partially addressed these 1090

issues by requiring interim protec tive intervals for worker entry into treated areas based on the 1091

acute toxicity of the product. Since that time, EPA’s reregist ration program, through which EPA 1092

reviewed and assessed older pesticides to ensure they continue to meet the FIFRA regulatory 1093

standard, has been completed. See Unit III.C. Thr ough that process, chemical-specific protective 1094

reentry intervals have replaced the interim intervals. 1095

In 2000, GAO issued another report, “Pesticide s: Improvements Needed to Ensure the 1096

Safety of Farmworkers and Their Children,” (Ref. 20). In this report, GAO focused more 1097

specifically on the potential risks to children of en tering a pesticide-treate d area. It noted that 1098

children under 12 years old may ha ve a higher risk of adverse effects related to pesticide 1099

exposure and should be protecte d adequately. It also cited EPA data on WPS enforcement, 1100

noting the lack of consistency and involvemen t by EPA in monitoring the inspections and the 1101

need to have target numbers of inspections. The report recommended that EPA “mitigate the 1102

potential adverse effects of pesticide exposure on children below the age of 12 who work in 1103

agriculture or are otherwise pres ent in pesticide-treated fields” (Ref. 20 p. 24). It also suggested 1104

that EPA improve oversight of state-level W PS enforcement and set standard guidance for 1105

inspections. 1106*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 51 of 340 [RIN 2070–AJ22] D. Environmental Justice 1107

Executive Order 12898 (59 FR 7629; February 16, 1994) established federal executive 1108

policy on environmental justice. It directs federal agencies, to the greatest extent practicable and 1109

permitted by law, to make environmental justice part of their missions by identifying and 1110

addressing disproportionately high and adverse human health or environmental effects of their 1111

programs, policies, and activitie s on minority and low-income populations in the United States. 1112

The Executive Order establishes four areas for action: 1113

• promote enforcement of all health and envi ronmental statutes in areas with minority 1114

populations and low-in come populations; 1115

• ensure greater public participation; 1116

• improve research and data co llection relating to the health and environment of minority 1117

populations and low-in come populations; and 1118

• identify differential patterns of consum ption of natural re sources among minority 1119

populations and low-income populat ions. In addition, the environm ental justice strategy shall 1120

include, where appropriate, a timetable for undert aking identified revisions and consideration of 1121

economic and social implications of the revisions. 1122

EPA’s goal is to promote environmental just ice for all communities and persons across 1123

the United States, regardless of race, color, na tional origin, or income. Ensuring environmental 1124

justice means not only protecting health and the environment for everyone, but also ensuring that 1125

all people are treated fairly and are given the opportunity to partic ipate fully in the development, 1126

implementation, and enforcement of environmenta l laws, regulations, and policies. Consistent 1127

with the Executive Order, the Agency’s envir onmental justice policies promote environmental 1128*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 52 of 340 [RIN 2070–AJ22] protection by focusing EPA’s attention and e fforts on addressing environmental risks among 1129

minority populations. 1130

As discussed above in Unit IV.A., most work ers and handlers intended to be protected by 1131

the WPS face significant disadvantages. Most agricultural workers and handlers belong to 1132

minority groups. Agricultural workers tend to have low literacy in any language and very limited 1133

skills in English. Very often workers do not have permanent housing and generally reside close 1134

to agricultural areas where pesticides are applied. Many workers and handlers are not residents 1135

or legal aliens in the United States. The low literacy rates, range of non-English languages 1136

spoken by workers and handlers, economic situat ion, geographic isolation, difficulty accessing 1137

health care, and immigration status of worker s and handlers pose challenges for communicating 1138

risk management information and ensuring th at these groups are ad equately protected. 1139

Occupational tasks performed by workers and handlers create a si gnificant risk of 1140

pesticide exposure, which is increased by th e communication barriers discussed above. In 1141

addition to potential exposure through work duties, studies show that workers and handlers face 1142

a greater risk of exposure to pesticide drift from neighboring areas than does the general 1143

population (Ref. 21). Pesticide e xposure can also come through residues transferred by workers 1144

and handlers on their clothing and body from the tr eated areas to their ca rs and homes, and from 1145

the proximity of the housing to ag ricultural areas treated with pest icides (Ref. 21) (Ref. 22) (Ref. 1146

23) (Ref. 24). Finally, pesticide exposure may occu r from the consumption of treated foods in the 1147

treated area or washing hands in pesticide contaminated water (R ef. 25) (Ref. 26) (Ref. 27 p. 25). 1148

Throughout the development of this proposed rule, the Agency has continued to use 1149

research on the demographic characteristics, work habits, and culture of the worker and handler 1150

populations to revise the WPS to ensure it pr ovides effective protection. Information for the 1151*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 53 of 340 [RIN 2070–AJ22] assessment and development of the rule was gather ed through field research and interaction with 1152

workers, handlers, worker and handler repres entatives, and stakeholders. EPA extensively 1153

engaged farmworker representatives, and when possible, worked direct ly with workers and 1154

handlers, to solicit their fee dback on the current regulation and ideas for improvement. 1155

With this stakeholder input, the Agency id entified areas where the existing WPS does not 1156

provide an appropriate level of protection and evaluated the potent ial impact of various options 1157

for strengthening the WPS for the worker and hand ler populations. That anal ysis identified areas 1158

for improvement to the rule, such as expandi ng training to provide information on how to 1159

minimize worker and handler exposur e and that of their families fr om pesticide residues carried 1160

from the treated area to the home. The Agency’s efforts to address envi ronmental justice through 1161

this rulemaking were reviewed repeatedly duri ng the development of the rule and its supporting 1162

documents. EPA believes that the proposed change s would improve the health of workers and 1163

handlers by, for example, increasing the frequenc y of training, enhancing training content to 1164

include ways to minimize pesticide exposure to children and in the home, adding posting of 1165

treated areas near worker and handler housing to prevent accidental entry, and establishing a 1166

minimum age for pesticide handl ers and early-entry workers. 1167

E. Children’s Protection 1168

An Executive Order issued in 1997 (62 FR 19885; April 23, 1997) and modified in 2003 1169

(68 FR 19931; April 23, 2003) requires federal agen cies to identify and assess environmental 1170

health risks that may disproportionately affect children. In response to this mandate, EPA 1171

established the Children’s Health Protection Advi sory Committee (CHPAC) to advise and make 1172

recommendations to EPA on issues related to children’s environmental health. The CHPAC 1173

recommended that EPA “re-evaluate the worker protection standard in order to determine 1174*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 54 of 340 [RIN 2070–AJ22] whether it adequately protects chil dren's health” (Ref. 28). In a Fede ral Register Notice issued on 1175

February 3, 1999, EPA committed to conducting an assessment of the implementation and 1176

enforcement of the WPS (64 FR 5277; February 3, 1999). 1177

Children face risks from exposure to agricu ltural pesticides mainly through work in 1178

pesticide-treated areas. A 2003 study by Calvert, et al. identified 531 children under 18 years old 1179

with acute occupational pesticid e-related illnesses ove r a ten-year period (Ref. 29). The same 1180

study raised concerns for chroni c impacts: “because [the] acute illnesses affect young people at a 1181

time before they have reached full developmenta l maturation, there is also concern about unique 1182

and persistent chronic effects” (Ref. 29). 1183

Although no conclusive data exist, studies have been conducted to evaluate whether 1184

children of agricultural workers and handlers ma y face elevated potential for exposure from 1185

pesticide residues brought to th e home by their parents (Ref. 30) (Ref. 31). Studies have also 1186

been conducted to evaluate whether this exposur e scenario may have contributed to negative 1187

health or developmental effects (Ref. 32). Higher concentrations of pesticide residues combined 1188

with the susceptibility of children to the effects of pesticide exposure ma y increase the likelihood 1189

that children will be adversely impacted. EPA re cognizes the need for more conclusive data on 1190

exposure to children from pestic ide residues brought into the home by agricultural workers. 1191

However, given EPA’s commitment to protecting ch ildren and to the princi ples of environmental 1192

justice, EPA believes the cost of adding a few mi nutes to pesticide safety training is reasonable 1193

when compared to the benefit of reducing the potential risk. 1194

Under the Department of Labor’s Fair La bor Standards Act of 1938, children may work 1195

at younger ages and in more hazardous tasks in agri culture than is permitted in other industries. 1196

For example, the current law permits children as young as 10 years old to work in agriculture 1197*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 55 of 340 [RIN 2070–AJ22] under limited circumstances (29 CFR 575). Childr en under 16 years old are prohibited from 1198

doing hazardous tasks, including hand ling or applying pesticides that are classified as toxicity 1199

category I or II but can apply pesticides that are classified with a lower acute toxicity. (29 CFR 1200

570.71(a)(9)) 1201

In summary, children working in agriculture and children of agricultural workers and 1202

handlers may be at a higher risk of pesticide ex posure and illness; EPA believes these potential 1203

risks warrant careful considerati on in light of the pr ovisions of the Executi ve Order on children’s 1204

health (EO 13296). EPA believes that the proposed changes could protect children from many of 1205

the risks they may face. 1206

F. Retrospective Regulatory Review 1207

On January 18, 2011, the President issued Executive Order 13563 (76 FR 3821-23), 1208

requiring agencies to, among other th ings, engage in a retrospective analysis of existing rules. 1209

The purpose of the review is to promote cons ideration of “rules that may be outmoded, 1210

ineffective, insufficient, or excessively burdensom e, and to modify, stream line, expand, or repeal 1211

them in accordance with what has been learned.” The order directs agencies to engage with the 1212

public, especially all potentially a ffected stakeholders, in reviewing the impact of the rule and 1213

considering flexible options to promote compliance. 1214

In 2005, EPA reviewed the WPS pursuant to section 610 of the Re gulatory Flexibility 1215

Act (5 USC 610). The purpose of the review was to determine whether the rule should be 1216

continued without change, amended, or resc inded to minimize economic impacts on small 1217

entities while still complying with the provisi ons of FIFRA. EPA solicited comment on the 1218

continued need for the WPS; the complexity of the WPS; the extent to which it overlaps, 1219

duplicates, or conflicts with other federal, stat e, or local government rules; and the degree to 1220*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 56 of 340 [RIN 2070–AJ22] which technology, economic conditi ons or other relevant factor s have changed since the WPS 1221

was promulgated. See EPA Docket ID nu mber OPP-2003-0115 at www.regulations.gov. The 1222

Agency received no comment on the action and c oncluded that the rule needs no revisions to 1223

minimize impacts on small entities while still complying with FIFRA. 1224

While EPA found that no changes were necessary to minimize the impacts on small 1225

entities, EPA believes that the WPS should be upda ted for the reasons discussed in the previous 1226

sections. EPA believes this proposal is consiste nt with Executive Order 13563 because it is the 1227

product of a review of the WPS that includes extensive stakeholder pa rticipation. Through the 1228

assessment process, EPA reviewed the 1992 WPS to determine whether the requirements were 1229

effective, sufficiently protective, and unduly burdensome on employers. As discussed in Unit 1230

V.B., EPA engaged in a substantial stakeholder engagement process, apart from the 2005 review 1231

mentioned in the previous para graph, to review the effectiven ess of the current regulatory 1232

requirements, to identify gaps in protection, and to determine flexible approaches to compliance 1233

for the regulated community. EPA engaged with small business representatives to explore 1234

flexible options for compliance. EPA believe s the proposed changes reflect the current 1235

understanding of the risks faced by workers and handlers, thereby substantially improving the 1236

protections afforded to workers and handlers under the WPS and decreasing the overall burden 1237

associated with compliance for employers. 1238

VI. Overview of Proposed Revisions to Part 170 1239

Earlier Units of this preamble describe the va rious ways that workers, handlers, and their 1240

families can be exposed to pesticides. The st akeholder engagement described in Unit V.B. 1241

resulted in many recommendations for EPA to revise the regulation. Through the SBAR panel, 1242*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 57 of 340 [RIN 2070–AJ22] SERs raised the need for EPA to be mindful of the burden the WPS imposes on small business 1243

and to reduce it wherever possible (Ref. 18). 1244

As discussed earlier in this document, EPA has imposed requirements on the use of 1245

pesticides with the intent of averting unreasona ble adverse effects to human health and the 1246

environment. These requirements include the WP S and pesticide-specific use restrictions found 1247

on product labeling. In spite of th ese protections, worker and handl er illnesses re sulting from 1248

pesticide exposure are documented, and the Agen cy believes they are underreported. Peer1249

reviewed studies, based on pesticide illness repor ting and surveillance initiatives show evidence 1250

of illnesses to workers and handlers. For exampl e, one study finds that acute pesticide poisoning 1251

incidents in the agriculture indus try “continues to be an important problem” (Ref. 11). This study 1252

examined pesticide poisoning incidents among agricultural workers from 1998-2005, and 1253

analyzed 3,271 cases. Illness rates varied by cate gory, but across agricultural worker categories, 1254

risks of poisoning were an or der of magnitude higher than for almost all non-agricultural 1255

workers, which include farmers, processing/p acking plant workers, and other miscellaneous 1256

agricultural workers. A study conducted by Das, et al ., identified 486 pesticide illness cases 1257

among California farmworkers for 1998-1999, based on a surveillance program with mandatory 1258

reporting by physicians. The study found that about half of all acute pesticide-related illness 1259

cases in the California surveillanc e system affected agricultural wo rkers (Ref. 33). Over a quarter 1260

of the poisonings were to those mixing, load ing or applying pestic ides. The most common 1261

symptoms were dermatological (about 44%), neur ological (about 39%), and gastrointestinal 1262

(about 38%), and the most common route of expos ure was skin contact, followed by inhalation 1263

and eye contact. 1264*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 58 of 340 [RIN 2070–AJ22] A 2008 report indicates that from 1998 to 2005 the major causes of occupational 1265

pesticide exposure were off-target drift, early reentry into a tr eated area, and pesticide use in 1266

conflict with the labeling (Ref. 11). Studies have been conducted to evalua te whether worker and 1267

handler families are exposed to pesticides because workers and handlers bring pesticide residues 1268

home on their body, shoes, and clothing (Ref. 23) (Ref. 24) (Ref. 34). These studies recommend 1269

that workers and handlers receive more specific information on how to protect their families and 1270

avoid exposure in the workplace (Ref. 23) (Ref. 24) (Ref. 34). 1271

EPA believes the proposed changes addre ss the specific avenues of occupational 1272

exposure and recognize the specific needs of the worker and handler population. Units VII. to 1273

XX. describe the proposed changes and alternativ e options considered by EPA. The presentation 1274

is generally structured to provide, where appropriate: 1275

• A concise statement of the proposed change; 1276

• The current WPS requirements; 1277

• Stakeholder feedback and resear ch supporting the proposed change; 1278

• A detailed description of the proposed ch ange and the rationale for the change; 1279

• An estimated cost; 1280

• A description of significant alternatives considered by EPA and the reasons for not 1281

proposing them; and 1282

• Specific questions on which the Agency seeks feedback. 1283

For purposes of discussion, EPA groups the proposed changes and considered 1284

alternatives as follows: 1285*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 59 of 340 [RIN 2070–AJ22] • Unit VII: Changes to the training for workers and handlers, including new 1286

recordkeeping requirements, multiple changes to the content of the training, and trainer 1287

qualifications. 1288

• Unit VIII: Changes to the worker and handler notifications includi ng posted and oral 1289

notifications and revisions to the warning sign content. 1290

• Unit IX: Hazard communication materials. 1291

• Unit X: Information that handlers and agricultural employers must exchange. 1292

• Unit XI: Handler restrictions including minimum age requirements for handlers. 1293

• Unit XII: Expansion of entry-restricted areas, minimum age requirements for workers 1294

entering a treated area under an REI, a nd clarification of the REI exceptions. 1295

• Unit XIII: Pesticide safety information disp lay, including location and content required. 1296

• Unit XIV: Decontamination requirements for handlers and early entry workers. 1297

• Unit XV: Emergency assistance. 1298

• Unit XVI: Personal protective equipment, including the use of closed systems. 1299

• Unit XVII: Monitoring handler exposure to cholinesterase-inhibiting pesticides. 1300

• Unit XVIII: Exemptions for immediate fam ily and crop advisors and exception to 1301

requirement for workers to be fully traine d before entering a pesticide-treated area. 1302

• Unit XIX: General revi sions to the WPS. 1303

• Unit XX: Implementation. 1304

VII. Training for Workers and Handlers 1305

The current WPS allows employers to utili ze a “grace period” to provide workers with 1306

basic training before entering th e treated area and before the 6 th day that workers begin working 1307

in an area covered by the WPS to provide the full pesticide safety training discussed below. This 1308*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 60 of 340 [RIN 2070–AJ22] provision is considered an excepti on to the training requirements; therefore, the current “grace 1309

period” and proposed amendments are discussed in Unit XVIII.C. 1310

A. Shorten Retraining Interv al for Workers and Handlers 1311

1. Overview. The WPS currently requires employers to ensure that workers and handlers 1312

are trained once every five years. EPA proposes to establish an annual retraining interval for 1313

workers and handlers in order to improve the ability of workers and handlers to protect 1314

themselves and their families from pesticide exposure. 1315

2. Existing WPS regulations. The WPS requires agricultural and handler employers to 1316

ensure that handlers and workers receive pesticid e safety training once every five years (40 CFR 1317

170.130(a) and 170.230(a)). This retraining time peri od was initially implemented to minimize 1318

burden on employers when pesticide safety tr aining was first introduced, due to the limited 1319

number of trainers available at the time. Worker and handler trainings, as discussed in Unit 1320

VII.E., provide information on protecting onese lf and family from pesticide exposure, 1321

recognizing and avoiding dangers in the workplace, and steps to take in the event of pesticide 1322

exposure. 1323

3. Summary of the issues. Many stakeholders have commen ted that a 5-year retraining 1324

interval is too long for workers and handlers to re tain the safety information (Ref. 17) (Ref. 28) 1325

(Ref. 35) (Ref. 15) (Ref. 36) (Ref. 37). Through th e National Assessment, le tters to the Agency, 1326

and feedback from PPDC on proposed options , various stakeholders have recommended 1327

shortening the current interval in order to im prove workers’ and handl ers’ understanding and 1328

recall of the material covered. The General Tr aining Issues Workgroup, with representatives 1329

from across the agricultural community, recomm ended shortening the re training interval for 1330*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 61 of 340 [RIN 2070–AJ22] workers and for the Agency to base the standa rd on retraining intervals for other similar 1331

professions (Ref. 16). 1332

Research has indicated the importance of re petition in an individual’s retention of 1333

information (Ref. 38). Stakeholders, particularly pesticide safety educators, have noted that 1334

“repeating basic safety messages increases adop tion of improved safety practices.” (Ref. 39) 1335

Providing training more frequently than the curr ent requirement of every five years may be 1336

especially beneficial for workers and handlers with limited knowledge of English or another 1337

widely used language, e.g., Spanish, or who have recently started working in an agricultural job, 1338

who may need additional review to fully unders tand the material. Worker advocacy groups and 1339

educators have repeatedly noted that more frequent training is important for the worker 1340

community. 1341

Additionally, a 2007 report for the EPA by JBS Internationa l titled “Hazard 1342

Communications for Agricultural Workers” reported that workers who were interviewed wanted 1343

more frequent training on pesticide safety (Ref. 40). Workers requested trai ning to occur at least 1344

at least once a year. 1345

Agricultural employers that provided inform ation to EPA during the SBAR panel process 1346

on the WPS stated that they already provide a nnual pesticide training, since verification of 1347

previous training can be difficult to achieve and the employers want to ensure they comply with 1348

the WPS. The Panel recommendations recognized the value of retraining , and specifically its 1349

ability to emphasize and remind th e worker of important safety principles (Ref. 18). State and 1350

federal enforcement agents have also noted the di fficulty in determining if a worker or handler 1351

has been trained, when relying on his recall of th e training material over a long time period, e.g., 1352

5 years. 1353*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 62 of 340 [RIN 2070–AJ22] 4. Details of the proposal/rationale. The Agency proposes to establish an annual 1354

retraining interval for workers and handlers. A ccordingly, this would reduce the maximum time 1355

between trainings for workers and ha ndlers from 5 years to 1 year. 1356

EPA believes that more frequent repetition of the protective principles outlined in the 1357

pesticide safety training is particularly impor tant given the demographics of the worker 1358

population. As data cited earlier show, workers generally have low literacy and limited 1359

understanding of English. Therefor e, it is important for workers and handlers to receive the 1360

information in a manner they understand and with su fficient frequency to ensure they retain the 1361

information. 1362

Research shows that adults remember only about 10% of what they hear and 50% of 1363

information that they see and hear (Ref. 41). EPA expects the more frequent review of pesticide 1364

safety information, in combination with the pro posal for expanded display of pesticide safety 1365

information at decontamination sites [see Unit XIII.A.], would improve retention of safety 1366

principles and hygiene practices cr itical to self-protection, reinfo rce the importance of protecting 1367

families from pesticide exposure, encourage ha ndlers’ adherence to label requirements, and 1368

remind workers and handlers of the obliga tions of their employe rs under the rule. 1369

This proposed rule reflects previously es tablished training requirements for similar 1370

occupational hazards. Federal agencies alrea dy require annual training when hazardous 1371

substances may be encountered in the workpl ace in many other industries. OSHA regulations 1372

require employers to provide annual training to pr otect employees from chemical hazards in the 1373

workplace including lead (29 CF R 1962.62(l)(1)), asbestos ( 1926.1101(k)(9)), and cadmium (29 1374

CFR 1926.1127(m)(4)). Under the Resource Cons ervation and Recovery Act (RCRA), EPA 1375

requires personnel at hazardous wast e treatment, storage, and dispos al facilities to have annual 1376*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 63 of 340 [RIN 2070–AJ22] training as well (40 CFR part s 264 and 265). The risks from pesticide exposure through 1377

agricultural work are similar to the threats posed by hazardous chemicals in other industries, and 1378

the Agency believes training requirements to pr otect agricultural worker s and handlers should be 1379

comparable to those required by OSHA. In a ddition, agricultural and handler employers may 1380

already be required to keep r ecords of annual training required by other regulations, such as 1381

those listed above. EPA believes that agricultural and handler em ployers would track an annual 1382

requirement for WPS training al ong with required OSHA traini ngs and employment records, 1383

such as those required by the Department of Labor. 1384

The proposed regulatory text concerning shorter retraining intervals for workers and 1385

handlers appears in §§170.101(a) and 170.201(a), re spectively, of today’s proposed rule. 1386

5. Costs and benefits. EPA estimates the cost of the requiring employers to provide 1387

pesticide safety to training workers annually wo uld be $8.8 million per ye ar. Training its workers 1388

would cost each agricultural establishment about $22 per year . EPA estimates the cost to 1389

employers to provide pesticide safety traini ng to handlers annually would be $3.5 million per 1390

year. The average cost of training handlers w ould be about $17 per year for agricultural 1391

establishments and $66 per year for commercia l pesticide handling es tablishments. For a 1392

complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of 1393

Proposed Revisions to the Worker Protection St andard,” Chapter 3 Cost Analysis (Ref. 1). 1394

While EPA can estimate the costs of this proposed change, quantif ying the benefits is 1395

more difficult. Nonetheless, based on the informa tion and expert views desc ribed in this section, 1396

it is reasonable to expect that more frequent trai ning would lead to better retention of information 1397

by workers and handlers, ultimately resulting in fewer incidents of pesticide exposure and illness 1398

in workers and handlers, reduced take-home e xposure, and better protection of children. The 1399*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 64 of 340 [RIN 2070–AJ22] Agency concludes that the estimated costs are reasonable when compared to the anticipated 1400

benefits resulting from the additional training. 1401

6. Alternative options co nsidered but not proposed . The Agency considered three 1402

alternative approaches to the retraining interval for workers and handlers. The first alternative 1403

was recommended by the SBAR panel, based on a comment from one of the SERs. This option 1404

would require annual retraining and offer sma ll establishments, those with fewer than 10 1405

employees, the option to provide training less frequently for workers (Ref. 18). A small 1406

establishment requesting flexibility would be re quired to maintain documentation to show that 1407

(1) no additional workers were hired within the retraining interval, (2) no new or different 1408

pesticide applications were made from the previo us year, and (3) they provided training for the 1409

specific workers on the establishment previously. If the establishment added any new employees, 1410

it would not be eligible to provi de less frequent training. The estim ated cost for this option would 1411

be about $7.9 million annually, or $60 for large agricultural establishments and $14 for small 1412

agricultural establishments. The Agency agrees th at this option could re duce the burden on small 1413

entities of providing annual trai ning, but it would also reduce the benefit workers would receive 1414

from annual retraining. Moreover, EPA notes that implementation of such an exception would 1415

increase recordkeeping burdens on all small estab lishments that would offset, to some degree, 1416

the savings for some establishments from not having to provide training. The additional 1417

recordkeeping costs were not quantified. Under th is exception, those small entities that added a 1418

new employee or applied a different pesticide duri ng the year would actually have higher costs, 1419

even though the overall burden on small entities might be somewhat smaller. Based on the 1420

marginal cost reduction, increased recordkeep ing burden, and potential risk to workers who 1421*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 65 of 340 [RIN 2070–AJ22] would not receive training annua lly, the Agency thinks that re quiring all establishments to 1422

provide annual training is more appropriate. 1423

EPA also considered a 2-year retraining inte rval for all establishments. EPA estimates 1424

that biennial training for workers would co st about $3.2 million per year, or about $8 per 1425

agricultural establishment per year. Biennial tr aining for handlers would cost about $1.6 million 1426

per year, or $8 per agricultural establishm ent and $27 per commercial pesticide handling 1427

establishment per year. While bi ennial training would provide more protection to workers and 1428

handlers than the current 5-year retraining interval, EPA believes the longer timeframe would not 1429

improve retention to the extent expected from annual training. Em ployers are already required to 1430

provide and track OSHA trainings and to maintain employment records, such as those required 1431

by the Department of Labor, on an annual basis; requiring pesticide safety training every 2 years 1432

could increase the burden on agricultural and ha ndler employers to track the WPS training on a 1433

different schedule. Representatives on the SBAR panel indicated that many employers already 1434

provide training on an annual basi s as part of their hiring pro cess (Ref. 42 p. 2). EPA believes 1435

that even with a biennial training requiremen t, many employers would continue to provide 1436

training annually. Therefore, the burden on empl oyers would not be significantly reduced by a 1437

biennial training requirement. EPA believes the costs of more frequent annual training are 1438

reasonable when compared to the anticipated be nefits, particularly when combined with the 1439

stakeholder reports that annual training is alread y provided in many cases. 1440

Finally, EPA considered requiring a written te st to gauge the work ers’ or handlers’ 1441

knowledge about the topics covered in training to ensure that they have the information needed 1442

for self-protection. The Agency, however, was dissu aded from this alternative due to concerns 1443

for the ability of workers and handlers to successf ully complete an exam, even when they have 1444*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 66 of 340 [RIN 2070–AJ22] been adequately trained, on account of literacy and language challenges among workers and 1445

handlers. Some stakeholders have indicated th at noncertified applicat ors, who have similar 1446

demographic profiles to workers an d handlers, may find it difficult to pass a written examination 1447

due to literacy and language barriers; the Ag ency believes workers and handlers may have 1448

similar difficulty (Ref. 36) (Ref. 37). Concerns exist for the perceived burden on employers for 1449

providing the time for needed training and exam -taking, and for the potential reduction in 1450

workforce when workers or handlers cannot pass the exam, despite being aware of the training 1451

content (Ref. 36) (Ref. 37). While testing might be a useful approach in some situations, the 1452

Agency believes that in this context a testing requirement is less likely than annual retraining to 1453

produce the desired improvements in workers’ an d handlers’ understanding of pesticide safety. 1454

Therefore, EPA is not proposing testing as an alternative to annual training. 1455

7. Request for comment. EPA specifically requests comment on the following questions: 1456

• Should EPA consider different pesticide safe ty training timing? If so, what timeframe 1457

and why? 1458

• Do you have information concerning the rela tionship between the frequency of training 1459

of workers and handlers and the frequency of inci dents of pesticide exposur e or illness? If so, 1460

please provide. 1461

• Are there other ways EPA could ensure that workers and handlers retain the information 1462

presented in pesticide safety tr aining so the retraining interval can be longer than one year? 1463

• Are there other burdens or bene fits associated with a 2-year retraining interval that EPA 1464

has not considered? 1465

• What would be the impact of a 1- or 2-y ear retraining interval on states and tribes? 1466

B. Establish Recordkeeping Requirements to Verify Training for Workers and Handlers 1467*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 67 of 340 [RIN 2070–AJ22] 1. Overview. The existing WPS does not establish any mandatory mechanism for 1468

verifying that a worker or handl er has received pesticide safety training. To improve compliance 1469

with the WPS training requirements and to addre ss the absence of documentation of worker and 1470

handler training, the Agency proposes to elim inate the voluntary tr aining verification card 1471

system and to require employers to maintain re cords of WPS worker and handler training for two 1472

years. In addition, the employer would be responsi ble for providing a copy of the record to each 1473

worker or handler upon completion of the trainin g. EPA believes a requirement for employers to 1474

maintain the training roster, an official reco rd, of employees’ traini ng would address current 1475

enforcement difficulties in verifying whether a worker or handler has received training. The 1476

requirement to provide workers and handlers with a copy of the training record would allow a 1477

subsequent employer to verify that the worker or handler had received training and to copy the 1478

training verification record for the subsequent employer’s own files. 1479

2. Existing WPS requirements. Presently, the WPS does not require agricultural 1480

employers to document that they provided th e training required under th e WPS for workers or 1481

handlers. The WPS also does not re quire trainers or employers to record who they trained, what 1482

training they provided, or when they provided pesticide safety training. However, a voluntary 1483

program was established that allowed states, trib es, and agricultural employers to use verification 1484

cards to identify workers and handl ers trained in accordance with the WPS. Participating states, 1485

territories, and tribes ha ve opted to distribute cards printe d by EPA or to generate agency1486

specific cards. States, territories, and tribes allo w distribution of the cards by trainers qualified 1487

under the WPS or under stricter requirements. A few entities require trai ners of workers or 1488

handlers to submit the names of those trained to the state regulatory agency; however, EPA does 1489

not maintain such a list. Under the current vo luntary training verifi cation card program, an 1490*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 68 of 340 [RIN 2070–AJ22] agricultural or handler employer who hires workers and handlers with valid training verification 1491

cards does not need to provide training until th e expiration date listed on the card. At least 20 1492

states, territories, or tribes continue to use the voluntary training card system (Ref. 43). 1493

3. Summary of the issues. Since 1998, EPA has received considerable feedback from 1494

stakeholders, including state regul atory partners, regarding the diffi culty of enforcing the training 1495

provisions of the WPS rule, primarily due to a lack of recordkeepi ng (Ref. 17) (Ref. 18). 1496

Inspectors have noted that they cannot consult a record to determine if the workers and handlers 1497

on the establishment have been trained. Their primary method for evaluating compliance with 1498

training requirements is to interview workers and handlers regarding th e content of training 1499

received or whether any training has occurre d. Stakeholders, including state inspectors and 1500

farmworker organizations, have indicated that in terview results may be compromised as workers 1501

and handlers may not recall the training they rece ived, may not connect the questions with the 1502

training information, and may not be able to comm unicate with the inspecto r in a language that 1503

both are comfortable speaking. Some workers an d handlers may feel intimidated and provide 1504

inaccurate responses due to a lack of anonymity. Some states and territor ies, including AZ, CA, 1505

HI, NV, NH, NJ, PA, and PR, have addresse d the issue through requiring a form of 1506

recordkeeping for worker and/or handler training, such as tr aining records maintained by the 1507

employer, training records submitted to the stat e, or making mandatory the voluntary training 1508

verification card system. California has implemen ted a requirement for employers to maintain 1509

records of handler training for 2 years (3 CCR 6724(e)). 1510

Some stakeholders voiced strong support fo r improved recordkeeping as discussed in 1511

reports from the National Assessment of EPA’s Pe sticide Worker Safety Program (Ref. 44). The 1512

General Training Issues Workgroup, convened as part of the National Assessment, 1513*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 69 of 340 [RIN 2070–AJ22] recommended that all trainers be required to ma intain records of traine d workers for the duration 1514

of the retraining interval, and suggested that EP A offer a variety of methods for employers to 1515

demonstrate compliance (Ref. 15). Farmworker orga nizations as well as other stakeholders have 1516

repeatedly emphasized the need to improve enfo rcement and compliance verification capabilities 1517

in order to assure greater protec tion for workers (Ref. 17) (Ref. 35). 1518

States, territories, and tribes have noted th at the voluntary trai ning verification card 1519

system is undermined by fraudulent cards. They c ite instances of worker s, handlers, and labor 1520

contractors illegally exchanging cards and altering the expirati on date. Without an expiration 1521

year printed on each card and annual reprinting of current verification cards, it is difficult to 1522

assess the validity of the card. W ithout any requirement for creati ng and maintaining records of 1523

training, it is virtually impossibl e to verify who has been trained. States have informed the 1524

Agency that workers perceive the card as a credential that potential employers may use to 1525

determine their employability. As a result, state agencies have reported that falsified cards are 1526

common because workers and handlers want to s how that they are employable. The Agency 1527

believes, based on information gathered since the implementation of the training verification 1528

card system, that the current system of voluntary training verification card s has proven to be an 1529

unreliable method of tracking and identifying tr ained workers (Ref. 37) (Ref. 45) (Ref. 46). 1530

4. Details of the proposal/rationale. The Agency proposes to require agricultural and 1531

handler employers to keep records of all work ers and handlers who recei ve pesticide safety 1532

training for 2 years on the agricultural establishm ent. Required information for the record of 1533

worker and handler training woul d include the trained worker’s or handler’s name, signature, 1534

date of birth, the date of trai ning, the trainer’s name, proof of trainer’s qua lification to train, the 1535

employer’s name, employer’s phone number or phone number of the establishment, and which 1536*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 70 of 340 [RIN 2070–AJ22] EPA-approved training materials we re used. EPA also proposes to require employers to provide 1537

a copy of the training record to each worker and handler upo n completion of the training. 1538

EPA believes these new recordkeeping re quirements would address some of the 1539

difficulties in effectively enforcing the existing rule raised by regulatory and farmworker 1540

advocacy stakeholders. This proposal would allo w inspectors to verify training through records 1541

retained by the employer and maintained by the workers and handlers themselves rather than 1542

solely through interviews with workers and handlers . The Agency’s proposal is flexible in that it 1543

would allow paper or electronic recordkeeping, so an employer could scan the training records 1544

with employees’ signatures and maintain electronic files. 1545

The recorded date of birth would be used to verify that the minimum age for handlers and 1546

early-entry workers has been met. [See Units XI.B . and XII.A.] Retaining the trainer’s proof of 1547

qualification to train would allow the inspector to de termine if the trainer met the criteria to be a 1548

trainer. [See Unit VII.D] 1549

EPA recognizes the importance of mainta ining some mechanism for workers and 1550

handlers to change employers without repeating pe sticide safety training each time they enter an 1551

establishment. EPA believes that the proposed option would meet the need for employers to 1552

verify that workers and handlers have received appropriate training by providing an official 1553

record rather than the voluntar y training verification card. The pr oposal to require employers to 1554

maintain specific records of worker and handler training and to provide a copy of the training 1555

record to each trained worker and handler w ould make the voluntary tr aining verification card 1556

program obsolete, redundant, and unnecessary. An employer could consider a worker or handler 1557

trained if either the employee or prior employe r presents a copy of the training record. EPA 1558

believes requiring employers to provide a record of the training to workers and handlers would 1559*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 71 of 340 [RIN 2070–AJ22] allow workers and handlers to show future em ployers they have received WPS training. In 1560

addition, future employers could maintain a copy of the workers’ or handlers’ record in their files 1561

to comply with the requirement to ensure the employees have r eceived the appropriate training. 1562

The proposed regulatory text concerning th e recordkeeping requirements to verify 1563

training for workers and handlers appears in §§170.101(d) and 170.201(d), respectively, of 1564

today’s proposed rule. 1565

5. Costs and benefits. EPA estimates the cost of requiri ng employers to maintain records 1566

of worker training for 2 years would be $1.6 m illion annually and about $4 per agricultural 1567

establishment per year. The cost for employers to maintain records for handler training for 2 1568

years would be $160,000 annually, or less than $1 per agricultura l establishment and about $3 1569

per commercial pesticide handling establishment pe r year. For a complete discussion of the costs 1570

of the proposals and alternatives, see the “Ec onomic Analysis of Proposed Revisions to the 1571

Worker Protection Standard,” Ch apter 3 Cost Analysis (Ref. 1)

. 1572

Although EPA cannot quantify the benefits of this specific proposed option, EPA 1573

believes that requiring records of worker and handler training woul d improve employers’ 1574

compliance with the training requirements. Im proved compliance would increase the likelihood 1575

that workers and handlers perform WPS tasks with the information necessary to mitigate 1576

exposure to pesticides for themse lves and their family members. 1577

6. Alternative options co nsidered but not proposed . First, EPA considered an option to 1578

require the employer or trainer to provide every trained worker and handler with a wallet-sized 1579

verification record (similar to the current volunt ary training verification ca rd) that contains the 1580

proposed recordkeeping information, instead of the proposal to provide a photocopy of the 1581

training recordkeeping form. Dist ribution of the training verifica tion cards would be limited to 1582*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 72 of 340 [RIN 2070–AJ22] trainers who meet the proposed qualifications. [See Unit VII.D.] The cards would be issued by 1583

EPA on an annual basis and would indicate a date after which the card w ould no longer be valid, 1584

i.e., a 2015 card would state that it would not be considered a valid verification of training after 1585

12/31/2016. The annual card issuance by EPA and clea r statement of the car d’s longest potential 1586

validity could help cut down the issues of fraudul ent use raised by states and other stakeholders. 1587

This alternative would increase the burden on trainers, employers, and EPA and states, 1588

territories, and tribes. In stead of providing a copy of the tr aining record, the trainer would be 1589

required to copy the information onto each indivi dual training verification card. Subsequent 1590

employers would need to verify the information on the card with the original trainer or employer 1591

and to obtain a copy of the origin al training record for their file s. EPA would be responsible for 1592

printing cards annually. EPA and states, territo ries, and tribes would be responsible for 1593

distributing cards to approved trai ners and tracking who received th e cards. EPA estimates that a 1594

mandatory training verification card program for workers would add about $640,000 to the cost 1595

of training records, increasing the total cost to about $2.2 million. Based on the increased burden 1596

to trainers, employers, and states, territories, and tribes without si gnificantly different anticipated 1597

benefits to workers, handlers, trainers, and employers, EPA decide d not to propose this option. 1598

Second, EPA also considered requiring agricu ltural and handler employers to submit 1599

worker and handler training record s to EPA or to the state, territory, or tribal regulatory 1600

authority. The agency responsible at the federal or state, territory, or tribal level would then 1601

maintain a database of trained workers and handler s. The Agency believes that it is adequate for 1602

employers to maintain the records, making th em available to inspectors upon request. The 1603

submission of training records to a central repository might bene fit EPA and others wishing to 1604

verify a worker’s or handler’s status. However, employers would still bear the cost of either 1605*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 73 of 340 [RIN 2070–AJ22] creating a record of the training in the central repository or ve rifying a worker’s or handler’s 1606

eligibility in the system. Since most workers an d handlers have one or two employers per year, 1607

the burden on employers to report to and check w ith a central repository of information may not 1608

be justified. The proposed rule would require th at the employer maintain records on-site for 1609

inspection purposes. 1610

Third, EPA also considered an option to requir e trainers, rather than or in addition to 1611

employers, to retain records of those trained. EPA is not pursu ing this option because the WPS 1612

focuses on the responsibilities of agricultural and handler employers . Trainers are not responsible 1613

for the use of the pesticide on the establishment and therefore cannot be legally responsible for 1614

following the labeling and complying with the WPS requirements. Ultimately, the agricultural or 1615

handler employer is responsible for ensuring that workers and handlers receive training and for 1616

tracking that training. Inspections focus on comp liance of the agricultura l or handler employer 1617

with the provisions of the WPS, not the trai ner. The WPS would not prohibit the creation of 1618

training records by the trainer; however, the agricultural or ha ndler employer would have to 1619

maintain a copy of the records. 1620

Finally, the Agency considered establishing a 5-year interval for the record retention 1621

cycle, which would coincide with the statute of limitations for civil violations (28 U.S.C. § 1622

2462). The estimated cost of this requirement w ould be $1.9 million for worker training records 1623

and $290,000 for handler training records. The increm ental cost between reco rd retention for two 1624

or five years would be negligible. Howeve r, EPA believes based on state programs (e.g., 1625

California and Florida) and stakehol der feedback that a requirement to keep records for 2 years is 1626

sufficient. Therefore, EPA decided not to pr opose a 5-year interval for record retention. 1627

7. Request for comment. EPA specifically requests comment on the following questions: 1628*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 74 of 340 [RIN 2070–AJ22] • Would a requirement for employers to report worker and handler training information to 1629

the state or federal government fo r compilation in a central reposito ry have benefits? If so, please 1630

detail the potential benefits and cost. 1631

• Should the Agency reconsider any of the a lternate options presented in developing a 1632

final rule? If so, why? Please prov ide data to supp ort your position. 1633

• Are there changes that would make the training verification card program more 1634

effective and less prone to fals ified cards? If so, please pr ovide detailed suggestions for 1635

improving the system. 1636

• Should EPA consider a performance standard to evaluate worker and handler training 1637

(asking questions based on the trai ning content) rather than recor dkeeping? Are there benefits or 1638

drawbacks to this approach that the Agency has not considered? 1639

• Would employers rely on training records provided by the worker or handler as 1640

verification that the worker or handler had received pesticide safety training? 1641

C. Require Employers to Provide Establishmen t-Specific Information for Workers and Handlers 1642

1. Overview. The existing WPS does not require em ployers to provide to workers and 1643

handlers establishment-specific information on the location of decontamination supplies as part 1644

of their pesticide safety traini ng. In order to allow workers and handlers to adequately protect 1645

themselves in the event of an unexpected e xposure that could occu r through spills, being 1646

sprayed, or other unusually high exposure situati ons, the Agency proposes that in addition to 1647

required general training employers must provide establishment-specific information about the 1648

location of decontamination supplie s and pesticide safety and haza rd information, as well as how 1649

to obtain medical assistance. Ag ricultural and handler employers would be required to provide 1650

this establishment-specific information to all workers and handlers, including those previously 1651*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 75 of 340 [RIN 2070–AJ22] trained on other establishments. The Agency exp ects this change will equip workers and handlers 1652

with the knowledge and capability to assist in be tter protecting themselves from adverse effects 1653

of pesticide exposure. 1654

2. Existing WPS regulations. Sections 170.135(e) and 170.235(e) require the employer to 1655

notify workers and handlers respectively about the location of the pesticide safety poster and the 1656

emergency medical information. Presently, part 170 has no requirement for employers to provide 1657

information on the location of decontamination supplies or hazard information to workers and 1658

handlers. 1659

3. Summary of the issues. Farmworker organizations have raised to EPA the need for 1660

workers and handlers to receive establishment-specific information even if the employer can 1661

verify that the workers and handlers have al ready received pesticide safety training. The 1662

pesticide safety training covers general self-protection principles. Establishment-specific 1663

information on where to find, am ong other things, decontaminati on supplies, emergency contact 1664

information, and pesticide applicat ion information, is not consistent across establishments. While 1665

the workers and handlers may have received gene ral information on how to protect themselves, 1666

without knowledge of where the necessary supp lies are located or how to obtain emergency 1667

medical assistance they would not be able to use the knowledge to protect themselves. 1668

4. Details of the proposal/rationale. The Agency proposes to require employers to 1669

provide establishment-specific pest icide safety training for workers and handlers when they enter 1670

the establishment and before beginning WPS task s. Content for the establishment-specific 1671

information would include the location of pesticid e safety information, the location of pesticide 1672

application and hazard information, the location of decontamination supplies, and how to obtain 1673

emergency medical assistance. Employers would be required to provide this training prior to the 1674*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 76 of 340 [RIN 2070–AJ22] handler performing handler activities or the work er performing worker activities orally in a 1675

manner that the handler or worker can understan d, such as through a translator. Lastly, this 1676

training would be required even if the employer can verify that the worker or handler has already 1677

received pesticide safety trai ning on another establishment. 1678

EPA acknowledges that some of this informa tion is already require d under the current 1679

rule. However, EPA believes that consolida ting the requirements for establishment-specific 1680

training would make them easier for employers to find and comply with, resulting in a higher 1681

likelihood that workers and handlers would receive the necessary information. 1682

The proposed regulatory text concerning th e requirement for employers to provide 1683

location-specific information to workers a nd handlers appears in §§170.103 and 170.203(b) of 1684

today’s proposed rule. 1685

5. Costs and benefits. The estimated cost of this propos al is included in the cost of 1686

expanded training discussed in Unit VII.E. EPA a ssumes that employers cover this information 1687

as part of routine pesticide safety training a nd therefore including the establishment-specific 1688

information would add negligible time and cost. 1689

6. Alternative options co nsidered but not proposed . EPA did not consider any significant 1690

alternatives to the proposed option. 1691

7. Request for comment. EPA specifically requests comment on the following question: 1692

• To what extent do employers already provi de this information to all workers and 1693

handlers when they first arrive at the establis hment, for example, during the hiring process? 1694

• The current rule requires employers to en sure that the workers and handlers receive 1695

information in a manner they understand. Are ther e any issues with the current requirement for 1696

employers? If so, please describe and provide data to support this position. 1697*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 77 of 340 [RIN 2070–AJ22] D. Establish Trainer Qualifications 1698

1. Overview. The current rule allows workers and ha ndlers to be traine d by a variety of 1699

persons, including certified applicator s and handlers. In order to ensu re that the pesticide safety 1700

training received by workers and handlers is pr ovided in a manner conduc ive to adult learning 1701

and provided in a language and manner in whic h they can understand, the Agency proposes to 1702

require trainers of workers to have completed an EPA-approved tr ain-the-trainer program or be 1703

designated by EPA or an appropriate state or tribal agency as trai ners of certifie d applicators. 1704

Certified applicators would no longer be automatical ly considered qualified to train workers. The 1705

Agency proposes to retain the existing qualifications for handler trainers, namely that in order to 1706

be a trainer of handlers, one mu st be a certified applicator unde r 40 CFR part 171 at the time of 1707

the training, to have complete d train-the-trainer program, or be designated by EPA or an 1708

appropriate state or tribal agen cy as a trainer of certified a pplicators and to limit approval of 1709

train-the-trainer programs to EPA. In addition, EP A proposes to require trainers to be present 1710

throughout the training and to ensure that there are no distractions, e.g ., background videos, loud 1711

machinery, or other instructions, competing for the worker’s or handler’s attention. 1712

2. Existing WPS regulations. The existing WPS designates the following groups as 1713

qualified to be pesticide safety trainers for workers: 1714

• Applicators certified according to 40 CFR pa rt 171 (private and co mmercial applicators 1715

of RUPs); 1716

• Persons designated as trainers of certified applicators, or pesticide handlers by the 1717

appropriate state, federa l, or tribal agency; 1718

• Individuals who have complete d an approved pesticide safety train-the-trainer program; 1719

or 1720*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 78 of 340 [RIN 2070–AJ22] • Persons who have complete d WPS handler training. 1721

The existing WPS designates the following groups as qualified to be pesticide safety trainers for 1722

handlers: 1723

• Applicators certified accord ing to 40 CFR part 171; 1724

• Persons designated as trainers of certifie d applicators or pes ticide handlers by the 1725

appropriate state, federal, or tribal agency; and 1726

• Individuals who have complete d an approved pesticide safety train-the-trainer program. 1727

The current WPS also requires trainers to be present to answer questions but does not 1728

require that they be present for th e entire length of the training. 1729

3 . Summary of the issues. When EPA proposed what would become the 1992 WPS (53 1730

FR 25970; July 8, 1988), stakeholders, specificall y USDA and farmer organizations, raised 1731

concerns about the need for adequate numbers of qualified WPS trainers . To ease the burden of 1732

transition for agricultural employers during the implementation of the rule, EPA made approved 1733

criteria for trainers in the final rule (5 7 FR 38102, 38128-29; Aug 21, 1992) intentionally broad. 1734

Since that time, the pool of qualified trainers has expanded due to the increas e and availability of 1735

train-the-trainer programs. EPA has supported the Association of Farmworker Opportunity 1736

Programs (AFOP) “Serving America’s Farmworker s Everywhere” AmeriCorps project for over 1737

ten years. This project connects trainers with farmworker communities to build training capacity 1738

and to provide free training services to agricu ltural and handler employe rs. In addition, EPA has 1739

developed a train-the-trainer handbook for worker training (Ref. 47). Many states have also 1740

increased the number of qualifie d trainers through train-th e-trainer programs and other 1741

mechanisms. 1742*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 79 of 340 [RIN 2070–AJ22] Farmworker organizations and pesticide sa fety educators have raised to EPA the 1743

importance of pesticide safety tr ainers having expertise both in th e subject matter covered and in 1744

adult education for low-literacy audiences. The Hazard Communications for Agricultural 1745

Workers Report by JBS International found that worker s want to receive pesticide safety training 1746

from trainers who are knowledgeable and certif ied (Ref. 40). In order to convey information 1747

about routes of pesticide exposure, potential a ccidents and how to mitig ate pesticide exposure, 1748

and avoiding exposure through basic hygiene, the trainer must have a strong knowledge of the 1749

subject matter. A person can obtain this knowledg e in several ways. First, a person who has gone 1750

through a train-the-trainer program would become versed in th e specific information to be 1751

conveyed to the training audience. Second, a person who is qualified, as a university professor or 1752

cooperative extension agent, to c onduct training for a broad range of pesticide users, would have 1753

a working knowledge of the potential pesticide risks faced by workers and handlers. Lastly, 1754

handlers and applicators learn the subject matter in the training and certification programs, which 1755

cover the concepts presented in pestic ide safety training in more detail. 1756

Research and stakeholder input have highlighted the need fo r trainers to have specific 1757

skills to reach this type of audience. Farmworker organizations and pestic ide educators expressed 1758

concern about the ability of i ndividuals without knowledge of adult education practices to 1759

conduct effective pesticide safety training (Ref. 39 ) (Ref. 46) (Ref. 48). Stakeholders have also 1760

informed EPA that training may be presented si multaneously with other information, preventing 1761

workers and handlers from focusing complete ly on the safety information presented. 1762

Stakeholders have raised con cerns that trainers lacking sk ills in adult education may be 1763

ineffective in communicating necessary pesticide safety information to workers (Ref. 35) (Ref. 1764

36) (Ref. 48) (Ref. 46) (Ref. 39). Farmworker orga nizations have supported limiting eligibility of 1765*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 80 of 340 [RIN 2070–AJ22] trainers of workers and handlers to those co mpleting a train-the-tr ainer program “covering 1766

methods of conducting an informal adult part icipatory education session for low literacy 1767

learners, with limited English proficiency” (R ef. 35). A pilot train-th e-trainer program in 1768

Washington State showed that participants who le arned training techniqu es applicable to the 1769

worker population were more successful in communi cating with their target audience than they 1770

had been prior to training, indicated by improve d performance of the a udience on a post-training 1771

evaluation of knowledge (Ref. 17). 1772

4. Details of the proposal/rationale. EPA proposes to require trainers of workers to 1773

complete a pesticide safety train-the-trainer pr ogram approved by EPA or to be designated as a 1774

trainer of certified applicators by EPA or a state or tribal ag ency responsible for pesticide 1775

enforcement. The proposal would delete the option for certification under 40 CFR part 171 or 1776

training as a WPS handler to serv e as sufficient qualifications for a person to be a trainer for 1777

workers. 1778

Additionally, the Agency proposes to require trainers of work ers and trainers of handlers 1779

to be present during the entirety of a training sess ion and to answer questio ns. Trainers must also 1780

ensure that the training is presente d in a manner free of distractions. 1781

EPA proposes to retain the existing categorie s for trainers of handlers and to add a 1782

requirement that the train-the-trai ner program be approved by EPA. 1783

Under a cooperative agreement with the NASDA Research Foundation, EPA has 1784

developed the National Worker Safety Trainer Handbook (Ref. 47)

. This manual outlines the 1785

necessary pesticide safety information for wo rkers, as well as describing adult education 1786

principles and how to comm unicate across languages and cu ltures. In addition to the National 1787

Worker Safety Trainer Handbook, EPA also supports the training of pesticide safety trainers of 1788*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 81 of 340 [RIN 2070–AJ22] workers by AFOP. Both of these programs woul d serve as models for an EPA-approved train1789

the-trainer program. Using these models, EPA woul d develop guidance to describe the necessary 1790

elements of a train-the-trainer program a nd the process for seeking EPA approval. EPA 1791

anticipates that any interested organizations , including non-profit organi zations, universities, 1792

state regulatory agencies, and the pesticide industry, could seek approval for and administer a 1793

train-the-trainer course th at meets EPA’s standards. 1794

EPA proposes to retain the options for pers ons designated as trainers of certified 1795

applicators or handlers by EPA or a state or tribal agency respons ible for pesticide enforcement 1796

because either EPA or the state or tribe has recogn ized that they have the subject matter expertise 1797

and qualifications necessary to convey the pestic ide safety information to workers or handlers. 1798

Many cooperative extension services (part of land grant univers ities) have experts on pesticide 1799

safety that work with agricultural employers to provide information on safe pesticide use. EPA 1800

believes that in their role as educators and with knowledge of adu lt education, pesticide 1801

application, and safety principles, these person s are qualified to provide the information to 1802

workers and handlers. State regulatory agencies al so hire or contract with adult educators to 1803

provide pesticide safety training to workers or handlers. Rather than increase the burden on the 1804

state or tribal lead agency by requiring that a ll persons complete a pesticide safety train-the1805

trainer course, EPA believes that state and tribal lead agencies would ensure that persons they 1806

designate as trainers can appr opriately convey the information required under the proposed 1807

regulation to work ers and handlers. 1808

EPA proposes to eliminate the automatic aut horization of certified applicators and WPS 1809

handlers to train workers. Although certified a pplicators have demonstrated competency in 1810

pesticide application and safety, they may not possess skills as trainers, particularly for low- 1811*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 82 of 340 [RIN 2070–AJ22] literacy, non-English speaking, a dult audiences. Handlers ma y possess pesticide safety 1812

knowledge and may have cultural and language abilities in common with workers, but they may 1813

lack teaching skills or sufficient technical knowledge needed to effectively convey the 1814

information. For training to make the most impact, trainers need to be co mpetent not only in their 1815

knowledge of pesticide ri sks but also in communicating with adult learners with educational 1816

challenges. Trainers may have di fficulty conveying the abstract con cept of pesticide risk, due to 1817

barriers such as the limited English language skill s, cultural differences, and low educational 1818

levels of many workers and handlers. EPA believes that there are sufficient qualified trainers to 1819

meet the proposed requirements now, as oppos ed to when the 1992 WPS was implemented, 1820

based on trainers qualified by AFOP initiatives and the publication and dissemination of an EPA 1821

train-the-trainer handbook. 1822

EPA proposes to retain the op tion for certified app licators to train handlers. While the 1823

Agency has some concern regarding the ability of certified applicator s to provide effective 1824

training for workers because worker trainers need to have specific capability to deliver basic 1825

information to an audience that may have a low education level and lim ited literacy and English 1826

skills, EPA thinks this group can be successful as trainers for handlers. There is a large overlap 1827

between the roles of applicators and handlers, wh ich allows applicators to draw on their personal 1828

knowledge and skills needed to correctly and safe ly perform handler task s. In addition, in the 1829

revisions to part 171, EPA is propos ing to require certified applic ators to provide training that 1830

mirrors the WPS handler training to noncertified applicators a pplying RUPs under their direct 1831

supervision. EPA believes that the certified applicators are appropr iately qualified to convey the 1832

proper pesticide application techniques and im portance of protecting oneself from pesticide 1833*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 83 of 340 [RIN 2070–AJ22] exposure to handlers that will be performing simila r tasks in areas that have been treated with 1834

pesticides. 1835

EPA believes that increasing th e qualifications of trainers will increase the value of 1836

training sessions by improving the quality of the training. Workers will benefit by improved 1837

understanding of the learning objectives and an incr eased ability to protec t themselves and their 1838

families. 1839

To ease implementation and ensure a sufficient cadre of qualified trainers is available, 1840

EPA proposes to continue allowing certified a pplicators to conduct worker training until two 1841

years following the effective date of the final ru le. This transition period would allow time for 1842

applicators and other persons that do not meet the current requir ements and who wish to conduct 1843

worker training to qualify as trainers under the proposed requirements, either by attending an 1844

EPA-approved train-the-trainer program or s eeking designation as an approved trainer of 1845

workers from EPA or the state or tribe, and for all trainers to become familiar with new training 1846

materials developed as a resu lt of the finalized rule. 1847

EPA plans to support the development of traini ng materials for workers and handlers that 1848

reflect the new training requirements such as manuals and videos. EPA will work with 1849

stakeholders to develop these materials when the amendments to the rule are finalized and plans 1850

to have them ready for distribution when the revised training requirements go into effect. 1851

The proposed regulatory text co ncerning trainer qualificati ons for workers and handlers 1852

appears in §§170.101(c)(4) and 170.201(c)(4) respectively of today’s proposed rule. 1853

5. Costs . EPA estimates the cost of revising the standards for worker trainers would be 1854

$1.1 million annually, or about $3 per agricultural establishment. For a complete discussion of 1855*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 84 of 340 [RIN 2070–AJ22] the costs of the proposals and alternatives, see th e “Economic Analysis of Proposed Revisions to 1856

the Worker Protection Standard,” Ch apter 3 Cost Analysis (Ref. 1). 1857

EPA cannot quantify the precise benefits asso ciated with this pr oposal; however, EPA 1858

believes requiring trainers to ha ve the ability to convey the pe sticide safety information, along 1859

with knowledge of adult educat ion principles and how to co mmunicate with low-literacy 1860

audiences, would increase overall understanding and rete ntion of the pesticide safety training by 1861

workers. This improvement would increase the likelihood that workers and handlers adopt the 1862

principles outlined in the pesticide safety tr aining and reduce the potential for exposure to 1863

themselves and their family members. 1864

6. Alternative options co nsidered but not proposed . EPA considered several options 1865

regarding categories of qualified trainers. One option considered by the Agency was to continue 1866

to consider applicators certif ied under 40 CFR part 171 and ha ndlers as qualified to train 1867

workers. EPA does not think, however, that a certif ied applicator’s knowledge of pesticide safety 1868

and application principles alone is sufficient to qualify the certified applicator as an educator for 1869

basic safety principles for workers. As discus sed above, teaching an a dult population, especially 1870

individuals with low-literacy sk ills, differing cultural norms, and a variety of primary languages, 1871

requires trainers with skills in re aching this type of a udience. After considering this alternative in 1872

light of the demographics of workers and the importance of providing safety information in 1873

manner workers can understand, EPA does not consid er it reasonable to assume that certified 1874

applicators and handlers necessarily have the ad ult education skills to adequately perform WPS 1875

training for workers. Certified a pplicators and handlers may become trainers if they complete a 1876

train-the-trainer course or are designated as trainers by the EPA or a state or tribal agency. 1877*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 85 of 340 [RIN 2070–AJ22] EPA also considered an option to restrict tr ainer eligibility to onl y trainers who have 1878

completed a train-the-trainer program. The Agency believes that allowing tr ainers of applicators 1879

and those having completed a train-the-trainer co urse to train workers, as well as allowing 1880

certified applicators to train handlers, will offer c ontinued flexibility for agriculture and result in 1881

less burden than restricting the qualifications to a single type of trainer. EPA has confidence that 1882

trainers designated as qualified by EPA or the st ates or tribes would have knowledge of adult 1883

education and the safety principl es that workers need to know. Requiring all worker and handler 1884

trainers to complete a train-the-trainer program would limit the number of eligible trainers and as 1885

a result there might not be sufficient numb ers to meet employer s’ training needs. 1886

EPA also considered implementing a test to determine the eligibility of trainers. Though 1887

examination would provide a method of evalua ting knowledge, safety ed ucators and advocate 1888

groups maintained that trainers need skills that cannot readily be assessed by an examination. For 1889

example, it would be difficult to assess, thr ough an exam, whether a person has skills in 1890

communicating with low-literacy, adult audiences. EPA believes that train-the-trainer courses in 1891

which trainers learn and practice interactive and engaging training techniques, in addition to the 1892

necessary pesticide safety information, would be more effective than a written exam to prepare 1893

educators for an audience of workers and handlers. 1894

7 . Request for comment. EPA specifically requests comment on the following questions: 1895

• Are there other programs that would prepar e trainers to convey pesticide safety 1896

information to workers and handlers? Please desc ribe the program and the feasibility of its 1897

implementation for affected establishments. 1898*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 86 of 340 [RIN 2070–AJ22] • Should EPA consider requiring trainers of workers and handlers to refresh their 1899

qualifications periodically, such as requiring attending a train-the- trainer program every 5 years? 1900

Please provide data in support or opposition. 1901

• The current rule requires employers to en sure that the workers and handlers receive 1902

information in a manner they understand. Are ther e any issues with the current requirement for 1903

trainers? If so, please describe and provide data to support this position. 1904

E. Expand the Content of Worker and Handler Pesticide Safety Training 1905

1. Overview. The WPS currently requires employers to provide pesticide safety training 1906

covering specific content to workers and handl ers. EPA proposes to expand the information 1907

required to be covered in work er and handler pesticide safety training so that workers and 1908

handlers can better protect themselves from adverse effects of pesticide exposures. 1909

Additional content in worker pesticide safety training woul d include, among other things, 1910

information on: How to reduce pesticide take-home exposure, the requirements for early-entry 1911

notification, the requirement for em ergency assistance for workers, and the availability of hazard 1912

communication materials for workers, and informi ng workers of the obligations of agricultural 1913

employers and what workers can expect. 1914

Additional content in handler pesticide sa fety training would in clude the handlers’ 1915

requirement to cease application if he or she obs erves a person other than another trained and 1916

properly equipped handler in the ar ea under treatment or entry rest ricted area, and a requirement 1917

for OSHA-equivalent training on resp irator use, fit-testing of resp irators, and medical evaluation 1918

for respirator users. 1919*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 87 of 340 [RIN 2070–AJ22] EPA expects this additional information provi ded in the proposed expansions to worker 1920

and handler pesticide safety trai ning to better protect workers and handlers from risks associated 1921

with pesticides. 1922

2 . Existing WPS regulations. Under 40 CFR 170.130(d)(4), wo rker pesticide safety 1923

training must include, at a minimum, the fo llowing 11 basic safety training points: 1924

• Where and in what form pesticides may be encountered during work activities. 1925

• Hazards of pesticides resulting from toxic ity and exposure, including acute and chronic 1926

effects, delayed effect s, and sensitization. 1927

• Routes through which pestic ides can enter the body. 1928

• Signs and symptoms of common ty pes of pesticide poisoning. 1929

• Emergency first aid for pesticide injuries or poisonings. 1930

• How to obtain emergency medical care. 1931

• Routine and emergency decontamination proc edures, including emergency eye flushing 1932

techniques. 1933

• Hazards from chemigation and drift. 1934

• Hazards from pesticide residues on clothing. 1935

• Warnings about taking pesticides or pesticide c ontainers home. 1936

• Requirements of the WPS designed to reduce the risks of illness or injury resulting from 1937

workers' occupational exposure to pesticides, including application and entr y restrictions, the 1938

design of the warning sign, posting of warning signs , oral warnings, the av ailability of specific 1939

information about applications, and th e protection against retaliatory acts. 1940

Under 40 CFR 170.230(c)(4), handler pesticide safety training must include, at a 1941

minimum, the following 13 basic safety training points: 1942*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 88 of 340 [RIN 2070–AJ22] • Format and meaning of information on the pr oduct label, including safety information. 1943

• Hazards of pesticides fro m toxicity and exposure. 1944

• Routes through which pestic ides can enter the body. 1945

• Signs and symptoms of pesticide poisoning. 1946

• Emergency first aid for pesticide poisoning. 1947

• How to get emergency medical care. 1948

• Routine and emergency decontamination procedures. 1949

• Personal Protective Equipment (PPE). 1950

• Heat-related illness issues. 1951

• Safety requirements for handling, transpor ting, storing, and dispos ing of pesticides. 1952

• Environmental concerns. 1953

• Warnings about taking pesticides or pesticide c ontainers home. 1954

• Training on the requirements of th e regulation related to handling. 1955

3. Summary of the issues. The stakeholder engagement process produced many comments 1956

on the content of pesticide safety traini ng for workers and handlers. [See Unit V.B.] 1957

Recommendations to improve work er pesticide safety training in the “Report on the National 1958

Assessment of EPA’s Pesticide Worker Safety Pr ogram” included adding elements to training on 1959

potential sources of pesticide exposure and pr eventing family exposure, such as specific 1960

information on the need to wash work clothes se parately from other clothing (Ref. 17) (Ref. 15). 1961

Additionally, farmworker organizat ions support expansion of the worker pesticide safety training 1962

to include general information about pesticide hazards, ways to reduce take-home exposure, and 1963

worker rights. In contrast, other stakeholders raised concerns for extending the length of training, 1964

increasing the burden on employers, or making th e training tedious for workers who may not be 1965*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 89 of 340 [RIN 2070–AJ22] paid for time spent in training. Many stakeholde rs also requested that EPA be mindful when 1966

revising the WPS of the burdens faced by workers and some handler s, due to their low income, 1967

low literacy, and limited English language skills. 1968

4. Details of the proposal/rationale. EPA is proposing a number of new provisions to be 1969

included in the content for worker and handler sa fety training. Each of these is discussed in 1970

greater detail in this section. Where some proposed changes only clarify or enhance an existing 1971

training topic, rather than substa ntially altering the cont ent of the topic, EPA does not discuss the 1972

proposed modifications in as grea t detail as the proposed modificat ions to existing language that 1973

substantially alter the cont ent of the training topic. 1974

EPA proposes to add the following topics to bo th worker and handler training: protection 1975

from pesticide take-home exposure, enhanced em ergency assistance provisions in the WPS, and 1976

the availability of hazard communication materials. 1977

Additional worker safety training topics w ould add about 15 minutes to the training and 1978

would include, in addition to the points in the current WPS: Handler tasks that employers must 1979

not direct or allow workers to do, early-entry no tification requirements in cluding age restrictions, 1980

hazards of pesticide exposure to children and pregnant women, how to report suspected 1981

violations, and the prohibition of employer retaliation for repor ting suspected violations or 1982

attempting to comply with 40 CFR part 170. 1983

The proposed revised regulation for worker training at §170.101(c)(2) through (3) would 1984

require the following training content: 1985

• Agricultural employers’ obligation to provide workers with information and protections 1986

designed to reduce work-related pesticide exposur es and illnesses. Th is includes providing 1987

pesticide safety training, pesticid e safety and application information, decontamination supplies, 1988*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 90 of 340 [RIN 2070–AJ22] and emergency medical assistance, and notifying wo rkers of restrictions during applications and 1989

on entering pesticide treated areas. 1990

• How to recognize and understand the meani ng of the warning sign used for notifying 1991

workers of restrictions on entering pestic ide treated areas on the establishment. 1992

• How to follow directions and/or signs about keeping out of entry restricted or pesticide 1993

treated areas. 1994

• Where and in what form pesticides may be encountered during work activities and 1995

potential sources of pesticide e xposure on the agricultural establis hment. This includes pesticides 1996

drifting from nearby applications , and that pesticide residues ma y be on or in plants, soil, 1997

irrigation water, tractors, application equipmen t, or used personal protective equipment. 1998

• Potential hazards from toxicity and exposure th at pesticides present to workers and their 1999

families, including acute and chronic effects, delayed effects, and sensitization. 2000

• Potential hazards from chemigation and drift. 2001

• Routes through which pestic ides can enter the body. 2002

• Signs and symptoms of common types of pesticide poisoning. 2003

• Emergency first aid for pestic ide injuries or poisonings. 2004

• Routine and emergency decontamination proc edures, including emergency eye flushing 2005

techniques. 2006

• Wash immediately in the nearest clean water if pesticides are spil led or sprayed on the 2007

body and as soon as possible, shower, shampoo hair, and change in to clean clothes. 2008

• How and when to obtain emergency medical care. 2009*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 91 of 340 [RIN 2070–AJ22] • When working near pesticides or in pestic ide treated areas, wear work clothing that 2010

protects the body from pesticide residues and wash hands before eating, drinking, using chewing 2011

gum or tobacco, or using the toilet. 2012

• Wash or shower with soap and water, sham poo hair, and change in to clean clothes as 2013

soon as possible after working near or in pesticide treated areas. 2014

• Potential hazards from pe sticide residues on clothing. 2015

• Wash work clothes before wearing again. 2016

• Wash work clothes separately from other clothes. 2017

• Do not take pesticides or pesticide c ontainers used at work to your home. 2018

• Agricultural employers are required to provide workers with pesticide hazard 2019

information. 2020

• Agricultural employers must not allow or direct any worker to mix, load or apply 2021

pesticides or assist in the a pplication of pesticides unless the worker has been trained as a 2022

handler. 2023

• There are minimum age restrictions and notification requireme nts for early-entry 2024

activities. 2025

• Potential hazards to children and pre gnant women from pesticide exposure. 2026

• Keep children and nonworking family member s away from pesticide treated areas. 2027

• Remove work boots or shoes before entering home. 2028

• After working near pesticides or in pestic ide treated areas, remove work clothes and 2029

wash or shower before physical contact with children or family members. 2030

• How to report suspected pesticide use violations to the state or tribal agency responsible 2031

for pesticide enforcement. 2032*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 92 of 340 [RIN 2070–AJ22] • Agricultural employers are prohibited fr om intimidating, threatening, coercing, or 2033

discriminating against any worker for the purpose s of interfering with any attempt to comply 2034

with the requirements of this part, or because the worker ha s made a complaint, testified, 2035

assisted, or participated in any manner in an investigation, proceed ing, or hearing pursuant to this 2036

part. 2037

Additional handler training t opics would add about 15 minutes to the existing training 2038

and would include: proper removal of PPE; the re quirement for handlers to cease application if 2039

persons are in the treated area or entry restrict ed area; the requirement that handler employers 2040

must ensure handlers have rece ived respirator fit-testing, tr aining, and medical evaluation if 2041

required to wear a respir ator; and the minimum age requirement for handlers. 2042

The proposed revised regulation for handler training at §170.201(c)(2) through (3) would 2043

require the following training content: 2044

• Employers’ obligation to provide handlers with information and protections designed to 2045

reduce work-related pesticide expos ures and illnesses. This incl udes providing pesticide safety 2046

training, pesticide safety and application inform ation, decontamination supplies, and emergency 2047

medical assistance, and notifying handlers of restrictions duri ng applications and on entering 2048

pesticide treated areas. 2049

• How to recognize and understand the meani ng of the warning sign used for notifying 2050

workers of restrictions on entering pestic ide treated areas on the establishment. 2051

• How to follow directions and/or signs about keeping out of entry restricted or pesticide 2052

treated areas. 2053

• Where and in what form pesticides may be encountered during work activities and 2054

potential sources of pesticide e xposure on the agricultural establis hment. This includes pesticides 2055*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 93 of 340 [RIN 2070–AJ22] drifting from nearby applications , and that pesticide residues ma y be on or in plants, soil, 2056

irrigation water, tractors, application equipmen t, or used personal protective equipment. 2057

• Potential hazards from toxicity and exposure th at pesticides present to workers and their 2058

families, including acute and chronic effects, delayed effects, and sensitization. 2059

• Potential hazards from chemigation and drift. 2060

• Routes through which pestic ides can enter the body. 2061

• Signs and symptoms of common types of pesticide poisoning. 2062

• Emergency first aid for pestic ide injuries or poisonings. 2063

• Routine and emergency decontamination proc edures, including emergency eye flushing 2064

techniques. 2065

• Wash immediately in the nearest clean water if pesticides are spil led or sprayed on the 2066

body and as soon as possible, shower, shampoo hair, and change in to clean clothes. 2067

• How and when to obtain emergency medical care. 2068

• When working near pesticides or in pestic ide treated areas, wear work clothing that 2069

protects the body from pesticide residues and wash hands before eating, drinking, using chewing 2070

gum or tobacco, or using the toilet. 2071

• Wash or shower with soap and water, sham poo hair, and change in to clean clothes as 2072

soon as possible after working near or in pesticide treated areas. 2073

• Potential hazards from pe sticide residues on clothing. 2074

• Wash work clothes before wearing again. 2075

• Wash work clothes separately from other clothes. 2076

• Do not take pesticides or pesticide c ontainers used at work to your home. 2077*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 94 of 340 [RIN 2070–AJ22] • Agricultural employers are required to provide handlers with pesticide hazard 2078

information. 2079

• Agricultural employers must not allow or direct any worker to mix, load or apply 2080

pesticides or assist in the a pplication of pesticides unless the worker has been trained as a 2081

handler. 2082

• Early-entry workers must be at least 16 year s of age to perform early-entry activities 2083

and workers must receive no tification prior to conducting early-entry activities. 2084

• Potential hazards to children and pre gnant women from pesticide exposure. 2085

• Keep children and nonworking family member s away from pesticide treated areas. 2086

• Remove work boots or shoes before entering home. 2087

• After working near pesticides or in pestic ide treated areas, remove work clothes and 2088

wash or shower before physical contact with children or family members. 2089

• How to report suspected pesticide use violations to the state or tribal agency responsible 2090

for pesticide enforcement. 2091

• Employers are prohibited from intimidati ng, threatening, coercing, or discriminating 2092

against any handler for the purposes of interf ering with any attempt to comply with the 2093

requirements of this part, or because the worker has made a complaint, testified, assisted, or 2094

participated in any manner in an investigation, proceeding, or h earing pursuant to this part. 2095

• Information on proper applica tion and use of pesticides. 2096

• Requirement for handlers to follow all pesticide label directions. 2097

• Format and meaning of all information contai ned on pesticide labels and in labeling. 2098

• Need for and appropriate use and removal of all personal protective equipment. 2099

• How to recognize, prevent, and provide firs t aid treatment for h eat-related illness. 2100*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 95 of 340 [RIN 2070–AJ22] • Safety requirements for handling, transpor ting, storing, and disposing of pesticides, 2101

including general procedures for spill cleanup. 2102

• Environmental concerns, such as dr ift, runoff, and wildlife hazards. 2103

• Handlers must not apply pesticides in a manne r that results in contact with workers or 2104

other persons. 2105

• Handler employers are required to provide ha ndlers with information and protections 2106

designed to reduce work-related pesticide exposur es and illnesses. Th is includes providing, 2107

cleaning, maintaining, storing, and ensuring prop er use of all required personal protective 2108

equipment; providing decontamination supplies; and providing specifi c information about 2109

pesticide use and labeling information. 2110

• Handlers must cease or suspend a pesticide ap plication if workers or other persons are 2111

in the treated area or th e entry-restricted area. 2112

• Handlers must be at least 16 years of age. 2113

• Handler employers must ensure handlers have received respirator fit-testing, training, 2114

and medical evaluation if they are required to wear a respirator. 2115

• Handler employers must post treate d areas as required by this rule. 2116

i. Protection from Pesticide Take-Home Exposure. Although the current training instructs 2117

workers and handlers not to take home pesticide containers and that clothing can carry pesticide 2118

residue, the Agency proposes to expand the ex isting sections to include more specific 2119

information in the worker and handler pesticid e safety training on ways to reduce take-home 2120

pesticide exposure. Specifical ly, the expanded training conten t would include the following: 2121

instructions on washing before touching family members, removing soiled work boots or shoes 2122

before entering the home, washing clothes that may have pesticide residues on them before 2123*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 96 of 340 [RIN 2070–AJ22] wearing them again and separately from other fa mily clothes, and keeping family members away 2124

from treated areas, as well as information on the potential risks to childr en and pregnant women 2125

from pesticide exposure. 2126

Workers and handlers may be exposed to pestic ides at work; additionally, they and their 2127

families may be exposed to pesticide residues brought into their homes from the workplace. 2128

“Take-home” exposure is the movement of agricu ltural pesticides from the workplace to the 2129

home via contact with pesticide-contaminated clothing, dirt tracked into the home, or other 2130

pathways. This type of exposure has generate d concern among health care professionals and 2131

worker advocates. A 1995 study by the Centers for Disease Control (CDC) on worker’s home 2132

contamination found, in multiple industries, that hazardous chemical contamination of workers’ 2133

homes is a worldwide problem, resulting in injury and at times, death (Ref. 49 pp. vii, 17-19). 2134

Although EPA does not have conclusive data about the impact of pesticide residue 2135

transfer from a worker or handler to his or her home, car, and family members, the Agency 2136

recognizes that workers and handl ers are exposed to chemicals in the workplace and should be 2137

educated on minimizing the transfer of these chemicals to non-work locations. Some studies 2138

have been conducted to evaluate whether non-wor king children in agricultural families may have 2139

greater exposure to agricultural chemicals than children of non-agricultural families from the 2140

presence of pesticide residue in their home (Ref. 50). C ontamination of the home from 2141

agricultural pesticides can come from numerous sources, including soil, dust, or other residue on 2142

clothing and vehicles and contaminated storage containers (Ref. 49) (Ref. 51). Additionally, 2143

agricultural pesticides introduced into the home may persist longer than in outdoor areas, due to 2144

the lack of degradative environm ental processes, such as those furthered by rain and sun. Peer2145

reviewed studies have concluded that “farmworke r and all rural families must be educated about 2146*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 97 of 340 [RIN 2070–AJ22] drift and how to reduce exposure” (Ref . 52 p. 1259) (Ref. 53) and that “ pregnant farmworkers 2147

and those living with farmworkers need to be ed ucated to reduce potenti al take-home pesticide 2148

exposure” (Ref. 34 p. 491). 2149

Studies have focused on the presence of agricu ltural pesticides in the homes of workers. 2150

Centers for Children’s Environmental Health and Disease Prevention Research were established 2151

to explore ways to reduce children's health ri sks from environmental f actors. The program is 2152

jointly funded by EPA and the National Institute of Environmental Health Sciences (NIEHS) and 2153

also collaborates with the Centers for Diseas e Control (Ref. 54). Two of the centers, the 2154

University of California at Berkeley (UC Berkel ey) and the University of Washington, have a 2155

number of studies which focus on agricultural pesticides and children, some with a primary 2156

outcome of pesticide exposure re duction strategies. The Center for the Health Assessment of 2157

Mother and Children of Salinas (CHAMACOS) Study, a longitudinal birth cohort study of 2158

children in the Salinas Valley, Ca lifornia, is the largest study ad ministered by UC Berkeley’s 2159

Children’s Center (Ref. 55). Califor nia Department of Health Servi ces tested dust in worker and 2160

non-worker homes and concluded th at there is a greater presence of pesticide residue in the 2161

homes of workers (Ref. 56). Additional studies apar t from the UC Berkeley activities have also 2162

examined the transfer of pesticide residues from pesticide-treated areas to the home and 2163

automobiles, i.e., the take-home pathway (Ref . 23) (Ref. 50) (Ref. 51) (Ref. 57) (Ref. 58). 2164

Effective methods of reducing take-home exposure exist. CDC’s 1995 study identified 2165

worksite behaviors, such as minimizing workplace exposures, storing clean clothes in 2166

uncontaminated areas of the worksite, changing work clothes prior to returning home, and 2167

showering before leaving the workplace, that ar e effective means to reduce take-home exposure 2168

(Ref. 49). The report also identified methods in the home to reduce contamination, such as 2169*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 98 of 340 [RIN 2070–AJ22] laundering work clothes separately from fam ily laundry, preventing family members from 2170

visiting the workplace, and informing the worker s of risks to family members and how to 2171

minimize their exposure. Workers and their famili es should be familiar with how behaviors such 2172

as hand washing, proper laundering, and removing work clothes before entering the home can 2173

reduce risk of exposure (Ref. 34). 2174

ii. Training on Reporting Violations and Employer Retaliation Prohibition 2175

EPA proposes to require that worker and handler pesticide safe ty training include 2176

information on how to report suspected pesticide use violations. EPA also proposes to include a 2177

training point explaining that agricultural empl oyers are prohibited fr om retaliation against 2178

workers and handlers for attempting to comply wi th the WPS or reporting suspected violation of 2179

the WPS. Including this information in the wo rker and handler training would increase the 2180

effectiveness of the existing WPS protections against retaliations. 2181

Under the current 40 CFR 170.7(b) employers ar e prohibited from taking “any retaliatory 2182

action for attempts to comply with this part or any action having the effect of preventing or 2183

discouraging any worker or handler from co mplying or attempting to comply with any 2184

requirement of this part.” The existing §170.130(d )(4)(xi) requires employers to provide training 2185

on protections against retaliator y acts. Similar protection agai nst retaliation for handlers is 2186

covered in §170.230(c)(4)(xiii). 2187

Farmworker advocacy organizations recomme nd including in the worker and handler 2188

pesticide safety training information on the ri ghts of workers and handlers under the WPS (Ref. 2189

36). The Agency agrees that workers and handler s should be aware of WPS provisions on how to 2190

report violations and the prohi bition on retaliation by the agricultural employer. Farmworker 2191

advocacy organizations indicate that workers and handlers informed of their employers’ 2192*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 99 of 340 [RIN 2070–AJ22] requirements and the process to report violatio ns and pesticide exposur e incidents are more 2193

likely to report them. This can lead to a cleare r understanding of circum stances leading to WPS 2194

violations and pesticide exposure issues by enforcement. 2195

EPA believes it is important for workers and handlers to understand that the WPS 2196

provides protections for their safety and that if their employers do not provide the required 2197

protections, the government can assist them. By incorporating this information into the WPS 2198

training, it is more likely that workers and ha ndlers will understand the information and be aware 2199

of the resources available to them in the event of a suspected act of re taliation or noncompliance 2200

with the WPS. 2201

Farmworker organizations requested that WPS worker and handler training include 2202

contact information for legal representation (R ef. 35). EPA, however, does not agree. EPA does 2203

not consider it appropriate to recommend particular attorneys or le gal representatives. Moreover, 2204

while legal representation may be helpful for a worker or handler who experiences retaliation or 2205

a serious pesticide exposure, it is not clear that requiring the requested notification would 2206

significantly contribute to the goals of FIFRA. 2207

The proposed regulatory text concerning tr aining in regard to reporting suspected 2208

violations and employer prohibi tion against retaliation appear s in §§170.101(c)(3 )(viii) through 2209

(ix) and 170.201(c)(3)(v) of today’s proposed rule. 2210

iii. Training on Hazard Communications Ma terials for Workers and Handlers. EPA 2211

proposes to require agricultural and handler employers to provide workers and handlers with 2212

access to the expanded pesticide application information, the SDS, and the pesticide product 2213

labeling upon request for up to two years. [See Un it IX.] EPA proposes to include an overview 2214

of the new hazard communication requireme nts and materials (expanded application 2215*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 100 of 340 [RIN 2070–AJ22] information, SDS, and product labeling) in the pesticide safety trainings for workers and 2216

handlers. 2217

The proposed regulatory text concerning hazard communication content of worker and handler 2218

pesticide safety training app ears in §§170.101(c)(3)(i) and 170.201(c)(3)(v) of today’s proposed 2219

rule. 2220

iv. Training on Early-Entry Notification for Workers. EPA is proposing to add to the 2221

worker pesticide safety trai ning points about the minimum ag e restriction and notification 2222

requirements for early-entry work. Workers would learn that entry into a treated area under an 2223

REI would be limited to workers 16 years of ag e or older and what no tification requirements 2224

must be provided prior to being directed to perform early-entry tasks. EPA expects that 2225

providing this information to workers during training would make workers aware of their 2226

agricultural employer’s ob ligation to provide information on th e protections required when asked 2227

to perform early-entry work. EPA believes that workers should be made aware of employer 2228

obligations in their training so th ey will understand the significance of (and, if they fail to receive 2229

it, notice the absence of) the information em ployers would be requi red to provide. For a 2230

complete discussion of the proposed amendments to the early-entry requirements, see Unit XII. 2231

The proposed regulatory text co ncerning early-entry notificati on and minimum age content of 2232

worker and handler pesticide safety training appears in §§170 .101(c)(3)(iii) a nd 170.201(c)(3)(v) 2233

of today’s proposed rule. 2234

v. Handler Responsibilities. EPA proposes that a handler be re quired to cease application if the 2235

handler observes a person other than another trained and proper ly equipped handler in the area 2236

under treatment or associated entr y-restricted area. EPA believes that either the handler would 2237

have prior knowledge that anothe r handler would be in the area during treatment, or would cease 2238*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 101 of 340 [RIN 2070–AJ22] application until he or she could verify whether the person(s) in the treated area met the standard 2239

as a trained and properly equi pped handler. This new require ment would impose additional 2240

responsibility on handlers. [See Un it XI.] Therefore, EPA proposes to add to the handler training 2241

requirements a point on this sp ecific handler responsibility. 2242

The proposed regulatory text co ncerning the cessation of appl ication content of handler 2243

pesticide safety training appears in §170.201(c)(3)(i) of today’s proposed rule. 2244

vi. Respirator Fit-Testing and Medi cal Evaluation for Handlers. Unit XVI.E. discusses 2245

EPA’s proposal to adopt the OS HA standard (29 CFR part 1910) for respirator use. The OSHA 2246

standard requires employers and users to take steps to ensure respirators are used safely, 2247

including fit testing the handl er’s respirator, conducting me dical evaluation, and training 2248

handlers on proper respirator use. 2249

EPA proposes to require that handler training inform handlers of the new obligations of 2250

handler employers regarding prope r respirator use. Handler tr aining content is proposed to 2251

inform handlers that their employer must ensure they have received respir ator fit-testing, training 2252

and medical evaluation if they are required to wear a respirator; only those handlers who would 2253

use a respirator would need to receive the full OSHA training on respirators. EPA expects this 2254

change would inform handlers of the new require ments for respirator use and their importance. 2255

The proposed regulatory text concerning adding to the training the employer’s 2256

responsibility to provide handler s using respirators with respir ator training, fit-testing, and 2257

medical evaluation appears in §170.201(c )(3)(iii) of toda y’s proposed rule. 2258

5. Costs . The proposed expansions to training co ntent would expand worker training from 2259

approximately 30 minutes to 45 minutes, and hand ler training from 45 minutes to 60 minutes. 2260*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 102 of 340 [RIN 2070–AJ22] The Agency believes that the expanded training is necessary for workers and handlers to better 2261

protect themselves. 2262

EPA estimates the cost of expanding pesticid e safety training for workers would be $4.3 2263

million annually or about $11 per agricultural es tablishment per year. The cost to expand 2264

pesticide safety training for handlers would be $660,000 annually, or about $3 per agricultural 2265

establishment and $15 per commercial pesticide ha ndling establishment per year. For a complete 2266

discussion of the costs of the proposals and altern atives, see the “Economic Analysis of Proposed 2267

Revisions to the Worker Protection Standa rd,” Chapter 3 Cost Analysis (Ref. 1). 2268

EPA cannot quantify the specific benefits asso ciated with this proposal. However, EPA 2269

believes that adding information to worker a nd handler training woul d assist workers and 2270

handlers to mitigate pesticide exposure to themselv es and their families. EPA believes this would 2271

result in a lower number of occupation-related pesticide e xposures and reduce chronic and 2272

developmental effects from pesticide exposure. 2273

6. Alternate options considered but not proposed . EPA considered various combinations 2274

of the additional training content discussed above. For example, EPA considered simply 2275

clarifying the training requi red under the current rule to be mo re specific about the information 2276

to be covered. EPA also considered not adding the information about em ployers’ responsibilities 2277

to provide training to early-entry workers and to handlers using respirators in order to shorten the 2278

total duration of a training program; however, given the importance of communicating the 2279

additional information to workers and handlers to ensure they have the information necessary to 2280

protect themselves and their families from pe sticide exposure and the relatively low burden 2281

associated with extending the training to c over the content, EPA be lieves that all of the 2282

aforementioned points should be added to the training. 2283*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 103 of 340 [RIN 2070–AJ22] While a shorter training program with fewer points would reduce the cost of the proposal 2284

slightly, EPA believes the benefits of providi ng the proposed additiona l training topics to 2285

workers and handlers are reasonabl y balanced against the cost. 2286

7. Request for comment. EPA specifically requests comment on the following questions: 2287

• Are there any training points listed above th at EPA should consider not including in the 2288

final proposal? If so, wh ich points and why? 2289

• Are there points that EPA should consider ad ding to the training c ontent? If so, what 2290

points should be added? Please provide a rationale for why the additional content would benefit 2291

workers and/or handlers. 2292

F. Retain Audiovisual Pr esentations as Permissible Methods for Pesticide Safety Training 2293

1. Overview. The existing WPS allows trainers to train workers and handlers using a 2294

variety of methods, including an EPA-approved video or DVD. EPA recognizes concerns raised 2295

by stakeholders that the video/DVD may not be an adequate traini ng tool when used as a stand2296

alone training, but EPA has decided to retain the video as a training method and to add 2297

requirements for the trainer to be present thr oughout the presentation, to answer all questions 2298

from those participating in the training, and to ensure that the training is reasonably free of 2299

distractions. 2300

2. Existing WPS regulations. The WPS requires trainers to present the pesticide safety 2301

information “either orally from written mate rials or audiovisually” (40 CFR 170.130(d)(1) and 2302

170.230(c)(1)). EPA developed a variety of training materi als, including training videos covering 2303

the pesticide safety points specified in 40 CFR 170.130 and 170.230. A worker training video, 2304

“Chasing the Sun Pesticide Safety Training” ru ns for approximately 30 minutes, and a handler 2305*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 104 of 340 [RIN 2070–AJ22] training video, “Pesticide Handlers and the WPS” runs for approximately 50 minutes. Each video 2306

covers the current training points and both are available in English and Spanish. 2307

3. Summary of the issues. Farmworker organizations have voiced opposition to 2308

maintaining a video as the trai ning device (Ref. 35), instead recommending that EPA require 2309

employers to provide training usin g methods with greater interac tion to better communicate with 2310

workers (Ref. 36). A report from EPA’s National Assessment of the Worker Protection Program 2311

recommended that training mate rials encourage interaction a nd participation, and be both 2312

culturally and linguistically appropriate (Ref. 15). 2313

The Agency recognizes the passive nature of video training and understands that some 2314

stakeholders believe that a lack of worker or handler engagement dur ing video training may 2315

prevent effective transmission of pesticide safety information. Focus-group research, however, 2316

indicates that workers prefer to receive training information in a video or provided orally along 2317

with simple drawings on paper as visual aids ra ther than an oral presen tation without any visual 2318

aids (Ref. 40). Additionally, research has shown that comprehension of pictorials for safety2319

related information is significantly enhanced when accompanied by even brief trainer 2320

involvement (Ref. 59). 2321

4. Details of the proposal/rationale. EPA proposes to continue to allow audiovisual 2322

training tools, and to add requirements for the trai ner to be present during the training, to answer 2323

questions from trainees, and to en sure that the training is reasona bly free from distractions. [See 2324

Unit VII.D.] Combined with more qualified trai ners familiar with the principles of adult 2325

education, EPA expects that use of EPA-approved video would enhance, rather than diminish, 2326

comprehension of training objectives. 2327*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 105 of 340 [RIN 2070–AJ22] Based on feedback received directly from the affected community of workers, EPA 2328

decided to retain the option for trainers to use audiovisual materials, including but not limited to 2329

videos, DVDs, and PowerPoint presentations, as pa rt of the training program. EPA believes that 2330

allowing use of audiovisual training tools provi des flexibility to trainers and employers by 2331

allowing them to be present to monitor the au dience, to stimulate discussion, and to answer 2332

questions, while the video presents the major c oncepts of the training. This would help small 2333

establishments that conduct infre quent trainings to ensu re that the training covers all of the major 2334

points. In addition, EPA recognizes that some employers and trainers are more comfortable 2335

utilizing audiovisual materials as part of tr aining because widely used videos employ actors 2336

portraying workers to communicate the messages, which can be more convincing to the training 2337

audience. 2338

The proposed regulatory text re quiring the trainer to be present throughout the training 2339

for workers and handlers appears in §§170.101(c)(1 ) and 170.201(c)(1), resp ectively, of today’s 2340

proposed rule. 2341

5. Costs and benefits. EPA does not estimate any costs as sociated with this proposal 2342

because it retains an existi ng provision of the rule. 2343

6. Alternate options considered but not proposed. EPA considered eliminating the option 2344

for trainers to present materi al audio visually. Based on the rationales discussed above, EPA 2345

believes that allowing trainers to use audiovisual training materi als and adding a requirement for 2346

the trainer to be present and answer workers a nd handlers’ questions w ould adequately address 2347

the concerns raised by farmworker groups while allowing trainer’s flexibility in how they 2348

communicate with workers and handlers. 2349

7. Request for comment. EPA specifically requests comment on the following question: 2350*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 106 of 340 [RIN 2070–AJ22] • Please provide any additional information on th e efficacy of different methods used to 2351

conduct worker and handler training. 2352

G. Eliminate Exception to Handler Training Requirements 2353

1. Overview. Currently, an employer does not have to provide handler tr aining to a person 2354

performing handler tasks if th e handler has satisfied the training requirements under the 2355

Certification of Pesticide Appli cators Regulation (40 CF R part 171). In order to ensure handlers 2356

receive the information necessa ry to understand WPS protections , EPA proposes to eliminate 2357

this exception. EPA expects removal of this exception would ensure all handlers receive 2358

complete information to protect themselves in situations specific to WPS establishments. 2359

2. Existing WPS regulations. Under 40 CFR 170.230, pesticid e handlers currently are 2360

required to be trained on pest icide safety. Under 40 CFR 170. 230(b)(2), employers may be 2361

excepted from the requirement to provide handler training when their handlers have satisfied the 2362

training requirements in 40 CFR 171. Part 171, however, does not incl ude specific training 2363

requirements relevant to WPS; therefore, th e exception allows handl ers to qualify without 2364

learning about part 170 requirements, such as RE Is and the prohibition against spraying when 2365

anyone is in the treated area. 2366

3. Details of the proposal/rationale. EPA proposes to eliminate the exception for handler 2367

training for a handler who has b een trained in accordance with the requirements in 40 CFR part 2368

171. In essence, this change would require pe rsons who apply pesticides under the direct 2369

supervision of a certified applicat or to receive handler training under the W PS. As explained in 2370

Unit II, the Agency is consider ing separate revisions to 40 CF R part 171 that could include 2371

specific training requirements fo r persons applying RUPs under th e supervision of a certified 2372

applicator. Although the training re quirements in these two proposed rules overlap substantially 2373*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 107 of 340 [RIN 2070–AJ22] (e.g., safe application techniques, understanding label requirements, safe storage and disposal), 2374

the training EPA is considering to require under 40 CFR part 171 does not include specific 2375

information on WPS requirements, handler resp onsibilities, and reduc ing take-home exposure 2376

specifically in agriculture. WPS information is critical for handlers so they can protect 2377

themselves, their families, workers, the environment, and bystanders. 2378

4. Alternative options co nsidered but not proposed . While EPA considered proposing 2379

identical training requirements for both §170.201 and part 171, many RUP users never apply 2380

agricultural pesticides, a nd would not need to know all the de tailed requirements related to the 2381

WPS protections, such as warning sign postings and specific handler responsibilities. EPA 2382

believes the WPS-specific information is critical to equip a handler to avoid risk of exposure and 2383

illness in agricultural situations. Therefore, the Agency does not intend to impose the same 2384

training requirements for noncertified applicators under 40 CFR part 171. 2385

5. Cost. EPA believes the cost for this requiremen t would be negligible. Those employers 2386

that intend to provide training under 40 CFR part 171 for their handler employees would be able 2387

provide the proposed WPS handler training and satisfy the require ments of both regulations. The 2388

estimated training burden for the two requirements is substantially similar. 2389

6. Request for comment. EPA requests feedback on the following: 2390

• Should the proposed training under 40 CFR part 171 include a requirement for 2391

expanded training on the WPS? 2392

• How would the benefits to employers from giving a single training that would apply to 2393

both WPS handlers and applicator s using RUPs under the direct supervision of a certified 2394

applicator compare to the costs of requiring agricultura l applicator training for all applicators 2395

using RUPs under the direct superv ision of a certifi ed applicator? 2396*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 108 of 340 [RIN 2070–AJ22] VIII. Notifications to Workers and Handlers 2397

A. Posted Notification Timing & Oral Notification 2398

1. Overview. The current rule allows employers to provide to worker s either oral or 2399

posted warnings about areas where an REI (regardless of its length) has been in effect within the 2400

last 30 days unless required to pr ovide both oral and posted warni ngs by the specific pesticide 2401

label. For farms, forests, a nd non-enclosed nurseries (what EP A is proposing to define as 2402

“outdoor production”), EPA proposes to require th at agricultural employers post warning signs 2403

regarding the appli cation of a pesticide that has an REI greater than 48 hours, and proposes to 2404

allow the option of oral warning or posted notific ation for products with REIs of 48 hours or less. 2405

For greenhouses and indoor nurseries (what EP A is proposing to define as “enclosed space 2406

production”), EPA proposes to require that agri cultural employers post warning signs according 2407

to the current posted warning requirements when the product applied has an REI greater than 4 2408

hours, and proposes to allow the option for oral or posted notification where the product applied 2409

has an REI of 4 hours or less. EPA expects the changes to improve worker protection by 2410

increasing workers’ awareness of treated areas and reminding them to take required precautions 2411

and to avoid pesticide exposure, leading to an overall reduction in occupa tional pesticide-related 2412

illnesses. 2413

2. Existing WPS regulations. Under 40 CFR 170.120, agricultural employers are required 2414

to notify workers about pesticide applications an d areas on the agricultura l establishment subject 2415

to an REI. Notification is required when work ers or handlers are on th e establishment during 2416

application or the REI and will pass within one quarter (1/4) mile of the treated area. In 2417

greenhouses and some enclosed nurseries, the ag ricultural employer must post warning signs. On 2418

farms, and in forests and non-enclosed nurseries, the agricultural employer may choose either to 2419*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 109 of 340 [RIN 2070–AJ22] post warning signs at the usual po ints of entry around the treated area or to notify workers orally 2420

about applications that will ta ke place on the establishment. Both posted and oral worker 2421

notification must inform worker s about the location of the application and treated areas under 2422

REIs so workers do not enter. In cases where the product labeling require s both written and oral 2423

notification of workers, the WPS also require s this “double notification.” Part 170 does not 2424

currently require the agricultural employe r to keep a record of oral warnings. 2425

3. Summary of the issues. In 2006, Farmworker Justice sent a letter to the EPA 2426

Administrator, signed by more than 50 differe nt farmworker groups, suggesting revisions for 2427

making the WPS more protective. The letter states, “Restricted- entry intervals (REIs) are... 2428

intended to provide a physical ba rrier, reducing worker exposure to pesticides when and where 2429

the risk is greatest. But workers are not effectivel y warned to keep out of recently treated areas.” 2430

(Ref. 35) Farmworker organizati ons noted three problems with th e current requirement: Workers 2431

may not remember REI details that span multiple days, oral warnings may not be adequately 2432

provided by the employer in the appropriate lang uage or understood and retained by the worker, 2433

and compliance with the oral warning requirement is difficult to verify. Farmworker Justice 2434

recommended posting areas treated with a pes ticide with an REI longer than 72 hours and 2435

requiring recordkeeping of oral notifications to workers. 2436

The Farmworker Justice comments are consis tent with research showing that oral 2437

instruction alone may not be an eff ective method of safety instruction. 2438

4. Details of the proposal/rationale. For “outdoor production,” EPA proposes to require 2439

that agricultural employers post warning signs where the pesticide to be applied has an REI 2440

greater than 48 hours, and to allow the option of oral warni ng or posted notification for products 2441

with an REI of 48 hours or less. For “enclos ed space production,” EPA proposes to require 2442*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 110 of 340 [RIN 2070–AJ22] posting of warning signs where the product applied has an REI greater than 4 hours, and to allow 2443

the option of oral warning or pos ted notification for products with an REI of 4 hours or less. 2444

EPA believes that under the current rule ag ricultural employers most commonly opt to 2445

provide oral notification to thei r workers because this is less costly and less burdensome than 2446

physically posting treated areas. However, worker s may not recall oral notifications when REIs 2447

are longer than a few days. Adults remember onl y about 10% of what they hear, but when the 2448

information is seen and heard retention improve s to about 50% (Ref. 41). Entry into a treated 2449

area during an REI presents an elevated risk of pesticide exposure and EPA believes that 2450

ensuring that workers are adequately notified of treated areas in a manner they can recall and 2451

understand would result in fewer entries into tr eated areas during the RE I without appropriate 2452

protection. 2453

A 2008 SENSOR-Pesticides/California Departme nt of Pesticide Re gulation publication 2454

cites reentry into pestic ide-treated areas prior to the end of the REI as the second leading factor 2455

contributing to reports of acute occupational pe sticide poisoning cases in agricultural workers 2456

(Ref. 11). One reason workers may be entering pestic ide-treated areas is their lack of awareness 2457

that the area has been treated with a pesticide and is under an REI, which EPA believes can be 2458

addressed by more robust posting of treated areas. 2459

Because workers face challenges with liter acy and understanding English, EPA believes 2460

that reducing the reliance on s poken messages to protect worker s and increasing reliance on a 2461

clear, graphic, posted warning would better protect workers from the risks of entering a treated 2462

area before the REI expires wit hout proper protection. The posted warning signs will serve as 2463

physical reminders for workers to avoid areas in which the REI has not expired. During pesticide 2464

safety training, workers would be informed of the requirement for agricultural employers to 2465*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 111 of 340 [RIN 2070–AJ22] provide oral or posted notificati on for treated areas, in addition to the current requirement to 2466

describe the warning signs, which would increas e workers’ likelihood of noticing and complying 2467

with entry restriction signs. [See Unit VII.E.] Tr eated areas under an REI pose elevated risk of 2468

exposure; thus, by keeping worker s out, negative health effects of pesticide exposure may be 2469

avoided. EPA expects the proposed requirement to increase the number of areas posted on 2470

agricultural establishmen ts across the nation, thereby increas ing the number of workers who are 2471

aware of the REI and avoid entering, and ultima tely leading to a reduc tion of incidence of 2472

pesticide illnesses related to unintentional entry into treated areas under an REI. 2473

The protective effect of in creased posting requirements th rough subsequent reduction of 2474

pesticide illnesses has been shown in Monterey County, California. In response to a series of 2475

worker exposure incidents, Monterey County re quired agricultural employers to post areas 2476

treated with a pesticide with an REI of 24 hours or longer. Since its implementation, this county2477

specific requirement has led to a significant re duction in pesticide-related illnesses caused by 2478

entering a treated area before the expiration of an REI (Ref. 60). Ca lifornia cannot provide 2479

specific data on the percent re duction, but a 2001 report from the California Department of 2480

Pesticide Regulation noted stakeholder consensu s on and support for the requirement, stating: 2481

“All participants strongly believe that field posting prevents workers from early reentry. 2482

Monterey County participants support their 24- hour posting regulations , even though compliance 2483

is costly, because field posting prevents bot h application and reen try errors” (Ref. 60). 2484

EPA believes the proposed posting requirement may also foster compliance and facilitate 2485

enforcement because WPS inspectors could readily view posted warning signs. Inspectors who 2486

see workers in a treated area while the posted wa rning signs were displa yed could investigate 2487

whether the workers received pr oper early entry protections. 2488*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 112 of 340 [RIN 2070–AJ22] EPA believes posting all treated areas would be a very effec tive method for ensuring that 2489

workers are notified about what areas are under an REI. Howeve r, the burden on employers to 2490

post all treated areas subject to an REI would be substantial. To treat an area with an REI of 24 2491

hours, the employer would have to post the area, make the treatment, and retrieve the signs the 2492

following day. EPA believes that it is reasonable to expect worker s to remember oral warnings 2493

related to treated areas under REIs for at most 2 work days, or about 48 hours. 2494

EPA is proposing to allow oral or posted wa rnings for areas in gr eenhouses treated with 2495

an REI of 4 hours or less. Greenhouse producti on is much more compact than outdoor 2496

production. In a row of planting tables, there co uld be many applications. EPA recognizes the 2497

need for workers to have information about the different risks they face; however, EPA also 2498

believes that products with an REI of 4 hours or less generally pose lower risks than products 2499

with longer REIs. 2500

As noted, EPA believes that workers can reta in warning information provided orally for 2501

up to 48 hours. However, greenhouses and other en closed space production establishments have 2502

significantly more applications in a smaller sp ace. EPA believes it is unr easonable to expect 2503

workers to remember all of the information pr ovided orally about treated areas when each 2504

different planting tray could ha ve different requirements, ther efore EPA is proposing a lower 2505

threshold for posting notification of treated areas on establishments where multiple applications 2506

may be conducted in a small area. EPA believes a llowing employers the opti on to provide oral or 2507

posted notification of treated areas for a small subset of pesticides provides employers with 2508

flexibility while ensuring workers receive the information necessary to protect themselves. 2509*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 113 of 340 [RIN 2070–AJ22] The proposed regulatory text concerning notific ation appears in the following sections of 2510

today’s proposed rule: outdoor production – §17 0.109(a)(1)(i) and enclos ed space production – 2511

§170.109(a)(1)(ii). 2512

5. Costs and benefits. EPA estimates the cost of requiri ng employers to post all treated 2513

areas with an REI longer than 48 hours would be $10.5 million annually, or about $27 per 2514

establishment per year. EPA estimates that the proposed changes to notification in greenhouses 2515

would save about $10,000 per year , or $14 per greenhouse. For a complete discussion of the 2516

costs of the proposals and alternatives, see the “Economic Analys is of Proposed Revisions to the 2517

Worker Protection Standard,” Chap ter 3 Cost Analysis (Ref. 1). 2518

EPA cannot quantify the benefits associated with this specific proposal; however, EPA 2519

believes requiring employers to post treated area s under an REI of greater than 48 hours would 2520

provide workers with more reliable information on treated areas and when to stay out. EPA 2521

expects this would result in fewer workers ente ring treated areas under an REI and therefore 2522

reduce the number of pesticide-related il lnesses attributable to this cause. 2523

6. Alternative options co nsidered but not proposed

. -- i. Alternatives to Posting 2524

Timeframe . EPA considered the Farmworker Justic e recommendation for EPA to require posted 2525

warning signs in treated areas with REIs greater than 72 hours. This option would provide more 2526

protection than the curre nt regulation, but not as much as the proposed option which would 2527

require the same posting, but for REIs greater th an 48 hours. Given the importance to the worker 2528

of understanding which areas are under an RE I, EPA believes that posted notification for 2529

products with REIs over 72 hours would not adequa tely warn workers to take precautions. EPA 2530

believes that it would be unreasonable to expect a worker to retain the information about what 2531*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 114 of 340 [RIN 2070–AJ22] areas were treated and when REIs expire for l onger than a two day pe riod. EPA estimates the 2532

cost of this proposal would be about $7.4 million, or $19 per establishment. 2533

EPA also considered requiring agricultural employers to post warning signs in treated 2534

areas with an REI of 24 hours or longer, sim ilar to the requirement in Monterey County, 2535

California. EPA recognizes the impact of Mont erey’s posting requirement in reducing exposure 2536

to workers. However, EPA also recognizes the need to balance the pr otection of workers and 2537

burden on agricultural employers and applicat ors. Monterey County represents a small 2538

geographical area. EPA believes that while posting of treated areas with an REI of 24 hours or 2539

longer may have been practical in this limited region, it would not be pr actical as a national 2540

requirement. Agricultural employers would have a much higher burden to post every treated area 2541

with an REI of 24 hours or longer. EPA believes th at workers could retain information on treated 2542

areas and REIs for up to two days. 2543

Lastly, EPA considered a requirement to pos t warning signs in al l treated areas under 2544

REIs for enclosed space and outdoor production. This option would ensure that workers are 2545

aware of the status of every treated area a nd every area without posting would be safe for 2546

workers to enter. Posting of all treated areas where an REI is in effect would send a clear 2547

message to workers; however, it would be very difficult for agricultural employers to comply 2548

with this requirement. Some products have an REI of 4 hours. In essence, an employer would 2549

post signs after application and al most immediately take them down. While this task may be easy 2550

in enclosed space production, it may be substa ntially more burdensome for an agricultural 2551

employer engaged in outdoor production. 2552

EPA believes that the proposed option to require posting of all areas of outdoor 2553

production treated with a product with an REI gr eater than 48 hours strikes a balance between 2554*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 115 of 340 [RIN 2070–AJ22] the three alternatives considered. EPA recognizes the value of allowing oral warning for worker 2555

notification of treated areas w ith REIs less than 48 hours because this option would provide 2556

regulatory flexibility (Ref. 18). EPA believes that workers informed orally can remember that an 2557

area has been restricted for entry for up to tw o days. Posting areas tr eated with a pesticide 2558

product with an REI greater than 48 hours would provide workers visual reminders when the 2559

REI is sufficiently long that a worker could have difficulty remembering the specific area treated 2560

or length of the REI. 2561

ii. Recordkeeping of Oral Notification . To address concerns that workers may not receive 2562

oral notifications of tr eated areas with REIs shorter than or equal to 48 hours, EPA considered 2563

adding a requirement for agricultural employers to retain records of th e oral warning provided, 2564

signed by the workers who received the notification, for 2 years. The required record would 2565

contain: 2566

• Location and description of the entry-re stricted area and the treated area; 2567

• Date and time the REI starts and ends; 2568

• Date and time the agricultural empl oyer provided the oral warning; 2569

• Name and signature of the pers on providing the warning; and 2570

• Name and signature of each employee that received notification. 2571

Requiring the employee’s signature on the record would provide incentive to the 2572

employer to provide the notificati on in a manner the worker unders tands in order to obtain the 2573

signature. This requirement would impose signifi cant burden on employers. The time required to 2574

comply with the recordkeeping would substant ially increase the time currently required to 2575

provide the oral notification, ba sed on the additional requiremen t to explain the notification 2576*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 116 of 340 [RIN 2070–AJ22] record and secure the signatures of all workers en tering or working within 1/4 mile of the treated 2577

area. 2578

In addition, workers may have difficulty r eading and understanding the record of the 2579

notification because many are not literate in E nglish. Workers may sign the notification record 2580

because instructed to do so by the employer, not because they understand the information 2581

provided and intent of the record of the oral no tification, undermining the in tent of the record as 2582

confirmation of transfer of information to workers. 2583

EPA estimates the cost to collect and reta in records for 2 years would be about $20 2584

million, or about $51 per establishment. This cost is substantially higher than the cost for 2585

recordkeeping of pesticide safety training beca use pesticide safety training would only occur 2586

once annually per worker whereas records of oral notification could be required almost every 2587

time an application occurs. EPA has insufficient data to support a claim that the potential 2588

benefits of this alternative, i.e., increased enforceability of the WPS, would outweigh the 2589

potential burden on agricultural employers to record and maintain the information. 2590

7. Request for comment. EPA specifically requests comment on the following questions: 2591

• For outdoor production, EPA proposes to allo w the option of oral warning or posted 2592

notification for products with an REI of 48 hours or less. Is ther e a different time period that 2593

would better balance the costs of complia nce with the expected risk reduction? 2594

• Will the proposed requirements for posting instead of oral warnings provide sufficient 2595

benefit for workers to warrant the additiona l burden placed on agricultural employers? 2596

• Should EPA require recordkeeping for oral notification? If so, why? 2597

B. Locations of Warning Sign 2598*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 117 of 340 [RIN 2070–AJ22] 1. Overview. Where the existing WPS requires a warning sign to be posted, the signs 2599

must be placed where they are visible from all usual points of worker entry to the treated area, 2600

the corners of the treate d area, or an area affording maximum visibility. EPA proposes to revise 2601

the required posting locations to include locations visible from a worker housing area if the 2602

housing area is within 100 feet of a treated area for outdoor production. 2603

2. Existing WPS regulations. The WPS requires employers to post warning signs (40 2604

CFR 170.120(c)). For applications in farms, forests, and non-encl osed nurseries (what EPA is 2605

proposing to define as “outdoor production”), the warning signs must be visible from all usual 2606

points of worker entry into th e treated area, including, at a minimum, each access road, each 2607

border with a labor camp (what EPA is proposing be referred to as a “worker housing area”) 2608

adjacent to the treated area, and each footpath or other walking route that enters the treated area. 2609

For applications in greenhouses and indoor nurse ries (what EPA is proposing to define as 2610

“enclosed space production”), the wa rning signs must be visible fr om all usual points of worker 2611

entry to the treated area, includi ng, each aisle or other walking rout e that enters the treated area. 2612

When there are no usual points of worker entry to the treated area (farm, forest, nursery or 2613

greenhouse), the employer must post signs in the co rners of the treated area or in any other 2614

location offering maximum visibility. 2615

3. Summary of the issues. During the National Assessment process, stakeholders, 2616

including farmworker groups and healthcare or ganizations, raised concerns about providing 2617

notice to worker housing inhabitant s when their location is not dir ectly adjacent to the treated 2618

area (Ref. 17). Workers and their families housed near treated areas may have a higher likelihood 2619

of exposure to pesticides from inadvertently entering a treated ar ea; the increased detection of 2620

pesticides in the body has been found to be associ ated with housing adj acent to treated areas 2621*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 118 of 340 [RIN 2070–AJ22] (Ref. 51) (Ref. 57). In order to mitigate the risk associated with walking into a treated area 2622

without adequate notification, stak eholders suggested in creasing the posting of areas near worker 2623

housing areas (Ref. 35). 2624

4. Details of the proposal/rationale. To prevent inadvertent entry into treated areas from 2625

onsite worker housing areas, EPA proposes to require a posted warning sign visible from a 2626

worker housing area if the housing area is wi thin 100 feet of a treated area for outdoor 2627

production in addition to the required current locations. EPA expects th is requirement would 2628

improve notification of workers and their familie s in worker housing areas, mitigating exposure 2629

resulting from entry into a treated area under an REI. This additional posting location should also 2630

improve safety of families living on or near agricultural establishments. Individuals in worker 2631

housing areas would be able to see the posted wa rning signs and avoid entry into the area. 2632

EPA considered the demographics of th e worker population when developing this 2633

proposal. In recognition of their low literacy a nd limited English language skills, EPA proposes 2634

to use the widely recognized warnin g sign indicating to stay out of a particular area with text in 2635

at least two languages. In addition, workers and their families generally live near agricultural 2636

areas but may not be aware of when a nearby area has been treated. Children may play around 2637

the home in a treated area, increasing the like lihood of exposure to pesticides. By posting 2638

information warning of pesticide applications near worker housing for workers and their families 2639

to see, EPA believes that they will be less likely to inadvertently enter a treated area and thereby 2640

will reduce overall risk of exposure to pesticid es. This proposal supports EPA’s commitments to 2641

keeping children safe and to ta ke specific measures to prot ect vulnerable or disadvantaged 2642

communities and populations. 2643*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 119 of 340 [RIN 2070–AJ22] The proposed regulatory text concerning th e warning sign appear s in §170.109(b)(3)(ii) 2644

of today’s proposed rule. 2645

5. Cost . EPA believes the cost of this proposed e xpansion of the areas that must be posted 2646

would be negligible. For a complete discussion of the costs of the proposals and alternatives, see 2647

the “Economic Analysis of Proposed Revisions to the Worker Protection Standard,” Chapter 3 2648

Cost Analysis (Ref. 1). 2649

6. Alternative options co nsidered but not proposed . EPA considered a recommendation 2650

offered by Farmworker Justice to require signs to be posted at the usual po ints of entry and every 2651

100 feet along the perimeter of the treated area (Ref. 35) . Many members of the PPDC 2652

workgroup, including state regulatory agencies , cooperative extensi on services, and the 2653

agricultural industry, said that posting warning signs every 100 feet around treated areas under 2654

an REI would impose unnecessary burdens on th e agricultural employer without resulting in 2655

additional protections for workers (Ref. 36) . Based on anticipated high burden without 2656

demonstrable benefits for this option, EPA d ecided not to propose increasing posting to every 2657

hundred feet around the perimeter. 2658

7. Request for comment. EPA specifically requests comment on the following questions: 2659

• Are there preferable alternatives to th e proposed option for posting locations that 2660

EPA has not considered? If so, please describe and provide data to s upport the al ternative. 2661

C. Warning Sign Content 2662

1. Overview. The current WPS warning sign says “Keep Out” and has a picture of a stern2663

faced man with an upraised hand in a red circ le. EPA proposes to require the phrase “Entry 2664

Restricted” instead of “Keep Out” on warning signs. EPA also proposes to change the red shape 2665

on the sign from a circle to an octagon. EPA be lieves the text change would more accurately 2666*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 120 of 340 [RIN 2070–AJ22] reflect the intended message for workers to be ad equately prepared and informed before entering 2667

a posted area, and the octagonal shape will provide an effective signal that entry is restricted that 2668

does not depend on literacy or language spoken. 2669

2. Existing WPS regulations. Under 40 CFR 170.120(c)(1), po sted warning signs must 2670

state “Danger, Pesticides” and “Keep Out” in English and Spanish or another language the 2671

workers understand and contain the “stern-faced ma n with the upraised hand” in a red circle as 2672

pictured (in black and white) below. 2673

2674

3. Summary of the issues. Stakeholders, including stat e regulators, educators, and 2675

farmworker groups, have noted that the message on the sign can be confusing. Under the WPS, 2676

workers can be trained and equipped to enter a treated area during an REI to conduct certain 2677

early-entry tasks, such as repairing a clogged irrigation hose. [See Unit XII.B.] Due to these 2678

exceptions, including the “Keep Out” text on the warning sign may lead to worker confusion, 2679

since workers have been trained to stay out of a treated area posted with the warning sign and 2680

also may be directed by their employer to enter the treated area to conduct an appropriate early2681

entry task. 2682

4. Details of the proposal/rationale. EPA proposes to revise the required text on the 2683

warning sign to convey more accurate information to workers. While warning signs would retain 2684

the phrase “Danger, Pesticides” text at the top, the message at the bottom of the sign would read 2685

“Entry Restricted” instead of “Keep Out”. EPA be lieves this revision to the text more accurately 2686*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 121 of 340 [RIN 2070–AJ22] reflects that the sign is a warni ng to those entering a treated ar ea. “Entry restricted” provides a 2687

bold warning for anyone entering a treated area but also allows that some entry may be 2688

permitted. 2689

Additionally, EPA plans to replace the current sh ape of the red circle that contains the 2690

stern-faced man with the upraised hand with an octagon. A red octagon is a widely-recognized 2691

symbol to stop, and this will provide a stronger signal to workers to be cautious when they 2692

encounter the posted warning sign, even if they are unable to comprehend the text. Workers will 2693

receive pesticide safety training to reinforce the meaning of the warning signs and help them in 2694

determining how to proceed. [See Unit VII.E.] The proposed warning sign is pictured below (in 2695

black and white). 2696

2697

EPA specifically considered input received di rectly from workers in developing this 2698

proposal. Workers have indicated that they prefer to get information in simple language and 2699

images that communicate the message (Ref. 40). EPA expects that these modifications to the 2700

warning sign will provide a clearer, simpler warn ing to workers. EPA is aware of the importance 2701

of conveying clear and simple safety information to worker populations, particularly for workers 2702

who may have a low literacy le vel in English or their nativ e language (Ref. 61, p. 16). NAWS 2703

data show that 85% of workers would have difficulty obtaining information from printed 2704

materials in any language (Ref. 3, p. 17). The pro posed modifications to the warning sign would 2705*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 122 of 340 [RIN 2070–AJ22] make it clearer and simpler, which should enhan ce comprehension by low-literacy adults, and by 2706

children of farm workers (Ref. 62). 2707

The proposed regulatory text concerning the content of the warning sign appears in 2708

§170.109(b)(2) of today’s proposed rule. 2709

5. Costs and benefits. EPA estimates the cost of requi ring employers to use the revised 2710

warning sign would be $97,000 annually, or an aver age of $0.25 per establishment per year. EPA 2711

estimates that employers currently purchase new signs every 2 year s because weather and 2712

outdoor exposure renders the signs unusable after this period. For a complete discussion of the 2713

costs of the proposals and alternatives, see the “Economic Analys is of Proposed Revisions to the 2714

Worker Protection Standard,” Chap ter 3 Cost Analysis (Ref. 1). 2715

EPA cannot quantify specific benefits for th is proposal. EPA believes that requiring the 2716

use of signs that more accurately convey the intended message would lead to better 2717

understanding of the sign and its message by work ers. This would result in less confusion about 2718

what the sign means, which should mean less poten tial for workers to di sregard the sign out of 2719

confusion, and thus, fewer workers entering treat ed areas under an REI which should decrease 2720

the number of occupational pe sticide-related illnesses. 2721

6. Alternative options co nsidered but not proposed . Farmworker Justice recommended 2722

that EPA replace the “stern-faced man with the upraised hand” w ith the skull and crossbones. 2723

They noted that the skull and crossbones is a universally recognized sy mbol that communicates 2724

high risk of danger or death, and suggest that wo rkers would better recogniz e the risks associated 2725

with entering an area posted with th e warning sign if it bore this symbol. 2726

EPA considered Farmworker Justice’s r ecommendation to change the warning sign 2727

graphic to the skull and crossbones, but decide d against this option. The skull and crossbones 2728*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 123 of 340 [RIN 2070–AJ22] symbol is currently used on Toxicity I and II pe sticide product labeling and for designation of 2729

treated areas for certain extremely hazardous pest icides, for example, fumigants, and using the 2730

same symbol in less hazardous conditions would weaken its impact where it is needed most. The 2731

skull and crossbones symbol is a ssociated with extreme toxicity or death, which is not always 2732

appropriate for every pesticide that has an RE I. In contrast, the proposed sign indicates to 2733

workers that they should use caution in enteri ng the treated area, but that entry may be 2734

permissible with the proper safety equipment. EPA does not want to send workers a mixed 2735

message by using the skull and crossbones on the si gn. In addition, workers have been trained to 2736

recognize the current sign since th e rule went into effect. The Agency believes that the “stern2737

faced man with the upraised hand” is still the most appropriat e and well-recognized symbol for 2738

workers. 2739

7. Request for comment. EPA specifically requests comment on the following questions: 2740

• Should EPA consider replacing the current or proposed general field posting sign with 2741

risk-based reentry signs? What would be the costs and benefits of using risk-based signs? 2742

IX. Hazard Communication 2743

A. Pesticide-Specific Hazard Co mmunication Materials – General 2744

1. Overview. The existing WPS does not require employers to provide workers and 2745

handlers with pesticide-specific hazard informati on on the products they may be exposed to in 2746

the workplace. In contrast, OSHA’s Hazard Comm unication Standard (HCS), which covers most 2747

workplaces, requires employers to provide chemical -specific hazard information (i.e., the safety 2748

data sheets or SDSs) to workers before they en ter an area where they could be exposed and to 2749

make the same material available to worker s upon request. EPA proposes to require that 2750

agricultural and handler employers provide workers and handlers with access to copies of the 2751*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 124 of 340 [RIN 2070–AJ22] SDS and pesticide labeling for products that ha ve been applied on the establishment and to 2752

which workers and handlers may be exposed. EPA believes making this information available to 2753

workers and handlers may assist them and possibl y health care providers in the event of an 2754

emergency situation involving pesticide exposur e. EPA also believes th at providing access to 2755

specific hazard information would assist worker s and handlers in better protecting themselves 2756

and others from pesticide hazards in the workplace. 2757

2. Existing WPS regulations. The WPS contains several provisions designed to 2758

communicate pesticide hazard information to wo rkers and handlers. By providing workers and 2759

handlers with relevant information, these provi sions minimize workplace risks associated with 2760

pesticide use and mitigate the potential for o ccupational pesticide exposure. First, the WPS 2761

requires employers to train wo rkers and handlers on basic pesticide safety and the general 2762

hazards associated with pesticides (40 CFR 170.130 and 170.230). Second, the WPS requires 2763

employers to display basic pesticide safety info rmation at a central location on the establishment 2764

to remind workers and handlers of safe practices when working with or around pesticides and to 2765

provide information about obtaining emergency medical assistance (40 CFR 170.124 and 2766

170.224). Third, the WPS requires employers to provi de handlers with access to the pesticide 2767

labeling during pesticide handling ac tivities and to ensure that th e handler has read the labeling, 2768

or been informed in a manner th e handler understands, of all labeli ng requirements related to safe 2769

pesticide use (40 CFR 170.232(a)). Lastly, employe rs must display certain information about 2770

pesticide applications made on the establishmen t whenever workers or handlers will be on the 2771

establishment and a pesticide has been applied or an REI has been in effect within the last 30 2772

days (40 CFR 170.122 and 170.222). Although the exis ting WPS requirements provide workers 2773

and handlers with basic safety information on how to protect themselves from general pesticide 2774*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 125 of 340 [RIN 2070–AJ22] hazards, and where pesticides have been applied on the establishment, no requirement exists for 2775

employers to make pesticide-specific hazard comm unication materials, such as the SDS and the 2776

pesticide labeling, accessible to both workers and handlers. 2777

3. Summary of the issues. During the National Assessment meetings, health care, 2778

medical, and farmworker organizations urged th e Agency to add pesticide-specific hazard 2779

communication provisions to the rule (Ref. 17). They noted that the WPS-required information 2780

about pesticide applications that must be displa yed at the establishment provides a limited set of 2781

information about the pesticides used on the establishment. The information does not provide an 2782

explanation of the specific symptoms associated with exposure to a specific product, nor does it 2783

provide other use-related information that worker s, handlers, and health care providers would 2784

benefit from reviewing in the ev ent of a pestic ide-related illness or an emergency. To support 2785

their request, they noted the disp arity between information about ch emical hazards required to be 2786

provided to workers and handler s covered by the WPS and the in formation provided to workers 2787

in all other industries under the OSHA HCS. 2788

Farmworker organizations suggested that wo rkers and handlers should receive “written 2789

information, in a pictorial and low-literacy format , concerning the short- and long-term health 2790

effects associated with each pesticide used at their worksite ” (Ref. 35, p. 2). Farmworker Justice 2791

recommended that growers provide “crop shee ts,” i.e., booklets with information on each 2792

pesticide used on an establishment, to each worker and handler at the beginning of each work 2793

period that involves entry into a ny treated area. (Crop sheets can ta ke various forms but generally 2794

summarize information about the pesticides used on a particular crop, the timing of application, 2795

the type of application (for example, air blast or ground boom), and potential symptoms from 2796

exposure to the pesticide.) Farmworker Justice su ggested that the crop sh eets be available in 2797*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 126 of 340 [RIN 2070–AJ22] English and Spanish. They believe that informa tion presented in this format would enable 2798

workers and handlers to recognize adverse eff ects and seek medical assistance if they 2799

experienced symptoms related to exposu re to a specific pe sticide (Ref. 35). 2800

Pesticide safety trainer representatives on the Pesticide Program Dialogue Committee 2801

Workgroup suggested that provid ing simple information on how to prevent potential pesticide 2802

exposure is the most effective way to enable wo rkers and handlers to protect themselves (Ref. 2803

36) (Ref. 39); they did not endorse a specific t ype of hazard communication information. Health 2804

care organizations noted that re quiring employers to maintain pesticide labeling or SDS could 2805

facilitate quick access to these documents by worker s, handlers, or their representatives in the 2806

event of an accidental exposure requiring medica l attention. These groups noted that health care 2807

practitioners can provide more a ppropriate medical attention if they can review and reference 2808

either the label or the SDS. [See Unit XIV.] 2809

4. Details of the proposal/rationale. EPA proposes to require that agricultural and handler 2810

employers make available to workers and handlers SDS and the labeling for pesticides used on 2811

the establishment that require WPS compliance. This proposed requirement would be in addition 2812

to the existing requirements to notify workers a nd handlers of the date, time, and location of 2813

application, length of REI, and to identify the pesticid e product. Employers would be required to 2814

maintain the SDSs and the pesticide labels on the establishment for 2 years from the date of the 2815

pesticide application. Workers, handlers or thei r authorized representatives could request access 2816

to the pesticide-specific hazar d information during normal business hours. [See Units IX.B. and 2817

IX.C. for proposed revisions to employer requirem ents to provide information about pesticide 2818

applications.] 2819*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 127 of 340 [RIN 2070–AJ22] In adopting the Hazard Communication Standa rd, OSHA said there was evidence to 2820

indicate potential for chemical e xposure in every type of indust ry, and that lack of knowledge 2821

about those hazardous chemicals puts employees at significant risk of experiencing material 2822

impairment of health (52 FR 31852; August 24, 1987) (59 FR 6126; February 9, 1994) (Ref. 63). 2823

While the WPS pesticide safety training provides ge neral information about risks associated with 2824

pesticide exposure and how a worker or handler ca n protect himself or herself, the addition of a 2825

requirement to provide information about each sp ecific pesticide would provide complete hazard 2826

information. The addition of a requirement to provide pesticide-specif ic hazard information 2827

about each pesticide product requiring WPS comp liance that is applied on the establishment 2828

would provide workers and handlers with more co mplete information about the chemical hazards 2829

they may encounter in the workplace. 2830

Requiring employers to maintain the product labeling and SDSs for products applied on 2831

their establishment would ensure that workers and handlers have access to detailed types of 2832

pesticide hazard and emergency response informati on that would enable them to better protect 2833

themselves and respond to emergencies. Addi tionally, as discussed in Unit XVI., medical 2834

personnel are generally able to provide better tr eatment in the event of a pesticide exposure 2835

incident when they have more information about the pesticide product to which the worker or 2836

handler may have been exposed. Allowing authori zed representatives of workers and handlers to 2837

have access to the product labeling and SDSs upon request would assure that the information can 2838

be accessed if a worker or handler is incapacitate d; in addition, it would help assure that access 2839

to this information is not impeded due to empl oyee fears of retaliation. It also increases the 2840

likelihood that workers and handl ers will receive assistance in reading and understanding these 2841

documents in cases where they need such assistance. 2842*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 128 of 340 [RIN 2070–AJ22] EPA believes that imposing this requireme nt would not be unduly burdensome to 2843

employers and would provide workers, handler s, and emergency responders with access to 2844

appropriate pesticide-speci fic hazard information that should meet their needs. The SDS provides 2845

succinct information about the known health hazards of the material, providing hazard 2846

information that typically is not presented on the product labeling, a nd it is readily available from 2847

pesticide manufacturers and should be provided with the pesticide c ontainer at the point of sale. 2848

Based on EPA’s review of current state pesticide laws and regulat ions, and labor laws pertaining 2849

to agricultural operations using pesticides, 12 st ates currently require agricultural employers to 2850

make SDSs available to employees that may potentia lly be exposed to pesticides as part of their 2851

occupational duties (Ref. 64). Ten of the states implement this requirement under state labor 2852

regulations. Florida and California imp lement it under state pesticide laws. 2853

The use of SDS in hazard communication in all other industries, as well as in agriculture 2854

in several states, leads the Agency to believe th at it would be the approp riate vehicle to make 2855

pesticide-specific hazard information available to workers and handlers. 2856

EPA recognizes that some employers may mainta in electronic copies of their records. 2857

Under the proposed option, an employer could mainta in a copy of the pesticide labeling used for 2858

the application and the corresponding SDS in ei ther paper or electronic form. The employer 2859

would need to be able to provide a paper c opy of the materials upon request. Employers would 2860

not need to update the pesticide labeling on file each time a new ve rsion is released; the labeling 2861

on file must correspond with the labeling used at the time of application. 2862

The proposed regulatory text concerning th e provision of SDSs and pesticide product 2863

labels appears in §170.11(b) of today’s proposed rule. 2864*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 129 of 340 [RIN 2070–AJ22] 5. Costs and benefits. EPA estimates the cost of requiring employers to maintain 2865

application information, SDS, and labeling for 2 years would be $3 milli on annually, or about $8 2866

per WPS establishment per year. The cost to obtain the SDS and labeling, as well as the 2867

additional information described in unit IX.B., and to make it available would be about $5.3 2868

million annually, or about $14 per establishment. For a complete discussion of the costs of the 2869

proposals and alternatives, see th e “Economic Analysis of Propos ed Revisions to the Worker 2870

Protection Standard,” Chapter 3 Cost Analysis (Ref. 1). 2871

EPA cannot quantify the specific benefits asso ciated with this proposal; however, the 2872

Agency believes that workers and handlers woul d benefit from having access to more complete 2873

information about the pesticides to which they may be exposed. The additional information also 2874

could be used to assist in more accurately di agnosing and treating pesticide-related illnesses. 2875

EPA believes the costs of making more pesticide application info rmation available to workers 2876

and handlers are reasonable when compared to the expected benefits associated with the 2877

requirement. 2878

6. Alternative options co nsidered but not proposed . EPA considered three alternatives to 2879

the proposed option: a requirement to make crop sheets available, a requirement to translate 2880

SDSs into different languages, and limiting the required pesticide information to the pesticide 2881

labeling. 2882

First, the Agency considered requiring employe rs to provide workers and handlers with a 2883

crop sheet in English and Spanish for each pestic ide they might encounter, each time they enter 2884

the treated area. The Agency is aware of several attempts by state agencies to pilot this use of 2885

crop sheets. California and Texas have had requirements for employers to provide crop sheets to 2886

those working in pesticide-treated areas. Texa s funded the initial development and periodic 2887*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 130 of 340 [RIN 2070–AJ22] updating of the crop sheets, but the process beca me too expensive and labor intensive for the 2888

state to continue. The states report ed that the crop sheets were left as litter in the treated area. 2889

Texas reported that the redundancy between the requirements under Texas law and the WPS 2890

contributed to the decision to di scontinue the crop sheet program. 2891

EPA believes that developing crop sheets as recommended by farmworker organizations 2892

would be challenging because they suggested s imple pictorial descriptions of hazards and 2893

symptoms, which would not be accomplished eas ily with the technical information that is 2894

generally included on an SDS. In addition, many agricultural enterprise s produce a variety of 2895

commodities, increasing the number and complexity of the crop sheets. Agricultural practices 2896

differ across regions and according to local conditi ons, making it difficult to develop a standard 2897

set of crop sheets that could be used nationally; a booklet that w ould be useful for vegetables 2898

grown in New England would not be representative of practices in vegetable production in the 2899

Southwestern United States. As part of its c onsideration, the Agency assessed the cost of 2900

developing crop sheets based on the assumption that pesticide registrants would develop the crop 2901

sheets because they have the most complete kno wledge of each pesticide’s properties, hazards, 2902

and potential health effects. The estimated co st of $13 million annually does not include copying 2903

and distributing the crop sheets to workers and handlers every time they enter a treated area. 2904

Copying and distributing the crop sh eets would significantly increase the cost of this option. 2905

Based on the experience of states that have attempted to implement crop sheet 2906

distribution programs, EPA does not believe that workers and handlers would benefit sufficiently 2907

to justify the cost of developing, compiling, tr anslating, and distributing specific crop sheets. 2908

Second, EPA considered requiring pesticide-sp ecific hazard communication materials to 2909

be made available in a language that worker s and handlers can understand. This would mean 2910*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 131 of 340 [RIN 2070–AJ22] translating a copy of the SDS and labeling into each language understood by a worker or handler 2911

on the establishment and maintaining copies of the original and translated SDS and labeling, 2912

rather than providing the information in Englis h and putting the burden of translation on the 2913

worker or handler. 2914

The NAWS estimates that the majority of agricultural workers (83%) are non-English 2915

speakers (Ref. 65). Additionally, NAWS data show that 85% of workers “would have difficulty 2916

obtaining information from printed materials in any language” (Ref. 61, p. 16). Additionally, 2917

workers and handlers speak a large number of la nguages and dialects, and the Agency believes it 2918

would be impractical to transl ate and present complex inform ation into so many different 2919

languages. This requirement would be complicat ed further by the fact that some indigenous 2920

worker and handler populations do not have a written language. EP A assumes that a majority of 2921

requests for the SDS will be made related to a he alth care incident, which means that either the 2922

health care practitioner or a worker advo cacy support group would likely receive the 2923

information. These groups are more likely to have staff that speak English and are capable of 2924

translating the information for the worker or handler if necessary. 2925

All other industries – includi ng the construction, janitorial , and maintenance industries 2926

where there are traditionally significant numbe rs of workers with limited skills reading or 2927

understanding English – use SDSs in English to meet OSHA’s Hazard Communication Standard 2928

requirements to make chemical hazard info rmation available to employees (29 CFR 2929

1910.120(g)). Most readily available sources of pest icide-specific hazard information, such as 2930

SDS and pesticide labeling, are in English. EPA di d not estimate the cost of translating the SDS 2931

and labeling into each language spoken by worker s and handlers, but expects that the burden 2932

would be extremely high. The burden of produci ng SDSs in multiple languages would probably 2933*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 132 of 340 [RIN 2070–AJ22] fall on registrants, but agricultu ral and handler employers woul d bear the burden of obtaining 2934

and maintaining a copy of this information in every language spoke n by their workers and 2935

handlers. 2936

Based on this information, EPA does not believ e that the risk reductions expected to 2937

result from providing SDSs to workers in thei r native languages would ju stify the significant 2938

costs of doing so. Medical and legal personnel w ho would provide assistance to workers in the 2939

event of a suspected exposure are proficient in English and could use the SDSs as already 2940

developed by the pesticide registrant. 2941

Finally, EPA considered requiring the employer to maintain only labeling for pesticides 2942

that require WPS compliance that are applied on their establishments, rather than both the 2943

product’s labeling and SDS. Pesticide labeli ng must accompany the product; therefore, 2944

employers generally already have a copy of the labeling for products applied on their 2945

establishment. When a pesticide is applied by a commercial applicator or someone other than the 2946

agricultural employer, he or she can easily reque st a copy of the pesticide labeling from the 2947

person who made the application. The SDS, on the other hand, does not accompany the product 2948

and may require more time to locate, increa sing the burden on the agricultural employer. 2949

Limiting the requirement to the pesticide la beling could reduce the burden on agricultural 2950

employers. 2951

EPA believes that the burden associated with retrieving a pesticide SDS is, however, not 2952

substantial because the SDS is readily availabl e online and can be requested from and provided 2953

by the pesticide manufacturer and sometimes the pe sticide dealer. The SDS contains information 2954

necessary for the diagnosis and treatment of certain pesticide-related illnesses. In some instances 2955

of pesticide-related illnesses, time is of the essence in determining the course of treatment. In 2956*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 133 of 340 [RIN 2070–AJ22] these instances, having the SDS readily available for the worker, handler, and/or treating medical 2957

personnel could be essential to ensuring proper treatment. The cost for requiring the employer to 2958

collect and make available only the labeling would be about $1.6 million, or about $4 per 2959

establishment. EPA believes that the additional burden associated with retrieving the SDS for 2960

each product is justified by the potential benefit to workers a nd handlers from having the SDS 2961

available in the event of a pesticide-related illness. 2962

7. Request for comment. EPA specifically requests comment on the following questions: 2963

• What would be the burden on employers to maintain the SDS and pesticide label for 2 2964

vs. 5 years? 2965

• Do agricultural employers already collect SDSs? If so, how do they obtain them and 2966

what burden is associated with retrie ving the SDS for one or more products? 2967

• What are the benefits and drawbacks of re quiring employers to maintain and provide 2968

access to employees and others the proposed pesticide-specific hazard information? 2969

• Are there other approaches to providing pest icide-specific information to workers and 2970

handlers that the Agency should consider? If so, please descri be and provide rationales for 2971

implementing them. 2972

• Are there other data on the benefit to wo rkers and handlers from receiving pesticide2973

specific information before every en try into a pesticide treated area? 2974

• Does opening access to pesticide-specific info rmation to authorized representatives 2975

raise any problems? If so, please describe the potential issues with particularity and provide 2976

supporting information where available. 2977

B. Pesticide Application Info rmation – Content and Timing 2978*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 134 of 340 [RIN 2070–AJ22] 1. Overview . The existing WPS contains requirem ents for agricultural employers to 2979

record and display information about pesticide applications and to make that information 2980

accessible to workers and handlers. However, th e existing requirements do not include some key 2981

information about pesticide applications that c ould help workers and ha ndlers better identify 2982

treated areas on the establishment and avoid pesticide exposure. EPA proposes to require 2983

additional information about pestic ide applications to be recorded. EPA also proposes to change 2984

the timing of when employers must record the information. EPA believes the additional 2985

information would better inform workers and hand lers of relevant info rmation about pesticide 2986

applications. The more flexible timing requireme nts for recording application information would 2987

reduce burden on employers. [See Unit IX.C. for proposed revisions to requirements for 2988

displaying information about pesticide applications.] 2989

2. Existing WPS regulations. The existing WPS requires agricu ltural employers to record 2990

and display certain information about pesticid e applications at a central location on the 2991

establishment. Employers must comply with this requirement when workers or handlers will be 2992

on the establishment and an application of a pe sticide requiring WPS compliance has been made 2993

or an REI has been effect within the last 30 days (40 CFR 170.122 and 170.222). The purpose of 2994

this requirement is to communicate information to workers and handlers about the locations of 2995

potential pesticide hazards on the establishment, for example, entry restricted areas or areas 2996

under an REI. The WPS requires employers to record and display the following information 2997

about pesticide applications: 2998

• Location and description of the treated area, 2999

• Product name, 3000

• EPA registration number, 3001*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 135 of 340 [RIN 2070–AJ22] • Active ingredient(s) of the pesticide product, 3002

• Time and date the pesticid e is to be applied, and 3003

• REI for the pesticide. 3004

The existing WPS requires the application informati on to be accurate and to be displayed before 3005

application takes place if workers are present on the establishment. If no workers or handlers are 3006

on the establishment at the time of application, the information must be posted before the first 3007

work period when workers or handlers are on the establishment. If warning signs are posted for 3008

the treated area before an application, the specific application information for that application 3009

must be displayed at the same time or earlier, in accordance with the display requirements. When 3010

workers or handlers are present on the establishm ent, the employer must display the application 3011

information for at least 30 days after the e nd of the REI. Employers may discontinue the 3012

information display prior to 30 days after the e nd of the REI when workers or handlers are no 3013

longer on the establishment. 3014

3. Summary of the issues. During the National Assessment and SBREFA consultation 3015

process, employers and pesticide applicators noted that they had di fficulty recording and 3016

displaying application information before the application occurs (Ref. 17) (Ref. 18). They cited 3017

changes in pesticide application plans, usually to accommodate changing weather conditions, as 3018

a primary reason for not being able to accurately record the pesticide application information. 3019

State regulatory agencies noted that the cu rrent requirement for providing information 3020

about pesticide applications lacked specific inform ation necessary to enable state inspectors to 3021

accurately determine the start and end times of th e REIs (Ref. 17). As a result of a high-profile 3022

pesticide enforcement case and the aforementi oned difficulty determining REI start and end 3023

times, North Carolina informed EPA that it has take n steps to amend the state pesticide laws. The 3024*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 136 of 340 [RIN 2070–AJ22] amended laws would require the end times of pestic ide applications to be recorded as part of 3025

state pesticide recordkeeping so inspector s could calculate preci se REIs (Ref. 66). 3026

4. Details of the proposal/rationale. In addition to the pestic ide application information 3027

currently required to be record ed, the Agency proposes to requi re agricultural employers to 3028

record further specific information about pestic ide applications. The proposed information would 3029

include the specific crop or site treated, the start and end dates a nd times of the application, and 3030

the end date and duration for the REI. EPA also proposes to revise the requirement for when 3031

information must be recorded to allow flexibili ty for agricultural employers to record the 3032

pesticide application informa tion no later than the end of the day of the application. 3033

An agricultural establishment can grow a vari ety of crops in specifi c areas. EPA believes 3034

that adding the type of crop site to the record would help wo rkers, handlers, and pesticide 3035

inspectors to distinguish the particular treated area to which the information pertains. EPA also 3036

believes that including the specifi c start and end times for the pest icide application, in addition to 3037

the date of application, would assist workers, handlers, and inspectors in accurately calculating 3038

the date and time the REI ends. The requirement for employers to note the specific date and time 3039

when the REI ends would clarify when work ers may enter the treated area. The proposed 3040

revisions would require agricultural employers to make the pesticide application information (as 3041

well as the proposed pesticide-specific hazard information [see Unit IX.A .]) available no later 3042

than the end of the day of the pesticide appl ication when workers are on the agricultural 3043

establishment that day. By “make available,” th e Agency means that the agricultural employer 3044

must, at a minimum, have the materials in a place where the workers, upon request, can have 3045

access to view them. If workers are not on the establishment on the day of application, the 3046

information must be made available at th e beginning of the first work period following 3047*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 137 of 340 [RIN 2070–AJ22] application. Changing when the application in formation must be made available allows 3048

flexibility if the application sc hedule changes. Making these cha nges would allow more realistic 3049

timeframes for recording applica tion information and would take into account the realities of 3050

fluctuations in application timing. The change also would accommodate the requests to record 3051

the end time of the application and timing of RE I. Information would be more accurate and the 3052

burden of correcting the information would be reduced. 3053

EPA does not believe that allowing the appli cation information to be made available by 3054

the end of the day would put workers and handlers at risk because notificati on of treated areas to 3055

workers and handlers must occur before the treat ment commences by either oral notification or 3056

by the posting of warning signs. Therefore, EPA be lieves that workers would be protected during 3057

application and immediately post-applica tion by the WPS notification provisions. 3058

The proposed regulatory text co ncerning the timing and conten t of pesticide application 3059

information required to be displayed appear s in §170.11(b) of today’s proposed rule. 3060

5. Costs . Because the information required in this proposal is linked to the retention of 3061

the pesticide labeling and SDS, the costs were calculated together. Therefore, the estimated costs 3062

for this proposal are included in the cost discus sed in Unit IX.A. For a complete discussion of the 3063

costs of the proposals and alternatives, see the “Economic Analys is of Proposed Revisions to the 3064

Worker Protection Standard,” Chap ter 3 Cost Analysis (Ref. 1). 3065

6. Request for comment. EPA specifically requests comment on the following questions: 3066

• Would the additional pesticide applicati on information proposed by EPA impose undue 3067

burden on the applicator or the employer? 3068

• Are there benefits or drawbacks to requiri ng this additional information that EPA has 3069

not considered? If so, please describe. 3070*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 138 of 340 [RIN 2070–AJ22] C. Pesticide Application Inform ation – Location and Accessibility 3071

1. Overview. The WPS contains requirements for agricultural employers to record and 3072

display information about pesticid e applications made on the esta blishment at a central location 3073

on the establishment from the time of the appli cation until 30 days afte r the REI expires. EPA 3074

proposes to replace the current re quirement with a requirement for employers to make pesticide 3075

application information available on request by a worker, handler, or his or her representative. 3076

The proposal would also increase the time employe rs must maintain the application information 3077

on the establishment from 30 days after the REI expires to 2 years. The employer would 3078

maintain the pesticide application information in the same location as the SDS and labeling 3079

(pesticide-specific hazard communication; see Unit IX.A.). EPA believe s this proposal would 3080

reduce the overall burden on agri cultural employers while stil l providing workers and handlers 3081

with reasonable access to information regardi ng pesticide applications and pesticide-specific 3082

hazard information. 3083

2. Existing WPS regulations. As described in Unit IX.B., the WPS requires agricultural 3084

employers to record and display certain informa tion about WPS-covered pest icide applications at 3085

a central location on the establishment when work ers or handlers will be on the establishment 3086

and an application of a WPS-covered pesticide ha s been made or an REI has been in effect 3087

within the past 30 days (40 CFR 170.122 and170.222). 3088

3. Summary of the issues. During the National Assessment meetings, stakeholders, 3089

particularly employers, noted the difficulty in ma intaining the pesticide application information 3090

at a central posting site (Ref. 17). Pesticide application plan s frequently change, and keeping a 3091

notice board at a central location, which, in some cases, may be a significant distance from the 3092*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 139 of 340 [RIN 2070–AJ22] treated area, up to date with thos e changes presents a challenge to the employer, es pecially prior 3093

to the application. 3094

Agricultural employer stakeholders noted that weathering of the posted information 3095

quickly impacts legibility, making it difficult to meet the legibility requirements for the 3096

information (Ref. 67). Some states, including Fl orida, recognize the difficulty facing employers 3097

and have developed a portable central location display. Florida’ s display includes a laminated 3098

metal sign and weatherproof box to contain the necessary WPS information. Florida developed 3099

this display to increase compliance, to increase durability of the poster and information, and to 3100

provide a solution to the problems noted with main taining the legibility of information required 3101

to be displayed at a central location on large establishments (Ref. 67). 3102

Keeping the information current at the central location has been problematic for 3103

agricultural employers, as records of frequent pesticide applica tions on an establishment with 3104

multiple crops can be difficult to maintain accurately during the growing season (Ref. 17). 3105

Employers argued that keeping th e application information at a central location essentially 3106

requires them to maintain two copi es of pesticide applic ation records because they cannot rely on 3107

the WPS central posting site to be the only copy of application r ecords, imposing a double 3108

recordkeeping burden. Keeping two separate sets of application information records with the 3109

same information on a busy establishment can be difficult. 3110

4. Details of the proposal/rationale. EPA proposes to require the employer to maintain 3111

pesticide application information and make it ac cessible to workers, handlers, or authorized 3112

representatives of workers or handlers upon request, and to eliminate the requirement for 3113

agricultural employers to display the pesticide application inform ation at a central location. The 3114

proposed requirement does not specify a particul ar location on the establishment where the 3115*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 140 of 340 [RIN 2070–AJ22] employer must store records, but does require that pesticide application records must be 3116

maintained on the establishment and must be made available upon request to workers, handlers, 3117

or their representative during normal business h ours. The application information must be 3118

maintained in addition to th e pesticide-sp ecific hazard informa tion. [See Unit IX.A.] 3119

The requirement for display of pesticide app lication information at a central posting site 3120

has been the most frequently cited area fo r non-compliance and violations. Between 2006 and 3121

2008, there was an annual average of 770 WPS viol ations related to cen tral posting reported by 3122

states to EPA’s Office of Enforcement and Comp liance Assurance (Ref. 68) (Ref. 69) (Ref. 70). 3123

EPA has concerns about the difficulties expre ssed by stakeholders su ch as regulators and 3124

agricultural employers in maintaining this information at the central posting area, and it is 3125

reflected in the violation records. EPA has concer ns about the usefulness of the central display to 3126

workers and handlers, especially on large establis hments, because the worker or handler may be 3127

assigned to work miles from the central display and would not encounter it on a routine basis. 3128

Moreover, if the information is not accurate or correctly maintained, workers and handlers could 3129

be deprived of receiving accurate information about pesticide applications on the establishments. 3130

Rather than continue a requireme nt that burdens employers without clear benefits to workers and 3131

handlers, EPA has decided to revise the requir ement related to displaying information about 3132

pesticide applications. 3133

The proposed requirement for maintaining a nd making pesticide application information 3134

(and the related pesticide-specific hazard commun ication information as discussed in Unit IX.A) 3135

available to workers and handler s upon request parallels OSHA’s requirement for employers to 3136

provide hazard information. EPA recognizes that OSHA’s HCS has been successfully 3137

implemented in all other industries, and that employers covered by the WPS struggle with 3138*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 141 of 340 [RIN 2070–AJ22] maintaining the central display according to current requirements. The intent of the requirement 3139

is to give the workers and ha ndlers access to accurate and legi ble pesticide application and 3140

hazard information. EPA believes that a requirement that allows employers to keep records in a 3141

location other than on display at a central location will significantly reduce burden on the 3142

employers without sacrificing th e amount or type of informati on to which workers or handlers 3143

have access. 3144

The proposed regulatory text concerning the accessibility of app lication information 3145

appears in §170.11(b) of today’s proposed rule. 3146

5. Costs and benefits. EPA estimates the cost of requiri ng employers to make pesticide 3147

application information available upon request and eliminating the requirement for central 3148

posting would be $1.1 million annually, or about $3 per WPS establishment. This estimated cost 3149

does not include any additional copi es of the pesticide application information necessary because 3150

time and weather render the display illegible. The cost estimat e includes an assumption that 25% 3151

of workers and handlers would request access to the materials, which EPA recognizes is a 3152

conservative estimate and drives the cost of the requirement higher. The an ticipated benefits of 3153

this proposal were discussed in the section above. For a complete discussion of the costs of the 3154

proposals and alternatives, see th e “Economic Analysis of Propos ed Revisions to the Worker 3155

Protection Standard,” Chapter 3 Cost Analysis (Ref. 1). 3156

EPA believes that this proposal would redu ce the burden on employers by allowing them 3157

to maintain the records in a location that is not subject to weathering a nd would not substantially 3158

increase the burden on workers and handlers seek ing this information. EPA believes that most 3159

workers do not routinely pass the central posting area because their workplace is at a different 3160*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 142 of 340 [RIN 2070–AJ22] part of the establishment. The proposed change w ould continue to make available at a designated 3161

location pesticide application inform ation for workers and handlers. 3162

6. Alternative options co nsidered but not proposed . EPA considered requiring that 3163

employers post specific pesticide application information on the si gns used to post each treated 3164

area. Under this option, specific information about the pesticide used, date of application, and 3165

REI would be included on the bottom of each warning sign posted around a treated area. [See 3166

Unit VIII.C. for a discussion of the proposals rela ted to notifications to workers and handlers.] 3167

This option would allow early-ent ry workers to access information about the specific pesticides 3168

used in areas where they may be working at the time they enter the treated area. However, this 3169

alternative option would substantially increase the burden associated w ith posting treated areas 3170

because employers would have to copy the pe sticide and application information onto each 3171

warning sign. In addition, when treated areas ar e posted for multiple days, the sign could become 3172

weathered and illegible, imposing the additional bur den on the grower to upda te the legibility of 3173

the sign or negating the intended protection associated with pr oviding the information at the 3174

treated area. This option coul d also reduce information avai lable to workers and handlers 3175

because pesticide application information would not be available when the treated area does not 3176

require a posted warning sign. 3177

EPA believes that the proposed options to pos t a general warning sign at pesticide treated 3178

areas [see Unit VIII] and to require the employer to maintain and make accessible pesticide3179

specific application information balance the need for workers and handlers to have access to 3180

pesticide hazard information and the burden on ag ricultural employers. Therefore, EPA decided 3181

not to propose this option. 3182*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 143 of 340 [RIN 2070–AJ22] D. Pesticide Application Information and Pes ticide-Specific Hazard Communication Materials 3183

—Retention of Records 3184

1. Overview. The current WPS requires employers to maintain information about 3185

pesticide applications from the time of application until 30 days after the REI expires. The 3186

Agency proposes to require employers to retain the pesticide application and related pesticide3187

specific hazard communication information for 2 y ears from the date of the end of the REI for 3188

each product applied. EPA believes the extended reco rdkeeping period would ensure that state, 3189

tribal and federal agencies, workers, handler s, and health care workers have access to the 3190

information when necessary to investigate a h ealth-related pesticide incident or potentially 3191

unlawful pesticide application. 3192

2. Existing WPS regulations. The existing WPS requires agricu ltural employers to display 3193

information about pesticide applications from th e time of application unt il 30 days after the REI 3194

has expired (40 CFR 170.122(b) and 170.222(b)). 3195

3. Details of the proposal/rationale. The Agency proposes to re quire employers to retain 3196

and make available for 2 years from the date of the end of the last a pplicable REI pesticide 3197

application information and related pesticide- specific hazard communication information that 3198

includes the SDSs and product labeling for pesticid es that require WPS compliance. EPA expects 3199

the extended recordkeeping period would ensure that application information is maintained for a 3200

sufficient period of time to allow for follow-up in the event of health problems that might be 3201

related to pesticide exposure or for investigation of a suspected pesticide misuse. EPA recognizes 3202

that some employers may maintain electronic c opies of their application records and other 3203

documents such as SDS and pesticide labeli ng. Under the proposed option, an employer could 3204

maintain a copy of the applica tion information, the pesticide la beling used for the application, 3205*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 144 of 340 [RIN 2070–AJ22] and the corresponding SDS in either paper or electronic form. Th e employer would need to be 3206

able to provide access to the elect ronic format of the materials or make available a paper copy of 3207

the materials upon request. Employers would need to ensure that the copy of the pesticide label 3208

on file is the same as the label for the pe sticide product at the tim e it was applied on the 3209

establishment. Employers would not need to updat e the pesticide labeling or SDS on file each 3210

time a new version is released; how ever, if the product used in a subsequent application bears a 3211

different version of the labeling, the employer would need to keep both versions of the labeling 3212

on file, in a manner identifying which version was used on which occasion. 3213

EPA believes the current 30-day timeframe for re tention of the application information is 3214

not adequate for workers or handlers to access th e information, especially if there has been a 3215

delayed health impact from the exposure. It is po ssible for latent health effects from a pesticide 3216

exposure to occur after the 30-day window, n ecessitating access to information about the 3217

potential source of exposure a nd the types of pesticides that may have been involved. In 2004 3218

and 2005, farmworker women who had worked in Fl orida, North Carolina, and New Jersey gave 3219

birth to babies with birth def ects. In 2006, EPA investigated the incidents and sought information 3220

about pesticide exposures several months afte r the women’s employment ended (Ref. 71). The 3221

ability to perform a full investigation into the serious health effects was hampered by the 30-day 3222

limit for retention of the WPS-require d application information (Ref. 72). 3223

The proposed regulatory text co ncerning the 2-year recordkeeping requirement appears in 3224

§170.11(b)(2) of today’s proposed rule. 3225

4. Costs . The costs of this proposal were discusse d in Unit IX.A. in conjunction with the 3226

requirement to retain and make available th e SDS and pesticide labeling. For a complete 3227*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 145 of 340 [RIN 2070–AJ22] discussion of the costs of the proposals and altern atives, see the “Economic Analysis of Proposed 3228

Revisions to the Worker Protection Standa rd,” Chapter 3 Cost Analysis (Ref. 1). 3229

5. Alternative options co nsidered but not proposed . EPA considered requiring application 3230

records and hazard information to be maintained for 5 years. The incremental cost between the 2- 3231

year and 5-year period is negligible because the principal costs of recordkeeping occur when the 3232

record is created. Several stat es, including California, have re quired employers to retain WPS 3233

records for 2 years. Based on their experience, 2 years is a sufficient time to allow the state to 3234

investigate complaints. Therefore, it is not cl ear that the increased burden associated with 3235

requiring employers to maintain record s for 5 years would be justified. 3236

6. Request for comment. EPA specifically requests comment on the following questions: 3237

• Should EPA consider a different timeframe for recordkeeping for this 3238

requirement? If so, what period and why? 3239

• What burdens would be imposed on agri cultural employers as a consequence of 3240

the proposed two-year reco rd retention requirement? 3241

• How would the burden of the proposal to maintain applica tion records compare 3242

with the current requirement to maintain a central display? 3243

X. Information Exchange between Handler and Agricultural Employers 3244

1. Overview. The current WPS requires handler and agricultural employers to exchange 3245

information about pesticide applications. EPA proposes to add to the existing requirement 3246

information about the location of the “entry-restricted areas” and the start and end times of 3247

pesticide applications. EPA also proposes to require the handler employer to provide any 3248

changes to pesticide application plans to the ag ricultural employer within 2 hours of the end of 3249

the application rather than before the applica tion. Changes to the estimated application end time 3250*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 146 of 340 [RIN 2070–AJ22] of less than one hour would not require notificati on. EPA expects these changes to reduce worker 3251

pesticide exposure by providing accurate, timel y information about applications to the 3252

agricultural employer. 3253

2 . Existing WPS regulations . When handlers are employed by an employer other than the 3254

agricultural employer, the existi ng WPS requires the agricultural em ployer to provide the handler 3255

employer with information about treated areas on the agricultural establishment, including 3256

specific location and description of any such areas and restrict ions on entering those areas (40 3257

CFR 170.124). 3258

The WPS requires handler employers to pr ovide agricultural em ployers with the 3259

following information prior to the pesticide application: 3260

• Location and description of the area to be treated, 3261

• Time and date of application, 3262

• Product name, active ingredient(s), and EP A Registration Number for the product, 3263

• REI, 3264

• Whether posting and/or oral notification are required, and 3265

• Any other product-specific requirements on the product labeling concerning protection 3266

of workers or other persons during or after application. 3267

Handler employers are currently required to inform agricultural employers when there 3268

will be changes to scheduled pesticide applications, such as to give notice of changes to 3269

scheduled pesticide application times, locations , and subsequent REIs, before the application 3270

takes place (40 CFR 170.224). 3271

3. Summary of the issues. State regulatory agencies part icipating in the IGW raised 3272

concerns over the regulation’s si lence regarding handler employers ’ responsibilities in the event 3273*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 147 of 340 [RIN 2070–AJ22] a scheduled pesticide application changes resulting in the origin al information no longer being 3274

accurate (Ref. 14). IGW members questioned fiel d implementation of the provision because the 3275

agricultural employer could send a wo rker into an area that is belie ved not to be treated while the 3276

handler employer changes the applic ation schedule. As a result, the worker would be at risk of 3277

being directly or indirectly exposed to pesticides. 3278

4. Details of the proposal/rationale. EPA proposes two additi ons to the information 3279

currently required to be exchanged between agri cultural and handler employers: the location of 3280

the “entry-restricted ar ea” and the start and end times of the pesticide application. This 3281

information should help clarify the current rule and assist with field implementation. 3282

First, EPA proposes to expand the agricultura l employer’s required information exchange 3283

with the handler employer to include the locatio n of the proposed “entry-restricted area,” which 3284

EPA proposes to define as the area surrounding a tr eated area during pesticide application from 3285

which workers or other persons must be excluded during the pest icide application. 3286

Second, to clarify and improve handler empl oyer requirements for providing information 3287

to the agricultural employer, EPA proposes to require the handler em ployer to include the 3288

proposed start and estimated end times for the application, which are needed to accurately 3289

calculate the REI end date and time. EPA proposes to require the handler employer to provide 3290

changes to pesticide application plans to the ag ricultural employer within 2 hours of the end of 3291

the application rather than before the applica tion. Changes to the estimated application end time 3292

of less than one hour would not require not ification. These changes would allow more 3293

flexibility for handler employers by reducing the number of times they would have to 3294

communicate with the agricultural employer wh ile maintaining communication of important 3295

application and safety information. Currently, th e handler employer or ha ndler must inform the 3296*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 148 of 340 [RIN 2070–AJ22] agricultural employer of all change s to pesticide application timi ng before the application takes 3297

place. For example, if a rain storm delayed the application, this could mean multiple exchanges 3298

of information before the application takes place. 3299

EPA expects these changes would make the re quired information exchange easier for 3300

agricultural and handler employers to unders tand and follow. Providing more accurate 3301

information about the timing of applications a nd subsequent REI would assist employers in 3302

ensuring that workers and handler s are kept out of areas being treated or under an REI unless 3303

properly protected. Overall, the proposal should reduce the number of incidents resulting from 3304

workers or handlers entering trea ted areas unaware of an ongoing a pplication or existing REI. 3305

The proposed regulatory text concerning the information exchange between ag ricultural 3306

employers and handlers appear s in §§170.9(k) and 170.13(i)-(j). 3307

5. Costs and benefits. EPA estimates the proposed revisions to the information exchange 3308

requirements would have no or negligible cost be cause they clarify the rule and codify existing 3309

guidance. For a complete discussion of the co sts of the proposals and alternatives, see the 3310

“Economic Analysis of Proposed Revisions to th e Worker Protection Standard,” Chapter 3 Cost 3311

Analysis (Ref. 1). 3312

6. Request for comment . EPA specifically requests comment on the following questions: 3313

• Is it reasonable to require the handler employer to notify the agricultural employer of 3314

changes to scheduled pesticide applications within 2 hours of the end of the application? 3315

• What are the benefits to expanding the in formation to be exchanged between handler 3316

and agricultural employers ? Are there any drawbacks? 3317

• Would this impose additional burden on employ ers? If so, what burden and how could 3318

it be reduced? 3319*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 149 of 340 [RIN 2070–AJ22] XI. Handler Restrictions 3320

A. Suspend Application 3321

1. Overview. EPA proposes to add a provision to th e WPS stating that the handler or 3322

applicator must “immediately cease or suspend ap plication if any worker or other person, other 3323

than an appropriately trained and equipped handler , is in the treated or entry restricted area.” 3324

This statement would help to ensure that ha ndlers understand their responsibility to protect 3325

workers from pesticide exposure th rough direct contact or drift. 3326

2. Existing WPS regulations. The current rule requires handlers to “assure that no 3327

pesticide is applied so as to c ontact, either, directly or through drift, any worker or other person, 3328

other than an appropriately tr ained and equippe d handler.” 3329

3. Stakeholder information considered by EPA. WPS inspectors have informed EPA that 3330

the current WPS language does not provide su fficient directive for handlers to stop an 3331

application if a person, other than a trained and properly equipped handler, enters the treated area 3332

and entry-restricted ar ea during application. 3333

4. Details of the proposal/rationale. The proposal would requ ire handlers to cease 3334

application if they observe any person other th an a trained and properly equipped handler to be 3335

present in the treated or entry-restricted area. This clarifies and strengthens the current WPS 3336

language which does not currently include a “cease application” statement but does require the 3337

handler to assure no pesticide is applied so as to contact a worker. This additional “cease 3338

application” statement is an important clarification considering the SENSOR3339

Pesticides/California Department of Pesticide Regulation publication that cites drift as the 3340

leading factor contributing to reports of acu te occupational pestic ide poisoning cases in 3341

agricultural workers (Ref. 11). Further, the Washington State Department of Health’s Pesticide 3342*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 150 of 340 [RIN 2070–AJ22] Incident Reporting and Tracking Review Panel 2009 Annual Report details an incident involving 3343

54 workers exposed to drift from an aerial application where 47 wo rkers sought medical 3344

treatment for multiple health symptoms. The adverse effects of this incident may have been 3345

mitigated if the handler acted to cease application when he saw the workers located in the treated 3346

or entry-restricted area (Ref. 73). 3347

The regulatory text concerning the suspensi on of an application appears in §170.205(a) 3348

through (b) of today’s proposed rule. 3349

5. Costs and benefits. EPA estimates the cost of this proposal would be negligible 3350

because it clarifies an existing requirement 3351

6. Request for comment. EPA specifically requests comment on the following questions: 3352

• Will this proposal, in combination with the entry-restricted area requirements proposed 3353

in Unit XIV., effectively reduce worker exposure to spray drift? Please provide rationale and 3354

data to substantiate your response. 3355

• Are there alternatives to this proposal that would better protect wo rkers and others from 3356

spray drift, while reserving the flexibility to use pesticides in agriculture? Please provide 3357

rationale and data to support your response. 3358

B. Establish Minimum Age of 16 for Handling Pesticides 3359

1. Overview. The current WPS does not establish a ny age restrictions for handlers. EPA 3360

proposes to prohibit persons younger than 16 years of age from handling pesticides, with an 3361

exception for handlers working on an establishmen t owned by an immediate family member. See 3362

Unit XVIII.A., for a complete discussion of the immediate family exception. EPA expects this 3363

change will result in reduced risks to children and improved competency in handling, resulting in 3364

reduced exposure to workers, handlers, bystanders, and the environment. 3365*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 151 of 340 [RIN 2070–AJ22] 2. Existing WPS regulations. The WPS does not establish a minimum age for handlers. 3366

3. Summary of the issues. FLSA establishes a minimum age of 16 years for any person to 3367

handle a pesticide designated as toxicity category I or II and not working on a farm owned by an 3368

immediate family member (29 U.S.C. 213(c)(2)). The CHPAC recommended that EPA establish 3369

a minimum age of 16 for pesticide handlers of any agricultural pe sticide, based on a 3370

recommendation from NIOSH. (Ref. 74). Handler s, compared to workers, face exposure to 3371

pesticides at higher levels as they mix, loa d, and apply pesticides (Ref. 75). A report from 3372

NIOSH compiles studies that demonstrate “[y]outh ar e at increased risk of injury from lack of 3373

experience. Inexperienced workers are unfamiliar with the requirements of work, are less likely 3374

to be trained to recognize hazards, and are co mmonly unaware of their legal rights on the job. 3375

Developmental factors – physical, cognitive, a nd psychological – may also place them at 3376

increased risk.” (Ref. 76) 3377

In addition, during the SBREFA consulta tion described in Unit IV.B., the SERs 3378

recommended establishing a minimum age of 16 unde r the certification of pesticide applicators 3379

rule (40 CFR 171), with an exception to th e minimum age on family farms (Ref. 42). 3380

4. Details of the proposal/rationale. EPA proposes to prohibit a handler employer from 3381

allowing persons younger than 16 years old to pe rform handling tasks. The minimum age would 3382

not apply to handlers that fall under the immediate family exception, i.e., working on a farm 3383

owned by an immediate family member. 3384

As discussed above, the FLSA already estab lishes 16 as a minimum age for persons using 3385

toxicity category I and II pesticides. This rest riction does not extend pr otection to all handlers 3386

under the WPS. Handlers may use pesticides in a ny toxicity category, from I to IV. EPA seeks 3387*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 152 of 340 [RIN 2070–AJ22] to ensure that all adolescent handlers receive equal pr otection, regardless of the toxicity of the 3388

pesticide used. 3389

OSHA asked NIOSH to evaluate the existing Hazardous Order regulations and to make 3390

recommendations for strengthe ning the protections provided by these requirements. Among 3391

other things, NIOSH responded with rationale for changing the hazardous order related to 3392

pesticide use in agriculture to establish 16 as the minimum age for using all pesticides, not only 3393

those pesticides in toxicity categories I and II. The NIOSH report cites data from a study which 3394

examined pesticide poisoning among working child ren. A total of 531 child ren under the age of 3395

18 years were identified to have acute occupational pesticide-related illness. It was estimated that 3396

62% of the cases were children employed in agri cultural production and services. Of the 81% of 3397

cases where the EPA acute toxicity category was av ailable, 67% of the illnesses were associated 3398

with toxicity category III pesticides, which ar e not currently prohibited under the hazardous 3399

order (Ref. 76, p. 93). 3400

Aside from any increased risks that childre n may suffer from pesticide exposures, the 3401

Agency recognizes that children generally lack th e experience and judgment to avoid or prevent 3402

unnecessary exposure. A study conducted by the Nati onal Institutes of Health also demonstrates 3403

that because their brains are st ill developing, adolescents may have trouble balancing risk-reward 3404

decision-making and goal-oriented decision ma king (Ref. 77 p. 7). Although adolescents may 3405

understand the possible consequences of their acti ons, they are more likely to make decisions 3406

based upon their initial emotional responses, whic h will often lead them to make suboptimal 3407

choices (Ref. 77, p. 7). Additionally, younger persons are less likely to be aware of their rights 3408

and how to recognize hazards in the workplace (Ref. 76). 3409*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 153 of 340 [RIN 2070–AJ22] The proposed age restriction would include a requirement for the handler employer to 3410

record the training and the birth date of all pe rsons trained. It would be possible for someone 3411

under 16 years old to receive hand ler training; however, the tr ained individual would not be 3412

permitted to perform handling tasks until they turn 16. The proposed age restriction advances the 3413

Agency’s commitment to protecting children. 3414

EPA recognizes the independence of the fam ily farm and believes that farm family 3415

parents are in the best position to make decisions about the type s of activities in which their 3416

children can safely engage. EPA believes that handlers working on an establishment covered by 3417

the immediate family exception would be adequately prepared and supervised by family 3418

members. Therefore, the minimum age requireme nt for handlers would not apply to persons 3419

performing handling tasks when covere d by the immediate family exemption. 3420

The proposed regulatory text concerning the minimum age of 16 for handlers appears in 3421

§§170.9(c) and 170.13(c) of today’s proposed rule. The exception for persons covered by the 3422

immediate family exemption is found in §170.301(a)(1)(i). 3423

5. Costs . EPA estimates the cost of requiring handle rs to be at least 16 years old would be 3424

$466,000 annually, or about $2 per agricultural establis hment per year. It would impose no cost 3425

on commercial pesticide handling establishments. The cost of maintaining records of handlers’ 3426

birth dates is included in the cost of retaini ng records for handler training. For a complete 3427

discussion of the costs of the proposals and altern atives, see the “Economic Analysis of Proposed 3428

Revisions to the Worker Protection Standa rd,” Chapter 3 Cost Analysis (Ref. 1). 3429

EPA cannot quantify the benefits associated with this proposal. However, EPA believes 3430

this proposal would improve the health of adolescent handlers, as well as other workers and 3431

handlers on the establishment and the environmen t. As discussed above, adolescents’ judgment 3432*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 154 of 340 [RIN 2070–AJ22] is not fully developed. EPA believes that restri cting adolescents’ ability to handle pesticides 3433

would lead to less exposure potential for the handlers themselves, and less potential for 3434

misapplication that could cause negative im pacts on other handlers or workers on the 3435

establishment, as well as the environment. 3436

6. Alternative options co nsidered but not proposed . As an alternative, EPA considered 3437

proposing a minimum age of 18 for pesticide hand lers, which would also include an exception 3438

for persons performing handler tasks on a farm owned by an immediate family member. 3439

Handlers must exercise good judgment and responsible behavior to best protect themselves and 3440

others as they work with these potentially toxic materials. Research shows the differences in the 3441

decision-making of adolescents and adults l eads to the conclusion that handlers who are 3442

adolescents may take more risks than those who are adults. The Department of Labor has 3443

established a general rule, applicable to most industries, except agriculture, that workers must be 3444

at least 18 years old to perform hazardous jobs (29 CFR 570.120) (75 FR 28458; May 20, 2010). 3445

The use of agricultural pesticides presents de monstrable risks of significant harm to the 3446

applicator, the public, and the e nvironment, and these risks are significantly influenced by the 3447

user’s judgment and decision-mak ing skills. Requiring handlers to be 18 years of age or older 3448

would prevent youth under 18 from being expos ed while performing handling activities and 3449

would reduce risks to other pers ons and the environment from mi sapplication owing to users’ 3450

poor judgment or decision-making skills. This option would harmonize the age requirements for 3451

pesticide handlers with the minimum age requirem ents for workers performing hazardous jobs in 3452

other industries. This alternativ e would also align with society’ s general trend toward increasing 3453

the ages at which persons are elig ible to do certain things that pr esent recognized risks, such as 3454

consuming alcohol or becoming a licensed driver. 3455*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 155 of 340 [RIN 2070–AJ22] EPA estimates that requiring handlers to be at least 18 years old would cost about $3.1 3456

million annually, or $11 per agricultural estab lishment and $320 per commercial pesticide 3457

handling establishment per year. EPA proposes to follow the existing framework of the FLSA 3458

and DOL’s rules to propose a minimum age of 1 6, based on the existing rules and the higher cost 3459

of increasing the minimum age for handlers to 18. 3460

7. Request for comment. EPA specifically requests comment on the following questions: 3461

• Are there alternatives that have not been c onsidered that would im prove protections for 3462

adolescent handlers, either thos e under 16 or 18 years old, while a llowing flexibility for pesticide 3463

use for agriculture? 3464

• What would be the impact on state program s of establishing a mini mum age of either 16 3465

or 18 for handlers? 3466

• Would establishing a minimum age of 16 for handlers have an impact on state 3467

requirements for certified applicators to be a mi nimum age? If so, please provide data to support 3468

this position. 3469

• Would establishing a minimum age of 18 for handlers have an impact on state 3470

requirements for certified applicators to be a mi nimum age? If so, please provide data to support 3471

this position. 3472

• Are there additional benefits or burdens with establishing a minimum age of 16 or 18 3473

for handlers? If so, please provide data to support either position. 3474

XII. Restrictions for Worker Entry into Treated Areas 3475

A. Establish Minimum Age of 16 for Worke rs Entering a Treated Area under an REI 3476

1. Overview. The existing WPS does not establish ag e restrictions for workers entering a 3477

treated area under an REI. EPA proposes to prohibit any worker under 16 years old from 3478*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 156 of 340 [RIN 2070–AJ22] entering a treated area under an REI. This pr oposal would include an exemption for persons 3479

entering a treated area under an REI covered by the immediate family exemption [see Unit 3480

XVIII.A]. 3481

2. Existing WPS regulations. The WPS establishes conditions for when a worker may 3482

enter into a treated area under an REI (40 CFR 170.112). The conditions are related to the type of 3483

work performed (often referred to as “early-entry ” work) and the length of time the worker may 3484

be in the treated area. However, the WPS establ ishes no minimum age for a worker sent into a 3485

treated area under an REI. 3486

3. Summary of the issues. In 2009, Earth Justice petitioned EPA to expand the protections 3487

of children in agriculture (Ref . 78 p. 23). The petition referen ced several studies suggesting 3488

negative health impacts on youth workers less than 18 years of age who had been exposed to 3489

pesticides (Ref. 78). These re ferences linked pesticide expo sure to childhood leukemia and 3490

delayed neurological development in youth (Ref . 78 p. 8). The CHPAC also recognized that 3491

“growth and development of many organ syst ems continues into late adolescence” and 3492

recommended that EPA enhance protection for wo rkers in the 16-20 year old age group (Ref. 74 3493

pp. 2-3). 3494

4. Details of the proposal/rationale. EPA proposes to prohibit employers from directing 3495

workers under 16 years old to ente r a treated area to perform early-entry activities while an REI 3496

is in effect. This prohibition w ould not apply to persons entering a treated area to perform early3497

entry activities while an REI is in effect on a farm owned by an immediate family member. To 3498

verify compliance with this requirement, EPA al so proposes to require the agricultural employer 3499

to keep a record of the birth date of each wo rker trained. [See Unit VII.A.] While EPA believes 3500

that the proposed protections required for entr y into a treated area during an REI would mitigate 3501*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 157 of 340 [RIN 2070–AJ22] risks to the general worker population, concerns remain for children. Children may be more 3502

susceptible to pesticides because their systems ar e developing, so a level of exposure considered 3503

safe for an adult may not be safe for a child (Ref. 79 p. 51). See discussion in Unit XI.B. 3504

Due to workers’ low income, farmworker families may face more pressure to have 3505

children working in pesticide treated areas. While the DOL’s regulations generally permit 3506

children to perform agricultural tasks in most s ituations, EPA has particul ar concern for children 3507

working in a pesticide-treated area before the REI e xpires. As discussed earl ier, the potential risk 3508

for pesticide exposure is elevated when a treat ed area is under an REI. EPA considered this 3509

elevated risk in combination with children’s potentially greater susceptibility to pesticide 3510

exposure and developing decision-making capabilitie s, as well as the demographics of workers 3511

when developing this proposal. EPA believes this proposal is necessary to prevent unreasonable 3512

risks to children, taking into account the economic needs of farm worker families. 3513

As discussed above, protections already exis t under the FLSA for persons under 16 years 3514

old working with pesticides in agriculture. Ex tending these protections to those who enter a 3515

treated area during an REI could mitigate the poten tial effects of elevated pesticide exposure to 3516

children under 16 while their sy stems are still developing. 3517

EPA recognizes that farm family parents are in the best posit ion to make decisions about 3518

the types of activities in which their children can safely engage. EPA believes that persons 3519

performing early-entry tasks w ho are on an establishment covered by the immediate family 3520

exception would be adequately prepared and s upervised by family members. Therefore, the 3521

minimum age requirement for early-entry worker s would not apply to persons performing early3522

entry tasks when covered by th e immediate family exemption. 3523*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 158 of 340 [RIN 2070–AJ22] The proposed regulatory text concerning a mini mum age of 16 for entering a treated area 3524

under an REI appears in §170.303 of today’s propos ed rule. The exception for persons covered 3525

by the immediate family exemption is found in §170.301(a)(1)(i). 3526

5. Costs/Benefits. EPA estimates the cost of requiring early-entry workers to be at least 3527

16 years old would be $156,000 annually, or less than $1 per WPS establishment per year. For a 3528

complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of 3529

Proposed Revisions to the Worker Protection St andard,” Chapter 3 Cost Analysis (Ref. 1). 3530

EPA cannot quantify the benefits associat ed with this propo sal; however, EPA is 3531

committed to protecting the health of children. EPA believes that imposing this requirement 3532

would reduce the number of children who suffer occ upational pesticide-related illnesses, as well 3533

as the chronic and developmental effects that may be associated with children’s exposure to 3534

pesticides. 3535

6. Alternative options co nsidered but not proposed . EPA considered a minimum age of 3536

18 for workers to enter treated areas under an RE I, with an exception for persons covered by the 3537

immediate family exception. Studies show that children’s systems continue developing until they 3538

reach adulthood, increasing the potential for advers e outcomes from their exposure, as compared 3539

to adults. Additionally, data show children’s ma turity and comprehension are still developing 3540

(Ref. 77 p. 2). Early entry workers are exposed to pesticides befo re the REI has expired, meaning 3541

there may be higher levels of residues and mo re potential for exposure and negative health 3542

impacts. Early entry workers must use PPE properly and comply with additional measures to 3543

ensure they are protected from the higher potential risks. A dolescents may be less likely to 3544

comply with these measures and more likely to ta ke risks that put their health at risk because 3545

their maturity and comprehension of risk are still developing. 3546*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 159 of 340 [RIN 2070–AJ22] EPA estimates the cost of this option w ould be about $723,000 annually, or about $2 per 3547

agricultural establishment. EPA does not have da ta to indicate that the anticipated additional 3548

protection for children support increase d costs of the higher minimum age. 3549

7. Request for comment. EPA specifically requests comment on the following question: 3550

• Are there other ways EPA could protect child ren less than 16 years old from pesticide 3551

risks associated with entry into a treate d area during an REI? If so, please describe. 3552

• What would be the impact on state progr ams of establishing a minimum age for early 3553

entry workers? 3554

• Would establishing a minimum age of 16 or 18 for early entry workers have an adverse 3555

impact on state requirements for certified applicat ors to be a minimum age, generally 16 or 18? 3556

• Are there additional benefits or burdens w ith establishing a minimu m age of 16? If so, 3557

please provide data to support this position. 3558

• Are there additional benefits or burdens associated with establishing a minimum age of 3559

18? If so, please provide da ta to support this position. 3560

B. Requirements for Entry During an REI 3561

1. Overview . The WPS establishes specific except ions to the prohibition on sending 3562

workers into a treated area while an REI is in effect. Workers who enter pesticide-treated areas 3563

during an REI (known as “early-entry workers” ) without adequate protection may face an 3564

elevated risk from pesticide exposure. EPA propos es to require employers (1) to inform workers 3565

sent into a treated area while the REI is in effect of the specific exception under which they 3566

would enter, (2) to describe the tasks permitte d and any limitations required under that exception, 3567

and (3) to explain the personal protective equipm ent required by the labeling. EPA also proposes 3568

to require the employer to create a record of the oral notificat ion, to obtain the signature of each 3569*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 160 of 340 [RIN 2070–AJ22] early-entry worker acknowledging the oral notificat ion prior to the early entry, and to maintain 3570

the record for 2 years. 3571

2. Existing WPS regulations. The WPS prohibits employers from directing workers to 3572

enter a treated area where an REI is in effect except under specific early entry exceptions (40 3573

CFR 170.112(a)). Recognizing some circumstances in which there may be a need to have work 3574

performed in a treated area during the REI, EPA es tablished exceptions to the general prohibition 3575

for “no-contact,” “short-term,” and “agricultu ral emergency activities ” (40 CFR 170.112). EPA 3576

later established two administ rative exceptions that are not in 40 CFR part 170, for “limited 3577

contact” and irrigation activities (60 FR 21955; May 3, 1995) (60 FR 21960; May 3, 1995). Each 3578

exception requires specific protective measures or limitations on work to protect early-entry 3579

workers from unreasonable adverse effects from pe sticide exposure. [For a complete discussion 3580

of the exceptions and proposed revisions, see Unit XII.D.] The WPS requires employers to 3581

provide workers with PPE, to assure that earl y-entry workers follow precautions listed on the 3582

label, and to provide water and decontaminati on supplies nearby for when the worker exits the 3583

treated area. 3584

3. Summary of the issues. Farmworker Justice suggested that workers may not recognize 3585

the elevated risk from early entry or understand the requirements of the exceptions, and therefore 3586

may fail to appreciate the particular importance of complying with the terms of the early-entry 3587

exception. Farmworker Justice recommended that wo rkers receive information about the health 3588

effects associated with the pesticides they may encounter while working (Ref. 35 p. 7). 3589

4. Details of the proposal/rationale. In addition to what the WPS currently requires, EPA 3590

proposes to require that agricultural employers: 3591*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 161 of 340 [RIN 2070–AJ22] • Provide oral notification to early-entry work ers prior to each entry into an area under an 3592

REI; 3593

• Provide information (in addition to the cu rrent requirement to follow product labeling 3594

instruction) about the pe sticide application, the specific task to be performed, and the amount of 3595

time that the worker is allowed to remain in the treated area; 3596

• Collect written acknowledgement of receipt of the oral notification, including the date 3597

of birth, printed name and signature of each worker, prior to his or her entry; and 3598

• Retain for 2 years the worker-signe d record of this notification. 3599

When entering a treated area during an REI, the worker faces risk of exposure to 3600

pesticides at concentrations with the potential for adverse health effects that are of specific 3601

concern. Evaluation of incident reports has demonstrated that workers who enter a treated area 3602

prior to the expiration of the RE I are more adversely affected th an those workers who enter the 3603

treated area after the REI has expired, suffering from respiratory issues, rashes, and other illness 3604

(Ref. 11). Results from a recent SENSOR-Pestic ides/California Depart ment of Pesticide 3605

Regulation analysis of the most common factors contributing to incidents of pesticide poisoning 3606

indicate that “early reentry into a recently treated area” was the second most common factor 3607

(Ref. 11). The report cites early reentry as cont ributing to 17% (336) of all acute pesticide 3608

poisoning cases for which a cause was identified in the agricultural industry between 1998 and 3609

2005 (Ref. 11, p. 891). 3610

EPA expects the proposed requirements to provi de early-entry workers information about 3611

the pesticide application, the specific task to be performed, and the amount of time that the 3612

worker is allowed to remain in the treated area, and to obtain the early-entry worker’s signature 3613

to increase the likelihood of those workers understanding and following the applicable risk 3614*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 162 of 340 [RIN 2070–AJ22] mitigation measures and assure that workers have information about what early-entry activities 3615

they performed in the event they suffer a pesticide -related illness. Sending a worker into a treated 3616

area under an REI to perform specific tasks with the appropriate knowledge and equipment to 3617

protect him or herself decreas es the likelihood that the work er would experience pesticide 3618

poisoning. Further, the proposed requirement to crea te and maintain a record to verify the oral 3619

notification would serve as a tool for in spectors to verify rule compliance. 3620

This proposal would work in concert with two other proposed changes: requiring posting 3621

of treated areas [Unit VIII.] and enhancing the content of worker training [Unit VII.]. The 3622

Agency believes that training early-entry workers on what they should expect if the agricultural 3623

employer requests that they enter a treated area u nder an REI, as well as posting all areas treated 3624

with a product that has an REI of 48 hours or longer, would better prepare workers to protect 3625

themselves while performing early-entry tasks. 3626

EPA is proposing to require recordkeeping of or al notification to early -entry workers, but 3627

not recordkeeping of oral notif ication of treated areas (discu ssed above in Unit VIII.A.6.ii.) 3628

based on the elevated risks facing early-entry wo rkers and importance of ensuring they have the 3629

information necessary to protect themselves dur ing the higher-risk early entry activities. Workers 3630

receiving general no tification of treated area s do not need to know how long they may be in the 3631

area, types of exposure, or how be st to protect themselves; they are instructed to keep out of 3632

specific treated areas. EPA believes that the burden on employers to create and maintain a record 3633

of the early-entry worker notification is balanced by the increased flexibility to employers, while 3634

ensuring sufficient protection for early-entry work ers. As discussed above, EPA does not believe 3635

that the cost of creating and main taining records of oral notificati on of pesticide-treated areas is 3636

outweighed by the potential benefits. 3637*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 163 of 340 [RIN 2070–AJ22] Additionally, the cost of creating and maintain ing a record of oral notification for early 3638

entry workers is substantially lower than the cost of creating and maintain ing a record of oral 3639

notification when the REI has expired. 3640

The proposed regulatory text concerning ear ly-entry requirements appears in §170.305 of 3641

today’s proposed rule. 3642

5. Costs and benefits. EPA estimates the cost of requi ring employers to provide early3643

entry workers with oral notification w ould be about $700,000 annually, or about $2 per 3644

establishment per year. 3645

EPA estimates the cost of requiring employers to maintain records of oral notifications 3646

provided to early-entry worker s would be $470,000 annually, or about $1 per establishment per 3647

year. 3648

For a complete discussion of the costs of the proposals and alternatives, see the 3649

“Economic Analysis of Proposed Revisions to th e Worker Protection Standard,” Chapter 3 Cost 3650

Analysis (Ref. 1). 3651

EPA cannot quantify the benefits associated with this proposal; how ever, EPA recognizes 3652

that entering a treated area duri ng an REI is one of the primary identified sources of pesticide3653

related illness in workers. EPA believes this proposal would provide workers with more 3654

information about the risks they may face and how to protect themselves from pesticide 3655

exposure, and would ultimately l ead to a reduction in the numbe r of pesticide-related illnesses 3656

associated with early entry in to a pesticide-treated area. 3657

6. Alternative options co nsidered but not proposed . Many of the alternative options 3658

considered are more fully discussed in other ar eas of this preamble. EP A considered the option 3659

of eliminating early entry for no-contact, limited c ontact, irrigation and shor t-term exceptions as 3660*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 164 of 340 [RIN 2070–AJ22] recommended by worker advocacy organizations. [See Unit XII.D.] EPA also considered 3661

requiring agricultural employers to distribute pesticide hazard in formation to each worker upon 3662

entry into any treated area. [See Unit IX.A.] 3663

EPA also considered requiring employers to keep records of the conditions of the 3664

exception claimed and notification to workers for 5 years instead of the proposed requirement of 3665

2 years. Because most of the costs associated with recordkeeping are incurred upon creating the 3666

record, the incremental costs of retaining the re cords for a longer period are minimal. However, 3667

as discussed earlier, it is not clear that the potential benefits associated with retaining the records 3668

for a longer period justify the increas ed cost and burden on employers. 3669

7. Request for comment. EPA specifically requests comment on the following questions: 3670

• Is there other information related to entr y into a treated area under an REI that EPA 3671

should require employers to document? If so, what information and why? 3672

• Are there other ways EPA could verify that workers received notif ication and the proper 3673

equipment to work in a treated area under an REI without the pr oposed recordkeeping? 3674

C. Clarify Requirement for D econtamination Supplies for Wor kers Entering a Treated Area 3675

under an REI 3676

1. Overview. The existing WPS requires employers to provide early-entry workers with 3677

“a sufficient amount of water” for decontaminati on. EPA proposes to clarify the meaning of “a 3678

sufficient amount of water” for decontamination of workers entering a treated area under an REI. 3679

EPA expects that the clarification would facilita te compliance and that adequate decontamination 3680

supplies would reduce the likelihood that worker s would suffer an illness from the exposure 3681

during early-entry work and would protect worker families from take-home exposure. 3682*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 165 of 340 [RIN 2070–AJ22] 2. Existing WPS regulations. The WPS requires the agricultural employers to provide 3683

“soap, clean towels, and a suffici ent amount of water so that th e workers may wash thoroughly” 3684

when workers perform tasks in a treated area while the REI is in effect (40 CFR 170.112(d)). 3685

3. Summary of the issues. Farmworker Justice and state regulators have requested that 3686

EPA clarify what amount of wa ter would be sufficient. 3687

4. Details of the proposal/rationale. EPA proposes to require th at agricultural employers 3688

provide at least 3 gallons of water per worker for decontamination after a worker has performed 3689

tasks in a treated area under an REI. This amount is based on the 1993 EPA guidance document, 3690

“How to Comply with the Wo rker Protection Standard for Agricultural Pesticides: What 3691

Employers Need to Know.” (Ref. 80 p. 25) EPA believes this amount of water would be 3692

sufficient for a worker to wash exposed areas. This is the same amount of water being proposed 3693

for handler decontamination. [See Unit XIV.A.] 3694

The proposed regulatory text concerning th e required amount of water appears in 3695

§170.305(j) of today’s proposed rule. 3696

5. Costs/Benefits. EPA estimates the cost of the proposal to increase the qu antity of water 3697

available for early-entry worker decontamin ation would be $2,500 annually, or less than $0.01 3698

per WPS establishment per year. For a complete discussion of the costs of the proposals and 3699

alternatives, see the “Economi c Analysis of Proposed Revisions to the Worker Protection 3700

Standard,” Chapter 3 Cost Analysis (Ref. 1). 3701

EPA expects that adequate decontamina tion supplies would reduce instances where 3702

workers fail to wash after performing WPS tasks owing to insufficient supplies, thereby reducing 3703

the likelihood that workers would suffer an illn ess from the exposure during early-entry work 3704

and would protect worker families from take-h ome exposure. EPA also expects that the 3705*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 166 of 340 [RIN 2070–AJ22] clarification would make it ea sier for employers to understand and comply with the WPS 3706

decontamination supply requirements. 3707

6. Request for comment. EPA specifically requests comment on the following questions: 3708

• Is 3 gallons for decontamination a reasonable amount of water for an early-entry worker 3709

who has been exposed to a pesticide? If not, why? 3710

• What amount of water would be reasonabl e, or what other alternative is there? 3711

D. Exception to the General Prohibition against Sending Workers into a Treated Area under an 3712

REI 3713

1. Overview. The existing WPS includes specific exceptions to the employer prohibition 3714

against sending workers into a treated area during an REI. EPA proposes to clarify these 3715

exceptions to make them more understandab le and easier for employers to follow. 3716

2. Existing WPS regulations. The WPS prohibits employers fro m directing workers into a 3717

treated area while an REI is in effect (40 CF R 170.112(a)). The regulation also provides for 3718

exceptions to the entry restrictions so that cert ain activities considered critical to successful 3719

agricultural production can take pl ace during an REI. The exceptions to the entry restrictions 3720

allow entry into an area under an REI for activitie s with no-contact, certain short-term activities, 3721

and certain activities associat ed with agricultura l emergencies (40 CF R 170.112(b)-(d)). EPA 3722

added the exception provisions to the 1992 W PS to minimize potential adverse impacts on 3723

agriculture that could occur because of the restri ctions on entering treated areas while an REI is 3724

in effect. The exceptions allow early-entry activ ities only under very limited circumstances. The 3725

exception provisions include specific requirement s and limitations intended to ensure that 3726

workers are adequately protected duri ng any allowed early-e ntry activities. 3727*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 167 of 340 [RIN 2070–AJ22] In addition, the WPS includes an administrative process to al low additional exceptions to 3728

the prohibition on early entry for activities critical to agricult ural production that were not 3729

addressed in the existing exceptions (40 CFR 170.112(e)). In 1995, the Agency granted 3730

administrative exceptions for irrigation and limited contact activities. The ra tionale for and terms 3731

and conditions of these administrative ex ceptions were included in the final Federal Register 3732

notice announcing the Agency’s approval of the request for th e exceptions (60 FR 21955; May 3, 3733

1995) (60 FR 21960; May 3, 1995). 3734

3. Summary of the issues. In general, USDA has indi cated support for revising the 3735

regulation to clarify th e requirements of the exception to enable worker reentry without 3736

compromising human health. USDA said growers need maximum flexibility to direct workers to 3737

reenter treated areas to perform tasks in a timely manner (Ref. 81). 3738

EPA received a letter signed by a broad co alition of farmworker organizations that 3739

opposed the inclusion of any exception to the proh ibition on directing work ers to enter a treated 3740

area while an REI is in effect (Ref. 35). They suggested that REIs shoul d protect post-application 3741

workers by reducing their exposure to pesticides at a time when the residues are hazardous. 3742

Farmworker advocates noted that creating excepti ons to the REIs substantially weakens this 3743

protection and increases the risk of injury to th e workers, even if additional personal protective 3744

equipment is required and provided. Farmworker organizations asserted that many worker 3745

injuries occurred because workers were put back in the treated area before the REI had expired. 3746

They also indicated a belief that required PPE is often not worn becau se it interferes with 3747

workers’ ability to perform their tasks in an efficient manner. 3748

4. Details of the proposal/rationale. EPA agrees that some of the current exception 3749

provisions contain vague or unenforceable langu age that may be confusing to agricultural 3750*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 168 of 340 [RIN 2070–AJ22] employers and the regulated community. Unclear regulations present compliance challenges for 3751

employers and, if misunderstood, may place early-entry workers at risk of being sent into treated 3752

areas to engage in tasks that shou ld not take place during the REI. 3753

Detailed descriptions of the proposed revisions and specifica lly related stakeholder input 3754

are discussed below. 3755

i. Clarify conditions of “No Contact” exception. 3756

a. Existing WPS regulations. The no-contact exception permits entry into a treated area 3757

under an REI for activities for which workers will have no contact with tr eated surfaces (40 CFR 3758

170.112(b)). Examples of acceptable “no contac t” activities include the following: 3759

• Worker in an open-cab vehicl e in a treated area where the plants and other treated 3760

surfaces cannot brush against the worker and cannot drop or drip pesticides onto the worker; 3761

• After a pesticide is correctly incorporated or injected into the soil, the worker is 3762

performing tasks that do not involve touching or disrupting the soil surface other than walking 3763

with shoes on the soil surface; and 3764

• Worker in an enclosed cab vehicle in a treated area. 3765

b. Summary of the issues. States and employers requested clarification from EPA on the 3766

conditions of the no-contact exception and wh at tasks constituted no-contact activities. 3767

Specifically, they suggested that wearing PPE to prevent contact with pe sticide treated surfaces 3768

does not constitute no-contact early entry. 3769

A coalition of farmworker advocate gr oups requested that EPA impose greater 3770

restrictions on the no-co ntact exception (Ref. 35). 3771

c. Details of the proposal/rationale. The Agency proposes to clarify that activities 3772

reasonably expected to involve c ontact with treated surfaces cannot be no-contact activities, even 3773*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 169 of 340 [RIN 2070–AJ22] if the contact is limited or mediated through th e use of personal protective equipment. Wearing 3774

PPE reduces exposure to pesticide residues, but it cannot be relied upon to reduce exposure to 3775

the same level expected of a no-contact activity. Even with PPE , workers engaged in activities 3776

involving treated surfaces still f ace a risk of greater exposure than they would if they did not 3777

contact treated surfaces. 3778

The proposed regulatory text concerning th e no-contact exception appears in §170.303(a) 3779

of today’s proposed rule. 3780

d. Costs and benefits. EPA estimates there are no costs as sociated with this proposal since 3781

it is merely a clarification of the existing regulations. 3782

ii. Limit “agricultural emergency” exception. 3783

a. Existing WPS regulations. The current WPS permits early entry into a treated area 3784

during an REI in the event of an agricultural emergency. The emergency exception provision 3785

applies only where a state, tribal or federal agency having jurisd iction has declared the existence 3786

of circumstances that could cause an agricultura l emergency to exist on the establishment. The 3787

existing exception allows early entry for an unlimited duration and does not prohibit hand labor 3788

activities. The agricultural emergency exception requires the employer to provide required PPE 3789

to all workers who engage in early entry activities. 3790

b. Summary of the issues. State regulators, farmworker groups, and agricultural 3791

employers raised several concerns about the ex ception for agricultural emergencies (Ref. 82, p. 3792

6). The primary issues concerned what constitu tes an agricultural emergency, whether the state 3793

or tribe’s lead agency for pestic ide regulation is the only agency th at can declare an agricultural 3794

emergency, which types of other agencies may be authorized to declare an agricultural 3795*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 170 of 340 [RIN 2070–AJ22] emergency, and whether the lead agency may declar e in advance conditions that would constitute 3796

an agricultural emergency. 3797

EPA has provided guidance through the IGW polic y document that any federal agency or 3798

state or tribal government may declare an agri cultural emergency (Ref. 14). For example, the 3799

National Oceanic and Atmospheric Administrati on (NOAA) may do so indirectly by declaring 3800

that specific weather conditions could constitute an agricultural emergency. However, there are 3801

no recordkeeping or reporting requirements, so EPA has no data available regarding the number 3802

of times agricultural emergencies have been decl ared by states, tribes, or federal agencies. 3803

A coalition of farmworker advocate gr oups requested that EPA impose greater 3804

restrictions on the agricultural emergency exception (Ref. 35). 3805

c. Details of the proposal/rationale. EPA proposes to limit the organizations that can 3806

declare an agricultural emergency and to limit the time a worker can be in the treated area in an 3807

agricultural emergency exception when a product requiring double notification has been used. 3808

Since issuing the IGW policy document, the Agency has come to doubt that agencies 3809

other than EPA and state or tribal pesticid e regulatory agencies have the background and 3810

technical expertise to adequately assess the pote ntial risks and benefits of early entry into 3811

pesticide treated areas during RE Is, or that they fully understa nd FIFRA’s statut ory requirements 3812

to balance risks and benefits when establishi ng conditions for workers to enter treated areas 3813

while an REI is in effect. EPA therefore proposes to narrow the agricultural emergency 3814

exception so that only EPA, a state department of agriculture, or the state or tribal lead agency 3815

may declare an agricultural emergency under the W PS to allow early entry into pesticide treated 3816

areas during the REI. The Agency has particular concerns about the pote ntial risks to workers 3817

entering areas under the ag ricultural emergency excep tion when the areas have been treated with 3818*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 171 of 340 [RIN 2070–AJ22] a pesticide requiring double notifi cation (i.e., products whose labe ling requires both oral and 3819

posted notification of pestic ide treatments because it presents a he ightened risk to worker health). 3820

This is especially the case when, as noted above, the current agricultural emergency exception 3821

provides no time limits for worker entry and perm its hand labor. EPA believes that, when such 3822

high toxicity double-notification pr oducts are used, the potential pe sticide exposure and risk to 3823

workers engaging in hand labor activiti es during an REI is unreasonable. 3824

EPA therefore proposes to limit the amount of time a worker is permitted to spend in an 3825

area treated with a doubl e-notification product to no more than 4 hours in any 24-hour period 3826

during an agricultural emergency exception situa tion. EPA believes this change would preserve 3827

the needed flexibility for agriculture to addr ess the conditions of th e agricultural emergency 3828

while offering increased protections for workers potentially exposed to the most highly toxic 3829

pesticides. Even though an individual worker is limited to 4 hours of early entry under such a 3830

situation, an agricultural employer could rotate worker s after each 4- hour interval. 3831

The revised text for the agricultural em ergency exception appears in §170.303(c) of 3832

today’s proposed rule. 3833

d. Costs and benefits. EPA estimates the cost for limiting the organizations that can 3834

declare an emergency and establishing a 4-hour tim e limit (in a 24-hour period) for entry into an 3835

area treated with a doubl e-notification chemical under an agricultural emergency would be 3836

negligible. 3837

e. Request for comment. EPA specifically requests comment on the following questions: 3838

• Are there reasons EPA should consider eliminating the agricultural emergency 3839

exception? 3840*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 172 of 340 [RIN 2070–AJ22] • What benefits and drawbacks are associated with limiting the agencies that can declare 3841

an agricultural emergency? 3842

• Please share any data on the use of the agricultural emergency exception, establishing a 3843

time limit, or other restrictions associated with exceptions. 3844

• Should EPA develop guidance on the criteria for declaring an ag ricultural emergency 3845

and/or how a person or organizatio n could request an eligible agency to declare an agricultural 3846

emergency? 3847

iii. Codify “Limited Contact” and “Irrigation” exceptions. 3848

a. Existing WPS Regulations . EPA established two administra tive exceptions to the WPS 3849

prohibition against entry into tr eated areas during an REI for “l imited contact” and “irrigation” 3850

activities. (60 FR 21955; May 3, 1995) (60 FR 21960; May 3, 1995) However, these 3851

administrative exceptions, includi ng the terms and conditions of th e exceptions, do not appear in 3852

part 170. The language in the exis ting administrative exception for i rrigation activities states that 3853

the task must be unforeseen to m eet the criteria for early entry. 3854

b. Summary of the issues. Stakeholders, primarily state re gulatory agencies, have raised 3855

concerns about the use of the term “unforeseen ” in the exception (Ref. 36 p. 27). Irrigation is 3856

rarely an unforeseen event in most agricultura l areas and it must take place to ensure crop 3857

survival. During the National A ssessment meetings, state regu latory officials and other 3858

stakeholders noted that the need to irrigate is almost always foreseen, so the requirement for the 3859

need for irrigation to be unforeseen lim its the legitimate use of the exception. 3860

A coalition of farmworker organizations r ecommended that EPA eliminate the irrigation 3861

and limited contact exceptions (Ref. 35). Their recommenda tion was based on coalition 3862*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 173 of 340 [RIN 2070–AJ22] members’ belief that EPA underestimated the leve l of contact workers would have with treated 3863

surfaces and the potential for pesticide exposur e through contact with treated surfaces. 3864

EPA’s FIFRA Scientific Advisory Panel said that data generated by the Agricultural 3865

Reentry Task Force and peer-reviewed by EPA have shown which activities may be classified as 3866

no and low contact activities that do not jeopa rdize the well-being of workers (Ref. 83). 3867

c. Details of the proposal/rationale. EPA proposes to revise part 170 to codify the two 3868

current administrative exceptions for “limited co ntact” and “irrigation” activities. In addition, 3869

EPA proposes to remove the term “unforeseen” fr om the irrigation exception to make the text 3870

more accurately reflect field practices. Finally, EPA proposes to prohibit early entry under the 3871

limited contact and irrigation exceptions into ar eas treated with a pe sticide requi ring double 3872

notification (i.e., product s whose labeling requires both oral an d posted notification of pesticide 3873

treatments), owing to the higher poten tial for risks to workers’ health. 3874

EPA believes that incorporating these exceptions into the rule, rather than having them in 3875

separate Federal Register notices that empl oyers may not be aware of, would increase the 3876

regulated community’s awareness and understanding of the exceptions. 3877

The proposed regulatory text concerning th e “limited contact” and the “irrigation” 3878

exceptions appear in §170.303(d) of today’s proposed rule. 3879

d. Costs . EPA estimates there would be no cost s associated with this proposal. 3880

iv. Eliminate provision for exceptions requiring Agency approval. 3881

a . Existing WPS regulations . The WPS permits persons or organizations to request the 3882

Agency to grant an administrative exception to entry restrictions specifi c to certain crops and 3883

activities and pesticide products (40 CFR 170.112(e)). This same t ype of process was used to 3884

develop the “limited contact” and “irrig ation” exceptions discussed above. 3885*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 174 of 340 [RIN 2070–AJ22] b. Details of the proposal/rationale. EPA proposes to eliminate the administrative 3886

exception process. When the WPS was first promulga ted, REIs for most pest icides subject to the 3887

WPS were established generical ly through the WPS labeling pr ovision in 40 CFR part 156, and 3888

the administrative exception pro cess was included in order to pr ovide product-specific REIs. 3889

However, as a result of the Agency’s pesticid e reregistration efforts unde r section 4 of FIFRA, 3890

REIs are now established for each individual pe sticide product through the registration or re3891

evaluation processes. Through these processe s, the specific needs of crop production are 3892

considered in setting REIs for specific products and cropping practices. Accordingly, the Agency 3893

believes it is more appropriate that such re quests for adjusted REIs be addressed through 3894

amendments to the registration of each specifi c pesticide product than as administrative 3895

exceptions to the WPS. 3896

Additionally, by proposing to codify the exis ting administrative exceptions as permanent 3897

exceptions, the Agency believes that the current suite of available exceptions to the entry 3898

restrictions would provide agricultu re with the needed flexibility to address the range of potential 3899

agricultural production problems th at would warrant the need fo r an exception to the current 3900

entry restrictions. The Agency has not received a ny requests for new administrative exceptions in 3901

the last 15 years. 3902

There is no proposed regulatory text associat ed with the removal of this provision. 3903

c. Costs and benefits. EPA estimates there would be no costs associated with this 3904

proposal. 3905

5. Request for comment. EPA specifically requests comment on the following questions: 3906

• Do you have factual information about the current frequency of use of any of the 3907

exceptions? If so, please pr ovide it to the Agency. 3908*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 175 of 340 [RIN 2070–AJ22] • What are the benefits and challenges of the proposed amendments to each of the 3909

exceptions? 3910

• Are there other reasonable alternatives that EP A did not consider? If so, please describe 3911

and provide a rationale fo r their consideration. 3912

• Should EPA consider a different time limit for the agricultural emergency exception? 3913

For other exceptions? 3914

• Are there any drawbacks to adding the irri gation and limited contact exceptions into the 3915

rule? 3916

• For all comments, please provide factual in formation in support of your assertions. 3917

E. Expansion of Entry-Restricted Areas 3918

1. Overview. The existing WPS establishes entry-re stricted areas adj acent to the treated 3919

areas (i.e., adjacent to the areas where pesticides are actually applied) only in nurseries and 3920

greenhouses. EPA proposes to establish similar en try-restricted areas during applications on 3921

farms and in forests. EPA expects this change would result in reduced incidents of pesticide 3922

exposure to workers and other persons from unintentional contact during application. 3923

2. Existing WPS regulations. The WPS requires agricultural employers to restrict nursery 3924

and greenhouse workers and other persons on those establishments from entry-restricted areas, 3925

defined as specific areas adjacent to those ta rgeted for pesticide application (40 CFR 170.110). 3926

The size of the entry-restricted area depends on th e type of product appl ied and the application 3927

method. For example, if a pesticide is applied as a mist in a nursery, the rule prohibits the 3928

employer from directing any worker or other person from entering the area being treated and 3929

within 100 feet of the treated area in all directio ns from the nursery. The entry-restricted area 3930*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 176 of 340 [RIN 2070–AJ22] applies only during application and is distinct from the REI, which limits entry into a treated area 3931

for a specific period of time after the application ceases. 3932

Entry-restricted areas are also relevant to handlers and handler employers since the WPS 3933

prohibits handlers from applying pe sticides in a manner that result s in contact with workers or 3934

other persons (40 CFR 170.210(a)). The handler and the handler employer are responsible for 3935

ensuring that the pesticide appl ication does not contact any pers on, which effectively requires the 3936

handler to cease or suspend appl ication if any persons are in ar eas where contact is possible. 3937

3. Details of the proposal/rationale. EPA proposes to expand th e entry-restricted area 3938

requirements currently applicable to nurseries to include farms a nd forests so that all production 3939

applications are subject to similar requirements . The proposed entry-restricted areas for farms 3940

and forests would range from the treated ar ea alone to 100 feet beyond the treated area, 3941

depending on the type of product applied and the application method. The proposed WPS entry3942

restricted areas would still be limited by the bounda ry of the establishment owner’s property, as 3943

the establishment owner is subj ect to the current rule. For ex ample, if the WPS requires the 3944

entry-restricted area to extend 100 feet in all dire ctions from the treated area, but there is only 50 3945

feet between the treated areas and the boundary of the owner’s pr operty, then the property line 3946

would be the extent of the entr y-restricted area under the WPS. WPS entry-restricted areas are 3947

limited by the boundaries of the agri cultural establishment to lim it the employer’s responsibility 3948

under the WPS to the people on his or her establis hment. The Agency believes that the proposed 3949

creation of entry-restricted areas for all farm and forest applic ations would reduce risk to workers 3950

and other persons from pesticide exposure when they may be working in or nearby an area 3951

adjacent to an ongoing pesticide application. The proposed revisions would also provide more 3952

consistent protection across all esta blishments covered by the WPS. 3953*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 177 of 340 [RIN 2070–AJ22] The existing part 170 does not require entr y-restricted areas be yond the actual treated 3954

area for farms and forests. A worker may be assigne d to work in an area immediately adjacent to 3955

an area being treated with pesticides. Many incide nts of drift and off-ta rget application have 3956

resulted in reported worker illnesses. A recent st udy cited off-target drift as the leading cause of 3957

reported agricultural worker exposure incide nts, with 1,216 individual worker pesticide 3958

exposures reported from 1998-2005 (Ref. 11 p. 891). 3959

The proposed changes do not cover applications of soil fumigants or any other pesticides 3960

that have buffer zones intended to protect human health included on the product labeling. Where 3961

EPA has established entry-restricted areas for a specific pesticide or group of pesticides through 3962

labeling, the labeling-specific restrictions supe rsede the generic requi rements of the WPS. 3963

The proposed entry-restricted areas would complement the existing WPS requirement 3964

that prohibits handlers from applyi ng pesticides in a way that resu lts in contact with workers or 3965

other persons and the proposal that would require handlers performing an application to cease or 3966

suspend the application if work ers or any persons are in the entry-restricted areas during 3967

application. The proposal also works in concert with the prohibition on the agricultural employer 3968

allowing or directing any worker or other person, other than an appropriately trained and 3969

equipped handler, to enter or remain in the trea ted area or any applicable entry-restricted area 3970

during application. 3971

The proposed regulatory text concerning entry-restricted areas during applications on 3972

farms and in forests and outdoor nurseries a ppears in §170.105(a) of today’s proposed rule. 3973

4. Costs and benefits. EPA estimates the cost for restrict ing entry to areas adjacent to an 3974

area being treated would be neg ligible. There may be instances where worker tasks in these 3975*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 178 of 340 [RIN 2070–AJ22] adjacent areas must be stopped until the applicati on is complete, but EPA believes employers can 3976

generally reassign workers to other tasks for the duration of the pe sticide application. 3977

5. Request for comment. EPA specifically requests comment on the following questions: 3978

• Is it reasonable for EPA to assume that work ers can be reassigned fo r the duration of the 3979

pesticide application? 3980

• Are there any burdens to applying an entry-re stricted area on farms and in forests? Are 3981

there any other benefits? 3982

XIII. Display of Basic Pesticide Safety Information 3983

A. Location of Basic Pesticide Safety Information Display 3984

1. Overview. The existing WPS requires employers to post a poster displaying basic 3985

safety information in a single location on the es tablishment. EPA proposes to require that the 3986

pesticide safety information also be di splayed at the decontamination site(s). 3987

2. Existing WPS regulations. The WPS requires agricultural and handler employers to 3988

display the pesticide safety poster at a centr al location on the estab lishment (40 CFR 170.135(d) 3989

and 170.235(d)). 3990

3. Summary of the issues. Farmworker organizations r ecommended additional posting 3991

locations with the posted warning signs [see Unit VIII.] or at worker changing areas (Ref. 35) 3992

(Ref. 74). They noted that having the pesticide sa fety poster in multiple places where workers are 3993

likely to see it increases the ch ances for workers to absorb the messages and to know how to 3994

contact emergency personnel. 3995

4. Details of the proposal/rationale. EPA proposes to require that employers display 3996

pesticide safety information at decontamination sites in addition to a place on the agricultural 3997

establishment where workers and handlers are like ly to pass by or congregate and can be readily 3998*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 179 of 340 [RIN 2070–AJ22] seen and read. Adding the display of pesticide safety information to decontamination sites 3999

improves workers’ and handlers’ access to the self-pro tective and decontamination information. 4000

EPA believes that providing the pest icide safety information at the decontamination sites will not 4001

only remind workers and handlers about self prot ection but will also ensure that emergency 4002

contact information is immediately accessible at e ach decontamination site. It is likely that an 4003

exposed worker or a colleague providing assistan ce would visit the nearest decontamination site. 4004

Agricultural employers have told EPA that they generally have a set of materials, 4005

sometimes on the back of a truck or on a mob ile cart, for decontamination. Displaying the 4006

pesticide safety information on such an appa ratus would not seem to impose significant 4007

additional burden. The current WPS requires employe rs to move the decontamination supplies to 4008

locations where workers or ha ndlers are engaged in WPS activ ities. Once added, the pesticide 4009

safety information would move along with th e decontamination supplies, imposing minimal 4010

additional burden on the employer. 4011

The proposed regulatory text concerning the locations to display pesticide safety 4012

information appears in §170.11(a )(3) of today’s proposed rule. 4013

5. Costs and benefits. EPA estimates the cost of requiri ng the basic pesticide information 4014

display at decontamination sites for workers w ould be $2 million, or about $5 per agricultural 4015

establishment per year. EPA estimates the cost of requiring the basic pesticide information 4016

display at decontamination sites for handler s would be $780,000, or a bout $2 per agricultural 4017

establishment per year. For a complete discussion of the costs of the proposals and alternatives, 4018

see the “Economic Analysis of Proposed Revisions to the Worker Protection Standard,” Chapter 4019

3 Cost Analysis (Ref. 1). 4020*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 180 of 340 [RIN 2070–AJ22] EPA cannot quantify the benefits associated with this proposal. However, EPA believes 4021

that providing a reminder of basic hygiene principl es at places where workers and handlers wash 4022

before leaving the treated area to eat and use th e bathroom would increase the number of workers 4023

and handlers following proper decontamination principles. Emergency response information 4024

would have the maximum benefit if it is imme diately available where workers and handlers 4025

would go for decontamination supplies. EPA be lieves that displaying pesticide safety 4026

information at decontamination sites would reduc e the number of occupati onal pesticide-related 4027

illnesses. 4028

6. Alternative options co nsidered but not proposed . Farmworker organizations 4029

recommended two alternate options in additi on to the current requirements for posting the 4030

pesticide safety poster: requiri ng the pesticide safety poster w ith all posted warning signs or 4031

requiring the pesticide safety poste r at worker changing sites. Requi ring that the pesticide safety 4032

poster be displayed wherever a warning sign is posted would impose significant burden on 4033

employers. The pesticide safety poster is much larger than the warning sign, so it would be 4034

difficult for employers to put up and take down the pesticide safety poster with the same ease as 4035

they handle the warning sign. In addition, becaus e the poster is much less durable than the 4036

warning sign, EPA believes that employers would have to replace the poster periodically when 4037

the treated area has to be posted for more than a few days. EPA expects that employers would 4038

need to obtain multiple copies of the poster and would have to replace them frequently. 4039

The WPS does not require employers to provide facilities for workers to change clothes. 4040

A requirement to place the pesticide safety poster at a site that may not exis t at all establishments 4041

would not be practical or feasible. 4042*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 181 of 340 [RIN 2070–AJ22] For the reasons described above, EPA decide d not to propose requirements for employers 4043

to display the pesticide safety poster with all posted warning signs or at worker changing sites. 4044

EPA believes that it is more important and practi cal for workers to review the pesticide safety 4045

poster at the site of the decontamination supplie s, where they can be reminded of safety and 4046

hygiene principles while cleaning themselv es after working in a treated area. 4047

7. Request for comment. EPA specifically requests comment on the following questions: 4048

• What additional burden would employers face if the proposed option to require 4049

pesticide safety information to be displayed at decontamination site s is implemented? Would 4050

there be benefits to employers? 4051

• Do data exist that show that access to information such as that on the pesticide safety 4052

poster at the same location as decontamination supplies leads to more workers adopting hygiene 4053

practices, thereby reducing the number of workplace illnesses? 4054

B. Content of Basic Pesticid e Safety Information Display 4055

1. Overview. The existing WPS mandates specific content for the pesticide safety poster. 4056

EPA proposes to require additiona l information so workers and ha ndlers can contact the state or 4057

tribal enforcement agency. 4058

2. Existing WPS regulations. Under 40 CFR 170.135(b)(1) through (2) and 170.235(b)(1) 4059

through (2), the pesticide safety poste r must include the following content: 4060

• Avoid getting on your skin or into your body any pesticides that may be on plants and 4061

soil, in irrigation water, or dr ifting from nearby applications. 4062

• Wash before eating, drinking, using chewi ng gum or tobacco, or using the toilet. 4063

• Wear work clothing that protects the body from pesticide residues (l ong-sleeved shirts, 4064

long pants, shoes and socks, and a hat or scarf). 4065*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 182 of 340 [RIN 2070–AJ22] • Wash/shower with soap and water, shampoo ha ir, and put on clean clothes after work. 4066

• Wash work clothes separately from othe r clothes before wearing them again. 4067

• Wash immediately in the nearest clean water if pesticides are spil led or sprayed on the 4068

body. As soon as possible, shower, sham poo, and change into clean clothes. 4069

• Follow directions about keeping out of treated or restricted areas. 4070

• There are federal rules to protect worker s and handlers, including a requirement for 4071

safety training. 4072

The WPS also requires the employer to provi de contact information for the nearest 4073

emergency medical care facility and to update wo rkers and handlers if the information changes. 4074

EPA has developed a poster that complies with the requirements of the regulation (except for the 4075

site-specific information requirements) and makes it available to agricultural employers free of 4076

charge. 4077

3. Details of the proposal/rationale. The Agency proposes to amend the basic pesticide 4078

safety content required to be displayed on an ag ricultural establishment to clarify the emergency 4079

medical information section, and to include contac t information for contacting the state or tribal 4080

regulatory agency. The proposal no longer refers to a “pesticide safety poster.” Instead, the 4081

proposed regulatory text refers to “pesticide safety information” to allow some flexibility in how 4082

all the required information is displayed. EPA beli eves that most agricultural establishments will 4083

choose to use EPA’s free pesticide safety poste r to comply with the WPS pesticide safety 4084

information; EPA would update the poster to incl ude the proposed changes to the information. 4085

However, the information does not have to be displayed as a poster as long as the display 4086

includes the required information and m eets the requirements of the section. 4087*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 183 of 340 [RIN 2070–AJ22] Finally, the Agency proposes to require that the pesticide safety information display 4088

contain contact information for the state or trib al regulatory agency for pesticide enforcement. 4089

EPA believes that workers and handlers should have the opportunity to ask questions about 4090

protections offered by the WPS and to report pe sticide exposure incidents or suspected non4091

compliance that may endanger them. 4092

The proposed regulatory text concerning the ad ditional required conten t of the pesticide 4093

safety information display appears in §170.11(a)(1) of today’s proposed rule. The text 4094

concerning requirements when there are changes to the pesticide safety information appears in 4095

§170.11(a)(2). 4096

4. Costs and benefits. EPA estimates the cost to revise the contents of the basic pesticide 4097

safety information display would be $108,000 a nnually, or about $0.30 per WPS establishment 4098

per year. EPA included in this estimate the cost for employers to purchase the poster. However, 4099

EPA believes that many would obtain the updated pos ter free of charge from the Agency; as a 4100

result the actual cost of this requirement may be lower. For a complete discussion of the costs of 4101

the proposals and alternatives, s ee the “Economic Analysis of Proposed Revisions to the Worker 4102

Protection Standard,” Chapter 3 Cost Analysis (Ref. 1). 4103

5. Request for comment. EPA specifically requests comment on the following questions: 4104

• What additional burden would employers face if the proposed option to require 4105

pesticide safety information to be displayed at decontamination site s is implemented? Would 4106

there be benefits to employers? 4107

• Should EPA consider other changes to cont ent of the pesticide safety information 4108

display? If so, what changes and why? 4109

XIV. Decontamination 4110*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 184 of 340 [RIN 2070–AJ22] Unit XII discussed proposed decontaminati on requirements specifically for workers who 4111

enter a treated area in which an RE I is in effect as part of a suite of proposed changes to the 4112

protections for early entry workers. This Unit discusses routine and emergency decontamination 4113

for workers and handlers. The proposals in this Unit would cover handlers and workers who are 4114

not entering a treated area in which an REI is in effect. 4115

A. Clarify the Quantity of Water Required for Decontamination. 4116

1. Overview. The existing WPS requires employers to provide water for decontamination. 4117

EPA proposes to clarify the quantity of water required for decontamination from “enough water 4118

for routine washing and emergency eyeflush” to a specific quantity. 4119

2. Current WPS regulations. The WPS requires agricultura l employers to provide 4120

decontamination supplies, including “enough water for routine washing and emergency 4121

eyeflush,” when workers are perf orming activities in areas where a pesticide was applied or an 4122

REI was in effect at any point in the last 30 days and come in c ontact with anything that has been 4123

treated with a pesticide (40 CF R 170.150). The WPS also requires handler employers to provide 4124

decontamination supplies, again including “e nough water for routine washing, for emergency 4125

eyeflushing and for washing the entire body in case of an emergency,” for handlers (40 CFR 4126

170.250). Part 170 does not specify how much would constitute enough water to meet the 4127

decontamination supplies requirement. 4128

3. Summary of the issues. Agricultural employers have repo rted difficulty in ensuring that 4129

they provide an adequate amount of water becaus e the amount of water needed for each worker 4130

or handler is not stated in the current re gulation. When EPA implemented the WPS, state 4131

regulatory agencies requested that the EPA clarif y the quantity of water necessary to satisfy the 4132

decontamination requirement. In guidance publishe d in 1993, “How to Comp ly with the Worker 4133*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 185 of 340 [RIN 2070–AJ22] Protection Standard for Agricultural Pestic ides: What Employers Need to Know,” EPA 4134

recommended that employers provide 1 gallon of water per worker for routine decontamination 4135

and 3 gallons per handler for routine washing and emergency decontamination (Ref. 80, p. 25). 4136

This guidance was developed by experts from EP A’s program and enforcement offices and state 4137

regulatory agencies. Further discussion about the amount of water required can be found in 4138

“How to Comply with the Wo rker Protection Standard for Agricultural Pesticides: What 4139

Employers Need to Know.” 4140

4. Details of the proposal/rationale. EPA proposes to require that employers must 4141

provide 1 gallon of water per worker for routin e decontamination and 3 gallons of water per 4142

handler for routine washing and emergency decontamination. By codifying the guidance 4143

discussed above, EPA believes that employers w ould have no difficulty in determining the 4144

amount of water for routine and emergency d econtamination required for their workers and 4145

handlers. This specificity would assist in pr oviding workers and handl ers with the amount of 4146

water necessary for routine washing and provide handlers with a sufficient amount of water 4147

should a pesticide emergency occur. Employers coul d be confident that th ey are complying with 4148

the regulation and keeping their workers and ha ndlers safe in the event of an exposure by 4149

providing adequate supplies. 4150

The proposed regulatory text co ncerning the required quantitie s of decontamination water 4151

appears in today’s propose d rule §170.111(b) for workers and §170.209(b) for handlers. 4152

5. Cost. EPA estimates the cost of this proposal would be negligible because it is a 4153

codification of existing EPA polic y interpretations of the WPS. 4154

6. Request for comment. EPA specifically requests comment on the following questions: 4155*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 186 of 340 [RIN 2070–AJ22] • Is 1 gallon for routine washing for work ers and 3 gallons for handler emergency 4156

decontamination, reasonable amounts of water for workers or handlers who have been exposed 4157

to pesticides? If not, why? 4158

• What amount of water would be reasonabl e, or what other alternative is there? 4159

B. Eliminate the Substitution of Natural Waters for Decontamination Supplies. 4160

1. Overview. The existing WPS permits employers to substitute clean, natural waters 4161

from springs, streams, lakes or other sources for contained water supp lies at decontamination 4162

sites in specific circumstances. EPA proposes to eliminate the option to substitute clean, natural 4163

waters for the potable water required for d econtamination. The proposal would allow the 4164

employer to supplement the required water supp lies with clean, natural waters if necessary. 4165

2. Current WPS regulations. The WPS allows employers to s ubstitute clean waters from 4166

springs, streams, lakes, or other sources for decont amination at remote work sites if such water is 4167

more accessible than the water located at th e nearest place of vehicular access (40 CFR 170.150 4168

and 170.250). Generally, the WPS requires agricu ltural and handler employers to provide 4169

decontamination supplies no farther than one quart er mile away from where workers are working 4170

or from where handlers are performing handling ac tivities. One exception to this requirement is 4171

that if worker and handler activi ties occur more than one quarter mile from the nearest point of 4172

vehicular access, soap, single-use towels, and wa ter may be located at the nearest point of 4173

vehicular access, but the employer may allow wo rkers or handlers to use clean water from 4174

springs, streams, lakes, or other sources if mo re accessible than the decontamination supplies. 4175

3. Details of the proposal/rationale. The Agency proposes to eliminate the exemption 4176

that allows agricultural and handl er employers to use clean, natura l bodies of water in lieu of the 4177

required decontamination supplies. The Agency believes that vehicular access to worker and 4178*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 187 of 340 [RIN 2070–AJ22] handler sites is common and not likely more than a quarter mile distance from the worker 4179

location. Modern agriculture is highly mechanized , and the Agency believes that workers and 4180

handlers are routinely tran sported close to their work areas by vehicles. 4181

EPA believes that workers and handlers woul d be better protected by ensuring access to 4182

the required amount of potable water for rou tine and emergency decontamination, and allowing 4183

the option to supplement those supplies with clean, natural waters in the event of an emergency. 4184

4. Costs and benefits. EPA did not estimate the cost for this proposal because EPA 4185

believes that a negligible number, if any, em ployers would be impacted by this proposal. 4186

However, EPA has no data on the number of empl oyers that may use this option and is seeking 4187

data below. 4188

5. Request for comment. EPA specifically requests comment on the following: 4189

• Please provide information on situations, if any, in which the proposed change would 4190

significantly increase the burden on agricultural employers and offer alternative proposals. 4191

• Please provide any information on the cost a ssociated with the current situation and 4192

proposed change. 4193

• Would using natural waters for decontamin ation worsen a worker’s or handler’s 4194

situation after pesticide exposure? 4195

• Would it be beneficial to use any water in the event of a pesticide emergency or when 4196

decontamination supplies cannot be located within one quarter mile because of limited vehicular 4197

access? 4198

C. Requirements for Ocular Decontamination in Case of Exposed Pesticide Handlers. 4199

1. Overview . The existing WPS requires employers to provide a specific amount of water 4200

to handlers that they can carry for use in the ev ent of an ocular pesticide exposure. EPA proposes 4201*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 188 of 340 [RIN 2070–AJ22] to require employers to provide clean, runni ng water at permanent (i.e., plumbed and not 4202

portable) mixing and loading sites for handlers to use in the event of an ocular pesticide 4203

exposure. 4204

2. Current WPS regulations. The WPS requires handlers to carry water for eyewashing to 4205

use in case of an ocular exposur e if the pesticide label mandate s the use of eye protection (40 4206

CFR 170.250). The handler employer must assure th at 1 pint of water is available for each 4207

handler who is performing the tasks for which th e pesticide label require s protective eyewear. 4208

As discussed in Unit XIV.A., the WPS require s employers to provide water sufficient for 4209

handlers to perform routine decontamination in addition to the requirement discussed in this 4210

section to provide water for handlers’ eye washing in case of an ocular exposure. 4211

3. Summary of the issues. Farmworker Justice provided the Agency with information 4212

about several incidents of accide ntal ocular exposure (Ref. 36). They noted that even when 4213

handlers use the PPE required on the label, they may be accidentally exposed to the pesticide. 4214

For example, a pesticide may splash into a handle r’s eye even if he or she wears proper PPE. The 4215

eyes can suffer serious damage if exposed to ce rtain pesticides. Farmwork er Justice noted that 4216

the WPS requirement for 1 pint of water woul d not satisfy EPA’s own current recommendations 4217

in the Label Review Manual, which calls for a person who suffers ocular pesticide exposure to 4218

“hold eye open and rinse slowly and gently wi th water for 15-20 minut es” (Ref. 84, pp. 7-12). In 4219

addition, the American National Standards Institute standard for eyeflushing calls for a sufficient 4220

quantity to rinse eyes continuously for 15 mi nutes (ANSI Z358.1-2009). Therefore, Farmworker 4221

Justice recommended that EPA adopt a standard for ocular decontam ination more protective than 4222

the WPS’s current one pint requirement. 4223*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 189 of 340 [RIN 2070–AJ22] 4. Details of the proposal/rationale. In addition to the 1 pint of water already required to 4224

be carried by the handler, the Agency proposes to require that at permanent mixing and loading 4225

sites handler employers provide clean, running wa ter sufficient to provide at a minimum of 1.5 4226

liters (0.4 gallons) per minute for 15 minutes for handlers to use for eye flush purposes in the 4227

event of an ocular pesticide exposure. EPA exp ects that adopting this standard would improve 4228

the ability of handlers to mitigate damage to th eir eyes from accidental exposure. EPA expects 4229

that most permanent mixing sites are plumbed to f acilitate the dilution of concentrated pesticides 4230

and to load application equipment and have the potential to provide clea n water flowing at the 4231

appropriate rate to comply with this requireme nt. For those handlers who may be exposed while 4232

not working at the permanent mixing loading site , EPA believes the 3 gallons of water required 4233

for routine decontamination would provide 7.5 minut es of rinsing, sufficient to clear the eyes 4234

immediately at which point the handler can cont inue rinsing his or he r eyes for the full 15 4235

minutes at a permanent site. 4236

The Agency based the proposed requirem ent on OSHA’s standard for ocular 4237

decontamination. OSHA’s requirement for general industry states, “where the eyes or body of 4238

any person may be exposed to injurious corrosi ve materials, suitable facilities for quick 4239

drenching or flushing of the eyes and body shall be provided within the work area for immediate 4240

emergency use” (29 CFR 1910.151(c)). Based on th e OSHA standard, the American National 4241

Standards Institute developed a water flow standard to address minimum operating requirements 4242

for an eye flush. These operating standards es tablish a minimum of 1.5 liter (0.4 gallons) per 4243

minute of flushing fluid, such as water, for 15 minutes (ANSI Z358.1-2009) (Ref. 85). Some 4244

states have required handler employers to provi de ocular decontamination conforming to the 4245

OSHA standard. For example, Oregon implemente d the same requirement proposed here in 2006 4246*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 190 of 340 [RIN 2070–AJ22] (OSHA 437-004-1305 K(5)). In FY 2007, Oregon re ported 23 instances of non-compliance. By 4247

FY 2010, only 5 establishments were c ited for non-compliance (Ref. 86, p. 6). 4248

The proposed regulatory text co ncerning ocular decontaminat ion for handlers appears in 4249

§170.209(d) of today’s proposed rule. 4250

5. Costs and benefits. EPA estimates that the cost of this proposal would be minimal 4251

because mixing pesticides at a permanent site ge nerally involves substantial quantities of water 4252

and EPA believes that plumbed water is almost al ways available at thos e sites. EPA’s proposal 4253

would not require employers to purchase a metere d eyewash station; any water supply that meets 4254

the proposed standards would comply. 4255

6. Alternative options considered . EPA considered requiring por table eyewash stations at 4256

all mixing or loading sites as an alternative to the proposed option. EPA believes that most 4257

establishments mix and load at various sites and may move from day to day. The cost of 4258

equipping each potential mixing or loading site (permanent and non-permanent) with a portable 4259

eye wash station would be about $14 million pe r year for agricultural establishments and 4260

commercial pesticide handling establishments. 4261

As discussed above and in Unit XIV.A., handl er employers are requ ired to provide 3 4262

gallons of water per handler for decontamination. EPA believes that if necessary, handlers could 4263

use this decontamination water for about 7 minut es at the recommended rate of 1.5 liter (0.4 4264

gallons) per minute, which would give them time to get to a location with sufficient water to 4265

rinse their eyes for the recommended amount of time. EPA does not in tend for the routine 4266

decontamination water to be used for emergenc y eyeflush on a regular basis. However, the 4267

Agency believes that it is appropriate to consid er the existing availability of clean water where 4268

the handler may be exposed as well as new requirements when c onsidering alternatives to the 4269*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 191 of 340 [RIN 2070–AJ22] current eyewash requirement. EPA believes that most handlers will have access to either a 4270

permanent mixing or loading site or to the r outine decontamination water. EPA believes the 4271

benefits associated with a requirement to ha ve a portable eyewash station at each mixing or 4272

loading site is not reasonable in comparison with the cost and alternatives available. Therefore, 4273

EPA decided not to propose a requirement for porta ble eyewash stations at all mixing or loading 4274

sites. 4275

7. Request for comment. EPA specifically requests comment on the following questions: 4276

• Is it reasonable to require that clean, running water be present and flowing at a 4277

minimum of 1.5 liter (0.4 gallons) per minute for 15 minutes at permanent mixing and loading 4278

stations? If not, why? 4279

• Should EPA consider other ways to provide oc ular decontamination for handlers? If so, 4280

please provide specific details, including rationa le and cost. 4281

• Do data exist on the relativ e number of mixing and loadi ng activities that occur at 4282

permanent sites and away from permanent sites? 4283

• Are there other ways in which ocular dec ontamination might reasonably be improved at 4284

temporary mixing and loading sites? 4285

D. Showers for Handler Decontamination. 4286

1. Overview . The existing WPS establishes specific requirements for routine and 4287

emergency handler decontamination supplies, bu t these requirements do not include shower 4288

facilities. EPA considered but is not proposing adding a requirement for handler employers to 4289

provide shower facilities. 4290*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 192 of 340 [RIN 2070–AJ22] 2. Current WPS regulations. As discussed above in Unit XIV.A., the WPS specifies the 4291

types and amounts of supplies handler employe rs must provide. The WPS does not require 4292

handler employers to prov ide shower facilities. 4293

3. Summary of the issues. Farmworker organizations have requested that EPA require 4294

employers to provide showers for handlers to fac ilitate decontamination at the end of the work 4295

day. They suggest that the use of showers af ter pesticide handling ac tivities could decrease 4296

pesticide exposure to handlers. Representatives of agricultural employers, the agricultural 4297

employers, and others from the SBAR panel proce ss, noted that in their experience even when 4298

showers are available, handlers do no t use them (Ref. 18, p. 21) (Ref. 87). Some stakeholders 4299

reported that many workers may be reluctant to shower at the workplace because they believe 4300

that showering immediately after work is detrimental to their health (Ref. 88). 4301

As an alternative to imposing a requiremen t to provide showers, the SBREFA SERs 4302

suggested that EPA expand traini ng for pesticide handlers to incl ude how to minimize take-home 4303

exposure and how to use additional pers onal protective equipment (Ref. 18). 4304

4. Rationale for not proposing. The Agency considered requ iring showers but decided to 4305

not propose it because EPA believes that the a dditional training content for handlers (Unit 4306

VII.E.) and clarified decontamin ation provisions in Unit XIV.A., provide handlers with adequate 4307

information on how to reduce take-home exposure and sufficient supplies for routine washing. 4308

5. Costs and benefits. EPA estimates that installing a shower on a single establishment 4309

would cost about $105,000. Nationally, this wo uld cost about $22.7 billion dollars for 4310

construction. This estimate does not include fu ture costs of maintenance. For a complete 4311

discussion of the costs of the proposals and altern atives, see the “Economic Analysis of Proposed 4312

Revisions to the Worker Protection Standard ,” Chapter 3 Cost Analysis (Ref. 1). 4313*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 193 of 340 [RIN 2070–AJ22] 6. Request for comment. EPA specifically requests comment on the following questions: 4314

• Is it reasonable to assume a significant percentage of handlers would not use a 4315

permanent shower facility at a worksite? 4316

• Would increased handler training, clar ified amounts of water for routine 4317

decontamination, and/or the use of additional PPE for handlers be sufficient to protect handlers 4318

and their families from occupational and ta ke-home pesticide expos ure? If not, why? 4319

• Are there other preventative measures that would provide comparable protection to 4320

handlers and their families without incurring the sa me cost as requiring installation of shower 4321

facilities? If so, please describe the preventative measures, estim ated cost, and implementation. 4322

• What other alternatives exist? 4323

XV. Emergency Assistance 4324

A. Overview. The existing WPS requires employers to provide “prompt” transportation to 4325

an emergency medical facility to workers or hand lers who may have been exposed to pesticides. 4326

EPA proposes to require employers to make tran sportation to a medical facility available to 4327

workers and handlers within thirty (30) minutes of learning of the exposure. EPA also proposes 4328

to require the employer to provide to the worker or handler or to treating medical personnel the 4329

SDS and pesticide label, or all of the pe rtinent information in an alternate form. 4330

B. Existing WPS Regulations. The WPS requires employers to make transportation 4331

available promptly to workers or handlers that have been “poisoned or injured by exposure to 4332

pesticides” (40 CFR 170.160 and 170.260). Employers must provide the following information, 4333

if available, to the exposed person or the tr eating medical personnel: name of the product, EPA 4334

registration number, active ingredie nt, medical information from the label, circumstances of the 4335*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 194 of 340 [RIN 2070–AJ22] pesticide application (or the ha ndling of the pesticide), and ci rcumstances of the pesticide 4336

exposure. 4337

C. Summary of the issues. State enforcement agents have reported to EPA that the vague 4338

timeframe has prevented them from verifying wh ether a worker was provided transportation to 4339

the medical facility in confor mance with the WPS, and recommended that EPA adopt a more 4340

specific timeframe for transporta tion. They contend that the ex isting requirement is vague and 4341

leads to various interpretations of the timeframe. Without a fo rmal definition of “prompt,” 4342

compliance and enforcement become more di fficult for inspectors. In addition, varying 4343

interpretations of “prompt” could lead to c onflict between employers, agricultural workers and 4344

handlers, and medical personnel about how quick ly necessary information and transportation 4345

must be provided in an emergency situation. 4346

Farmworker advocacy organizations have noted the difficulty in obtaining proper medical 4347

treatment for workers and handlers without all of the relevant information from the label and 4348

circumstances of the incident. Given the difficulty of diagnosing an illness or injury related to a 4349

pesticide exposure, treating physicians need in formation related to th e pesticide products 4350

potentially involved and circumstances of the inci dent to initiate proper treatment. In addition, 4351

the sooner a person exposed to pes ticides is transported for, and thus receives, treatment, the 4352

more likely the diagnosis and treatment will lead to a successful medical outcome. Farmworker 4353

advocacy organizations recommended that EPA re quire the employer to provide the information 4354

whether requested or not. They also recommen ded adding an option for the employer to satisfy 4355

the requirement by providing the information in th e current regulations, a c opy of the label, or a 4356

copy of the SDS. 4357*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 195 of 340 [RIN 2070–AJ22] D. Details of the Proposal/Rationale. EPA proposes to require agricultural employers and 4358

handler employers to provide emergency medical assistance within thirty (30) minutes after 4359

learning that an employee has been poisoned or in jured by exposure to pestic ides as a result of 4360

his or her employment, replacing the current standard of “prompt.” The emergency medical 4361

assistance includes both providi ng the required information a nd making transportation to a 4362

medical facility available to the affected worker or handler. Although the intent of the proposal 4363

is for the injured party to receive medical attent ion as soon as possible, this requirement does not 4364

establish a time frame for reaching the medical facility. 4365

The proposal would require employers to pr ovide to the worker, handler, or treating 4366

medical personnel information on each pesticide to which the worker or handler might have been 4367

exposed. The employer could satisfy this require ment by providing copies of both the SDS and 4368

the pesticide labeling. Alternatively, the employer could provide all of the following information: 4369

product name, EPA registration number, active ingr edient(s), antidote, first aid, and any other 4370

medical treatment information from the label or the SDS. The employer would also be required 4371

to provide to the worker, handler, or treati ng medical personnel the circumstances of the 4372

pesticide application(s) or use(s) and th e circumstances of th e pesticide exposure. 4373

Pesticide workers and handlers are instruct ed to wash their bodies and clothing 4374

immediately if they come into contact with a pesticide. The exis ting regulation requires 4375

agricultural employers and commerc ial pesticide handler employers to provide sufficient water 4376

and soap to workers and handlers for routine a nd emergency decontamination. In the event of a 4377

more serious illness or injury that requires immedi ate medical attention, howe ver, it is critical for 4378

the worker or handler to be ev aluated and treated quickly. When medical treatment is provided 4379

soon after the illness or injur y, the effects of the pesticide exposure can be minimized. The 4380*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 196 of 340 [RIN 2070–AJ22] longer the illness- or injury-cau sing exposure persists, the more lik ely the worker or handler will 4381

suffer more severe effects. EPA believes that re quiring transportation a nd information about the 4382

pesticide(s) and circumstances of the exposure to be provided with in thirty minutes after learning 4383

of the exposure would reduce the effects of pes ticide exposure and improve the ability of the 4384

medical personnel to provide appropriate treatment. 4385

EPA does not have data on the number of reque sts for information in the event of an 4386

accidental pesticide exposure by exposed pers ons or treating medical personnel. Medical 4387

personnel need relevant information to treat pe ople who may have been exposed to pesticides. 4388

Treatment protocol varies by pe sticide and type of exposure; for example, the recommended 4389

treatment for one pesticide may be to induce vo miting immediately, while for another pesticide 4390

this treatment could do more harm to the exposed person. Many of the recommendations for 4391

medical care listed in the “Recogni tion and Management of Pesticide Poisoning” manual depend 4392

on the time between initial expo sure and medical treatment (Ref . 12). Some treatments are not 4393

effective unless provided within a specific timefr ame of exposure (generally 1 hour). In addition, 4394

recommended treatments for different types of exposure vary and sometimes conflict with each 4395

other; therefore, it is essential that the medi cal personnel have as much information as possible 4396

about the likely pesticide(s) to which the patient may have been exposed in order to provide the 4397

proper treatment. 4398

Amending the existing regulation to require pr ovision of information relevant to the 4399

exposure circumstances and pesticide’s propertie s would ensure that medical personnel are 4400

properly informed at the time of beginning treatme nt or soon afterward. With timely and proper 4401

treatment, many acute pesticide exposures may be mitigated before they cause more long-lasting 4402

effects. 4403*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 197 of 340 [RIN 2070–AJ22] Providing workers transportation to a medical facility in the event of a workplace injury 4404

is the responsibility of employe rs in almost all industries. OSHA requires that a worker injured 4405

on the job receive medical treatme nt, clarifying the requirement to mean within 3-4 minutes if 4406

the injury is life-thre atening or 15 minutes if it is not life-threatening (29 CFR 1926.50(a)). 4407

OSHA requires employers in all industries to provide transp ortation for emergency medical 4408

assistance if it is not possible to use public services, for example, an ambulance (29 CFR 4409

1926.50(e )). EPA recognizes the differences between agriculture and other industries. WPS 4410

establishments can be very large compared to the types of locations c overed by OSHA standards, 4411

for example, factories, office buildings, and simila r self-contained areas. Whereas the foreman or 4412

manager at a factory is likely to be on site or nearby at the time of an employee’s injury, an 4413

agricultural or commercial pesticide handler empl oyer could be significan tly farther away. Based 4414

on the physical differences between a WPS esta blishment and typical industrial locations 4415

covered by OSHA, EPA believes it is reasonable to allow agricultural employers and handler 4416

employers a longer timeframe to reach an exposed worker or handler to provide transportation. 4417

In developing this proposal, EPA was mindfu l of the demographics of the worker and 4418

handler populations. Some do not have their own ve hicle and rely on an employer, co-worker, or 4419

labor contractor to provide tran sportation to and from the agricu ltural establishment. Some may 4420

not be able to secure transpor tation to a medical faci lity outside of working hours. The injured 4421

person may be too compromised to safely drive to the medical facility. Without a requirement for 4422

the employer to provide transportation, some work ers and handlers might be stranded in the 4423

treated area or might wait longer than necessary or advisable to seek medical attention. 4424*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 198 of 340 [RIN 2070–AJ22] The regulatory text concerning emergency assi stance appears in today’s proposed rule at 4425

§170.9(f) for workers and handlers and at §170.13( k) for handlers employed by a commercial 4426

pesticide handling establishment. 4427

E. Costs . When compared to current practices, the Agency estimates the cost of 4428

complying with the proposed requirements to pr ovide the information and to transport exposed 4429

workers or handlers within thirty minutes of le arning of the exposure would be negligible. The 4430

Agency believes that many agricultural employe rs and commercial handler employers already 4431

meet this standard. Under other proposed ch anges, agricultural employers and commercial 4432

handler employers would be required to maintain copies of the SDS or pesticide label in an 4433

office for the workers to review. [See Unit IX.] Agricultural employers and commercial handler 4434

employers are also required to maintain copi es of the application records. Providing these 4435

documents, copies, or information from them, would impose minimal additional burden on the 4436

employer. Agricultural employers and commercia l handler employers are already required to 4437

provide transportation to a medical treatment fac ility for workers or handlers who are exposed to 4438

pesticides. Changing the timeframe for providing transportation from “prompt” to within 30 4439

minutes is a technical clarification and EP A believes it would impose minimal burden. For a 4440

complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of 4441

Proposed Revisions to the Worker Protection St andard,” Chapter 3 Cost Analysis (Ref. 1). 4442

F. Alternative Options Considered but Not Proposed. The Agency considered two 4443

alternative options to the timeframe for providing transportation. First, the Agency considered 4444

replacing “prompt” with “immediate.” Usi ng “immediate” might convey the urgency of the 4445

situation and encourage agricultural employers and commercial handler employers to transport 4446

exposed workers or handlers as quickly as possibl e. However, this change would not address the 4447*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 199 of 340 [RIN 2070–AJ22] vagueness in the regulation or impose a timefra me in which the agricultural employer or 4448

commercial pesticide handler employer must make available the proposed required information 4449

and transportation to a medical facility. Second, the Agency considered imposing a timeframe of 4450

one hour for the agricultural employer or comm ercial pesticide handler employer to make 4451

transportation available. Based on the guidance under OSHA for providing medical treatment to 4452

an injured employee, the Agency believes that an hour would be too long to allow a worker or 4453

handler to wait for transportation to a medical trea tment facility to be made available to worker 4454

or handler. 4455

G. Request for Comment. EPA specifically requests co mment on the following questions: 4456

• Is 30 minutes a reasonable timeframe for an agricultural employer or commercial 4457

handler employer to make transportation available to a worker or handler who has been exposed 4458

to pesticides to a medical treatment facility? If th e timeframe is too long or short, please explain 4459

why. What would be a r easonable alternative? 4460

• Do medical personnel treating a worker or handler for occupational pesticide exposure 4461

need more information than what is proposed to evaluate, diagnose, and tr eat the patient? If so, 4462

what additional information would be necessary? 4463

• If time is of the essence in determining the proper course of treatment, should EPA 4464

consider requiring the agricultural employer to report the estimated time of the incident in 4465

addition to the information proposed above? 4466

XVI. Personal Protective Equipment 4467

A. Chemical-Resistant PPE 4468

1. Overview. The existing WPS requires employers to provide “chemical-resistant” PPE 4469

in certain circumstances but does not provide a practical method for evaluating whether the 4470*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 200 of 340 [RIN 2070–AJ22] material meets the standard. EPA proposes to clarify how to determine whether PPE is 4471

“chemical-resistant.” This clarification would ensure that compliance with the WPS chemical4472

resistant garment standard can be objectivel y determined and would provide appropriate 4473

protection to workers or handlers. 4474

2. Existing WPS regulations. Under the WPS, “chemical-resistant” material means a 4475

“material that allows no measurab le movement of the pesticide being used through the material 4476

during use” (40 CFR 170.240(c)(1)). 4477

3. Summary of the issues. State agencies have informed the EPA that they cannot enforce 4478

the current standard. It can be difficult to determine, without significant and costly testing, 4479

whether a material is permeable to a pesticid e. Inspectors noted that they cannot verify 4480

compliance at the time of a field inspection. Sim ilarly, employers attempting to comply with the 4481

requirement face difficulty in determining whether a garment meets the criteria. 4482

4. Details of the proposal/rationale. The Agency proposes to redefine “chemical4483

resistant” to mean that the PPE must be identi fied by the manufacturer as chemical resistant. 4484

EPA believes that PPE manufacturers will only id entify items as chemical resistant if they 4485

provide a significant barrier to chemicals. 4486

Changing from the current standard to one th at requires the employer to provide PPE that 4487

the manufacturer calls “chemical -resistant” would allow employers and enforcement personnel a 4488

clear standard for determining compliance with the WPS. 4489

The proposed regulatory text concerni ng chemical-resistant PPE appears in 4490

§170.207(b)(1) of today’s proposed rule. 4491*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 201 of 340 [RIN 2070–AJ22] 5. Costs. The estimated cost of this clarificat ion is considered to be negligible. The EPA 4492

believes most employers currently purchase garm ents labeled as chemical-resistant for their 4493

employees. 4494

6. Request for comment. EPA specifically requests comment on the following question: 4495

• Are there alternatives to this proposal for determining chemical resistance of a garment 4496

that are both cost-effective and protective? Please provide details and any data that may apply. 4497

B. Closed Systems 4498

1. Overview. The existing WPS permits exceptions to the label-specified PPE when using 4499

a closed system for certain handling activities. A closed system is an apparatus designed for 4500

mixing and loading pesticides that enables transfer of a pesticide from its original container into 4501

a new container, mix tank, or application equipmen t, while limiting the handl er’s exposure to the 4502

pesticide. But the existing WPS fails to provide specific criteria for an acceptable closed system, 4503

thereby limiting the practical ava ilability and utility of the ex ception. EPA proposes to establish 4504

specific criteria for closed systems based on Cali fornia’s existing standard that would ensure 4505

protections for handlers, bystanders, and th e environment during mixing and loading. EPA 4506

expects that this change would in crease the number of establishments that use closed systems for 4507

pesticide mixing and loading activities because em ployers would have a clear description of the 4508

requirements on which to rely, thereby d ecreasing the potenti al for exposure. 4509

2. Existing WPS regulations. The existing WPS provides only a description of a closed 4510

system as one that “...enclose[s] the pesticid e to prevent it from cont acting handlers or other 4511

persons.” Use of a properly functioning closed syst em that meets this desc ription allows handlers 4512

to substitute the label-required PPE with alternat ive PPE when the system is used and maintained 4513

in accordance with the manufacturer's written operating instructions (40 CFR 170.240(d)(4)). 4514*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 202 of 340 [RIN 2070–AJ22] The existing description does not adequately describe the specific characteristics of a closed 4515

system. 4516

3. Summary of the issues. State regulators have reported problems with the ability to 4517

determine compliance with WPS requirements for cl osed systems. The current description lacks 4518

specific criteria for the characteri stics necessary for a protective enclosed system, inhibiting the 4519

ability of inspectors to ensure that the system is in compliance. State regulators have asked EPA 4520

to establish practical, enforceable criteria for cl osed systems that will enable them to better 4521

determine which types of syst ems qualify for the exception. 4522

California is the only state with specific cl osed system standards. The California 4523

Department of Pesticide Regulation requires appl icators to use a closed system when handling 4524

products with a signal word of “Danger” or “Warning” (Ref. 89)

. The closed system standards 4525

are required for liquid pesticides and may be used, but are not require d, for other pesticide 4526

formulations. The definition of a “closed syst em” references a “Director’s Memo,” which 4527

outlines the standards for closed systems (Ref . 90). The Director’s Memo establishes the 4528

following criteria: 4529

1. The liquid pesticide must be removed fr om its original shipping container and 4530

transferred through connecting hoses pipes, and/or couplings that ar e sufficiently tight to prevent 4531

exposure of any person to the concentr ate, use dilution, or rinse solution. 4532

2. All hoses, piping, tanks, and connections us ed in conjunction with a closed system 4533

must be of a type appropriate for the pesticide being used and the pressu re and vacuum of the 4534

system. 4535

3. All sight gauges must be protected agains t breakage. Sight gauges must be equipped 4536

with valves so the pipes to the sight gauge can be shut off in case of breakage or leakage. 4537*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 203 of 340 [RIN 2070–AJ22] 4. The closed system must adequately m easure the pesticide being used. Measuring 4538

devices must be accurately calibrated to the smalle st unit in which the material is being weighed 4539

or measured. Pesticide remaining in the transfer lines may affect the accuracy of measurement 4540

and must be considered. 4541

5. The movement of a pesticide concentrate beyond a pump by positive pressure must not 4542

exceed 25 pounds per square inch (psi) of pressure. 4543

6. A probe must not be removed from a container except when: 4544

a. The container is emptied and the inside, as well as the probe, have been rinsed in 4545

accordance with item 8. 4546

b. DPR has evaluated the probe and determined that, by the nature of its construction or 4547

design, it eliminates significant risk of worker exposure to the pesticid e when it is withdrawn 4548

from a partial container. 4549

c. The pesticide is used without dilution and the cont ainer has been emptied. 4550

7. Shut-off devices must be installed on the ex it end of all hoses and at all disconnect 4551

points to prevent the pesticide from leaking when the transfer is stopped and the hose is removed 4552

or disconnected. 4553

a. If the hose carried pesticide concentrate and has not been rinsed in accordance with 4554

item 8, a dry break coupler that will minimize pesticide loss to not more than two milliliters per 4555

disconnect must be installed at the disconnect point. 4556

b. If the hose carried a pesticide use dilution or rinse solution, a re versing action pump or 4557

a similar system that will empty the hose may be used as an alternative to a shutoff device. 4558*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 204 of 340 [RIN 2070–AJ22] 8. When the pesticide is to be diluted for use, the closed system must provide for 4559

adequate rinsing of containers th at have held less than 60 gallons of a liquid pesticide. Rinsing 4560

must be done with a medium, such as water, that contai ns no pesticide. 4561

a. The system must be capable of spray-rins ing the inner surfaces of the container and the 4562

rinse solution must go into the pesticide mix tank or applicator vehicle via the closed system. 4563

The system must be capable of ri nsing the probe, if used, and all hoses, measuring devices, etc. 4564

b. A minimum of 15 psi of pressure must be used for rinsing. 4565

c. The rinsing must be con tinued until a minimum of 10 gallons or one-half of the 4566

container volume, whichever is less, has been used. 4567

d. The rinse solution must be removed from the pesticide container concurrently with 4568

introduction of the rinse medium. 4569

e. Pesticide containers must be protected ag ainst excessive pressure during the container 4570

rinse operation. The maximum container pres sure must not exceed five psi. 4571

9. Each commercially produced closed system or component to be used with a closed 4572

system must be sold with: 4573

a. Complete instructions consisting of a functional operating manual and a decal(s) 4574

covering the basic operation. The de cal(s) must be placed in a pr ominent location on the system. 4575

b. Specific directions for cleaning and maintena nce of the system on a scheduled basis. 4576

c. Information on any restrictions or limitations relating to the system, such as pesticides 4577

that are incompatible with materials used in th e construction of the syst em, types (or sizes) of 4578

containers or closures that ca nnot be handled by the system, any limits on ability to correct or 4579

over measurement of a pesticide, or special proce dures or limitations on the ability of the system 4580

to deal with partial containers. 4581*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 205 of 340 [RIN 2070–AJ22] Operating Requirements : 4582

10. The system must be cleaned and main tained according to the manufacturer's 4583

instructions. If the system is not a commercia lly produced system it must be maintained on a 4584

regular basis. A record of cleaning an d maintenance must be maintained. 4585

11. All labeling required personal protective equipment (PPE) must be present at the 4586

work site. Protective eyewear must be worn wh ile using a closed system that operates under 4587

pressure. While using a closed system, PPE re quirements may be reduced or modified as 4588

provided in Title 3 California Code of Regulations, section 6738. 4589

Information about closed systems which have been evaluated and found to meet these 4590

criteria is available from DPR (Ref. 91). 4591

California’s standard also allows for PPE to be modified or substituted when using a 4592

closed system that meets the established criteria. 4593

4. Details of the proposal/rationale. EPA proposes to adopt the California closed system 4594

standards as outlined in the Director’s Memo, except where there are specific references to 4595

California-specific information. The proposed crit eria are based on rese arch by the California 4596

Department of Pesticide Regulati on. California has indicated that it is considering changes to the 4597

Director’s Memo criteria. EPA will consider any changes made to California’s standard and the 4598

supporting rationale when devel oping a final standard for closed systems in the WPS. 4599

In addition to establishing standards for th e system, the proposal establishes requirements 4600

for the use of the closed system. To be eligib le for the exceptions to the label-specified PPE 4601

requirements when a handler uses a closed syst em, EPA proposes to re quire that the handler 4602

employer ensure that the handler receives tr aining on use of the closed system, perform 4603*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 206 of 340 [RIN 2070–AJ22] maintenance according to the manufacturer’s writte n instructions, and maintain records of all 4604

maintenance for 2 years. 4605

The proposed rule would retain the followi ng current requirements : (1) label-mandated 4606

PPE must be immediately available for use in an emergency; (2) handlers must use protective 4607

eyewear for closed systems that operate under pre ssure; and (3) a respirat or must be worn if 4608

required by the label. 4609

EPA believes that the existing WPS standard fo r closed systems, if applied strictly, may 4610

be difficult to meet and could limit the excepti on from being used because it requires that no 4611

pesticide escape during the tran sfer. As a result, some agricultural establishments may be 4612

forgoing the WPS closed system exception, despite th e availability of closed systems that can be 4613

reasonably expected to meet the performance crit eria. Additionally, other establishments may be 4614

employing systems that they believe qualify as closed, yet neverthe less expose handlers to 4615

elevated risk because the criteria for closed sy stems have not been adequately described. EPA is 4616

aware of closed systems currently manufactured and available to agricultural and handler 4617

employers that meet the Califor nia closed system criteria. 4618

EPA believes a properly designed and functioning closed system provides benefits to the 4619

pesticide handler, bystanders, and the environment. Studies show that PPE may be discarded if 4620

uncomfortable, such as when temperatures are high, or may be worn when contaminated or 4621

damaged, reducing its protective value. Additionally, PPE can only protect the wearer, but 4622

pesticide exposure to bystanders and the environment can be minimized through the use of a 4623

closed system. Industrial hygiene pr inciples detail the use of th e “hierarchy of controls” to 4624

manage chemical exposure. The hierarchy incl udes controlling chemical exposures from the 4625

source as a preferred approach, th rough substitution of a safer chem ical or process, mechanizing 4626*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 207 of 340 [RIN 2070–AJ22] the process, or isolating/ enclosing the process. The use of clos ed systems fits this latter category 4627

by enclosing the chemical and substantially reduc ing the potential for exposure at the source, 4628

thereby reducing the potential for subsequent exposure to ha ndlers, other people, and the 4629

environment. 4630

Closed systems are considered an important pr otection against hazards in other industries. 4631

For example, health care workers working with hazardous drugs can experience exposures to 4632

those drugs that can result in illness. In 2004, CDC-NIOSH published an alert to healthcare 4633

workers, identifying the risks of exposure to these drugs (Ref. 92). The alert recommended a 4634

closed system drug transfer device (CSTD) to reduce exposure. CDC-NIOSH defines a CSTD as 4635

a system that "mechanically prohibits the transfer of environmental contaminants into the system 4636

and the escape of hazardous drug or vapor concentrations outside the system," thereby limiting 4637

the occupational exposure to a healthcare provider (Ref. 92). 4638

The proposed rule would replace the current pe rformance standard with a set of specific 4639

criteria that a closed system would be required to m eet. Because it will be easier to demonstrate 4640

compliance with these criteria, EPA expects this proposed revisi on to increase the number of 4641

establishments that use sufficiently protectiv e closed systems for pesticide handling tasks 4642

involving mixing and loading, ther eby reducing the potential for handlers and others to be 4643

exposed to pesticides during such activities. 4644

The proposed regulatory text concerning cl osed systems appears in §170.307(d) of 4645

today’s proposed rule. 4646

5. Costs and benefits. EPA estimates the cost of the proposed standards for closed 4647

systems would be $6.9 million annually, or about $25 per agricultural establishment per year and 4648

about $48 per commercial pesticide handling estab lishment per year. The cost estimate is based 4649*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 208 of 340 [RIN 2070–AJ22] on conservative estimates of the number of establ ishments that currently use closed systems. 4650

EPA believes that some establishments that currently use closed systems that do not meet the 4651

proposed standards would upgrade a nd some would elect not to use a closed system, reverting to 4652

the label-required PPE. The Agency is not aware of sources of information that provide estimates 4653

of the number of establishments that use these systems for pe sticide handling. Therefore, EPA 4654

has made assumptions about their numbers. The Agency believes these assumptions are 4655

conservative and that the actual co st of implementing this clarifi cation of the requirements would 4656

be significantly lower. 4657

The proposed requirement would not require em ployers to use closed systems if they 4658

have not already chosen to use closed systems in their operation, but will allow more flexibility 4659

for employers to use a broader range of closed systems. EPA believes that more closed systems 4660

will now be able to meet the cr iteria for the exception because it is proposing to replace language 4661

that implies a complete prohibition of exposure with more practical criteria that will enable more 4662

closed systems to meet the requirements for the exception. For a complete discussion of the costs 4663

of the proposals and alternatives, see the “Ec onomic Analysis of Proposed Revisions to the 4664

Worker Protection Standard,” Chap ter 3 Cost Analysis (Ref. 1). 4665

6. Alternative options co nsidered but not proposed . The Agency considered eliminating 4666

the exception for closed systems based on reports of improper uses of the closed system 4667

exception. However, EPA expects that properly defined and employed closed systems afford 4668

superior protection for handlers, other individuals, and the environm ent. In order to support the 4669

use of properly designed and operated closed sy stem, EPA instead proposes to clarify the WPS 4670

criteria for closed systems. 4671

7. Request for comment . EPA specifically requests comment on the following questions: 4672*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 209 of 340 [RIN 2070–AJ22] • Are the proposed standards for closed systems reasonable and achievable? 4673

• Are the proposed standards for closed systems too specific? If so, please describe what 4674

aspects are too specific, why, and how to ach ieve sufficient protection while reducing the 4675

specificity. 4676

• Do data exist on the number of establishments that use closed systems, the number that 4677

do not use closed systems because the current st andard is not clear, and/or the number of 4678

establishments that use closed system s that meet the California criteria? 4679

• Would people who currently use closed system s that do not meet the proposed standard 4680

upgrade their closed system or opt to use th e label-required PPE? What information would 4681

impact this decision? 4682

• What would be the cost to convert an exis ting system that does not meet the proposed 4683

standard to one that does? 4684

• Should EPA consider eliminating any of the cr iteria listed in the proposal? If so, which 4685

criteria and why? 4686

• What would be the benefits and draw backs of the requirement for the closed system to 4687

triple rinse the container? Is the technology available to provide this element at a reasonable 4688

cost? 4689

• Would it be possible for agricultural and handl er employers, handlers, and inspectors to 4690

measure the closed system’s PSI while the system is in use? If it would not be possible, should 4691

EPA consider eliminating this element? 4692

C. Contaminated PPE 4693*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 210 of 340 [RIN 2070–AJ22] 1. Overview. The current WPS requires employers either to clean or properly dispose of 4694

contaminated PPE. EPA proposes to require that contaminated PPE be rendered unusable before 4695

disposal. 4696

2. Existing WPS regulations. The WPS requires employers either to clean contaminated 4697

PPE or to dispose of it properly (40 CFR 170.24 0(f)). PPE can become contaminated with 4698

pesticides from routine use or spills, and if re -worn, can expose the wearer to those pesticide 4699

residues. 4700

3. Summary of the issues. State agencies have raised concerns that contaminated PPE 4701

may be reused if not destroyed. 4702

4. Details of the proposal/rationale. EPA proposes to require employers to render 4703

unusable before properly disposing of PPE that cannot be decontaminated according to the 4704

manufacturer’s inst ructions. This would prot ect workers, handlers and others from unnecessary 4705

exposure resulting from the wearing of contamin ated garments. For example, if absorbent 4706

coveralls contaminated from overuse or soaked in pesticide from a spill are accidentally placed 4707

in a laundry bin instead of the trash bin, a pers on in need of protective clothing may find the 4708

discarded garment and attempt to wear it. Cutting the garment apart would make it less likely 4709

that a person would attempt to wear it a nd be exposed to the pesticide residues. 4710

The proposed regulatory text concerning renderi ng PPE unusable before disposal appears 4711

in §170.207(d)(2) of today’s proposed rule. 4712

5. Costs and benefits. The cost of this proposal is e xpected to be negligible, because 4713

employers are required to dispose of contamin ated PPE under the existing requirement. There is 4714

expected to be minimal additional burden on the employer to render the PPE unusable. For a 4715*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 211 of 340 [RIN 2070–AJ22] complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of 4716

Proposed Revisions to the Worker Protection St andard,” Chapter 3 Cost Analysis (Ref. 1). 4717

6. Request for comment. EPA specifically requests comment on the following question: 4718

• Are there better ways to mitigate the risks associated with reuse of discarded PPE? 4719

Please provide rationale and data, as applicable, with your response. 4720

D. Eyewear Protection for Open Cockpits 4721

1. Overview. The existing WPS allows pilots applying pesticides from an open cockpit 4722

aircraft to substitute a visor for label-require d eye protection. The Agency proposes to replace 4723

the option to use visors in open co ckpit aerial applications with th e option of using a helmet with 4724

the face shield lowered as a substitute for the eye protection required on the label. EPA expects 4725

this proposal would balance the needs for adequate eye protecti on and suitable visibility among 4726

handlers that apply pesticides aeri ally from open cockpit aircraft. 4727

2. Existing WPS regulations. 40 CFR 170.240(d)(6)(ii) requires that pilots applying 4728

pesticides from an open cockpit wear PPE in acc ordance with the label but allows pilots to 4729

substitute a visor for label-required eye pr otection. Depending on the particular pesticide 4730

product, the label-required eye protection might be goggles; a face shield; safety glasses with 4731

front, brow, and temple protectio n; or a full-face respirator. 4732

3. Details of the proposal/rationale. The Agency intended th e existing open cockpit 4733

exception to relax certain PPE requirements, but EPA nevertheless intended to convey that some 4734

covering extending over the eyes was necessary. While a face shield might be characterized as a 4735

visor, the term can also reasona bly be interpreted as the brim of a cap that provides the eyes 4736

shade and protection from rain, but little ot her protection. Such a visor does not provide 4737

meaningful protection against pest icide sprays or spills. This pr otection is especially important 4738*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 212 of 340 [RIN 2070–AJ22] for pilots applying in an open cockpit because th ey may be exposed to drift while making aerial 4739

applications. In order to assure aerial applic ators have adequate ey e protection, the Agency 4740

proposes to replace the option to use visors in ope n cockpit aerial applications with the option to 4741

use a helmet with the face shield lowered. 4742

The proposed regulatory text concerning eyewear protection for open cockpits appears in 4743

§170.307(f)(2) of today’s proposed rule. 4744

4. Costs and benefits. EPA expects this proposal to have negligible costs because the 4745

pesticide label already mandates that employers provide specific PPE. This proposal merely 4746

changes the option for what PPE can be substitu ted for the label-mandated PPE. For a complete 4747

discussion of the costs of the proposals and altern atives, see the “Economic Analysis of Proposed 4748

Revisions to the Worker Protection Standa rd,” Chapter 3 Cost Analysis (Ref. 1). 4749

5. Request for comment. EPA specifically requests comment on the following question: 4750

• Is the estimate of the cost reasonable? Please provide rationale and data to support your 4751

information. 4752

E. Respirators: Fit Testing, Training, and Medical Evaluation 4753

1. Overview. The existing WPS requires handler em ployers to ensure that handlers’ 4754

respirators fit correctly. EPA proposes to clarify this requirement to expressly include medical 4755

evaluation, fit testing, and training for respirator users. In addition, EPA proposed to require that 4756

handler employers retain records of compliance with these require ments. EPA expects that these 4757

changes will result in fewer incidents of exposur e and improvements to the health of respirator4758

wearing handlers covered by the WPS. 4759

2. Existing WPS regulations. The WPS requires handler empl oyers to ensure that each 4760

handler’s respirator fits corre ctly (40 CFR 170.240(c)(9)). Howe ver, part 170 does not provide 4761*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 213 of 340 [RIN 2070–AJ22] specific details on how to ensure that a respir ator fits properly, c onducting medical evaluation, 4762

periodically refitting the handl er for respirator use, traini ng requirements for proper use of 4763

respirators, or retaining fit test records. 4764

3. Summary of the issues. The CHPAC, a Federal Adviso ry Committee, and Farmworker 4765

Justice noted that OSHA’s standards for respirat or fit testing, traini ng, and medical monitoring 4766

are absent from part 170 and recommended inco rporating the OSHA re quirements (Ref. 74) 4767

(Ref. 35, p. 2). They expressed concern that the le vel of protection for handlers using respirators 4768

under the WPS requirements is inadequate. 4769

4. Details of the proposal/rationale. EPA proposes to requir e handler employers to 4770

comply with the respirator f it testing, training, and medical evaluation requirements set by 4771

OSHA at 29 CFR 1910.134 whenever a respirator ot her than a dust or mist filtering mask is 4772

required by the labeling. The OSHA st andard includes a specific st andard for fitting a user for 4773

respirator use, training on recognizing when the respirator seal may be broken, and what steps to 4774

take to properly use and maintain respirators. OSHA also requires re spirator users to be 4775

medically evaluated to ensure the respirator us e does not cause undue stress on their bodies. The 4776

adoption of the OSHA standard into part 170 woul d ensure that handlers understand how to wear 4777

respirators properly, are medically fi t to use respirators, and receive training on respirator use. It 4778

would also ensure that if t echnology advances lead OSHA to amend its standard, the change 4779

would automatically apply to pesticide uses subject to the WPS as well. EPA believes this 4780

proposal would better protect ha ndlers from respiratory hazards. This requirement would be 4781

limited to products covered by the WPS. 4782

In order for respirators to pr ovide the intended protection, th ey must be fitted to the 4783

specific user. Fit testing ensures that the respir ator seals completely on the face. Respirator 4784*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 214 of 340 [RIN 2070–AJ22] wearers must be able to recognize when the seal is broken so that they may correct the fit or 4785

remove themselves from the exposure area. 4786

The respirator wearer’s respiratory system can be stressed because intake of breath is 4787

more difficult while wearing a respirator. For ex ample, persons with medical limitations may be 4788

at risk of cardiac proble ms from the stress of the additiona l effort to inhale. Other potential 4789

negative impacts for respirator wearers incl ude stress on the pulmonary system and even 4790

claustrophobia (Ref. 93). These potential negative health impacts can be avoided by doing a fit 4791

test of the respirator and if necessary, a medical evaluation. 4792

In other industries where respirators are required for work around hazardous chemicals, 4793

OSHA requirements ensure that users wear th em appropriately. Because pesticide use in 4794

agriculture is outside of OSHA ’s scope [see Unit IV.D.], hand lers of pesticides who use 4795

respirators are not protected to the same degree as workers in other industries although they face 4796

similar risks. Handlers can be exposed to sign ificant inhalation risks during pesticide mixing, 4797

loading, and application. 4798

EPA believes incorporation of the OSHA standard will provide employers and handlers 4799

with more specific information on what it means to ensure that a respirator fits correctly and 4800

ensure that respirators are mainta ined properly to protect handlers. 4801

The proposed regulatory text concerning re spirator use requirements appears in 4802

§170.207(b)(9) of today’s proposed rule. 4803

5. Costs and benefits. EPA estimates the cost to employers of complying with the 4804

clarification of the WPS respir ator requirements to reference the OSHA standard would be $10.6 4805

million annually, or about $54 for agricultural es tablishments per year and $3 for commercial 4806

pesticide handling establishments per year. The cost to commercial pesticide handling 4807*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 215 of 340 [RIN 2070–AJ22] establishments only reflects the cost of recor dkeeping because EPA assumes that they already 4808

comply with OSHA’s respirator requirements becau se they engage in ac tivities outside of the 4809

scope of the WPS that are cove red by OSHA. EPA believes the co st estimates for agricultural 4810

establishments are very conservative because EPA believes that many establishment owners 4811

already are required to comply with OSHA requirements related to respirator use for other 4812

reasons. This proposal clarifies th e existing requirement, which requi res employers to ensure that 4813

handlers’ PPE fits properly and to perform proper maintenance. 4814

EPA cannot quantify the benefits associated with this proposal. However, EPA believes 4815

ensuring that handlers can safely use respirators and those respirat ors fit properly would increase 4816

effectiveness of the protections offered by respir ators. This would ultimately lead to a reduction 4817

in occupational pesticide-related illnesses. 4818

6. Alternative options co nsidered but not proposed . The Agency considered amending 40 4819

CFR part 156, which addresses labeling requirements , to require respirator fit testing, training, 4820

and medical evaluation requirements in acco rdance with OSHA standard 29 CFR 1910.134 on 4821

all labeling for pesticide products that require resp irators other than filtering face pieces or dust 4822

masks. This proposal, however, would go beyond the scope of the WPS rule amendments, which 4823

focuses on agricultural pesticide use. Implemen ting this option would re quire changes to all 4824

pesticide labeling with respirator requirements and would likely take over three years to 4825

implement, based on necessary rulemaking for all labeling and the process for realizing changes 4826

on labeling of products in the field. The relabeli ng process would significan tly delay protections 4827

to handlers. EPA may consider whether to take this action in dependently from the changes 4828

proposed in this proposed rule. 4829*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 216 of 340 [RIN 2070–AJ22] The Agency also considered the option of only establishing these requirements on 4830

individual WPS product labeling, on a produc t-by-product basis. Some proportion of the 4831

products covered by the WPS may already have these requirement s on their labeling. For those 4832

products that lack the requireme nts, EPA recognized that it ma y take significantly longer for 4833

these protections to be added to labeling, and so opted to propose the revisions in part 170, where 4834

adherence to the OSHA standard would have the le gal effect of labeling in structions without the 4835

need for re-labeling. 4836

XVII. Monitoring Handler Exposure to Cholinesterase-Inhibiting Pesticides 4837

1. Decision Not to Propose. EPA considered proposing cholinesterase (ChE) monitoring 4838

of handlers to support mitigation of handlers’ ex posure to ChE-inhibiting pesticides. Currently, 4839

part 170 has no requirement to monitor ChE levels in workers or handlers. EPA believes that its 4840

product-specific risk assessment and registrati on process described in Unit III establishes 4841

adequate protections for handlers from undue ri sk of pesticide exposure. Additionally, other 4842

proposed changes proactively addr ess some of the risks to handl er health that have been 4843

identified by state-based ChE monitoring prog rams. The Agency does not believe that the 4844

anticipated benefits of a ChE monitoring prog ram would justify the costs to handlers and 4845

employers and would be reactive, catching incidents after they occur rather than working to stop 4846

them from happening. Therefore, the Agency is not proposing to add a requirement for 4847

monitoring ChE inhibition in handlers at this time. 4848

2. Background. ChE refers to a family of enzymes that are critical to proper nerve 4849

function in insects and humans. ChE permits th e transmission of signals across the space 4850

between the nerves called the synapse. ChE-inhi biting pesticides block th e transmission of these 4851

signals, resulting in adverse symptoms. Acute poisoning symptoms include nausea, dizziness, 4852*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 217 of 340 [RIN 2070–AJ22] shortness of breath, fatigue, exces sive salivation, and, in extreme cases, death. Except in severe 4853

cases, the treatment for persons who have been exposed to ChE-inhibiting pesticides usually 4854

involves removal from the work activi ties that result in the exposure. 4855

Organophosphate (OP) and N-methyl carbamate (carbamate) pesticides, which are widely 4856

used in agriculture, are known inhibitors of ChE levels in humans. The OPs and carbamate 4857

pesticides that present the highest acute toxici ty are in EPA’s Toxicity Categories I and II, 4858

indicated by the signal words “DANGER” a nd “WARNING”, respectively, on the product’s 4859

label. Tests for ChE depression exist only for these types of pesticides; therefore, the 4860

development and implementation of a monitoring system would only provid e information related 4861

to the use of a small subset of products, not a general workplace haza rd monitoring program. 4862

An individual’s ChE level can be determin ed with a blood test. There is no universal 4863

normal range for ChE levels because baseline levels vary widely between i ndividuals; therefore, 4864

it is important that an individua l’s initial baseline level be esta blished before exposure to ChE4865

inhibiting pesticides. Comparison of this baseli ne level to the ChE level from the handler post4866

exposure can determine the level of inhibition. 4867

Stakeholders have recommended ChE monitori ng for handlers. In a 2006 letter to the 4868

Administrator, Farmworker Justice recommende d medical monitoring of pesticide handlers who 4869

mix, load or apply Toxicity Category I or II OP s or carbamates for 30 hours or more in a 30-day 4870

period (Ref. 35). 4871

Some states, including Califor nia and Washington, have adopted rules to require ChE 4872

monitoring. EPA reviewed California and Wash ington State’s ChE monitoring rules when 4873

considering ChE monitori ng on a national level. 4874*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 218 of 340 [RIN 2070–AJ22] Established in 1974, the California Department of Pesticide Regulation program requires 4875

monitoring for handlers of OPs and carbamate products with the signal word “DANGER” or 4876

“WARNING” on their labels (Ref. 94 p. Section 6728). For handlers who work with the types of 4877

pesticides listed above for more than 6 days in a 30-day period, Californi a’s regulations require 4878

that employers have the handlers tested to esta blish baseline ChE levels and to monitor any 4879

change after handling activities. Employers must retain records of handler activities related to 4880

these pesticides as well. To avoid the expense of sending a handler for blood testing, California 4881

believes that many employers limit handlers’ exposu res to these pesticides to less than six days 4882

in a 30-day period. 4883

Washington State’s Department of Labor and Industries established a voluntary ChE 4884

monitoring system for handlers in 2004. Employers must offer the option of monitoring to the 4885

handlers, who may decline afte r they have received traini ng on the hazards posed by ChE 4886

inhibition and a consultation with a health care practitioner. In addition, for handlers who use 4887

Toxicity Category I or II OP or car bamate pesticides, employers must: 4888

• Record the number of hours employees spend handling these pesticides. 4889

• Implement a medical monitoring program for handlers who could meet or exceed the 4890

handling threshold of 30 or more hours in any consecutive 30-day period. 4891

• Identify a medical provider to provid e medical monitoring services. 4892

• Make baseline and periodic ChE testing ava ilable to employees who could meet or 4893

exceed the handling threshold. 4894

• Investigate work practices when a handler ’s red blood cell (RBC) or serum ChE level 4895

drops more than 20 percent below the employee’s personal baseline. 4896*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 219 of 340 [RIN 2070–AJ22] • Remove employees from handling and ot her exposures to organophosphate and N4897

methyl-carbamate pesticides when re commended by the health care provider. 4898

• Provide training on ChE monitori ng to covered employees. 4899

• Report employee handling hours to the medi cal provider with each periodic test. 4900

• Maintain medical monitoring and other records for seven years (Ref. 95). 4901

For those handlers who opt for monitoring, the ru le also requires that handlers with red 4902

blood cell ChE depressions of greater than 30% or serum depressions greater than 40% from 4903

their personal baseline be removed from handling the listed pesticides until the handler’s ChE 4904

levels have returned to within 20% of his or her personal baseline and that the employer conduct 4905

a work practice investigation. 4906

Washington State provides reimbursement to ag ricultural employers for testing services 4907

and related administrative program costs. In 2009, Washington State reimbursed 61 employers 4908

with $129,000 of costs (Ref. 96 p. 3). The reimburse ment costs included baseline testing for 4909

2,060 handlers and at least one additional test fo r 249 of the handlers who had a baseline test 4910

(Ref. 96, p. 3). 4911

Washington State’s Department of Labor and Industries ChE monitoring Cost Benefit 4912

Determination and Small Business Impact Statem ent identified the following benefits of ChE 4913

monitoring: 4914

• Prevention of illness after over-exposure. 4915

• Increased hazard awareness and improve wor kplace safety related to pesticide use. 4916

• Improved pesticide illness di agnosis and reporting. 4917

• Greater certainty about frequenc y of pesticide over-exposure. 4918

• Decreased risk of unintended exposures to handlers’ families. 4919*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 220 of 340 [RIN 2070–AJ22] 3. Details of decision not to propose. After reviewing the experiences of Washington 4920

State and California, as well as the estimated costs of a national ChE monitoring program, the 4921

Agency has decided not to propose establishi ng a ChE monitoring program for handlers. EPA 4922

believes that the existing risk assessments and label-based risk mitigation measures, in 4923

combination with the proposed changes to expand handler training and to adopt OSHA respirator 4924

standards, would be sufficient to prevent unreaso nable adverse effects to handlers working with 4925

OPs and carbamates. 4926

The Agency believes that Washington State’s efforts have identified the primary reasons 4927

for ChE inhibition among pesticid e handlers. In Washington State, the Department of Labor and 4928

Industries conducts follow up investigations when monitoring indicates Ch E inhibition is greater 4929

than 20%. Review of pesticide worker protec tion programs highlighted potential exposure 4930

scenarios and violations of th e WPS requirements including areas such as decontamination, PPE, 4931

and respiratory protection (Ref. 97). The findings from the follow-up suggest that in many cases 4932

ChE depression was caused by handlers not followi ng basic safety and hygiene procedures , e.g., 4933

not wearing the label-required PPE and failing to wash before me als or bathroom breaks (Ref. 4934

97, pp. 10-11). Additionally, several handlers, who did wear respirators as required by labeling, 4935

had beards, which compromised the seal betwee n the face and the respirator and reduced the 4936

protection intended to be afforded by the equipm ent. Using this information, Washington State 4937

developed training for handlers specifically on decontaminatio n and proper use of PPE. 4938

This proposed rule would address Washingt on State’s findings by requiring expanded 4939

handler training that covers re ducing take-home exposure, proper use and decontamination of 4940

PPE, and more frequent handler training. [See Unit VII.E.] Th e Agency is also proposing 4941

requirements for fit testing and training on proper respirator use for handlers. [See Unit XVI.E.] 4942*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 221 of 340 [RIN 2070–AJ22] As a result of the reregistration process for the OPs and carbamates, revised labeling with 4943

increased protections is replacing the older labeling in the field. EPA expects that many of the 4944

new mitigation measures will result in lowere d handler exposure. Key improvements include 4945

requirements for closed system mixing and loadi ng, additional PPE, and reductions to rates of 4946

application and number of annual applications permitted. Moreover, the uses of some highly 4947

acutely toxic OPs are being phased out (Ref. 98) . EPA recognizes that some products with the 4948

most current label language have not yet reached field users. For example, in the first years 4949

(2004 and 2005) of the Washington State pr ogram, many applicator s were not wearing 4950

respirators when applying the OP pesticide Lorsba n via air blast (Ref. 99) (Ref. 100). Inspectors 4951

learned that applicators were still using old product and the corresponding labeling, which did 4952

not require respirator use for ha ndlers. This use resulted in higher exposure to the pesticide 4953

handlers as a result. EPA expects that as product labels with additional risk mitigation measures 4954

reach the field handlers complying with the ne w requirements would have a lower potential for 4955

exposure. 4956

EPA believes that product-specific risk mitig ation measures combined with increased 4957

handler protections outlined in this proposal woul d appropriately address the elevated potential 4958

for ChE inhibition in handlers. Mo reover, the training and PPE elem ents of the proposed rule are 4959

expected to have the combined effect of providing important prot ective benefits to all pesticide 4960

handlers through increased knowledge of exposure risks and prevention strategies, ultimately 4961

leading to a reduction of pesticide exposures. EPA favors this approach over ChE monitoring 4962

because it prevents handler exposure rather th an addressing it after it occurs. EPA does not 4963

believe that the cost and burden of implemen ting a national ChE monitoring program, which 4964

would only identify a problem after the exposure has occurred, would be justified by the limited 4965*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 222 of 340 [RIN 2070–AJ22] benefits achieved by removing a handler from the treated area once pesticide exposure has 4966

inhibited ChE levels. 4967

4. Costs and benefits. In 2003, Washington State develope d a Benefit-Cost Determination 4968

document to estimate the costs of implementing their ChE monitoring program. The central 4969

estimated compliance cost in year on e was $848,490, and $1,272,487 in year two (Ref. 101 p. 4970

23). The costs for which employers can be re imbursed under Washington’s program include 4971

medical (consultations, follow-up visits and pr ocedures, and blood draw s), recordkeeping to 4972

record handling hours for monitored handlers, wages for time spent in training for ChE 4973

monitoring, and mileage for travel costs associat ed with evaluations and training. The expenses 4974

for which employers are reimbursed by Washington State provide insight as to the costs and 4975

activities of the employers and handlers particip ating in the ChE program, but do not estimate the 4976

cost of a national ChE monitoring program. 4977

In the proposal’s “Economic An alysis of Proposed Revisions to the Worker Protection 4978

Standard,” the incremental cost of a monitoring program, base d primarily on California’s and 4979

Washington’s programs, is estimated to be $15.2 million annually, or about $53 per agricultural 4980

establishment per year and $120 per commercial pesticide handli ng establishment per year. The 4981

requirements of a national ChE monitoring program have not been developed sufficiently to 4982

provide a precise cost analysis, but it would likely include progra m components such as training, 4983

recordkeeping, clinical testing, and field investigations. The es timated costs do not include the 4984

states’ costs to build infrastructure to support Ch E monitoring or to c over continued laboratory 4985

costs such as equipment maintena nce and administrative support. 4986

For more discussion of the costs of the propos al, see the “Economic Analysis of Proposed 4987

Revisions to the Worker Protection Standa rd,” Chapter 3 Cost Analysis (Ref. 1). 4988*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 223 of 340 [RIN 2070–AJ22] The proposed handler training and PPE requirements are proa ctive and are expected to 4989

prevent handler exposure whereas cholinesterase monitoring would only identify a problem after 4990

the exposure has occurred. As a result, EPA conc ludes that the cost of implementing a national 4991

cholinesterase monitoring program is not justif ied by its limited benefits for a subpopulation of 4992

the nation’s pesticide handlers. Th e training and PPE elements of the proposed rule, however, are 4993

expected to have the combined effect of providing important prot ective benefits to all pesticide 4994

handlers through increased knowledge of exposure risks and prevention strategies, ultimately 4995

leading to a reduction of pesticide exposures. 4996

5. Alternative options considered. EPA considered restricting the number of hours 4997

handlers may work with OPs and carbamates in a given timeframe (for example, no more than 4998

30 hours of handling these pesticid es over a 30-day period). Howeve r, EPA is not aware of data 4999

that would provide a basis for esta blishing this type of proposal. 5000

6. Request for comment. EPA specifically seeks feedback on its decision not to propose a 5001

requirement for mandatory ChE monitoring, including comment on the following questions: 5002

• Do you believe the costs and burdens of a national ChE monitoring program would be 5003

justified by the protections to handler heal th? If so, please provide justification. 5004

• Do you agree that it is more protective to prevent handler exposure than to address it 5005

after it occurs? If so, why? If not, do you have an alternative proposal to address handler 5006

exposure? 5007

• Does other information exist on the benefits or challenges of Ch E monitoring that the 5008

Agency has not presented in this proposal? If so, please provide. 5009

XVIII. Exemptions and Exceptions 5010

A

. Immediate Family 5011*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 224 of 340 [RIN 2070–AJ22] 1. Decision not to propose. EPA considered eliminati ng the existing exemption for 5012

workers and handlers under age 16 employed (recei ving a wage or salary) by immediate family 5013

members; however, the available information ma y not be sufficient to support this option. 5014

Accordingly, EPA is not proposing to amend the immediate family exemption to impose any age 5015

requirements on establishments that qualify for th e immediate family exemption to the WPS. 5016

[ Note: EPA is proposing to expand th e definition of “immediate family” to better reflect the 5017

range of familial relationships that could occur. See Unit XIX.A., for a discussion of the revised 5018

definition.] 5019

2. Existing WPS regulations. The WPS exempts the owners of agricultural establishments 5020

from providing certain WPS protect ions to themselves and their immediate family members (40 5021

CFR 170.104(a) and 170.204(a)). Speci fically, the agricultu ral establishment owner is exempt 5022

from complying with the following requirement s for immediate family members performing 5023

tasks as workers: Sections of the early-entry re strictions; providing pest icide safety training or 5024

other safety information; cleaning, storing, and maintaining PPE; maintaining decontamination 5025

sites and supplies; providing not ice of and specific information about applications; and providing 5026

emergency assistance. Si milarly for immediate family member s performing handler tasks, the 5027

agricultural establishment owner is exempt from the following requirements: Providing pesticide 5028

safety training and other safety information such as restrictions during applications, knowledge 5029

of labeling and site-specific information, and sa fe operation of equipment; ensuring proper use, 5030

cleaning, and maintenance of PPE and avoi ding heat-related illness while using PPE; 5031

maintaining decontamination sites and supplie s; and providing emergency assistance. The 5032

agricultural establishment owner must comply with all other sections of the WPS. The immediate 5033

family includes only the spouse, parents, steppare nts, foster parents, father-in-law, mother-in- 5034*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 225 of 340 [RIN 2070–AJ22] law, children, stepchildren, foster children, s ons-in-law, daughters-in -law, grandparents, 5035

grandchildren, brothers, sisters, brothers-in-law, and sisters- in-law of the owner of the 5036

agricultural establishment. 5037

In addition, the definitions of workers and handlers require that they are employed for 5038

compensation in order to receive protection und er the WPS. Therefore, any person performing 5039

worker or handler tasks who does not receive a wa ge or salary is not covered by any aspect of 5040

the WPS. 5041

3. Summary of the issues. Stakeholder feedback, reports from the GAO, the CHPAC and 5042

recent research have indicated an increased awareness of the need to protect all children from 5043

adverse health effects of pest icide exposure (Ref. 20) (Ref. 74) (Ref. 102) (Ref. 103). [See Unit 5044

V.C. and V.E.] During the National Assessment, EP A did not seek specific stakeholder feedback 5045

on the existing immediate family exemp tion and whether it should be amended. 5046

Input from the agricultural community indica tes that emergency assistance and other 5047

protections are among the reasonable steps an owne r of an agricultural establishment would take 5048

to protect family members. 5049

4. Options considered and not proposed. The Agency considered narrowing the 5050

immediate family exemption in two ways: (1) limiting it only to immediate family members of 5051

an owner of an agricultural es tablishment who are at least 16 years old, and (2) modifying the 5052

scope of the requirements that are exempted by eliminating from the list emergency assistance 5053

for workers and handlers and handler m onitoring during fumigant application. 5054

Limiting the exemption to employed family me mbers who are at least 16 years old would 5055

not prohibit agricultural establis hment owners from allowing their immediate family members 5056

under 16 years old to perform WPS tasks. The proposed definition of “employ” specifies salary 5057*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 226 of 340 [RIN 2070–AJ22] or wages; other forms of compensation are not included in the definiti on. Therefore, immediate 5058

family members who are compensated in othe r ways besides salary or wages, but not 5059

“employed” by the WPS definition, would continue to be exempted from certain specified 5060

provisions of the WPS. As under the current rule, any person, including immediate family 5061

members under 16 years old, who does not receive a wage or salary would not be covered by any 5062

provisions of the WPS. See tables 1 and 2. 5063

Table 1. Considered Changes to the WPS Immediate Family Exemption – Minimum 5064 Age, Emergency Assistance and Handler Moni toring During Fumigant Applications 5065 5066 If the immediate fa mily members are: Then under the considered changes, the employer:

• Under 16 years old AND

• Employed on the agricultural

establishment to perform WPS tasks (receiving

a wage or salary) • Would have to comply with all

relevant provisions of the WPS (no immediate

family exemption) for those immediate family

members

• Would no longer have an exemption

from providing emergency assistance to

workers and handlers and monitoring handlers

during fumigant applications

5067

EPA acknowledges requests from a range of st akeholders to ensure protection of all 5068

children working with or around pesticides. Recent findings suggest that working with or around 5069

pesticides may increase potential risks of ha rm to children’s developing systems and that 5070

children’s maturity and decision-making skills ar e not fully developed. EPA believes that owners 5071*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 227 of 340 [RIN 2070–AJ22] of agricultural establishments generally prot ect family members independent of government 5072

regulation. It is not clear from the available information that the burdens associated with 5073

narrowing the existing exemption would produce commensurate risk re ductions. Although EPA 5074

has not proposed changing the existing exemption from the requirement to provide certain WPS 5075

protections to immediate family members, EPA is requesting comment on this issue. 5076

EPA also considered eliminating the current exemption at §170.204(a)(i) in the case of 5077

immediate family members who are handling highly toxic pesticides or working in enclosed 5078

fumigated areas. EPA believes that owners of ag ricultural establishments generally protect 5079

family members independent of government regul ation. It is not clear from the available 5080

information that the burdens associated with narrowing the existing exemption would produce 5081

commensurate risk reductions. Although EPA has not proposed eliminating the current 5082

exemption in the case of immediate family member s who are handling highly toxic pesticides or 5083

working in enclosed fumigated areas, EP A is requesting comment on this issue. 5084

Lastly, EPA considered eliminating the exemption for establishment owners to provide 5085

emergency assistance for immediate family member s who are workers or handlers. In the event 5086

of a pesticide poisoning, certain symptoms, such as respiratory di stress, need to be addressed 5087

promptly to avoid more serious problems, such as heart failure or an inability to breathe. Again, 5088

the Agency recognizes that establishment owners working with immediate family members have 5089

a vested interest in their family members’ well being. EPA believes that additional regulation is 5090

not necessary to ensure that immediate family members who are workers or handlers receive 5091

assistance in the event of a pe sticide-related emergency. It is not clear from the available 5092

information that the burdens associated with narrowing the existing exemption would produce 5093

commensurate risk reductions. Although EPA has not proposed eliminating the current 5094*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 228 of 340 [RIN 2070–AJ22] exemption to providing emergency assistance to workers and handlers, EPA is requesting 5095

comment on this issue. 5096

5. Request for comment. EPA specifically requests comment on the immediate family 5097

exemptions in the WPS. 5098

• Would this requirement have a different impact on small farms than on larger 5099

establishments? If so, please explain the likely impact. 5100

• Does exempting agricultural establishment owners from the requirements to provide 5101

certain protections to immediate family member s present unreasonable risks to family members 5102

who are under 16 years old? 5103

• What would be the impact of limiting the immediate family exemption to family 5104

members who are at least 16 years old and who are employed by the owner? 5105

• How many agricultural establishments would be affected if EPA decided to limit the 5106

exemption to immediate family members at least 16 years old? 5107

B. Crop Advisors and Employees 5108

1. Overview. The existing WPS allows exemptions from some requirements for crop 5109

advisors and their employees. The Agency propose s to eliminate exemptions from protections 5110

for employees directly supervised by certified or licensed crop advisors. The Agency also 5111

proposes to eliminate the exemption from the wo rker decontamination and emergency assistance 5112

provisions for certified or licensed crop advi sors employed as work ers on agricultural 5113

establishments. 5114

2. Existing WPS regulations. The WPS allows crop advisor tasks to be conducted during 5115

pesticide application and during subsequent REIs. 5116*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 229 of 340 [RIN 2070–AJ22] As outlined in 40 CFR 170.5, crop advisor ta sks include assessing pest numbers or 5117

damage, pesticide distribution, or the status or requirements of agricultural plants, but not 5118

performing hand labor tasks. When performing crop advising tasks after the REI has expired or 5119

performing hand labor tasks, and employed by the ag ricultural establishment, a crop advisor is 5120

considered a worker under the WPS. A pers on employed by a commercial pesticide handling 5121

establishment performing crop advising tasks after expiration of an REI is not subject to any 5122

provisions of the rule. 5123

The WPS exempts the employer from complyi ng with some handler requirements when 5124

the employee performs crop advising tasks during an REI and that is a certified or licensed crop 5125

advisor or directly supervised by a certified or licensed crop advisor. To qualify for this 5126

exemption, the crop advisor certification or licensi ng program must include, at a minimum, all 5127

information listed under handler training, 40 CFR 170.230(c)(4). U nder the current WPS, the 5128

certified crop advisor must make specific de terminations regarding the appropriate PPE, 5129

decontamination and safe method of conduct for those working under his or her direct 5130

supervision. This information, as well as info rmation regarding the product, method and time of 5131

application, REI, tasks, and contact information, must be conveyed by the certified crop advisor 5132

to each person under his supervision. Currentl y, the WPS exempts employers from complying 5133

with worker requirements such as providing dec ontamination supplies and emergency assistance 5134

for certified or licensed crop advisors and persons they directly supervise. 5135

3. Summary of the issues. State regulatory agencies a nd their representatives have 5136

expressed concerns with the current crop advi sor exemptions, noting that those working under 5137

the supervision of the crop advisors may be unaware of the risks posed by pesticides. 5138*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 230 of 340 [RIN 2070–AJ22] 4. Details of the proposal/rationale. The Agency proposes to limit this exemption to crop 5139

advisors only, eliminating from the exemption employees directly supe rvised by certified or 5140

licensed crop advisors. The Agency believes empl oyees who are not certified or licensed as crop 5141

advisors but who are performing crop advising tasks may be unable to make appropriate 5142

judgments regarding personal risk because they ar e not required to receive information about the 5143

risks of working around pesticide- treated areas and how to protect themselves from exposure. 5144

If a person performs crop advising activities under the supervision of a certified crop 5145

advisor, he or she may not understand the fact ors influencing the risks well enough to take 5146

appropriate protective measures or to alert th e supervising crop adviso r to observations that 5147

could alter the initial deci sions about the protective measures to be taken. 5148

The Agency also proposes to eliminate th e exemption for certif ied or licensed crop 5149

advisors employed as workers on agricultural establishments from the worker decontamination 5150

and emergency assistance provisions. While EPA believes this exemption applies to a small 5151

number of people it is important that all workers on agricultural establishments have access to 5152

decontamination supplies and emergency assistance. 5153

The rule would retain the exemption for certifi ed or licensed crop a dvisors to enter and 5154

perform crop advising tasks during an REI. 5155

The Agency has discussed these exemptions with the National Alliance of Independent 5156

Crop Consultants (NAICC). NAICC re presentatives indicated that entry to perform crop advising 5157

tasks during an REI is a rare event, especially for persons who are not cer tified or licensed crop 5158

advisors (Ref. 104). Overall, the Agency believes that the proposed revision would not have a 5159

significant impact on the majority of crop advisors. 5160*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 231 of 340 [RIN 2070–AJ22] The proposed regulatory text concerning the crop advisor exemption appears in 5161

§170.301(b) of today’s proposed rule. 5162

5. Costs and benefits. EPA estimates the cost of amending the exemption for crop 5163

advisors would be $1,400, or less than $0.01 per establishment. NAICC representatives noted 5164

that there may be some cost to provide the WPS protections to curre ntly-exempt supervised 5165

employees. The Agency believes that there are fe w certified crop advisors retained directly by 5166

agricultural establishments . For a discussion of the costs of th e proposals and alternatives, see the 5167

“Economic Analysis of Proposed Revisions to th e Worker Protection Standard,” Chapter 3 Cost 5168

Analysis (Ref. 1). 5169

6. Request for comment. EPA specifically requests comment on the following questions: 5170

• Should EPA consider an alternative to this proposal? If so, what alternative and why? 5171

5172

C. Revise the Exception to the Requirement for Workers to be Fully Trained before Entering 5173

Pesticide-Treated Areas 5174

1. Overview. For workers who are not performing ear ly-entry activities, the existing WPS 5175

allows employers to delay training until before work begins on the 6 th day of entry into a treated 5176

area providing the full required pesticide safety training to workers performing WPS-covered 5177

activities (referred to as the “grace period”). During the grace period, the current WPS requires 5178

agricultural employers to provi de an abbreviated training co vering two major points: where 5179

pesticides may be encountered and how to prev ent pesticides from entering a worker’s body. In 5180

order to balance the need for workers to receive sufficient information to protect themselves and 5181

the need for agricultural employe rs to have flexibility in employing workers, EPA proposes to 5182

shorten the grace period to two days and to re quire that workers receive training on protecting 5183*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 232 of 340 [RIN 2070–AJ22] themselves and their families from pesticide exposure prior to entering a pesticide-treated area 5184

during the grace period. In essence, this exception to the general requirement that all workers be 5185

fully trained prior to entering a pesticide-tr eated area to perform WPS tasks would allow 5186

agricultural employers who have provided workers with certain e ssential safety information to 5187

direct those workers to perform WPS tasks for no more than 2 days before providing them with 5188

the full WPS pesticide safety training, and requi re the employer to maintain records of the 5189

information transfer for 2 years. The agricultu ral employer would be required to provide each 5190

such worker full pesticide safety training before allowing the worker to enter a treated area for a 5191

third day. This proposal would provide the agricu ltural employer with the flexibility to choose 5192

whether to provide workers with full pesticide safety trai ning immediately upon employment or 5193

to utilize the 2 day grace period, provided they comply with the conditions of the exception. EPA 5194

expects this change would improve workers’ unde rstanding of the risks they may face and how 5195

to protect themselves when they work in ar eas treated with WPS-covered pesticides, while 5196

maintaining flexibility for agricultural employers. 5197

2. Existing WPS regulations. When EPA was developing the 1992 WPS, agricultural 5198

employers argued that they needed a training gr ace period because qualified trainers were not 5199

available in sufficient numbers to meet the need for worker training. To accommodate the need 5200

for flexibility for agricultural employers and in recognition of the high tu rnover in the workforce 5201

on some establishments, EPA adopted the gr ace period. The 1992 rule allowed agricultural 5202

employers to direct workers to perform work in pesticide-treated areas for up to 15 days before 5203

the employer was required to provide the full pesticide safety training outlined in §170.130 (57 5204

FR 38151; August 21, 1992). On January 1, 1996, EPA reduced the grace period to 5 days (60 5205

FR 21944; May 3, 1995). 5206*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 233 of 340 [RIN 2070–AJ22] Under 40 CFR 170.130(a)(3)(ii), agricultural em ployers may direct workers to perform 5207

work (except for early-entry activities) in areas that, within the last 30 days, have been treated 5208

with a pesticide bearing a labe l requiring compliance with the WPS or have been under an REI 5209

for such pesticide for up to 5 days before the employer must provide the full pesticide safety 5210

training outlined in 40 CFR 170.130. During the grace period, employers must inform workers of 5211

the following points: 5212

• Pesticides may be on or in plants, soil, irrigation water, or drifting from nearby 5213

applications; 5214

• Prevent pesticides from entering your body by: 5215

- Following directions and/or signs about keeping out of treated or restricted areas. 5216

- Washing before eating, drinking, using ch ewing gum or tobacco, or using the toilet. 5217

- Wearing work clothing that protec ts the body from pesticide residues. 5218

- Washing/showering with soap and water, shampoo hair, and put on clean clothes after 5219

work. 5220

- Washing work clothes separately from other clothes before wearing them again. 5221

- Washing immediately in the nearest clean wa ter if pesticides are spilled or sprayed on 5222

the body. As soon as possible, shower, sh ampoo, and change into clean clothes. 5223

• Further training will be provided within 5 days. 5224

See 40 CFR 170.130(c). Before the 6 th day that workers remain on the establishment working in 5225

areas that, within the last 30 days, have been treated with a pesticide bearing a label requiring 5226

compliance with the WPS or have been under an REI for such pestic ide, the agricultural 5227

employer must provide the full pesticide safety training. 5228*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 234 of 340 [RIN 2070–AJ22] 3. Summary of the issues. Stakeholders, including Farm worker Justice and Migrant 5229

Clinicians Network, have repeatedly raised conc erns for workers entering the pesticide-treated 5230

treated areas without receiving th e full pesticide safety training (Ref. 35). They noted that the 5231

basic safety information provided prior to entry into a treated area does not describe the hazards 5232

associated with pesticides, how to recognize pesticide poisoning symptoms, or how to access 5233

emergency medical care. The lack of informati on may be of particular concern for workers 5234

performing tasks in recently trea ted areas or adjacent to an area being treated because they may 5235

not know what to do if they are sp rayed or feel sick. Stakeholders also noted that a worker may 5236

be employed for fewer than 5 days on each of a series of farms and, as a result, may be at risk of 5237

significant pesticide exposure without ever receiving the full pesticide safety training. 5238

Many of the SERs consulted by the SBAR pane l requested that EPA retain the current 5 5239

day grace period (Ref. 18, p. 21). They noted that employers have many legal obligations related 5240

to hiring a new employee, and pesticide worker safe ty training is just one element. In comments 5241

submitted to EPA, SERs informed EPA that the grace period offered agricultural employers 5242

flexibility about when to provide full training to workers without negatively impacting the 5243

performing of WPS tasks essent ial to agricultu ral production. 5244

OSHA requires that employers provide trai ning on potential chemical hazards that 5245

employees may face in the workplace before allo wing employees to enter the area to begin work. 5246

These standards require employers to provide ha zard information to workers before they begin 5247

any tasks that may expose them to a hazardous materi al or activity, rather than allowing them to 5248

work for a period before receiving the hazard in formation. See, e.g., the training requirements for 5249

employees that may encounter lead, 29 CFR 1962.62(l)(1), asbestos, 29 CFR 1926.1127(m)(4), 5250

and cadmium, 29 CFR 1926.1101(k)(9). 5251*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 235 of 340 [RIN 2070–AJ22] 4. Details of the proposal/rationale. The exception would allow agricultural employers to 5252

postpone providing full pesticide tr aining for up to 2 days after the worker begins work in WPS5253

covered areas. In order to qualify for the excepti on, agricultural employers would be required to 5254

provide certain safety information, which woul d incorporate both the information currently 5255

required by the regulation and additional content, to workers in a language and manner they 5256

understand before workers perform any WPS task s in a treated area. Agricultural employers 5257

would also be required to mainta in records of the information pr ovided to workers for 2 years. 5258

Finally, agricultural employers woul d be required to provide the fu ll pesticide safety training to 5259

workers before sending them into any treated area for a third day where within the last 30 days a 5260

pesticide product bearing a label requiring complia nce with the WPS has been used, or an REI 5261

for such a pesticide has been in effect. 5262

EPA proposes to re-characteri ze the grace period as an excep tion to the requirement that 5263

employers provide workers the full pesticide sa fety training before the worker may enter a 5264

pesticide-treated area. EPA believes that the shortened grace period and the requirement that 5265

employers provide certain basic safety informati on to workers before they enter a treated area 5266

(detailed below), and requiring recordkeeping would balance the need for workers to be 5267

informed about risks to which they may be expo sed and the need for ag ricultural employers to 5268

have some flexibility regarding pesticide safe ty training. EPA believes re-characterizing the 5269

grace period as an exception would also ma ke the regulation easier to understand. 5270

In order to utilize the pro posed exception, agricultural empl oyers would need to provide 5271

certain safety information to the workers in a language and manner they understand before the 5272

workers enter any pesticide-treated area. The re quired information would cover four areas: (1) 5273

employer responsibilities for providing worker protections, (2) information about potential 5274*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 236 of 340 [RIN 2070–AJ22] hazards in the workplace, (3) how to protect onese lf from pesticide exposure and hazards in the 5275

workplace, and (4) emergency first aid procedures for pesticide poisonings or injuries. Under the 5276

four areas, the full list of topics to be conveyed to workers would be: 5277

• Employer Responsibilities for Providing Worker Protections 5278

- Agricultural employers are required to provide workers with information and 5279

protections designed to reduce wo rk-related pesticide exposures and illnesses. This includes 5280

providing pesticide safety information to workers before being directed to work in pesticide 5281

treated areas if they have not received full pe sticide safety training; providing full pesticide 5282

safety training to workers before their 3 rd day of work in pesticid e treated areas; providing 5283

pesticide hazard information for products used on the establishment, decontamination supplies, 5284

and emergency medical assistance, and notifying wo rkers of restrictions during applications and 5285

on entering pesticide treated areas. 5286

- Agricultural employers must inform wo rkers how to recognize and understand the 5287

meaning of the warning sign used for notifying workers of restrictions on entering pesticide 5288

treated areas on the establishmen t. Workers must follow employer directions and/or signs about 5289

keeping out of entry restricted or pesticide treated areas. 5290

- Agricultural employers must not allow or direct any worker who has not received full 5291

pesticide safety training a nd additional early entry worker notification to wo rk in any area that is 5292

currently under an REI. Employers must comply with minimum age restrictions and notification 5293

requirements in order to direct worker s to perform early-entry activities. 5294

- Agricultural employers must not allow or direct any worker to mix, load, or apply 5295

pesticides or assist in the a pplication of pesticides unless the worker has been trained as a 5296

handler. 5297*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 237 of 340 [RIN 2070–AJ22] - Agricultural employers are prohibited from intimidating, threatening, coercing, or 5298

discriminating against any worker for the purpose s of interfering with any attempt to comply 5299

with the requirements of this part, or because the worker ha s made a complaint, testified, 5300

assisted, or participated in any manner in an investigation, proceed ing, or hearing pursuant to this 5301

part. 5302

• Information about Potential Pest icide Hazards in the Workplace 5303

- There are potential sources of pesticide exposure on agricultural establishments and 5304

pesticides and/or pesticide re sidues may be encountered duri ng work activities. This includes 5305

pesticides drifting from nearby ap plications, and that pesticide residues may be on or in plants, 5306

soil, irrigation water, tractors, application equi pment, or used personal protective equipment. 5307

- Pesticides can cause illness or injury if they enter your body. Pesticides can enter the 5308

body by getting them on your skin or in your eyes , by swallowing them, or by breathing in their 5309

vapors. 5310

- There are potential hazards from toxicity and exposure that pe sticides present to 5311

workers, including acute and chronic illnesses/e ffects, delayed effects, and sensitization. 5312

- There are potential hazards to children a nd pregnant women from pesticide exposure. 5313

• How to Protect Yourself from Pesticid e Exposure and Hazards in the Workplace 5314

- When working near pesticides or in pest icide treated areas, wear work clothing that 5315

protects the body from pesticide residues and always wash hands before eating, drinking, using 5316

chewing gum or tobacco, or using the toilet. 5317

- Wash or shower with soap and water, sh ampoo hair, and change into clean clothes as 5318

soon as possible after working near or in pesticide treated areas. 5319*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 238 of 340 [RIN 2070–AJ22] - There are potential hazards from the pest icide residues that may be on work clothing. 5320

Wash work clothes before wearing them again, a nd always wash work clothes separately from 5321

other clothes. 5322

• Emergency First Aid Procedures for Pesticide Poisonings or Injuries 5323

- Pesticides may cause skin rashes or hurt your eyes, nose or throat. Pesticides can make 5324

you feel sick in different ways, such as headache or dizziness, muscles pain or cramps, nausea or 5325

vomiting, sweating, drooling, fatig ue, or trouble breathing. 5326

- Wash immediately in the nearest clean wate r if pesticides are sp illed or sprayed on the 5327

body and as soon as possible, shower, shampoo hair, a nd change into clean cl othes. If a pesticide 5328

gets in your eyes, hold them open an d rinse with a gentle stream of cool water. Rinse eyes for 15 5329

minutes if possible. 5330

- If you or someone you work with gets sick while working, tell your employer right 5331

away. If you suspect you have been injured or made ill from pesticides, get medical help as soon 5332

as possible. If you have been injured from pes ticides while working, your employer must provide 5333

emergency transportation to a nearby medical facility and provide information about the 5334

pesticide or pesticides th at may have made you sick. 5335

After the employer provides th e workers with the safety information in a language and 5336

manner they understand, the employer must create a record of the information provided and 5337

provide a copy of the record to the worker. Th e record would include the safety information 5338

conveyed to the worker, an affirmation that the worker has been provide a copy of the safety 5339

information sheet and that the information was co mmunicated to the worker orally in a language 5340

the worker understands, the worker’s name, signatu re, date of birth, the date the information was 5341

provided, the employer’s name, and employe r’s phone number or phone number of the 5342*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 239 of 340 [RIN 2070–AJ22] establishment. The employer can have all work ers sign the record and acknowledgement before 5343

providing copies to each worker. 5344

Finally, EPA is committed to protecting vul nerable populations. Workers face risk of 5345

occupational exposure to pesticides. Through this proposed change, EPA seeks to mitigate the 5346

elevated risk associated with entering a treate d area without training on what pesticide risks may 5347

be encountered in the workplace and how to protect oneself from pesticide exposure. EPA 5348

believes this proposal is consiste nt with the principles of e nvironmental justice, providing a 5349

population that may face disproportionate risks of exposure based on the nature of their tasks, 5350

limited understanding of English, low literacy, and low education level with information in 5351

advance of the potential for exposure. 5352

The proposed regulatory text establishing a 2 day grace period, altering the requirements 5353

for training under the grace period, and establishing a requirement to maintain records for 2 years 5354

appears in §170.309 of today’s proposed rule. 5355

5. Costs and benefits. EPA estimates that replacing the current 5-day grace period with 5356

the proposed 2-day exception to the requirement for employers to provide full pesticide safety 5357

training to workers before directing workers to enter a pesticide treated area would cost $2.3 5358

million, or about $6 per agricultural establishment. This cost estimate does not include 5359

recordkeeping; the cost of the recordkeeping for worker training is discussed in Unit VII.B. For a 5360

complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of 5361

Proposed Revisions to the Worker Protection St andard,” Chapter 3 Cost Analysis (Ref. 1). 5362

EPA could not estimate specific benefits a ssociated with this proposal. However, EPA 5363

believes that providing certain safe ty information to workers befo re they perform WPS tasks and 5364

shortening the interval before they receive full training would decr ease the number of 5365*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 240 of 340 [RIN 2070–AJ22] occupational pesticide-related illnesses because workers would be better informed on how to 5366

protect themselves before ente ring a pesticide-treated area. 5367

6. Alternative options co nsidered but not proposed . As an alternative, EPA is considering 5368

eliminating the grace period. Under this option, agricultural employers would be required to 5369

provide all workers with full pest icide training before sending them into any treated area where 5370

within the last 30 days a pesticide product bear ing a label requiring co mpliance with the WPS 5371

has been used, or an REI for such a pesticide has been in effect. Eliminating the grace period 5372

would ensure that all workers are fully traine d on how to protect both themselves and their 5373

family members before entering an area covered by the WPS. The estimated cost for eliminating 5374

the grace period for worker training would be $2.8 million, or about $7 per establishment. The 5375

increased cost comes from the employer having to provide full pesticide safety training sessions 5376

every time workers enter the establishment to perform WPS tasks, ra ther than waiting and 5377

holding a larger training session for workers hired over a period of a few days. EPA does not 5378

have sufficient data to compare the benefits of providing the pesticide safety training before 5379

workers enter the treated area to ensure that work ers are fully prepared a nd aware of the potential 5380

risks they may encounter in the workplace, and th e costs that agricultural employers might incur 5381

if the grace period were eliminated. 5382

Information exists that suppor ts the alternative option to eliminate the grace period 5383

entirely. First, the number of trainers may be sufficient. EPA reduced the grace period from 15 to 5384

5 days over 10 years ago in recognition that employers had less difficulty finding someone to 5385

provide pesticide safety training to workers. Based on significant outreach and support provided 5386

by EPA to training organizations, such as AFOP, sufficient trainers may be available nationally 5387

to meet the needs of agricultural employers without a grace period. Second, 90% of workers 5388*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 241 of 340 [RIN 2070–AJ22] report employment by 1 or 2 establishments a ye ar (Ref. 3, p. 23). Employers now may deal with 5389

less worker turnover and therefore may not need to provide multiple trainings throughout the 5390

year. The lower burden on employers makes the ca ll for a grace period less compelling. Lastly, 5391

small business representatives advised EPA that they generally provide training to workers upon 5392

employment to comply with other regulations or for general orientation (Ref. 18). Under the 5393

proposal for worker pesticide safety training, once a worker is trained in a part icular year, he or 5394

she would receive a record of th e training to show subsequent em ployers, thereby eliminating the 5395

need for subsequent employe rs to repeat the training. 5396

EPA notes that OSHA requires em ployers in almost all indust ries to notify their workers 5397

of the hazards that may be encountered in th e workplace before the work begins (29 CFR 5398

1910.1200(h)). This requirement has been in plac e since 1983. OSHA established the standard 5399

based on the belief that, without adequate knowledge of the potential dangers in the workplace, 5400

workers would not be able to take protective measures or avoid hazards (52 FR 31852; August 5401

24, 1987)(59 FR 6126; February 9, 1994) (Ref. 63). 5402

7. Request for comment. EPA specifically requests comment on the following: 5403

• Supply of trainers and how quick ly they can be available. 5404

• Frequency of hiring new workers during the year. 5405

• Evidence about the frequency of illness for wo rkers who receive basic vs. full pesticide 5406

safety training. 5407

• Should EPA eliminate the gra ce period? Why or why not? 5408

• What would be the impact of eliminating the grace period on ag ricultural employers, 5409

trainers, and/or workers? 5410*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 242 of 340 [RIN 2070–AJ22] • What would be the impact of a shorter grace period on agricultural employers and 5411

trainers? 5412

• Would retaining a shorter grace period as pr oposed negatively impact workers? If so, 5413

how? 5414

XIX. General Revisions to the WPS 5415

A. Improved Definitions 5416

The Agency proposes to revise 40 CFR 170.3 by revising certain defi nitions to provide 5417

greater clarity, by adding several new defin itions, and by eliminating several unnecessary 5418

definitions. EPA believes that improved definiti ons would reduce the lik elihood of alternative 5419

interpretations, while improving compliance and enforceability. 5420

The Agency believes these proposed revisions to the definitions adopt more widely used 5421

and commonly accepted “plain English” language, and add clarity and consistency to the rule. 5422

The proposed revisions to the definitions also he lp address regulatory or policy issues raised by 5423

state regulatory partners and other program stakeholders. The Agency does not believe the 5424

proposed revisions to the definitions will a dd new regulatory requirements on the regulated 5425

community or substantially in crease regulatory burden. 5426

The following definitions appear in §170.5 of today’s proposed rule. 5427

1. Revised definitions. The Agency proposes to revise the following existing definitions: 5428

“agricultural employer,” “agricultural establishment, ” “agricultural plant,” “commercial pesticide 5429

handling establishment,” “crop advisor,” “farm,” “hand labor,” “handler,” “handler employer,” 5430

“immediate family,” “nur sery,” and “worker.” 5431

The Agency proposes to change the existing definition of “immediate family” as follows: 5432

“...includes only spouse, parents, stepparents, foster parents, father-in-law, mother-in-law, 5433*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 243 of 340 [RIN 2070–AJ22] children, stepchildren, foster children, sons-in-law, daught ers-in-law; grandparents, 5434

grandchildren, brothers, sisters, brothers-in-law, and si sters-in-law.” The remaining revisions to 5435

the existing definitions are simply intended to clar ify those terms, rather than substantively alter 5436

them. Substantive changes to the immediate fam ily exemption considered but not proposed are 5437

discussed in Unit XVIII.A. 5438

2. New definitions. The Agency also proposes to add the following new definitions: 5439

“authorized representative,” “closed system ,” “commercial pesticide handler employer,” 5440

“commercial production,” “enclosed space produ ction,” “employ,” “enclosed cab,” “entry5441

restricted area,” “forest opera tion,” “labor contractor,” “outdoor production,” “personal 5442

protective equipment,” “safety data sheet ,” “use,” and “worker housing area.” 5443

As an example of the changes to the defin itions, the Agency proposes to define “employ” 5444

as the receipt of either wages or salary for wo rk. Under the current rule, a person is covered by 5445

the WPS if he or she receives any type of compensation. Current interpretations of 5446

compensation include students receiving credits and garden club members receiving benefits 5447

such as coffee and cake at meetings. The propos ed definition would limit WPS coverage to only 5448

those who receive pay and perform worker or hand ler tasks when a pesticide has been applied or 5449

an REI in effect on the establishment within the past 30 days. 5450

3. Definitions to be deleted. The Agency proposes to de lete the definition of 5451

“greenhouse” because it is no longe r necessary as a result of th e proposed addition of “enclosed 5452

space production.” The agency also proposes to de lete the definition of “forest” because it is 5453

being replaced with “forest operation.” Additional details regarding significant proposed 5454

definition changes are discussed above. 5455

4. Request for comment. EPA specifically requests comment on the following questions: 5456*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 244 of 340 [RIN 2070–AJ22] • What impact do you expect on employers, worker s, handlers, or othe r stakeholders as a 5457

result of replacing the terms “farms,” “forests,” “nurseries,” and “gree nhouses” with the terms 5458

“outdoor production” and “en closed space production”? 5459

• What are the impacts of revising th e definition of “immediate family”? 5460

• Should EPA consider including cousins in the definition of immediate family? Why or 5461

why not? 5462

• What are the impacts of adding a definition of “employ”? 5463

• What are the impacts of adding a defin ition of “authorized representative”? 5464

• Are there other terms that the Agency s hould consider clarifying, redefining, or 5465

eliminating from the rule? If so, please provide detail about the term(s) and rationale for change. 5466

B. Restructuring of Part 170 5467

In order to improve clarity and implement th e principles of using plain language in 5468

regulations, EPA proposes to reor ganize the structure of part 170 and to rename the rule. EPA 5469

expects the revised part 170 will be easier to read and understand, thereby improving compliance 5470

by worker and handler employers. 5471

1. Existing part 170. Part 170, the Worker Protection St andard, is organized into three 5472

subparts: “General Provisions,” “Standard for Workers,” and “Standard for Handlers.” Often, 5473

content that applies to both wo rkers and handlers is repeated in two sections. The exemptions 5474

and exceptions are listed thr oughout the rule. EPA has receiv ed feedback from states, 5475

farmworker groups, employers, trainers, and other stakeholder groups that part 170 is difficult to 5476

follow (Ref. 44). 5477

2. Details of today’s proposal. EPA proposes to rename the regulation “Requirements for 5478

Protection of Agricultural Workers and Pesticid e Handlers.” The proposal would reorganize the 5479*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 245 of 340 [RIN 2070–AJ22] rule into four subparts: “Gen eral Provisions,” “Requirement s for Protection of Agricultural 5480

Workers,” “Requirements for Protection of Pesticide Handlers,” and “Exemptions and 5481

Exceptions.” The “General Provisions” subpart would describe cert ain obligations for 5482

agricultural employers, handler employers, and those requirements that apply to both. The 5483

subparts “Requirements for Pr otection of Agricultural Workers” and “Requirements for 5484

Protection of Pesticide Handlers” would provide information that supplements the general duties 5485

and obligations for employers and outline the content of the training and decontamination 5486

supplies that the employer must provide for wo rkers and handlers resp ectively. Finally, EPA 5487

consolidated most of the excepti ons and exemptions into a separate subpart to make them easier 5488

to find and reference. 5489

EPA believes that the restructured rule will f acilitate better understanding of the rule by 5490

employers and state and tribal regulatory agen cies. EPA specifically requests comment on the 5491

following questions: 5492

• Is the restructuring clearer a nd easier to read and understand? 5493

• Are there other ways that part 170 could be simplified or made clearer? If so, please 5494

provide suggested la nguage and rationale 5495

XX. Implementation of this Proposal 5496

EPA proposes to make the final rule effective 60 days after the date of publication in the 5497

Federal Register; however, compliance with certai n provisions, including the additional pesticide 5498

safety training content and pesticide safety in formation and new signs for posting, would not be 5499

required until 2 years after the pub lication date of the final rule. The 2 year delay between 5500

publication of the final rule and the effective date of the change s would give state and tribal 5501

regulators, employers, trainers, and other stakeholders time to make the necessary changes to 5502*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 246 of 340 [RIN 2070–AJ22] their daily activities and for materials and signs to be developed and made available. EPA 5503

expects that employers would need new signs and training materials to transition to new 5504

requirements. State regulators would need to become familiar with the new regulation and 5505

conduct outreach to the regulated community. Traine rs would have to become familiar with the 5506

additional training content, to en sure that they meet any eligib ility requirements, and to obtain 5507

new training materials. 5508

To facilitate implementation, EPA plans to issue a “how to comply” guidance document 5509

at the time the final rule is publ ished, to develop and dissemina te new training materials, to 5510

conduct outreach to all potentially affected pa rties, and to provide assistance to states. 5511

XXI. Reference List 5512

1. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2013. Economic 5513

Analysis of Proposed Revisions to the Worker Protection Standard . Washington, D.C. 5514

2. Lee, S-J, Mehler, L, B eckman, J, Diebolt-Brown, B, Pr ado, J, Lackovic, M, et al. 5515

“Acute Pesticide Illnesses Asso ciated with Off-Target Pesticide Drift from Agricultural 5516

Applications.” Environ Health Perspect 119 (2011):1162-1169. 5517

3. U.S. Department of Labor. Office of th e Assistant Secretary for Policy. Office of 5518

Programmatic Policy. 2005. Findings from the National Agri cultural Workers Survey (NAWS) 5519

2001-2002: A Demographic and Empl oyment Profile of United States Farm Workers. Research 5520

Report No. 9. 5521

4. S. Rep. No. 92-883 (Part II), 92nd Congress, 2nd Session at 43-46 (1972). U.S. Code 5522

Congressional and Administrative News 1972, p. 4063. 5523*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 247 of 340 [RIN 2070–AJ22] 5. Rosenbaum, S and Shin, P. “Migrant and Seasonal Farmworkers: Health Insurance 5524

Coverage and Access to Care.” The Kaiser Commission on Medi caid and the Uninsured. May 3, 5525

2005. Pub no. 7314. 5526

6. Kandel, W. 2008. Profile of Hired Farmworkers, A 2008 Update . Economic Research 5527

Report No. 60. U.S. Department of Agri culture. Economic Research Service. 5528

7. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2007. OPP 5529

Report on Incident Inform ation: The Baseline. 5530

8. Harchelroad, F, et al. “Treated vs. Re ported Toxic Exposures: Discrepancies Between 5531

a Poison Control Center and a Member Hospital.” Vet Hum Toxicol 32 (1990): 156-159. 5532

9. Chafee-Bahamon, C, Caplan, DL and Lovejoy, Jr, FH. “Patterns in Hospitals' Use of a 5533

Regional Poison Information Center.” Am J Public Health 73 (1983): 396-400. 5534

10. Veltri, JC, McElwee, NE and Schumacher , MC. “Interpretation and uses of data 5535

collection in poison control centers in the United States.” Med Toxicol Adverse Drug Exp 2 no.6 5536

(1987): 389-397. 5537

11. Calvert, G M, et al. “Acute pesticide poisoning among agricultural workers in the 5538

United States, 1998-2005.” American J Ind Med 51, no. 12 (December 2008): 883-898. 5539

12. Reigart, JR and Roberts, JR. 1999. Recognition and Management of Pesticide 5540

Poisonings. 5 th Ed. U. S. Environmental Protection Agen cy. Office of Pesticide Programs. EPA# 5541

735-R-98-003. 5542

13. Occupational Safety a nd Health Administration. Inspection Procedures for the 5543

Hazard Communication Standard, 29 CFR 1910.1200, 1915.99, 1917.28, 1918.90, 1926.59, and 5544

1928.21 . March 20, 1998. CPL 02-02-038. 5545*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 248 of 340 [RIN 2070–AJ22] 14. U.S. Environmental Protection Agency. “A gricultural Worker Pr otection Standard 40 5546

CFR Parts 156 & 170 Interpretive Policy, Questi on and Answers Website.” Retrieved August 25, 5547

2011. http://www.epa.gov/pesticides/saf ety/workers/wpsinterpolicy.htm. 5548

15. ARI/EPA General Training Issues Workgroup. 2003. Recommendations to the U.S. 5549

Environmental Protection Agency fo r Improving Farmworker Pesticide Safety Training from the 5550

ARI/EPA General Training Issues Workgroup. 5551

16. Council for Agricultural Sciences and T echnology and U.S. Environmental Protection 5552

Agency. Office of Pesticide Programs. 2004. Train the Trainer Pilot Project Final Report. 5553

17. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2005. Report 5554

on the National Assessment of EPA’s Worker Safety Program. 5555

18. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2008. Small 5556

Business Advocacy Review Panel on EPA Planned Revisions to Two Related Rules: Worker 5557

Protection Standard for Agricultural Pesticides (RIN 2070-AJ22); and Certification of Pesticide 5558

Applicators (RIN 2070-AJ20). Washington, DC. 5559

19. U.S. Government Accounting Office. 1992. Hired Farmworkers: Health and Well5560

Being at Risk. Report to Congressional Requesters. GAO/HRD-92-46. 5561

20. U.S. Government Accounting Office. 2000. Pesticides: Improvements Needed to 5562

Ensure the Safety of Farmworkers and their Families. Report to Congressional Requesters. 5563

GAO/RCED-00-40. 5564

21. Ward, MH, et al. “Proximity to Crops and Residential Exposure to Agricultural 5565

Herbicides in Iowa.” Environ Health Perspect 114, no. 6 (2006): 893-897. 5566*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 249 of 340 [RIN 2070–AJ22] 22. McCauley, LA, et al. “Work Characteris tics and Pesticide Exposures Among Migrant 5567

Agricultural Families: a Commun ity-based Research Approach.” Environ Health Perspect 109, 5568

no. 5 (2001): 533-538. 5569

23. McCauley, L A, et al. “Pesticide Exposure and Self Reported Home Hygiene: 5570

Practices in Agricultural Families.” AAOHN Journal . 51, no. 3 (2003):113-119. 5571

24. Rao, P, et al. “Pesticide Safety Behavior s in Latino Farmworker Family Households.” 5572

Am J Ind Med. 49, no. 4 (2006): 271-280. 5573

25. Bradman, A, et al. “Community-Based In tervention to Reduce Pesticide Exposure to 5574

Farmworkers and Potential Take-home Exposure to their Families.” J Expo Sci Environ 5575

Epidemiol 19, no.1 (2009):179-189. 5576

26. Natural Resources Defense Council. Comments from the Natural Resources Defense 5577

Council on the Revised Risk Assessment Meth ods for Workers, Children of Workers in 5578

Agricultural Fields, and Pesticides with No Food Uses (EPA-HQ-OPP-2009-0889-0002). April 5579

2010. 5580

27. Human Rights Watch. Fingers to the Bone: United Stat es Failure to Protect Child 5581

Farmworkers. 2000. Washington, D.C. 5582

28. Children's Health Protection Advisory Committee. 1998. Report of the Children's 5583

Health Protection Advisory Committee to the U.S. Environmental Protection Agency Regarding 5584

the Selection of Five Regula tions for Re-Evaluation. 5585

29. Calvert, GM, et al. “Acute Pesticid e-related Illnesses Among Working Youths, 1988- 5586

1999.” Am J Public Health 93, no. 4 (2003): 605-610. 5587*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 250 of 340 [RIN 2070–AJ22] 30. Curl, CL, et al. “Evaluation of Ta ke-home Organophosphorus Pesticide Exposure 5588

Among Agricultural Workers and their Children.” Environ Health Perspect 110, no. 12 (2002): 5589

A787-A792. 5590

31. Coronado, GD, et al. “Agricultural Task and Exposure to Organophosphate Pesticides 5591

Among Farmworkers.” Environ Health Perspect 112, no. 2 (2004): 142–147. 5592

32. Sánchez Lizardi, P, O'Rourke, MK and Morris, RJ. “The Effects of Organophosphate 5593

Pesticide Exposure on Hispanic Children's Cognitive and Behavioral Functioning.” J Pediatr 5594

Psychol 33, no. 1 (2007): 91-101. 5595

33. Das, R, et al. “Pesticide-related Illn ess Among Migrant Farm Workers in the United 5596

States.” Int J Occup Environ Health 7, no. 4 (2001): 303-312. 5597

34. Goldman, L, et al. “Risk Behaviors fo r Pesticide Exposure Among Pregnant Women 5598

Living in Farmworker Households in Salinas , California.” Am J Ind Med. 45, no. 6 (2004): 491- 5599

499. 5600

35. Davis, S., et. al. Letter to U.S. Environmental Protection Agency Administrator 5601

Stephen Johnson. On behalf of Farmworker Justice et al. December 15, 2006. 5602

36 U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2007. Compiled 5603

Comments of the Pesticide Program Dialogue Committee on May 2007 Issue Papers. 5604

Washington, DC. 5605

37. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2007. Pesticide 5606

Program Dialogue Committee Worker Safet y Regulation Change Subgroup, Summary of PREP 5607

and PPDC Comments. Washington, DC. 5608*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 251 of 340 [RIN 2070–AJ22] 38. Calabro, K, Bright, K and Kouzekanani, K. “Long-term Effec tiveness of Infection 5609

Control Training among Fourth Year Medical St udents.” Medical Education Online. 5, no. 1, 5610

(2000): 1-7. http://www.med-ed-online.org 5611

39. Spradley, Ples. Correspondence to Kathy Davis, U.S. Environmental Protection 5612

Agency on Pesticide Worker Safety Program Enhancement. American Association of Pesticide 5613

Safety Educators. June 7, 2007. 5614

40. Glasnapp, J., Nakamoto, J. 2007. Hazard Communications for Agricultural Workers. 5615

JBS International, Inc. Aguirre Division. 5616

41. Adams, S. “Improving safety instructi on and results: Five principles of sound 5617

training. Professional Safety.” Professional Safety. December 1, 2000. Article available at 5618

http://www.allbusiness.com/education-tr aining/employee-tr aining-assistance5619

employee/11442447-1.html. 5620

42. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2008. 5621

Summary of Potential SER Written and Oral Comments Received in Response to Small Business 5622

Advocacy Review Panel Outreach Meetings. Washington, DC. 5623

43. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2010. Worker 5624

Pesticide Safety Training Verification Card Order Report. Washington, DC. 5625

44. U.S. Environmental Protection Agen cy. Office of Pesticide Programs. 2000. The 5626

National Assessment of the Worker Safe ty Program, Stakeholder Workshop #1. 5627

45. Dubberly, D. Email correspondence to Elizab eth Evans, U.S. Environmental 5628

Protection Agency. Florida Department of Agriculture and Consumer Services. July 18, 2006. 5629

46. American Association of Pe sticide Safety Educators. 2006. FL SDA Comments on 5630

EPA’s Plans for Proposed C&T and WPS Rule Changes. Washington, DC. 5631*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 252 of 340 [RIN 2070–AJ22] 47. NASDAF Workgroup. National Worker Safety Trai ner Handbook: Pesticide Safety 5632

for Agricultural Workers. (Washington, DC: National Association of State Departments of 5633

Agriculture Foundation, 2008). EPA Cooperative agreement no. X8-83235401. 5634

48. Wallerstein, N and Rubenstein, H. Teaching about Job Hazards, A Guide for Workers 5635

and Their Health Providers. (Washington, DC, American Public Health Association, 1993.) 5636

49. U.S. Department of Health and Human Services. Centers for Disease Control and 5637

Prevention. The National Institute of Occupational Safety and Health. Report to Congress on 5638

Workers’ Home Contamination Study Conducted Under the Worker s’ Family Protection Act (29 5639

U.S.C. 671a) . September 1995. Publication No. 95-123. 5640

50. Lu, C, et al. “Pesticid e Exposure of Children in an Agricultural Community: 5641

Evidence of Household Proximity to Farmland and Take Home Exposure Pathways.” 5642

Environmental Research 84, no. 3 (2000):b290-302. 5643

51. Lambert, W E, et al. “Variation in Orga nophosphate Pesticide Metabolites in Urine of 5644

Children Living in Agricultural Communities.” Environ Health Perspect 113, no. 4 (2005): 504- 5645

508. 5646

52. Arcury, T A, et al. “Pesticide Urinary Me tabolite Levels of Children in Eastern North 5647

Carolina Farmworker Households.” Environ Health Perspect 115, no. 8 (2007): 1254–1260. 5648

53. Liebman, A K, et al. “A Pilot Progra m using Promotoras de Salud to Educate 5649

Farmworker Families About the Risks from Pesticide Exposure.” J Agromedicine 12, no. 2 5650

(2007):33-43. 5651

54. U.S. Environmental Protection Agency. “Children's Environmental Health Centers 5652

(CEHCs) Website.” Retrieved April 21, 2011. http://www.epa.gov/ncer/childrenscenters/. 5653*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 253 of 340 [RIN 2070–AJ22] 55. U.S. Environmental Protection Agency. “Children's Environmental Health Centers 5654

(CEHCs): University of Califor nia at Berkeley Center for Children's Environmental Health 5655

Research Website” Retrieved August 5, 2011. 5656

http://www.epa.gov/ncer/child renscenters/berkeley.html

. 5657

56. Bradman, M A, et al. “Pesticide Exposur es to Children from California's Central 5658

Valley: Results of a Pilot Study.” J Expo Anal Environ Epidemiol 7, no. 2 (1997): 217-234. 5659

57. Quandt, S A, et al. “Agricultural and Resi dential Pesticides in Wipe Samples from 5660

Farmworker Family Residences in North Ca rolina and Virginia.” 112, no. 3 (2004): 382-387. 5661

58. Coronado, G D, et al. “Organophosphate Pesticide Exposure and Work in Pome Fruit: 5662

Evidence for the Take-home Pesticide Pathway.” Environ Health Perspect 114, no. 7 (2006): 5663

999-1006. 5664

59. Wolgalter, S, Sojourner, J and Brelsford, J. “Comprehension and retention of safety 5665

pictorials.” Ergonomics . 40, no. 5 (1997): 531-542. 5666

60. Spencer, J R. November 2, 2001. Health and Safety Report: A nalysis of the Impact of 5667

the Federal Worker Protection Standard and R ecommendations for Improving California’s 5668

Worker Protection Program Regarding Field Posting. California Environmental Protection 5669

Agency Department of Pesticide Regulation. HS-1819. 5670

61. U.S. Department of Labor. Office of th e Assistant Secretary for Policy. Office of 5671

Program Economics. 2000. Findings from the National Agri cultural Workers Survey (NAWS) 5672

1997-1998. Research Report No. 8. 5673

62. Davis, TC, et al. “Low Literacy Impa irs Comprehension of Prescription Warning 5674

Labels.” J Gen Intern Med 21, no. 8 (2006): 847-851. 5675*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 254 of 340 [RIN 2070–AJ22] 63. U.S. General Accounting Office . 1992. Employers' Experiences in Complying with 5676

the Hazard Communication Standard. Briefing Report to Congre ssional Requesters. GAO/HRD5677

92-63BR. 5678

64. U.S. Department of Labor. Occupational Safety and Health Administration. “State 5679

Occupational Safety and Health Plan s Website.” Retrieved September 14, 2011. 5680

http://www.osha.gov/dcsp/osp/index.html. 5681

65. U.S. Department of Labor. Employment and Training Administration. “The National 5682

Agricultural Workers Survey We bsite.” Retrieved January 11, 2011. 5683

http://www.doleta.gov/a gworker/naws.cfm. 5684

66. North Carolina Administrative Code, T itle 2, Chapter 9, Subchapter L, Part 1807. 5685

2009. 5686

67. Cotto-Febo, S. “Portable Central Loca tion Project.” (Presentation, Presented 5687

October,3, 2007 at Worker Safety and Health Symposium, U.S. Environmental Protection 5688

Agency, Arlington VA. October 3, 2007.) 5689

68. U.S. Environmental Protection Agenc y. Office of Enforcement and Compliance 5690

Assurance. 2006. Overview of WPS Violations During 2006 Inspections. 5691

69. U.S. Environmental Protection Agenc y. Office of Enforcement and Compliance 5692

Assurance. 2007. Overview of WPS Violations during 2007 Inspections. 5693

70. U.S. Environmental Protection Agenc y. Office of Enforcement and Compliance 5694

Assurance. 2008. Overview of WPS Violations during 2008 Inspections. 5695

71. Calvert, G M, et al. “Case Report: Th ree Farmworkers Who Gave Birth to Infants 5696

with Birth Defects Closely Grouped in Time and Place—Florida and North Carolina, 2004– 5697

2005.” Environ Health Perspect 115, no. 5 (2007): 787-791. 5698*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 255 of 340 [RIN 2070–AJ22] 72. Cline, JS. Letter to Jim Jones, Director of th e Office of Pesticide Programs, U.S. 5699

Environmental Protection Agency . On behalf of North Carolina Department of Health and 5700

Human Services. February 2007. 5701

73. Washington State Department of Health. 2010. 2009 Annual Report: Pesticide 5702

Incident Reporting and Tracking Review Panel. 5703

74. Children's Health Protection Advisory Committee. Letter to Administrator Stephen J. 5704

Johnson, Administrator, U.S. Environmental Protection Agency: Recommendations Regarding 5705

Protecting Farmworker Children. November 15, 2005. 5706

75. Krieger, R, et al. “Gaugi ng Pesticide Exposure of Handlers 5707

(mixers/loaders/applicators) and Harvesters in California Agriculture.” Med Lav 81, no. 6 5708

(1990): 474-479. 5709

76. U.S. Department of Health and Human Se rvices, Public Health Service, Centers for 5710

Disease Control and Prevention, National Inst itute for Occupational Safety and Health. National 5711

Institute for Occupational Safety and Health (NIOSH) Recommendations to the U.S. Department 5712

of Labor for Changes to Hazardous Orders . May 3, 2002. 5713

77. Casey, BJ, Jones, RM and Hare , T A. “The Adolescent Brain.” Ann N Y Acad Sci 5714

March (2008): 111-126. 5715

78. Farmworker Justice et al. Pesticides In the Air – Kids at Risk: Petition to EPA to 5716

Protect Children from Pesticide Drift. October 13, 2009. 5717

79. Young, M and Rischeitelli, D G. “Occupational Risks and Risk Perception among 5718

Hispanic Adolescents.” McGill J Med 9, no. 1 (2006): 49-53. 5719

80. U.S. Environmental Protection Agency. How to Comply with the Worker Protection 5720

Standard for Agricultural Pesticides : What Employers Need To Know. Revised 2005. 5721*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 256 of 340 [RIN 2070–AJ22] 81. U.S. Environmental Protection Agency. 2007. USDA Comments for the PPDC 5722

Worker Safety Re gulation Change Subgroup. Washington, D.C. 5723

82. Freeman Adcock, R, McAllister, R and Kelly, A. Letter to Kathy Davis, Certification 5724

and Worker Protection Branch, U. S. Environmental Protection Agency; Comments on Position 5725

Papers Relating to Worker Protection Standards (WPS). Pesticide Policy Coalition. August 31, 5726

2007. 5727

83. U.S. Environmental Protection Agency. Transmittal of Meeting minutes of the FIFRA 5728

Scientific Advisory Panel Meet ing Held December 2-5, 2008 on the Sc ientific Issues Associated 5729

with Worker Reentry Exposure Assessment. February 19, 2009. 5730

84. U.S. Environmental Protection Agenc y. Office of Pesticide Programs. Updated 5731

August 2010. Label Review Manual Chapter 7: Precautionary Statements. 5732

85. American National Standards Institute. American National Standard for Emergency 5733

Eyewash and Shower Equipment. ANSI Z358.1-1990. 5734

86. Cooke, G, et al. 2011. Oregon OSHA Pesticide Emphasis Program Annual Report: 5735

Federal Fiscal Year 2010 . Oregon Department of Consumer and Business Services. Information 5736

Management Division. 5737

87. Matoian, R. Letter to Joe Hogue, U.S. Environm ental Protection Agency: Small 5738

Business Representative comments on WPS. July 14, 2008. 5739

88. Arcury, T A, et al. “Farmworker reports of pesticide safety and sanitation in the work 5740

environment.” Am J Ind Med 39, no. 5 (2001): 487-498. 5741

89. California Department of Pesticide Regulation. California Code of Regulations. Title 5742

3. Food and Agriculture. Division 6. Pesticides and Pest Control Op erations; Section 6746. 2012. 5743*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 257 of 340 [RIN 2070–AJ22] 90. California Department of Pesticide Regulation. California Code of Regulations. Title 5744

3. Food and Agriculture. Division 6. Pesticides and Pest Control Op erations; Section 6000. 2012. 5745

91. California Department of Pesticide Regul ation. Worker Health and Safety Branch. 5746

Closed Systems Director’s Memo . January 2, 1998. 5747

92. Department of Health and Human Se rvices, Centers for Disease Control and 5748

Prevention. National Institute for Occupational Safety and Health. 2004. NIOSH Alert: 5749

Preventing Occupational Exposures to Antioplastic and other Hazardous Drugs in Health Care 5750

Settings . DHHS (NIOSH) Publication Number 2004

− 165. 5751

93. Minnesota Department of Health. “Medical Screening Website: Physiologic effects of 5752

respirator use.” Retrieved November 17, 2010. Calvert, G M and Higgins, S A. “Using 5753

Surveillance Data to Promote Occupational Health and Safety Policies and Practices at the State 5754

Level: a Case Study.” Am J Ind Med 53, no. 2 (2010): 188-193. 5755

94. California Department of Pesticide Regulation. California Code of Regulations. Title 5756

3. Food and Agriculture. Division 6. Pesticides and Pest Control Op erations; Section 6720-6746. 5757

95. Washington State Department of Labor and Industries. “Cholinesterase Monitoring 5758

Website.” Retrieved March 15, 2011. 5759

http://www.lni.wa.gov/Safety/Topi cs/AtoZ/Cholinesterase/. 5760

96. Washington State Department of Labor and Industries. Division of Occupational 5761

Safety and Health. 2009. Cholinesterase Monitoring of Pes ticide Handlers in Agriculture: 2009 5762

Report. 5763

97. Washington State Department of Labor and Industries. Division of Occupational 5764

Safety and Health. January 2007. Cholinesterase Monitoring of Pesticide Handlers in 5765

Agriculture: Report to the Legislature. 5766*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 258 of 340 [RIN 2070–AJ22] 98. U.S. Environmental Protection Agency. Office of Pesticide Programs. “Pesticide 5767

Reregistration Status fo r Organophosphates Website.” Retrieved May 10, 2011. 5768

http://www.epa.gov/pesticides/r eregistration/status_op.htm. 5769

99. Washington State Department of Health. Pesticide Incident Reporting and Tracking 5770

Review Panel 2005 Annual Report. December 2005. 5771

100. Washington State Department of Health. Pesticide Incident Reporting and Tracking 5772

Review Panel Annual Report. May 2007. 5773

101. Washington State Department of Labor and Industries. 2003. Benefit-Cost 5774

Determination: Cholinesterase Monitoring in Agriculture. WAC 296-307-148. 5775

102. Association of Farmworker Opportunity Programs. 2011 . Dangerous Exposure: 5776

Farmworker Children and Pesticides. Health and Safety Programs Annual Report, Vol. 1. 5777

103. Eskenazi, B, Bradman, A and Castor ina, R. “Exposures of Children to 5778

Organophosphate Pesticides and their Po tential Adverse Health Effects.” Environ Health 5779

Perspect Environ Health Perspect 107, Suppl. 3 (1999): 409-419. 5780

104. Jones, A and Smith, L. Letter to Kevin Keaney, Branc h Chief, Certification & 5781

Worker Protection Branch, U.S. Environmenta l Protection Agency, Comments regarding Issue 5782

Paper, "Making the Regulatory Requirements for Certified Crop Advisors, Crop Advisor 5783

Employees & Aerial Apps.” On behalf of National Alliance of Independent Crop Consultants, 5784

Certified Crop Advisors. 2006. 5785

105. U.S. Environmental Protection Agency. Agricultural Worker Protection Standard 5786

Training and Notification (Proposed Rule). EPA ICR No. 2491.01 a nd OMB Control No. 2070- 5787

NEW. 2013. 5788*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 259 of 340 [RIN 2070–AJ22] 106. U.S. Environmental Protection Agency. Agricultural Worker Protection Standard 5789

Training and Notification. EPA ICR number 1759.07 and OMB Control No. 2070-0148. 2013. 5790

XXII. FIFRA Review Requirements 5791

Under FIFRA section 25(a), EPA has submitte d a draft of the proposed rule to the 5792

Secretary of the Department of Agriculture a nd the appropriate Congressional Committees. Their 5793

comments on this proposed rule and EPA’s resp onses are located in the docket for this 5794

rulemaking. 5795

The Science Advisory Panel waived its re view of this proposal on February 7, 2013. 5796

XXIII. Statutory and Executive Order Reviews 5797

A. Executive Order 12866: Regulatory Planni ng and Review; and, Executive Order 13563: 5798

Improving Regulation and Regulatory Review 5799

Under Executive Order 12866 (58 FR 51735; October 4, 1993), this action is a 5800

"significant regulatory action" because it may ra ise novel legal or policy issues arising out of 5801

legal mandates, the President’s priorities, or th e principles set forth in the Executive Order. 5802

Accordingly, EPA submitted this proposed rule making to the Office of Management and Budget 5803

(OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821; January 21, 2011), 5804

and any changes made in response to OMB r ecommendations have been documented in the 5805

public docket for this action. 5806

Each of the WPS provisions is intended to do one of the following: (1) inform farm 5807

workers and pesticide handlers about the hazards and risks from pesticid es they use or with 5808

which they come into contact in the wor kplace, (2) protect workers and handlers from 5809

occupational exposure to pesticides and the potentia l adverse effects, or (3) mitigate the potential 5810

adverse effects of unavoidable pest icide exposure, including accide nts. Within these categories, 5811*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 260 of 340 [RIN 2070–AJ22] EPA evaluated the costs and benefits of alte rnative requirements and is proposing a set of 5812

requirements that, in combination, is expected to achieve substantial benefits at minimum cost. 5813

In addition, EPA prepared an analysis of the pot ential costs and benefits associated with this 5814

proposed action, titled “Economic Analysis of Proposed Revisions to the Worker Protection 5815

Standard” (Ref. 1). A copy of the an alysis is available in the docke t for this action and is briefly 5816

summarized here. 5817

EPA estimates the incremental cost of the proposed revisions to be between about $62 5818

million and $72 million annually. These costs are almo st entirely borne by farms that hire labor 5819

and use pesticides, which account for about 25 pe rcent of all crop farms in the United States. 5820

Commercial pesticide handling establishments, whic h contract to apply pesticides on farms, may 5821

see an incremental cost of $170 to $190 per year per firm. The cost to individual farms will 5822

depend on the number and type of employees employed. EPA estimates that larger farms will 5823

incur costs of $350 to $400 per year. Smaller opera tions are estimated to incur costs between 5824

$130 and $150 per year, which amounts to less th an 0.1 percent of average annual revenue. 5825

The incremental cost to employ a worker is estimated to be less than $5 per year, which 5826

would not be expected to have an impact on employment. The incremental cost to employ a 5827

pesticide handler is estimated to be about $60 pe r year, which represents 0.3 percent of the total 5828

cost of a part-time employee, a marginal increase that would not be expected to have an impact 5829

on job availability. 5830

The benefits of the proposed rule would accrue to agricultural workers, pesticide handlers 5831

and, indirectly due to reduced take -home pesticide exposure, to thei r families. The revised rule is 5832

expected to substantially mitigate the potential for adverse health effects (both acute and chronic) 5833

for these workers and handlers from o ccupational exposures to pesticides. 5834*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 261 of 340 [RIN 2070–AJ22] It is difficult to quantify a specific level of risk and project the risk reduction that will 5835

result from this rule, because workers and handl ers are potentially exposed to a wide range of 5836

pesticides with different toxic ities and risks; however, the proposed changes to the WPS are 5837

designed to reduce occupational ex posure to all pesticides. EPA believes there is sufficient 5838

evidence in the peer-reviewed liter ature to suggest reducing pestic ide exposure would result in a 5839

benefit to public health through re duced acute and chronic illness. 5840

Overall, the weight of evidence suggests that the proposed requirements would result in 5841

long-term health benefits to agricultural worker s and pesticide handlers. EPA is not able to 5842

estimate the dollar value of the be nefits that accrue from reducing chronic exposure to pesticides 5843

but there are well-documented associations betw een pesticide exposure and certain cancer and 5844

non-cancer chronic health effects in the peer-reviewed liter ature. The proposed requirements 5845

provide benefits to the 2.3 million workers and pesticide handlers, not only by reducing their 5846

daily risk of pesticide exposur es but also by improving quality of life throughout their lives, 5847

resulting in a lower cost of h ealthcare and a healthier society. Many of the changes to current 5848

WPS requirements specifically mitigate the potential for workers to transport pesticide residues 5849

home to their families. Thus, the proposed re quirements are expected to reduce children’s 5850

exposure to pesticides. The agency believes the u nquantified benefits to children of workers and 5851

handlers are great, and reducing e xposure to pesticides could tr anslate into fewer sick days, 5852

fewer days missed of school, improved capacity to learn, and better long-term health. Parents 5853

and caregivers reap benefits by having healthier families, fewer missed workdays, and better 5854

quality of life, as well. 5855

EPA does estimate a value of avoided acute incidents as a result of the proposed rule, 5856

although this estimate is biased downward by an unknown degree for several reasons. First, 5857*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 262 of 340 [RIN 2070–AJ22] pesticide incidents, like many illnesses and accidents, are underreported because sufferers may 5858

not seek medical care, cases ma y not be correctly diagnosed, a nd correctly diagnosed cases may 5859

not be filed with the central reporting database. Second, our a pproach only measures avoided 5860

medical costs and lost wages, not the willingne ss to pay to avoid possible symptoms due to 5861

pesticide exposure, which could be substantially higher. Just the small amount EPA is able to 5862

monetize accrues to be between $1.2 milli on and $2.8 million annually. The effect of 5863

underreporting can be significant. If only 25% of poisonings are reported (within the range of 5864

estimates in the literatu re), the quantified estimated benef its of the rule would be about $11.4 5865

million annually. This conservative estimate only includes the avoided costs in medical care and 5866

lost productivity to workers and handlers. It does not include quan tification of the reduction in 5867

chronic effects of pesticide exposure to worker s and handlers, reduced effects of exposure 5868

including developmental impacts, to children and pregnant workers and handlers, or willingness 5869

to pay to avoid symptoms of pesticide exposure. 5870

Because the proposed changes to the require ments for protection of workers and handlers 5871

apply to many different pesticides in many different situations, EP A is not able to quantify the 5872

benefits expected to accrue from reducing ch ronic exposure to pesticides; however, well5873

documented associations between pesticide expo sure and certain cancer and non-cancer chronic 5874

health effects exist in peer-r eviewed literature. EPA conducted a “break even” analysis to 5875

demonstrate the potential benefits that would result from reduc ing a very small number of 5876

chronic illnesses that have well- documented associations with pesticide exposure. Under this 5877

analysis, avoiding only 53 total cases of non-Hodgkin’s lymphoma, prostate cancer, Parkinson’s 5878

disease, lung cancer, bronchitis, and asthma (under 0.8 % of total cases among workers) would 5879

bridge the gap between the estimated benefits fr om reducing acute incident s and the cost of the 5880*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 263 of 340 [RIN 2070–AJ22] rule, about $63.7 million. Overall, the wei ght of evidence suggests that the proposed 5881

requirements would result in long term health benefits to agri cultural workers and pesticide 5882

handlers, not only by reducing their daily risk of pesticide exposures, but also by improving 5883

quality of life throughout th eir lives, resulting in a lower cost of health care and a healthier 5884

society. 5885

In addition, changes to the current WPS requirements, namely improved training on 5886

reducing pesticide residues brought from the trea ted area to the home on workers and handlers’ 5887

clothing and bodies and establishi ng a minimum age for handlers a nd early entry workers, other 5888

than those covered by the immediate family ex emption, specifically m itigate the potential for 5889

children to be exposed to pesticides direc tly and indirectly. The unquantified benefit to 5890

adolescent workers and handlers, as well as childr en of workers and handlers is great; reducing 5891

exposure to pesticides could translate into fewer sick days, fewer days missed of school, 5892

improved capacity to learn, and better long-term h ealth. Parents and caregi vers reap benefits by 5893

having healthier families, fewer missed workdays, and better quality of life. 5894

B. Paperwork Reduction Act (PRA) 5895

The information collection requirements in this proposed rule have been submitted for 5896

approval to OMB under the PRA, 44 U.S.C. 3501 et seq. EPA has prepared an Information 5897

Collection Request (ICR) document to repla ce the existing approved ICR. The new ICR 5898

document, which is titled “Agricultural Worker Protection Standard Training and Notification 5899

(Proposed Rule)” and is identified by EP A ICR No. 2491.01 and OMB Co ntrol No. 2070-NEW, 5900

has been placed in the docket for this proposed rule (Ref. 105). Responses to the proposed 5901

amendments would be mandatory. 5902*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 264 of 340 [RIN 2070–AJ22] The information activities related to the cu rrent WPS requirements are already approved 5903

by OMB in an ICR entitled, “Worker Protection St andard Training and Notification” (EPA ICR 5904

No. 1759; OMB Control No. 2070-0148) (Ref 106). The proposed rule replacement ICR 5905

addresses the information collecti on requirements contained in the current regulations as well as 5906

in the amendments identified in this proposed rule. The amendments include: 5907

• Increasing the amount of traini ng handlers and workers receive 5908

• Establishing a minimum age for pesticide handlers and workers engaged in early-entry 5909

activities 5910

• Increasing record-keep ing responsibilities of the agricultural employers and handler 5911

employers. 5912

The replacement ICR addresses adjustments to the estimated number of respondents, time 5913

for activities, and wage rates related to the current regulatory require ments as approved under 5914

OMB Control No. 2070-0148. In addition, the re placement ICR addresses program changes 5915

related to the proposed amendmen ts, including modifications to restrictions in field entry 5916

activities during restricted entr y intervals; increased hazard co mmunications; increased training 5917

(for both workers and handlers); provisions fo r information during emergency assistance; and 5918

recordkeeping for respirator requi rements and for workers performi ng early entry activities. The 5919

estimated annual burden approved by OMB under OMB Control No. is 1,776,131 hours. The 5920

total estimated annual respondent burden bei ng proposed in the replacement ICR is 8,355,847 5921

hours, a net increase of 6,579,716 hours. 5922

The estimated burden represents the total to comply with the full WPS, including all 5923

proposed revisions and those that are unchanged by this proposal. Th is differs from the estimated 5924

incremental cost of the proposal, which only cons iders the net cost of the proposed revisions. 5925*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 265 of 340 [RIN 2070–AJ22] The burdens of the various activities range fr om 30 seconds per respondent for workers to 5926

provide acknowledgements to their employers to an hour per respondent for handler training. 5927

This estimate includes third-party WPS training and notification requirements. Burden is defined 5928

at 5 CFR 1320.3(b). 5929

An agency may not conduct or sponsor, a nd a person is not required to respond to, a 5930

collection of information unless it displays a currently valid OMB control number. The OMB 5931

control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. 5932

Any comments on the Agency’s need for in formation, the accuracy of the provided 5933

burden estimates, and any suggested methods for minimizing respondent burden, should be 5934

directed to the public docket for this propos ed rule, under Docket ID Number EPA-HQ-OPP5935

2011-0184. See ADDRESSES section at the beginning of this notice for where to submit 5936

comments to EPA. In addition, please submit a copy of your comments on the ICR directly to 5937

OMB at the Office of Information and Regulator y Affairs, Office of Management and Budget, 5938

725 17 th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 5939

required to make a decision concerning the ICR between 30 and 60 days after [ insert date of 5940

publication ], a comment to OMB is best assured of having the full effect if OMB receives it by 5941

[ insert 30 days after the date of publication ]. The final will address any comments received 5942

regarding the information co llection requirements contai ned in this proposal. 5943

C. Regulatory Flexibility Act (RFA) 5944

The RFA, 5 U.S.C. 601 et seq., generally requ ires an agency to prepare a regulatory 5945

flexibility analysis of any rule subject to notice and comment rulemaking requirements under the 5946

Administrative Procedure Act or any other statute unless the agency certifies that the rule will 5947*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 266 of 340 [RIN 2070–AJ22] not have a significant economic impact on a substa ntial number of small entities. Small entities 5948

include small businesses, small organizati ons, and small governmental jurisdictions. 5949

For purposes of assessing the impacts of today’s proposed rule on small entities, small entity is 5950

defined in accordance with the RFA as: 5951

1. A small business as defined by the Small Business Administration’s (SBA) regulations 5952

at 13 CFR 121.201. The SBA’s definitions typica lly are based upon either a sales or an 5953

employment level, depending on the nature of the industry. 5954

2. A small governmental jurisdiction that is a government of a cit y, county, town, school 5955

district or special district w ith a population of less than 50,000. 5956

3. A small organization that is any not-for-profit enterprise that is independently owned 5957

and operated and is not do minant in its field. 5958

Pursuant to section 605(b) of the RFA, 5 USC 601 et seq. , the Agency he reby certifies 5959

that this action will not have a significant adve rse economic impact on a substantial number of 5960

small entities. The factual basis for the Agency’s determination is presented in the small entity 5961

impact analysis prepared as part of the economic analysis for this propo sed rule and a copy of 5962

which is available in the docket for this rule making (Ref. 18). The following is a brief summary 5963

of the factual basis for this certification. 5964

Although not required by the RFA to convene a Small Business Advocacy Review 5965

(SBAR) Panel for this particular proposed rule because EPA has ultimately determined that this 5966

proposal would not have a significant economic impacts on a substantial number of small 5967

entities, EPA convened a SBAR Panel to obtain advice and recommendations from small entities 5968

representatives potentially subjec t to the proposed rule’s requirements. EPA’s subsequent small 5969

business analysis demonstrates th at there will not be a signifi cant impact on a substantial number 5970*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 267 of 340 [RIN 2070–AJ22] of small entities. Nevertheless, a Panel cons isting of the following four individuals was 5971

convened: 5972

• EPA’s Small Business Advocacy Chairperson, 5973

• Director of the Field and External Affa irs Division of EPA’s Office of Pesticide 5974

Programs, 5975

• Administrator of the Office of Information and Regulatory Affairs within the Office of 5976

Management and Budget, and 5977

• Acting Chief Counsel for Advocacy of the Small Business Administration. 5978

The Panel was convened to consider revisions to two related rule s, which were being revised by 5979

EPA’s Office of Pesticide Programs: Worker Protection Standard for Agricultural Pesticides; and 5980

Certification of Pesticide Applicators. 5981

The Worker Protection Standard applies to the following agricultural establishments 5982

engaged in the production of agricultural co mmodities: farms, forests, nurseries, and 5983

greenhouses. 5984

Since many agricultural establishments are small entities, the WPS would potentially 5985

impact a large number of small entities. After exte nsive research from several sources, including 5986

the National Agricultural Statistics Service, st ate pesticide usage data, the Bureau of Labor 5987

Statistics, and internet research, EPA assembled a list of industries that could be affected by the 5988

regulation. EPA then reviewed qualifications for small and large entities. The number of entities 5989

by industry is listed in the Fi nal Report of the SBAR Pane l for the two rules (Ref. 18). 5990

In January 2008, EPA began an informal out reach process to potential Small Entity 5991

Representatives (SERs, representatives of th e small entities who may be subject to the 5992

requirements of the proposed rule) as part of the pre-SBAR panel planning process. SERs 5993*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 268 of 340 [RIN 2070–AJ22] participate in the process to ensure that EPA hear s the concerns and suggestions of small entities. 5994

EPA contacted States, agricultural extension ag ents, and organizations known to represent 5995

affected small business, such as grower a ssociations, and various pest control industry 5996

associations to ask them to submit the names of potential SERs. EPA looked for representatives 5997

from differing types of businesses involved in pe sticide application and/ or different crops or 5998

agricultural commodities. EPA also sought to have representatives from a number of geographic 5999

areas of the nation. 6000

In February 2008, EPA sent an e-mail to the 20 potential SERs identified by that point 6001

and provided background on the proposed changes a nd a description of the SBAR Panel Process. 6002

EPA held an informal outreach meeting on June 30, 2008. The SBAR Panel convened on 6003

September 4, 2008. The Panel decided to add one additional SER, for a total of 21, prior to the 6004

Panel meeting with the SERs. The Panel held a formal panel outreach meeting/teleconference 6005

with SERs on September 25, 2008. Two weeks befo re the panel outreach meeting EPA sent 6006

materials to each of the SERs via email. A list of all materials shared with the SERs before the 6007

outreach meeting is contained in the pre-proposed rule portion of the docket for this action. 6008

The outreach meeting was held to solicit feedba ck from the SERs on their suggestions for 6009

the upcoming rulemaking. EPA asked the SERs to provide feedback on ideas under 6010

consideration for the proposed ru lemaking and to respond to questi ons regarding their experience 6011

with the implementation of the current WPS. Spec ifically, the Panel asked the SERs to provide 6012

any alternate solutions to the potential proposals presented by EPA that would provide flexibility 6013

or would decrease the economic impact on small entities while still accomplishing the goal of 6014

improved safety. The Agency received written comments from SERs which are Appendix B to 6015

the Panel’s Report. 6016*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 269 of 340 [RIN 2070–AJ22] The Panel evaluated the assembled material s and small entity comments and prepared a 6017

report for the Agency’s consid eration titled: “Small Business Advocacy Review Panel on EPA’s 6018

Planned Revision to Two Related Rules: Worker Pr otection Standard for Ag ricultural Pesticides; 6019

and Certification of Pesticide A pplicators.” A copy of the Panel re port is included in the docket 6020

for this proposed rule. 6021

The SBAR Panel recommended that as part of the proposal for revising the Worker 6022

Protection Standard in 40 CFR part 170, EPA specifically request comments on the following 6023

regulatory flexibility options: 6024

a . Oral notifications. The Panel recommended that EPA pe rmit oral notifications without 6025

posted notifications for those pesticide applica tions with REIs of 48 hours or less. EPA is 6026

proposing and also requesting comments on allowing oral notification for products with REIs of 6027

48 hours or less, unless the pesticide label specifi cally requires both oral and posted notification. 6028

b. Annual training. The Panel recommended that EPA consider ways to reduce the 6029

burden of annual training for workers and handler s on entities with fewer than 10 employees if 6030

they maintain written documenta tion that: (1) there has been no wo rker turnover, (2) no new or 6031

different pesticides have been applied, and (3) all workers and handlers we re previously trained 6032

on the establishment. EPA is proposing annual trai ning for all workers and handlers regardless of 6033

the number of employees and requesting comment on this recommendation. 6034

c. Grace period. The Panel recommended that EPA consider programmatic flexibilities 6035

for small entities related to the grace period before employers must be trained. For example, 6036

consider collaboration between the Agency and st ates to increase the use of training verification 6037

programs to reduce the need for unnecessary re training and use of the grace period. EPA is 6038

proposing a 2 day grace period a nd training verification record s. EPA is also requesting 6039*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 270 of 340 [RIN 2070–AJ22] comments on making mandatory the current optional training verification pr ogram and flexibility 6040

for small entities. 6041

d. Shower facilities. The Panel recommended that EPA limit consideration of shower 6042

facilities to establishments with permanent mixing-loading sites. EPA is not proposing to require 6043

showers on any establishment. EPA is requesting comments from the public on an alternative 6044

requirement for employers to provide show ers at permanent mixing-loading sites. 6045

The Agency invites comments on all aspect s of the proposal and its impacts on small 6046

entities. 6047

D. Unfunded Mandates Reform Act (UMRA) 6048

Title II of UMRA, 2 U.S.C. 1531-1538, establishe s requirements for Federal agencies to 6049

assess the effects of their regulatory actions on State, local, and trib al governments and the 6050

private sector. This proposed rule does not contain a federal mandate that may result in 6051

expenditures of $100 million or more for state, local , and tribal governments, in the aggregate, or 6052

the private sector in any 1 year . The total estimated cost of the proposed rule is between $65 6053

million and $75 million per year, with most requi rements on agricultural employers, who would 6054

bear most of the cost. Thus, this proposed rule is not subjec t to the requirements of sections 202 6055

or 205 of UMRA. This proposed rule is also not subject to the require ments of section 203 of 6056

UMRA because it contains no regulatory requirements that might significantly or uniquely affect 6057

small governments. 6058

E. Executive Order 13132: Federalism 6059

This action does not have federalism implica tions. It would not have substantial direct 6060

effects on the states, on the relationship between the national government and the states, or on 6061*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 271 of 340 [RIN 2070–AJ22] the distribution of power and responsibilities among the various levels of government, as 6062

specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 6063

Although this action does not have federalism implications, EPA worked extensively 6064

with state partners when considering revisions to the existing regulations. As discussed in Unit 6065

V.B., EPA has solicited feedback from states in a number of ways. The two primary avenues 6066

through which EPA sought state comments were th e National Assessment of EPA’s Pesticide 6067

Worker Safety Program (National Assessment) and the Pesticide Program Dialogue Committee 6068

workgroup on proposed changes to the Worker Pr otection Standard and Certification Rule. 6069

The Agency initiated the National Assessment of EPA’s Pesticide Worker Safety 6070

Program (National Assessment) in 2000. Through this process, EPA convened stakeholder 6071

meetings in Texas, California, and Florida. States participated s ubstantially throughout the 6072

National Assessment. State regulators served on wo rkgroups related to speci fic areas of change 6073

(pesticide safety training, hazard communica tion, and train-the-trainer programs). States 6074

provided feedback to EPA about the strengths an d weaknesses of the rule as implemented and 6075

made suggestions for improving the protec tions and enforceability of the WPS. 6076

Recommendations from States a nd other stakeholders were in cluded in the “Report on the 6077

National Assessment of EPA’s Pesticide Worker Safety Program” (Ref. 17). 6078

In 2006, during the initial stages of the framing of this proposal, EPA’s Federal Advisory 6079

Committee, the Pesticide Program Dialogue Comm ittee (PPDC), formed a workgroup to provide 6080

feedback to EPA on different areas for ch ange. The workgroup had over 70 members 6081

representing a wide range of stakeholders, incl uding State representatives . EPA shared with the 6082

workgroup suggestions for regulatory change id entified through the Na tional Assessment and 6083

solicited comments. The workgroup convened for a series of meetings a nd conference calls to 6084*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 272 of 340 [RIN 2070–AJ22] get more information on specific parts of the re gulation and provided its thoughts to the Agency. 6085

States provided comments individually and th rough the Association of American Pesticide 6086

Control Officials. Comments from the PPDC workgroup members have been compiled into a 6087

single document and po sted in the docket. 6088

In the spirit of the Order, and consistent with EPA policy to promote communications 6089

between the Agency and State a nd local governments, EPA specifi cally solicits comment on this 6090

proposed rule from State and local officials. 6091

F. Executive Order 13175: Consultation and Coor dination with Indian Tribal Governments 6092

This action does not have tribal implicati ons, as specified in Executive Order 13175 (65 6093

FR 67249, November 9, 2000). The proposed rule would not regulate tribal governments 6094

directly; agricultural employers are the directly affected en tities. Thus, Executive Order 13175 6095

does not apply to this action. 6096

EPA specifically solicits additi onal comment on this proposed ac tion from tribal officials. 6097

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety 6098 Risks 6099 This action is not subject to Executi ve Order 13045 (62FR 19885, April 23, 1997) 6100

because it is not economically significant as defined by Executive Order 12866. However, EPA 6101

believes that the environmental health or safety risks addressed in this proposed rule have a 6102

disproportionate eff ect on children. 6103

Children face the risk of pesticide exposure fr om work in pesticide-treated areas, from the 6104

use of pesticides near their homes, and from residues of pesticides brought home by family 6105

members after a day of working with pesticides or in pesticide-treat ed areas. The proposed rule is 6106

intended to reduce these exposures and risks. By establishing a mi nimum age for certain 6107

pesticide-related activities in agriculture, children would receive less exposure to pesticides that 6108*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 273 of 340 [RIN 2070–AJ22] may lead to chronic or acute pesticide-related il lness. Another proposal to reduce risk to children 6109

is training workers and handlers on the risks pr esented by take-home pesticide exposure and how 6110

best to reduce it. 6111

Like the Department of Labor’s regulations th at implement the Fair Labor Standards Act, 6112

the proposed rule seeks to regulate the ages at wh ich children can work in agriculture, at least for 6113

certain activities. Currently, ch ildren as young as 10 and occasionally even younger can work in 6114

agriculture, unnecessarily exposing them to many hazards. The proposed rule would establish a 6115

minimum age of 16 for pesticide handlers and fo r early-entry workers, except those working on 6116

an establishment owned by an immediate family member. Since children in agriculture are at 6117

such great risk, EPA feels that they warrant spec ial consideration in light of the Executive Order 6118

on children’s health. EPA expects that many of the proposed changes would mitigate or 6119

eliminate many risks faced by youths. 6120

The public is invited to submit comments or id entify peer-reviewed st udies and data that 6121

assess effects of early life exposure to pesticides. 6122

H. Executive Order 13211: Actions Concerning Regul ations that Significantly Affect Energy 6123

Supply, Distribution, or Use 6124

This action is not a “significant energy ac tion” as defined in Executive Order 13211 (66 6125

FR 28355; May 22, 2001), because it is not likely to have a significant adverse effect on the 6126

supply, distribution, or use of en ergy. The revisions to part 17 0 are intended to improve the 6127

standards of protection offered to agricultural workers, and do not affect the use of oil, coal, or 6128

electricity. 6129

I. National Technology Transfe r and Advancement Act (NTTAA) 6130*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 274 of 340 [RIN 2070–AJ22] Section 12(d) of the NTTAA, Public La w No. 104-113, 12(d) (15 U.S.C. 272 note) 6131

directs EPA to use voluntary consensus standards in its regulatory activities unless to do so 6132

would be inconsistent with applicable law or otherwise impractical . Voluntary consensus 6133

standards are technical standa rds (e.g., materials specifica tions, test methods, sampling 6134

procedures, and business practices) that are developed or adopted by voluntary consensus 6135

standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations 6136

when the Agency decides not to use available and applicable voluntary consensus standards. 6137

EPA considered adopting the American National Standards Institute Standard for eye 6138

flushing in the event of ocular contamina tion, which calls for a minimum of 1.5 liter (0.4 6139

gallons) per minute of flushing fluid, such as water, for 15 minutes (ANSI Z358.1-2009). EPA 6140

adopted this standard only at permanent mixi ng loading sites on agricu ltural establishments, 6141

rather than for all handler eye flush decontamin ation because the Agency believes it would be 6142

impractical for employers to achieve at non-perm anent sites. EPA is requesting comments on the 6143

incorporation of this standa rd into the regulation. 6144

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 6145

Populations and Low-Income Populations 6146

Executive Order 12898 (59 FR 7629 ;February 16, 1994) establishes federal executive 6147

policy on environmental justice. It s main provision directs federal ag encies, to the greatest extent 6148

practicable and permitted by law, to make environmental justice part of their mission by 6149

identifying and addressing, as appropriate, disp roportionately high and adverse human health or 6150

environmental effects of their programs, policie s, and activities on minority populations and low6151

income populations in the United States. 6152*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 275 of 340 [RIN 2070–AJ22] EPA has determined that this proposed rule would not have disp roportionately high and 6153

adverse human health or environmental effects on minority or low-income populations because it 6154

increases the level of environm ental protection for all affected populations without having any 6155

disproportionately high and adve rse human health or environm ental effects on any population, 6156

including any minority or low-income population. In fact, the population of agricultural workers 6157

and handlers that the rule seeks to protect is comprised primarily of minority and low-income 6158

individuals. As reviewed in Unit IV. A., the farmworker community, due to occupation, 6159

economic status, health, language and other sociode mographic characteristics, faces an increased 6160

risk of pesticide exposure which this rulemaking seeks to reduce through improving 6161

communication and protections. 6162

The Agency engaged with stakeholders from affected communities extensively in the 6163

development of this rulemaking, in order to obtain meaningful i nvolvement of all parties. EPA 6164

believes that the proposed changes would improve the health of agri cultural workers and 6165

handlers by, among other things, increasing the fre quency of training, enhancing training content 6166

to include ways to minimize pesticide exposure to children and in the home, adding posting of 6167

treated areas near worker and handler housing to prevent accidental entry, and establishing a 6168

minimum age for pesticide handl ers and early-entry workers. 6169

6170*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 276 of 340 [RIN 2070–AJ22] List of Subjects in 40 CFR Part 170 6171

Environmental protection, pesticides, agricu ltural worker, pesticide handler, employer, 6172

farms, forests, nurseries, greenhous es, worker protection standard. 6173

6174

Dated: ___________________ 6175

6176

________________________________________________ 6177

Administrator. 6178

6179*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 277 of 340 [RIN 2070–AJ22] 6180

Therefore, it is proposed that 40 CFR chapter I, subchapter E, part 170 is revised to read as 6181

follows: 6182

PART 170 -- WORKER PROTECTION STANDARD 6183

Subpart A – General Provisions 6184

Sec. 6185

170.1 Scope and purpose. 6186

170.3 Applicability of this part. 6187

170.5 Definitions. 6188

170.7 Effective date. 6189

170.9 Agricultural employer duties. 6190

170.11 Pesticide information requirements on agricultural establishments. 6191

170.13 Commercial pesticide ha ndler employer duties. 6192

170.15 Prohibited actions. 6193

170.17 Violations of this part. 6194

Subpart B – Requirements for Protect ion of Agricultural Workers 6195

170.101 Training requirements for workers. 6196

170.103 Establishment-specific information for workers. 6197

170.105 Entry restrictions associated with pesticide applications. 6198

170.107 Worker entry restrictions after pesticide applications. 6199

170.109 Oral and posted notification of worker entry restrictions. 6200

170.111 Worker decontamination supplies. 6201

Subpart C - Requirements for Protection of Agricultural Pesticide Handlers 6202*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 278 of 340 [RIN 2070–AJ22] 170.201 Training requirements for handlers. 6203

170.203 Knowledge of labeling, applic ation-specific, and establishment-specific information for 6204

handlers. 6205

170.205 Requirements during applica tions to protect handlers, workers, and other persons. 6206

170.207 Personal protective equipment. 6207

170.209 Handler decontamination supplies. 6208

Subpart D - Exemptions and Exceptions 6209

170.301 Exemptions. 6210

170.303 Exceptions for entry by workers during restricted-entry intervals. 6211

170.305 Agricultural employer responsi bilities to protect workers en tering treated areas during a 6212

restricted-entry interval. 6213

170.307 Exceptions to personal protective equipm ent requirements specified on pesticide 6214

product labeling. 6215

170.309 Exception to training requ irements for workers. 6216

Authority: 7 U.S.C. 136w. 6217

Subpart A – General Provisions 6218

§170.1 Scope and purpose. 6219

This regulation is intended to reduce the risks of illness or injury to workers and handlers 6220

resulting from occupational exposures to pesticides used in the production of agricultural plants 6221

on agricultural establishments. It requires agricultural employers and commercial pesticide 6222

handler employers to provide spec ific information and protections to workers and handlers when 6223

pesticides are used on agricultural establishments in the production of agricultural plants. It also 6224

requires pesticide handlers to wear the labe l-specified clothing and personal protective 6225*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 279 of 340 [RIN 2070–AJ22] equipment when performing pesticide handler activiti es, and to take measures to protect workers 6226

and other persons during pesticide applications. 6227

§170.3 Applicability of this part. 6228

(a) This regulation applies whenever a pesticide product bearing a label requiring 6229

compliance with this part is used in a manner directly related to the production of agricultural 6230

plants on an agricultural establishmen t that employs workers or handlers. 6231

(b) This regulation does not apply when a pesticide product beari ng a label requiring 6232

compliance with this part is used on an agri cultural establishment in any of the following 6233

circumstances: 6234

(1) As part of government-sponsored public pe st control programs of which the owner, 6235

agricultural employer and handler employer have no control, such as mosquito abatement and 6236

Mediterranean fruit fly eradication programs. 6237

(2) On plants other than agri cultural plants, which may includ e plants in home fruit and 6238

vegetable gardens and home greenhouses, and permanent plantings for ornamental purposes, 6239

such as plants that are in ornamental gardens, parks, public or private la ndscaping, lawns or other 6240

grounds that are intended only for aestheti c purposes or climatic modification. 6241

(3) For control of vertebrate pests, unless directly related to the production of an 6242

agricultural plant. 6243

(4) As attractants or repellents in traps. 6244

(5) On the harvested portions of agricu ltural plants or on harvested timber. 6245

(6) For research uses of unregistered pesticides. 6246

(7) On pasture and rangeland where the forage will not be harvested for hay. 6247*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 280 of 340 [RIN 2070–AJ22] (8) In a manner not directly related to the pr oduction of agricultural plants, including, but 6248

not limited to structural pest control a nd control of vegetation in non-crop areas. 6249

§170.5 Definitions. 6250

Terms used in this part have the same meanings they have in the Federal Insecticide, 6251

Fungicide, and Rodenticide Act, as amended. In a ddition, the following terms, when used in this 6252

part, shall have the following meanings: 6253

Agricultural employer means any person who is an owne r of, or is responsible for the 6254

management or condition of an agricultural establishment, and who employs any worker or 6255

handler. 6256

Agricultural establishment means any farm, forest operati on, or nursery engaged in the 6257

outdoor or enclosed space producti on of agricultural plants. 6258

Agricultural plant means any plant, or part thereo f, grown, maintained, or otherwise 6259

produced for commercial production. 6260

Authorized representative means a person designated by the worker or handler, orally or 6261

in writing, to request and obtain any informati on that the employer is required to provide upon 6262

request to the worker or handler. 6263

Chemigation means the application of pestic ides through irrigation systems. 6264

Closed system means a system for mixing or loading pe sticides that encloses the pesticide 6265

during removal of the pesticide fr om its original contai ner and transfer, mixing, or loading of the 6266

pesticide product, mixtures or dilutions, and a ny rinse solution, if applicable, into a new 6267

container or application equipment, in such a manner that prevents the pesticide and any 6268

pesticide mixture or use dilution from contactin g handlers or other persons before, during and 6269

after the transfer, except for neg ligible release associated with normal operation of the system. 6270*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 281 of 340 [RIN 2070–AJ22] Commercial pesticide handler employer means any person, other than an agricultural 6271

employer, who employs any handler to perf orm handler activities on an agricultural 6272

establishment. 6273

Commercial pesticide handling establishment means any enterprise, other than an 6274

agricultural establishment, that provides pes ticide handler or crop a dvising services to 6275

agricultural establishments. 6276

Commercial production means growing, maintaining or otherwise producing agricultural 6277

plants for sale or trade, for research or experi mental purposes, or for use in their entirety in 6278

another location. Commercial pr oduction includes producing agri cultural plants for use by the 6279

agricultural employer or agricultural establishment instead of purchasing the agricultural plants. 6280

Crop advisor means any person who is assessing pest numbers, damage, pesticide 6281

distribution, or the stat us or requirements of agricultural plants. 6282

Early entry means entry by a worker into a treate d area on the agricultural establishment 6283

after a pesticide application is complete, but before any restricted-entry interval for the pesticide 6284

has expired. 6285

Employ means to obtain, directly or through a labo r contractor, the services of a person in 6286

exchange for a salary or wages, including piece- rate wages, without regard to who may pay or 6287

who may receive the salary or wages. It incl udes obtaining the services of a self-employed 6288

person, an independent contractor, or a person compensated by a third party. 6289

Enclosed cab means a cab with a nonporous barrier that totally surrounds the occupant(s) 6290

of the cab and prevents dermal contact with pestic ides that are being applied outside of the cab. 6291

Enclosed space production means production of an agricultu ral plant in a structure or 6292

space that is covered in whole or in part and that is large eno ugh to permit a person to enter. 6293*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 282 of 340 [RIN 2070–AJ22] Entry-restricted area means the area from which workers or other persons must be 6294

excluded during and after the pesticide application. 6295

Farm means any agricultural es tablishment, other than a nursery or forest operation, 6296

engaged in the outdoor or enclosed production of agricultural plants. 6297

Forest operation means an agricultural establishmen t engaged in the outdoor production 6298

of any agricultural plant to produce any wood fiber or timber products. 6299

Fumigant means any pesticide product that is a vapor or gas, or forms a vapor or gas 6300

upon application, and whose pesticidal action is achieved through the gaseous or vapor state. 6301

Hand labor means any agricultural activity perfor med by hand or with hand tools that 6302

cause a worker to have substantial contact with plants, plant parts, or soil and other surfaces that 6303

may contain pesticide residues. 6304

Handler means any person, including a self-emp loyed person, who is employed by an 6305

agricultural employer or commercial pesticide handler employer and performs any of the 6306

following activities: 6307

(1) Mixing, loading, or applying pesticides; 6308

(2) Disposing of pesticides; 6309

(3) Handling opened containers of pestic ides; emptying, triple-rinsing, or cleaning 6310

pesticide containers according to pesticide product labeling instruct ions; or disposing of pesticide 6311

containers that have not b een cleaned. The term does not include any person who is only 6312

handling unopened pesticide containers or pesticide containers that have been emptied or cleaned 6313

according to pesticide product labeling instructions; 6314

(4) Acting as a flagger; 6315*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 283 of 340 [RIN 2070–AJ22] (5) Cleaning, adjusting, handling, or repairing the parts of mi xing, loading, or application 6316

equipment that may contain pesticide residues; 6317

(6) Assisting with the application of pesticides; 6318

(7) Entering an enclosed sp ace after the application of a pesticide and before the 6319

inhalation exposure level lis ted in the labeling has b een reached or one of the ventilation criteria 6320

established by §170.105(b)(3) or the labeling has b een met to operate ventilation equipment, 6321

monitor air levels, or adjust or remo ve coverings used in fumigation; 6322

(8) Entering a treated area outdoors after a pplication of any soil fumigant during the 6323

label-specified entry restricted pe riod to adjust or remove coveri ngs used in fumigation, such as 6324

tarpaulins; 6325

(9) Performing tasks as a crop advisor during an y pesticide application or restricted-entry 6326

interval, or before the inhalation exposure level listed in the pesticide product labeling has been 6327

reached or one of the ventil ation criteria established by §170.105( b)(3) or the pesticide product 6328

labeling has been met. 6329

Handler employer means any person who is self-employed as a handler or who employs 6330

any handler. 6331

Immediate family is limited to the spouse, parents, st epparents, foster parents, father-in6332

law, mother-in-law, children, stepchildren, fo ster children, sons-in- law, daughters-in-law, 6333

grandparents, grandchildren, brothers, sister s, brothers-in-law, and sisters-in-law. 6334

Labor contractor means a person who employs workers or handlers to perform tasks on 6335

an agricultural establishment for an agricultura l employer or a commercial pesticide handler 6336

employer. 6337*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 284 of 340 [RIN 2070–AJ22] Nursery means any agricultural establishment e ngaged in the outdoor or enclosed space 6338

production of any agricultural plant to produce cut flowers or foliage, ferns, plants, or seedlings 6339

that will be used in part or their entirety in another location. Such plants include, but are not 6340

limited to, flowering and foliage plants or trees; tree seedlings; live Christmas trees; vegetable, 6341

fruit, and ornamental transplants; and turf grass produced for sod. 6342

Outdoor production means production of an agricultura l plant in an outside open space or 6343

area that is not enclosed or covered in any way. 6344

Owner means any person who has a present po ssessory interest (e.g., fee, leasehold, 6345

rental, or other) in an agricultu ral establishment. A person who ha s both leased such agricultural 6346

establishment to another person and granted that same person the right and full authority to 6347

manage and govern the use of such agricultural establishment is not an owner for purposes of 6348

this part. 6349

Personal protective equipment means devices and apparel th at are worn to protect the 6350

body from contact with pesticides or pesticide re sidues, including, but not limited to, coveralls, 6351

chemical-resistant suits, chemical-resistant glove s, chemical-resistant footwear, respirators, 6352

chemical-resistant aprons, chemical-resis tant headgear, and protective eyewear. 6353

Restricted-entry interval means the time after the end of a pesticide application during 6354

which entry into the treat ed area is restricted. 6355

Safety data sheet has the same meaning as th e definition at 29 CFR 1900.1200(c). 6356

Treated area means any area to which a pesticide is being directed or has been directed. 6357

Use, as in “to use a pesticide” means any of the following -- 6358

(1) Pre-application activities, including, but not limited to: 6359

(i) Arranging for the application of the pesticide; 6360*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 285 of 340 [RIN 2070–AJ22] (ii) Mixing and loading the pesticide; 6361

(iii) Making necessary preparations for th e application of the pesticide, including 6362

responsibilities related to worker notification, training of workers or handlers, providing 6363

decontamination supplies, providing pesticide in formation, use and care of personal protective 6364

equipment, providing emergency assist ance, and heat stress management. 6365

(2) Application of the pesticide. 6366

(3) Post-application activities intended to redu ce the risks of illness and injury resulting 6367

from handlers' and workers' occupational exposur es to pesticide residu es during and after the 6368

restricted-entry interval, includ ing responsibilities related to worker notification, training of 6369

workers or early entry workers, providing d econtamination supplies, providing pesticide 6370

information, use and care of personal protective equipment, providing emer gency assistance, and 6371

heat stress management. 6372

(4) Other pesticide-related activ ities, including, but not limite d to, transporting or storing 6373

pesticides that have been opene d, cleaning equipment, and disposing of excess pesticides, spray 6374

mix, equipment wash waters, pesticide containe rs, and other pesticide- containing materials. 6375

Worker means any person, including a self -employed person, who is employed and 6376

performs activities directly relating to the produc tion of agricultural pl ants on an agricultural 6377

establishment. 6378

Worker housing area means any place or area of la nd on or near an agricultural 6379

establishment where housing or space for housi ng is provided for workers or handlers by an 6380

agricultural employer, owner, labor contractor, or any othe r person responsible for the 6381

recruitment or employment of agricultural workers. 6382

§170.7 Effective date. 6383*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 286 of 340 [RIN 2070–AJ22] The effective date for this part shall be [eff ective date 60 calendar days after the promulgated 6384

rule is transmitted for Congression al review per FIFRA 25(a)(4)]. 6385

§170.9 Agricultural employer duties. 6386

Agricultural employers must: 6387

(a) Ensure that any pesticide applied on an ag ricultural establishment is used in a manner 6388

consistent with the pesticide product labeli ng, including the requireme nts of this part. 6389

(b) Ensure that each worker and handler subj ect to this part r eceives the protections 6390

required by this part. 6391

(c) Ensure that any handler, and any worker performing early entry activities, is at least 6392

16 years old. 6393

(d) Provide to each person, including labor co ntractors, who supervises any workers or 6394

handlers, information and directi ons sufficient to ensure that e ach worker and handler receives 6395

the protections required by this pa rt. Such information and directio ns must specify the tasks for 6396

which the supervisor is responsible in order to comply with the provi sions of this part. 6397

(e) Require each person, including labor cont ractors, who supervises any workers or 6398

handlers, to provide sufficient in formation and directions to each worker and handler to ensure 6399

that they can comply with the provisions of this part. 6400

(f) Provide emergency assistance. If there is reason to believ e that a person who is or has 6401

been employed by an agricultural establishment to perform tasks related to the production of 6402

agricultural plants, has b een poisoned or injured by exposure to pe sticides as a resu lt of his or her 6403

employment on the agricultural establishment, the agricultural employer must do all of the 6404

following, within 30 minutes after learning of the possible pois oning or injury: 6405*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 287 of 340 [RIN 2070–AJ22] (1) Make available to that person transportation from the agricultural establishment, 6406

including any worker housing area on the esta blishment, to an operating emergency medical 6407

facility. 6408

(2) Provide to that person or treating medi cal personnel all of the following information 6409

for each pesticide product to which that person might have been exposed: 6410

(i) Copies of the applicable safety data sheet and the labe l for the pesticide product, or 6411

alternatively, a copy of the applicable safety data sheet for the pr oduct and the product name, 6412

EPA registration number, active ingredients, an tidote, and first aid and medical treatment 6413

information from the pesticide product labeling. 6414

(ii) The circumstances of application or use of the pesticide on the agricultural 6415

establishment. 6416

(iii) The circumstances that could have resulted in exposure to the pesticide. 6417

(g) Ensure that workers or other persons employed by the agricultural establishment do 6418

not clean, repair, or adjust pe sticide application equipment, unless trained as a handler under 6419

§170.201. Before allowing any person not directly employed by the agricultural establishment to 6420

clean, repair, or adjust equipment that has been used to mix, load, transfer, or apply pesticides, 6421

the agricultural employer must provide all of the following information to such persons: 6422

(1) That pesticide application equipment may be contaminated with pesticides. 6423

(2) The potentially harmful effect s of exposure to pesticides. 6424

(3) Procedures for handling pesticide applic ation equipment and for limiting exposure to 6425

pesticide residues. 6426

(4) Personal hygiene practices and decontamination procedures for preventing pesticide 6427

exposures and removing pesticide residues. 6428*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 288 of 340 [RIN 2070–AJ22] (h) Provide pesticide information in accord ance with §170.11 if workers or handlers are 6429

on the establishment and within the last 30 days a pesticide pr oduct bearing a label requiring 6430

compliance with this part has been used, or a rest ricted-entry interval for such pesticide has been 6431

in effect on the establishment. 6432

(i) Ensure that before a handler uses any equipment for mixing, load ing, transferring, or 6433

applying pesticides, the handler is instructed in the safe operation of such equipment. 6434

(j) Ensure that, before each day of use, equipment used for mixi ng, loading, transferring, 6435

or applying pesticides is insp ected for leaks, clogging, and wo rn or damaged parts, and any 6436

damaged equipment is repaired or replaced. 6437

(k) Ensure that whenever handlers empl oyed by a commercial pesticide handler 6438

establishment will be on an agricultural establishment, the handler employer is provided 6439

information about, or is aware of , the specific location and descri ption of any entry restricted 6440

areas, or treated areas where a restricted-entry interval is in effect, and any restrictions on 6441

entering those areas. 6442

§170.11 Pesticide information requirements on agricultural establishments. 6443

(a) Pesticide Safety Information . Whenever pesticide information is required to be 6444

provided under §170.9(h), pesticide safety inform ation must be displayed on the agricultural 6445

establishment in accordance with this paragraph (a). 6446

(1) Content. The pesticide safety information must include all of the following points: 6447

(i) Avoid getting on the skin or into the body any pesticides that may be on or in plants, 6448

soil, irrigation water, tractors, and other equipm ent, on used personal protective equipment, or 6449

drifting from nearby applications. 6450

(ii) Wash before eating, drinking, using chew ing gum or tobacco, or using the toilet. 6451*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 289 of 340 [RIN 2070–AJ22] (iii) Wear work clothing that protects th e body from pesticide re sidues (long-sleeved 6452

shirts, long pants, shoes and so cks, and a hat or scarf). 6453

(iv) Wash or shower with soap and water, shampoo hair, and put on clean clothes after 6454

work. 6455

(v) Wash work clothes separately from ot her clothes before wearing them again. 6456

(vi) Wash immediately in the nearest clean wa ter if pesticides are spilled or sprayed on 6457

the body. As soon as possible, shower, shampoo hair, and change into clean clothes. 6458

(vii) Follow directions about keeping out of treated or entry-restricted areas. 6459

(viii) The name, address, and telephone number of the nearest operating emergency 6460

medical care facility. 6461

(ix) After [date 2 years after effective date of the final rule specified in § 170.7], the 6462

pesticide safety information must also include the name, address, a nd telephone number of the 6463

state or tribal lead agency res ponsible for pesticide enforcement, and instructions to employees to 6464

seek medical attention as soon as possible if they believe they have been poisoned or injured by 6465

pesticides. 6466

(2) Changes to pesticide safety information. If there are any changes to the information in 6467

§§170.11(a)(1)(viii) or 170.11( a)(1)(ix), the agricultural empl oyer must promptly update the 6468

pesticide safety information display. 6469

(3) Location . The pesticide safety information mu st be displayed at a place on the 6470

agricultural establishmen t where workers and handlers are like ly to pass by or congregate and it 6471

can be readily seen and read. Th e pesticide safety information mu st also be displayed anywhere 6472

that decontamination supplies must be provided on the agricultural establishment pursuant to §§ 6473

170.111 or 170.209. 6474*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 290 of 340 [RIN 2070–AJ22] (4) Accessibility . Workers and handlers must be allowed access to the pesticide safety 6475

information at all times when the info rmation is required to be displayed. 6476

(5) Legibility . The pesticide safety information must remain legible at all times when the 6477

information is required to be displayed. 6478

(b) Keeping and providing information about pesticides used on the agricultural 6479

establishment -- (1) Content and timing. Whenever pesticide inform ation is required to be 6480

provided under §170.9(h), the agricultural employe r must maintain copies of the pesticide 6481

product label and the safety data sheet for the pes ticide product(s) applied and record all of the 6482

following information no later than the end of th e work day that the application takes place: 6483

(i) The name, EPA registration number, and acti ve ingredient(s) of the pesticide product 6484

applied. 6485

(ii) The crop or site treated and the lo cation and description of the treated area. 6486

(iii) The date(s) and times the application started and ended. 6487

(iv) The end date and duration of the restricted-entry interval. 6488

(2) Record Retention and Accessibility . The agricultural employer must maintain the 6489

pesticide information described in §170.11(b)(1) on the agricultural establishment for 2 years 6490

after the date of expiration of a ny restricted-entry inte rval, and make the information available to 6491

any worker(s), handler(s), or th eir authorized representative(s ) upon request during normal work 6492

hours. 6493

§170.13 Commercial pesticide handler employer duties. 6494

Commercial pesticide handler employers must: 6495

(a) Ensure that any pesticide applied on an ag ricultural establishment is used in a manner 6496

consistent with the pesticide product labeli ng, including the requireme nts of this part. 6497*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 291 of 340 [RIN 2070–AJ22] (b) Ensure each handler subject to this part receives the prot ections required by this part. 6498

(c) Ensure that any handle r is at least 16 years old. 6499

(d) Provide to each person, including labor contractors, who supervises any handlers, 6500

information and directions sufficient to ensure th at each handler receives the protections required 6501

by this part. Such information and directions must specify the tasks for which the supervisor is 6502

responsible in order to comply w ith the provisions of this part. 6503

(e) Require each person, including labor cont ractors, who supervises any handlers, to 6504

provide sufficient information and directions to each handler to ensure that the handler can 6505

comply with the provisions of this part. 6506

(f) Ensure that before any handler uses any equipment for mixi ng, loading, transferring, 6507

or applying pesticides, th e handler is instructed in the safe operation of such equipment. 6508

(g) Ensure that, before each day of use, equipment used for mixing, loading, transferring, 6509

or applying pesticides is inspec ted for leaks, obstructions, and worn or damaged parts, and any 6510

damaged equipment is repaired or is replaced. 6511

(h) Ensure that whenever a handler who is employed by a commercial pesticide handling 6512

establishment will be on an agricultural establishm ent, the handler is provided information about, 6513

or is aware of, the speci fic location and description of any entr y restricted areas, or treated areas 6514

where a restricted-entry interval is in effect , and the restrictions on entering those areas. 6515

(i) Provide the agricultural employer all of the following information before the 6516

application of any pesticide on an agricultural establishment: 6517

(1) Specific location(s) and descripti on of the area(s) to be treated. 6518

(2) The date(s) and start and esti mated end times of application. 6519

(3) Product name, EPA registration nu mber, and active ingredient(s). 6520*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 292 of 340 [RIN 2070–AJ22] (4) Restricted-entry interval. 6521

(5) Whether posting and oral notif ication are required under §170.109. 6522

(6) Any restrictions or use directions on th e pesticide product labeling that must be 6523

followed for protection of workers, handlers, or other persons during or after application. 6524

(j) Ensure if there are any changes to the informati on provided in §170.13(i), that the 6525

agricultural employer is provide d updated information within 2 hours after completing the 6526

application. Changes to the estimated applicati on end time of less than 1 hour do not require 6527

notification. 6528

(k) Provide emergency assistance. If there is reason to believ e that a person who is or has 6529

been employed by the commercial pesticide handli ng establishment to perform tasks related to 6530

the production of agricultural plan ts, has been poisoned or injured by exposure to pesticides as a 6531

result of that employment, the commercial pe sticide handler employer must do all of the 6532

following, within 30 minutes after learning of the possible pois oning or injury: 6533

(1) Make available to that person transportation from the commercial pesticide handling 6534

establishment, or any agricultural establishmen t on which that person may be working, to an 6535

operating emergency medical facility. 6536

(2) Provide to that person or treating medi cal personnel all of the following information 6537

for each pesticide product to which that person might have been exposed: 6538

(i) Copies of the applicable safety data sheet and the labe l for the pesticide product, or 6539

alternatively, a copy of the applicable safety data sheet for the pesticide product and the product 6540

name, EPA registration number, act ive ingredients, antidote, and first aid and medical treatment 6541

information listed on the pesticide product labeling. 6542

(ii) The circumstances of applicat ion or use of the pesticide(s). 6543*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 293 of 340 [RIN 2070–AJ22] (iii) The circumstances that could have re sulted in exposure to the pesticide(s). 6544

(l) Ensure that persons employed by the comm ercial pesticide handling establishment do 6545

not clean, repair, or adjust pe sticide application equipment, unless trained as a handler under 6546

§170.201. Before allowing any person not direc tly employed by the commercial pesticide 6547

handling establishment to clean, repair, or adjust equipment that has been used to mix, load, 6548

transfer, or apply pesticides, the commercial pest icide handler employer must provide all of the 6549

following information to such persons: 6550

(1) That pesticide application equipment may be contaminated with pesticides. 6551

(2) The potentially harmful effect s of exposure to pesticides. 6552

(3) Procedures for handling pesticide applic ation equipment and for limiting exposure to 6553

pesticide residues. 6554

(4) Personal hygiene practices and decontamination procedures for preventing pesticide 6555

exposures and removing pesticide residues. 6556

§170.15 Prohibited actions. 6557

No agricultural employer, commercial pe sticide handler employer, or other person 6558

involved in the use of a pesticide to which this pa rt applies, shall intimidat e, threaten, coerce, or 6559

discriminate against any worker or handler for at tempting to comply with this part, or because 6560

the worker or handler has made a complaint, test ified, assisted, or participated in any manner in 6561

an investigation, proceeding, or hearing con cerning compliance with this part. Any such 6562

intimidation, threat, coercion, or discrimination violates FIFRA section 12(a)(2)(G), 7 U.S.C. 6563

136j(a)(2)(G). 6564

§170.17 Violations of this part. 6565*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 294 of 340 [RIN 2070–AJ22] (a) Under FIFRA section 12(a)(2 )(G), it is unlawful for any person “to use any registered 6566

pesticide in a manner inconsistent with its labeli ng.’’ When this part is referenced on a label, 6567

users must comply with all of its requirements , except those that are inconsistent with product6568

specific instructions on the pesticide product labeling. 6569

(b) A person who has a duty under this part , as referenced on the pesticide product 6570

labeling, and who fails to perform that duty, violat es FIFRA section 12(a)(2)(G) and is subject to 6571

a civil penalty under section 14. A person who knowi ngly violates section 12(a)(2)(G) is subject 6572

to section 14 criminal sanctions. 6573

(c) FIFRA section 14(b)(4) prov ides that a person is liable for a penalty under FIFRA if 6574

another person employed by or acting for that pers on violates any provision of FIFRA. The term 6575

"acting for" includes both empl oyment and contractual relati onships, including, but not limited 6576

to, labor contractors. 6577

(d) The requirements of this part, including the decontamination requirements, must not, 6578

for the purposes of section 653(b)(1) of Title 29 of the U.S. Code, be deemed to be the exercise 6579

of statutory authority to prescr ibe or enforce standards or re gulations affecting the general 6580

sanitary hazards addressed by the OSHA Fiel d Sanitation Standard, 29 CFR 1928.110, or other 6581

agricultural non-pesticide hazards. 6582

Subpart B – Requirements for Protect ion of Agricultural Workers 6583

§170.101 Training requirements for workers. 6584

(a) General requirement. Before any worker performs any task on an agricultural 6585

establishment where within the last 30 days a pesticide product bear ing a label requiring 6586

compliance with this part has been used, or a rest ricted-entry interval for such pesticide has been 6587

in effect, the agricultural employer must ensure that each worker has been trained in accordance 6588*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 295 of 340 [RIN 2070–AJ22] with this section within the last 12 months, excep t as provided in paragraph (b) of this section 6589

and in §170.309 of this part. 6590

(b) Exceptions. The following workers need not be trained under this section: 6591

(1) A worker who is currently certified as an applicator of restrict ed use pesticides under 6592

part 171 of this chapter. 6593

(2) A worker who has satisfied the handler training re quirements of § 170.201. 6594

(3) A worker who is certified or licensed as a crop advisor by a program acknowledged as 6595

appropriate in writing by EPA or th e state or tribal agency respons ible for pesticide enforcement, 6596

provided that a requirement for su ch certification or licensing is pe sticide safety training that 6597

includes all the topics set out in §170.201(c)(2) and (3). 6598

(c) Training programs. (1) Pesticide safety training must be presented to workers either 6599

orally from written materials or audio-visuall y, at a location that is reasonably free from 6600

distraction and conducive to trai ning. All training materials mu st be EPA-approved. The training 6601

must be presented in a manner that the workers can understand, such as through a translator. A 6602

person that meets the trainer requirements of §170.101(c)(4) must be present during the entire 6603

training program to conduct the training a nd must respond to workers’ questions. 6604

(2) The training must include, at a mi nimum, all of the following topics: 6605

(i) Agricultural employers are required to provide workers with information and 6606

protections designed to reduce wo rk-related pesticide exposures and illnesses. This includes 6607

providing pesticide safety traini ng, pesticide safety and applica tion information, decontamination 6608

supplies, and emergency medical assistance, and notifying workers of restrictions during 6609

applications and on entering pesticide treated areas. 6610*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 296 of 340 [RIN 2070–AJ22] (ii) How to recognize and understand the m eaning of the field warning sign used for 6611

notifying workers of restrictions on entering pe sticide treated areas on the establishment. 6612

(iii) How to follow directions and/or signs about keeping out of entry-restricted or 6613

pesticide treated areas. 6614

(iv) Where and in what form pesticides ma y be encountered duri ng work activities and 6615

potential sources of pesticide exposure on the agricultural establishment. This includes that 6616

pesticide residues may be on or in plants, soil, ir rigation water, tractors, application equipment, 6617

or used personal protective equipment and that pesticides may drift through the air from nearby 6618

applications. 6619

(v) Potential hazards from toxicity and expos ure that pesticides present to workers and 6620

their families, including acute and chronic e ffects, delayed effects, and sensitization. 6621

(vi) Potential hazards from chemigation and drift. 6622

(vii) Routes through which pesticides can enter the body. 6623

(viii) Signs and symptoms of co mmon types of pesticide poisoning. 6624

(ix) Emergency first aid for pes ticide injuries or poisonings. 6625

(x) Routine and emergency decontamina tion procedures, including emergency eye 6626

flushing techniques. 6627

(xi) Wash immediately in the nearest clean wa ter if pesticides are spilled or sprayed on 6628

the body and as soon as possible, shower, shampoo hair, and ch ange into clean clothes. 6629

(xii) How and when to obtain emergency medical care. 6630

(xiii) When working near pesticides or in pe sticide treated areas, wear work clothing that 6631

protects the body from pesticide residues and wash hands before eating, drinking, using chewing 6632

gum or tobacco, or using the toilet. 6633*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 297 of 340 [RIN 2070–AJ22] (xiv) Wash or shower with soap and water, shampoo hair, and change into clean clothes 6634

as soon as possible after working ne ar or in pesticide treated areas. 6635

(xv) Potential hazards from pe sticide residues on clothing. 6636

(xvi) Wash work clothes before wearing again. 6637

(xvii) Wash work clothes sepa rately from other clothes. 6638

(xviii) Do not take pesticides or pesticid e containers used at work to your home. 6639

(3) After [date 2 years after effective date of the final rule specified in §170.7], the 6640

training must also include all of the following: 6641

(i) Agricultural employers are required to provide workers with pesticide hazard 6642

information. 6643

(ii) Agricultural employers must not allow or direct any worker to mix, load or apply 6644

pesticides or assist in the a pplication of pesticides unless the worker has been trained as a 6645

handler. 6646

(iii) There are minimum age restrictions a nd notification requirements for early entry 6647

activities. 6648

(iv) Potential hazards to children and pr egnant women from pesticide exposure. 6649

(v) Keep children and nonwor king family members away from pesticide treated areas. 6650

(vi) Remove work boots or shoes before entering home. 6651

(vii) After working near or in pesticide trea ted areas, remove work clothes and wash or 6652

shower before physical contact with children or family members. 6653

(viii) How to report suspected pesticide use violations to the state or tribal agency 6654

responsible for pesticide enforcement. 6655*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 298 of 340 [RIN 2070–AJ22] (ix) Agricultural employers are prohibited from intimidating, threatening, coercing, or 6656

discriminating against any worker for attempting to comply with the requirements of this part, or 6657

because the worker has made a complaint, testifie d, assisted, or participat ed in any manner in an 6658

investigation, proceeding, or hear ing pursuant to this part. 6659

(4) The person who conducts the training must meet one of the following: 6660

(i) Be designated as a trainer of certified applicators by EPA or the state or tribal agency 6661

responsible for pesticide enforcement. 6662

(ii) Have completed an EPA-approved pestic ide safety train-the- trainer program for 6663

trainers of workers. 6664

(iii) Until [date 2 years after effective date of the final rule specified in § 170.7], a 6665

certified applicator of restri cted use pesticides under part 171 may conduct worker training. 6666

(d) Recordkeeping . (1) For each worker required to be trained under paragraph (a), the 6667

agricultural employer must maintain on the agricultural establishment, for 2 years from the date 6668

of the training, a record incl uding all of the following: 6669

(i) The trained worker’s pr inted name and signature. 6670

(ii) The trained worke r’s date of birth. 6671

(iii) The date of the training. 6672

(iv) Information identifying which EPA- approved training materials were used. 6673

(v) The trainer’s name and documentation show ing that the trainer met the requirements 6674

of §170.101(c)(4) at the time of training. 6675

(vi) The agricultural employer’s name. 6676

(2) For each worker trained, the agricultura l employer must provide to the worker a 6677

record of the training that contains th e information required under §170.101(d)(1). 6678*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 299 of 340 [RIN 2070–AJ22] §170.103 Establishment-specific information for workers. 6679

(a) Requirement. Before any worker performs any ta sk on an agricultural establishment 6680

where within the last 30 days a pesticide product beari ng a label requ iring compliance with this 6681

part has been used, or a restri cted-entry interval for such pesticide has been in effect, the 6682

agricultural employer must ensure that the worker has been informed of establishment-specific 6683

information in accordance with this section. Th e establishment-specific information must be 6684

provided orally, in a manner the worker can understand. 6685

(b) Content. The establishment-specific information must include all of the following: 6686

(1) The location of pesticide safe ty information required by §170.11(a). 6687

(2) The location of pesticid e application and hazard information required by §170.11(b). 6688

(3) The location of decontamin ation supplies required by §170.111. 6689

§170.105 Entry restrictions associated with pesticide applications. 6690

(a) Outdoor production pesticide applications . During any outdoor production pesticide 6691

application described in column A of Table 1 of this paragraph, the agricultural employer must 6692

not allow or direct any worker or other person, other than an a ppropriately trained and equipped 6693

handler, to enter or to remain in the entry-restricted area specified in column B of Table 1 of this 6694

paragraph. After the applic ation is complete, the area subject to the label-specified restricted6695

entry interval and the post-applic ation entry restrictions specifie d in §170.107 is the treated area. 6696

Table 1 – Entry-Restricted Areas During Outdoor Production Pesticide Applications 6697

A. During application of a pesticide: B. Workers and other persons, other

than appropriately trained and equipped

handlers, are prohibited in:*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 300 of 340 [RIN 2070–AJ22] A. During application of a pesticide: B. Workers and other persons, other

than appropriately trained and equipped

handlers, are prohibited in:

(1)(a) Applied:

(i) Aerially, or

(ii) In an upward direction, or

(iii) Using a spray pr essure greater than

150 psi, or

(b) Applied as a:

(i) Fumigant, or

(ii) Smoke, or

(iii) Mist, or

(iv) Fog, or

(v) Aerosol. Treated area plus 100 feet around the

treated area within th e boundaries of the

agricultural establishment.

(2)(a) Applied downward using:

(i) A height of greater than 12 inches from

the planting medium, or

(ii) A fine spray (droplet median diameter

of 101-200 microns), or

(iii) A spray pressure greater than 40 psi

and less than 150 psi

(b) Not as in (1) or (2)(a) above but for Treated area plus 25 feet around the treated

area, within the boundaries of the

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

Page 301 of 340 [RIN 2070–AJ22] A. During application of a pesticide: B. Workers and other persons, other

than appropriately trained and equipped

handlers, are prohibited in:

which a respiratory protection device is

required for application by the product

label.

(3) Applied otherwise. Treated area

6698

(b) Enclosed space producti on pesticide applications. (1) During any enclosed space 6699

production pesticide application described in colu mn A of Table 2 under paragraph (b)(4) of this 6700

section, the agricultural employer mu st not allow or direct any work er or other person, other than 6701

an appropriately trained and equi pped handler, to enter or to rema in in the entry-restricted area 6702

specified in column B of Table 2 during the appl ication and until the time specified in column C 6703

of Table 2 has expired. 6704

(2) After the time specified in column C of Table 2 under paragraph (b)(4) of this section 6705

has expired, the area subject to the label-specified restricted-entry interval and the post6706

application entry restrictions specified in §170.107 is th e area specified in column D of Table 2 6707

under paragraph (b)(4) of this section. 6708

(3) When column C of Table 2 under paragr aph (b)(4) of this section specifies that 6709

ventilation criteria must be met, ventilation must continue until the air concentration is measured 6710

to be equal to or less than the inhalation exposur e level the labeling require s to be achieved. If no 6711*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 302 of 340 [RIN 2070–AJ22] inhalation exposure level is listed on the labeling, ventilation must continue until after one of the 6712

following conditions is met: 6713

(i) Ten air exchanges are completed. 6714

(ii) Two hours of ventilation using fans or other mechanical ventilating systems. 6715

(iii) Four hours of ventila tion using vents, windows, or other passive ventilation. 6716

(iv) Eleven hours with no ventilation follo wed by 1 hour of mechan ical ventilation. 6717

(v) Eleven hours with no ventilation followed by 2 hour s of passive ventilation. 6718

(vi) Twenty-four hours with no ventilation. 6719

(4) The following Table 2 applie s to paragraphs (b)(1), (2), and (3) of this section. 6720

Table 2 – Entry-Restricted Areas During Enclos ed Space Production Pesticide Applications 6721

A. When a

pesticide is

applied: B. Workers and

other persons,

other than

appropriately

trained and

equipped handlers,

are prohibited in: C. Until: D. After the

expiration of time

specified in column

C, the area subject

to the restrictedentry interval is:

(1) As a fumigant. Entire enclosed

space plus any

adjacent structure or

area that cannot be

sealed off from the The ventilation

criteria of paragraph

(b)(3) of this section

are met. No post-application

entry restrictions

required by §

170.107 after

criteria in column C*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 303 of 340 [RIN 2070–AJ22] treated area. are met.

(2) As a

(i) Smoke, or

(ii) Mist, or

(iii) Fog, or

(iv) Aerosol. Entire enclosed

space. The ventilation

criteria of paragraph

(b)(3) of this section

are met. Entire enclosed

space.

(3) Not in (1) or (2)

above, and for

which a respiratory

protection device is

required for

application by the

product label. Entire enclosed

space. The ventilation

criteria of paragraph

(b)(3) of this section

are met. Treated area.

(4) Not in (1), (2),

or (3) above, and:

(i) From a height of

greater than 12 in.

from the planting

medium, or

(ii) As a fine spray

(droplet median

diameter of 101-200 Treated area plus 25

feet in all directions

of the treated area,

but not outside the

enclosed space. Application is

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

Page 304 of 340 [RIN 2070–AJ22] microns), or

(iii) Using a spray

pressure greater

than 40 psi.

(5) Otherwise. Treated area. Application is

complete. Treated area.

6722

§170.107 Worker entry restrictions a fter pesticide applications. 6723

(a) After the application of any pesticide in outdoor production on an agricultural 6724

establishment, the agricultural employer must not allow or direct any worker to enter or to 6725

remain in the treated area before the restricted -entry interval specified on the pesticide labeling 6726

has expired and all treated ar ea warning signs have been re moved, except for early entry 6727

activities permitted by §170.303. 6728

(b) After the application of any pesticide in enclosed sp ace production, the agricultural 6729

employer must not allow or direct any worker to enter or to remain in the areas specified in 6730

column D in Table 2 under §170.105(b)(4), before th e restricted-entry interval specified on the 6731

pesticide labeling has expired a nd all treated area warning sign s have been removed, except for 6732

early entry activities permitted by §170.303. 6733

(c) When two or more pesticides are applied at the same time, the applicable restricted6734

entry interval is the longest of the applicable restricted-entry intervals. 6735

§170.109 Oral and posted notification of worker entry restrictions. 6736

(a) General Requirement. The agricultural employer must notify workers of all entry 6737

restrictions required by §§170.105 and 170.107 in accordance with this section. 6738*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 305 of 340 [RIN 2070–AJ22] (1 ) Type of notification required -- (i) Outdoor production applications . If a pesticide 6739

with product labeling that requires a restricted-entry interval great er than 48 hours is applied in 6740

outdoor production, the ag ricultural employer must notify workers of the application by posting 6741

warning signs in accordance with paragraph (b) of this section. If the product labeling of the 6742

pesticide requires a restricted-e ntry interval equal to or le ss than 48 hours, the agricultural 6743

employer must notify workers of the application either by posting warning signs in accordance 6744

with paragraph (b) of this sect ion or by providing workers with an oral warning in accordance 6745

with paragraph (c) of this section. 6746

(ii) Enclosed space production applications . If a pesticide with product labeling that 6747

requires a restricted-entry interval greater than 4 hours is ap plied in enclosed space production, 6748

the agricultural employer must notify workers of the application by posting warning signs in 6749

accordance with paragraph (b) of this section. If the product labe ling of the pesticide requires a 6750

restricted-entry interval equal to or less than 4 hours, the agricultu ral employer must notify 6751

workers of the application either by posting warn ing signs in accordance w ith paragraph (b) of 6752

this section or by providing worker s with an oral warning in acco rdance with paragraph (c) of 6753

this section. 6754

(iii) Double notification . If the pesticide product labeli ng has a statement requiring both 6755

the posting of treated areas and or al notification to workers, th e agricultural employer must post 6756

signs in accordance with paragraph (b) of this se ction and must also provide oral notification of 6757

the application to the worker in accordan ce with paragraph (c) of this section. 6758

(2) Exceptions. Notification need not be given to a worker if the agricultural employer 6759

can ensure that one of the following is met: 6760*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 306 of 340 [RIN 2070–AJ22] (i) From the start of the a pplication in enclosed space production until the end of the 6761

application and during any restricted-entry inte rval, no workers will enter the entire enclosed 6762

space. 6763

(ii) The only worker(s) for which notificati on is required were al so involved in the 6764

application of the pesticide as handlers, and they are aware of all information required by 6765

paragraph (c)(1) of this section. 6766

(iii) From the start of the applicati on in outdoor production until the end of the 6767

application and during any restrict ed-entry interval, no worker(s) will enter, work in, remain in, 6768

or pass through on foot the treated area or any area within 1/4 m ile of the treated area on the 6769

agricultural establishment. 6770

(b) Requirements for posted warning signs . When posting is requi red, the agricultural 6771

employer must, unless otherwise prescribed by th e label, ensure that the warning sign(s) 6772

conforms to the requirements of this paragraph. When several c ontiguous areas are to be treated 6773

with pesticides on a rotating or sequential basis, the entire area may be posted. Worker entry, 6774

other than entry permitted by §170.303 of this part , is prohibited for the entire area while the 6775

signs are posted. 6776

(1) General. The warning signs must meet all of the following requirements: 6777

(i) Be one of the three sizes specified in th is paragraph (b) and comply with the posting 6778

placement and spacing requirements applicable to that sign size. 6779

(ii) Be posted prior to but no earlier than 24 hours before the scheduled application of the 6780

pesticide. 6781

(iii) Remain posted throughout the applica tion and any restricted-entry interval. 6782*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 307 of 340 [RIN 2070–AJ22] (iv) Be removed or covered within 3 days after the end of th e application or any 6783

restricted-entry interval, whichever is later, but under no circumstances shall the signs remain 6784

posted and uncovered when worker entry is permitted, other than entry permitted by §170.303 of 6785

this part. 6786

(v) Remain visible and legible during th e time they are required to be posted. 6787

(2) Content . (i) The warning sign must have a white background. The words "DANGER" 6788

and "PELIGRO," plus "PESTICIDE S" and "PESTICIDAS," must be at the top of the sign, and 6789

the words “Entry Restricted" and "Entrada Restri ngida" must be at the bo ttom of the sign. Letters 6790

for all words must be clearly legible. An octagon c ontaining an upraised hand on the left and a 6791

stern face on the right must be near the center of the sign. The inside of the octagon must be red, 6792

except that the hand and a large por tion of the face must be in white. The length of the hand must 6793

be at least twice the height of the smallest letters. The length of the face must be only slightly 6794

smaller than the hand. Additional information such as the name of the pesticide and the date of 6795

application may appear on the warn ing sign if it does not detract from the size and appearance of 6796

the sign or change the meaning of the require d information. An example of a warning sign 6797

meeting these requirements, other than the size and color requirements, follows: 6798*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 308 of 340 [RIN 2070–AJ22] 6799

6800

(ii) The agricultural employer may replace th e Spanish portion of the warning sign with 6801

an alternative non-English language if that alternative language is the language read by the 6802

largest group of workers at that agricultura l establishment who do not read English. The 6803

alternative language sign must be in the same format as the origin al sign and conform to all other 6804

requirements of paragraph (b)(2)(i) of this section. 6805

(iii) Until [date 2 years after effective date of the final rule specified in §170.7], a 6806

warning sign meeting the following requireme nts may be substituted for the warning sign 6807

specified in paragraph (b)(i) of this section. The warning sign mu st have a background color that 6808

contrasts with red. The words “DANGER” and “PELIGRO,” plus “PESTICIDES” and 6809

“PESTICIDAS,” shall be at the top of the si gn, and the words “KEEP OUT” and “NO ENTRE” 6810

shall be at the bottom of the sign. Letters for all words must be clearly legible. A circle 6811

containing an upraised hand on the left and a stern f ace on the right must be near the center of the 6812

sign. The inside of the circle must be red, exce pt that the hand and a large portion of the face 6813*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 309 of 340 [RIN 2070–AJ22] must be in a shade that contrasts with red. Th e length of the hand must be at least twice the 6814

height of the smallest letters. The length of th e face must be only slightly smaller than the hand. 6815

Additional information such as the name of the pe sticide and the date of application may appear 6816

on the warning sign if it does not detract from the appearance of the sign or change the meaning 6817

of the required information. An example of a warning sign meeting these requirements, other 6818

than the size and color requirements, follows: 6819

6820

6821

(3) Size and posting . (i) The standard sign must be at least 14 inches by 16 inches with 6822

letters at least 1 inch in height. 6823

(ii) When posting treated areas in outdoor production using the standard sign, the signs 6824

must be visible from all reasonably expected points of worker entry to the treated area, including 6825

at least each access road, each border with any wo rker housing area within 100 feet of the treated 6826

area, and each footpath and other walking route that enters the treated area. Where there are no 6827*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 310 of 340 [RIN 2070–AJ22] reasonably expected points of wo rker entry, signs must be posted in the corners of the treated 6828

area or in any other location a ffording maximum visibility. 6829

(iii) When posting treated areas in enclosed space production using the standard sign, the 6830

signs must be posted so they are visible from a ll reasonably expected poin ts of worker entry to 6831

the treated area including each aisle or other walk ing route that enters the treated area. Where 6832

there are no reasonably expected points of worker entry to the treated area, signs must be posted 6833

in the corners of the treated area or in any other location affording maximum visibility. 6834

(iv) If a smaller warning sign is used with “DANGER” and “PELIGRO” in letters at least 6835

7/8 inch in height and the remaini ng letters at least 1/2 inch in he ight and a red octagon at least 3 6836

inches in diameter containing an upraised hand and a stern face , the signs must be posted no 6837

farther than 50 feet apart around th e perimeter of the treated area in addition to the locations 6838

specified in paragraphs (b)(3)(ii) or (b)(3)(iii) of this section. 6839

(v) If a smaller sign is used with “DANGER” and “PELIGRO” in le tters at least 7/16 6840

inch in height and the remaining letters at least 1/4 inch in hei ght and a red octagon at least one 6841

and a half inches in diameter containing an upr aised hand and a stern fa ce, the signs must be 6842

posted no farther than 25 feet ap art around the perimeter of the tr eated area in addition to the 6843

locations specified in paragraphs (b)(3) (ii) or (b)(3)(iii) of this section. 6844

(vi) A sign with “DANGER” and “PELIGRO” in letters less than 7/16 inch in height or 6845

with any words in letters less than 1/4 inch in he ight or a red octagon sma ller than one and a half 6846

inches in diameter containing an upraised hand and a stern face is not permitted. 6847

(c) Oral warnings -- (1) Requirement. The agricultural employer must provide oral 6848

warnings to workers in a manner that the worker s can understand. If a worker is on the premises 6849

when an application will occur, the warning must be given be fore the application begins. 6850*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 311 of 340 [RIN 2070–AJ22] Otherwise, the warning must be given at the be ginning of the worker's first work period during 6851

which the application is taking pla ce or the restricted-entry interval for the pesticide is in effect. 6852

The warning must include all of the following: 6853

(i) The location(s) and descripti on of the entry-restricted area (s) and the treated area(s). 6854

(ii) The dates and times during which entry is restricted. 6855

(iii) Instructions not to enter the entry-rest ricted area during applic ation, and not to enter 6856

the treated area until the restricted -entry interval has expired. 6857

§170.111 Worker decontamin ation supplies. 6858

(a) Requirement . The agricultural employer must pr ovide decontamination supplies in 6859

accordance with this section for any worker on an agricultural establishment who is performing 6860

an activity in an area where a pesticide was a pplied and who contacts anything that has been 6861

treated with the pesticide, including, but not limited t o, soil, water, and plants. 6862

(b) General conditions. The decontamination supplies requi red in paragraph (a) of this 6863

section must include 1 gallon of water per wo rker for routine washing and emergency eye 6864

flushing, soap, and single-use towels. The supplies must meet all of the following requirements: 6865

(1) Water. At all times when this part requires agricultural employers to make water 6866

available to workers, the agricultural employer must ensure that it is of a quality and temperature 6867

that will not cause illness or injury when it contacts the skin or eyes or if it is swallowed. When 6868

water stored in a tank is to be used for mixing pe sticides, it must not be used for decontamination 6869

or eye flushing, unless the tank is equipped with properly functioning valves or other 6870

mechanisms that prevent movement of pesticid es into the tank, such as anti-backflow siphon 6871

devices, one-way or check valves, or an ai r gap sufficient to prevent contamination. 6872*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 312 of 340 [RIN 2070–AJ22] (2) Soap and single-use towels . The agricultural employer mustprovide soap and single6873

use towels for drying in quantitie s sufficient to meet the workers' needs. Hand sanitizing gels and 6874

liquids or wet towelettes do not meet the requir ement for soap. Wet towelettes do not meet the 6875

requirement for single-use towels. 6876

(c) Timing. (1) If any pesticide with a restricted-entry interv al greater than 4 hours was 6877

applied, the decontamination supplies must be pr ovided from the time workers first enter the 6878

treated area until at least 30 days after the restri cted-entry interval expires. 6879

(2) If the only pesticides app lied in the treated area are pr oducts with a restricted-entry 6880

interval of 4 hours or less, the decontamination supplies must be provided from the time workers 6881

first enter the treated area until at least 7 days after the restricted-entry interval expires. 6882

(d) Location. (1) The decontamination supplies mu st be located together and be 6883

reasonably accessible to and not more than 1/4 mile from where workers are working. 6884

(2) Where workers are working more than 1/4 mile from the neares t place of vehicular 6885

access, the soap, single-use towels, clean change of clothing, and water may be at the nearest 6886

place of vehicular access. 6887

(3) The decontamination supplies mu st be outside any treated area. 6888

Subpart C – Requirements for Protection of Agricultural Pesticide Handlers 6889

§170.201 Training requirements for handlers. 6890

(a) General requirement . Before any handler performs any handler activity involving a 6891

pesticide product bearing a label requiring complia nce with this part, the handler employer must 6892

ensure that the handler has been trained in accordance with this sec tion within the last 12 6893

months, except as provided in paragraph (b) of this section. 6894

(b) Exceptions. The following persons need not be trained under this section: 6895*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 313 of 340 [RIN 2070–AJ22] (1) A handler who is currently certified as an applicator of restrict ed use pesticides under 6896

part 171 of this chapter. 6897

(2) A handler who is certified or licensed as a crop advisor by a program acknowledged 6898

as appropriate in writing by EPA or the state or tribal agency responsible for pesticide 6899

enforcement, provided that a requirement for such certification or licensing is pesticide safety 6900

training that includes all the topics set out in §170.201(c)(2) and (3). 6901

(c) Training programs . (1) Pesticide safety training must be presented to handlers either 6902

orally from written materials or audio-visuall y, at a location that is reasonably free from 6903

distraction and conducive to trai ning. All training materials mu st be EPA-approved. The training 6904

must be presented in a manner that the handler s can understand, such as through a translator. A 6905

person that meets the handler trainer requirements of §170.201(c)(4) must be present during the 6906

entire training program to conduct the traini ng and must respond to handlers’ questions. 6907

(2) The pesticide safety training materials must include, at a minimum, all of the 6908

following: 6909

(i) All the topics required by §170.101(c)(2). 6910

(ii) Information on proper application and use of pesticides. 6911

(iii) Handlers must follow all pestic ide labeling and use directions. 6912

(iv) Format and meaning of all information c ontained on pesticide labels and in labeling. 6913

(v) Need for and appropriate use and remova l of all personal prot ective equipment. 6914

(vi) How to recognize, prevent, and provide first ai d treatment for heat-related illness. 6915

(vii) Safety requirements for handling, transp orting, storing, and dis posing of pesticides, 6916

including general procedures for spill cleanup. 6917

(viii) Environmental concerns, such as drift, runoff, and wildlife hazards. 6918*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 314 of 340 [RIN 2070–AJ22] (ix) Handlers must not apply pesticides in a manner that results in contact with workers 6919

or other persons. 6920

(x) Handler employers are requ ired to provide handlers with information and protections 6921

designed to reduce work-related pesticide exposur es and illnesses. Th is includes providing, 6922

cleaning, maintaining, storing, and ensuring prop er use of all required personal protective 6923

equipment; providing decontamination supplies; and providing specifi c information about 6924

pesticide use and labeling information. 6925

(3) After [date 2 years after effective date of final rule specified in §170.7], the training 6926

materials must also include all of the following: 6927

(i) Handlers must cease or suspend a pesticide application if workers or other persons are 6928

in the treated area or th e entry-restricted area. 6929

(ii) Handlers must be at least 16 years of age. 6930

(iii) Handler employers must en sure handlers have received re spirator fit-testing, training 6931

and medical evaluation if they are required to wear a respirator. 6932

(iv) Handler employers must post treat ed areas as required by this rule. 6933

(v) All the topics spec ified in §170.101(c)(3). 6934

(4) The person who conducts the training must meet one of the following: 6935

(i) Be certified as an applicator of restricted use pesticides under part 171 of this chapter. 6936

(ii) Be designated as a trainer of certified applicators or pesticid e handlers by EPA or the 6937

state or tribal agency responsib le for pesticide enforcement. 6938

(iii) Have completed an EPA-approved pestic ide safety train-the- trainer program for 6939

handler trainers. 6940*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 315 of 340 [RIN 2070–AJ22] (d) Recordkeeping . (1) Handler employers must mainta in records of training for handlers 6941

employed by their establishment for 2 years from the date of the training. The records must be 6942

maintained on the establishment and must include all of the following information: 6943

(i) The trained handler’s pr inted name and signature. 6944

(ii) The trained handler’s date of birth. 6945

(iii) The date of the training. 6946

(iv) Information identifying which EPA- approved training materials were used. 6947

(v) The trainer’s name and documentation show ing that the trainer met the requirements 6948

of §170.201(c)(4) at the time of training. 6949

(vi) The handler employer’s name. 6950

(2) For each handler trained, the handler empl oyer must provide a record of the training 6951

to the handler that contains the information required under §170.201(d)(1). 6952

§170.203 Knowledge of labeling, application- specific, and establishment-specific 6953

information for handlers. 6954

(a) Knowledge of labeling and application-speci fic information. (1) The handler 6955

employer must ensure that before any handler performs any handl er activity involving a pesticide 6956

product bearing a label requiring compliance with this part, the handler either has read the 6957

pesticide product labeling or has been informed in a manner the handler can understand of all 6958

labeling requirements and use directions n ecessary for proper use of the pesticide. 6959

(2) The handler employer must ensure that the handler has access to the product labeling 6960

at all times during ha ndler activities. 6961

(3) The handler employer must ensure that th e handler is aware of requirements for any 6962

entry-restricted areas as described in §170.105. 6963*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 316 of 340 [RIN 2070–AJ22] (b) Knowledge of establishm ent-specific information -- (1) Requirement. Before any 6964

handler performs any pesticide handler activity on an agricultural establis hment where within the 6965

last 30 days a pesticide product bearing a label requiring compliance with this part has been 6966

used, or a restricted-entry inte rval for such pesticide has been in effect, the handler employer 6967

must ensure that the handler has been inform ed of establishment-specific information in 6968

accordance with this paragraph (b). The establis hment-specific information must be provided 6969

orally, in a manner the handler can understand. 6970

(2) Content. The establishment-specific information must include all of the following: 6971

(i) The location of pesticide safe ty information required by §170.11(a). 6972

(ii) The location of pesticide applicati on and hazard information required by §170.11(b). 6973

(iii) The location of decontam ination supplies required by § 170.209. 6974

§170.205 Requirements during applications to protect handlers, workers, and other 6975

persons. 6976

(a) Contact with workers and other persons . The handler employer and the handler must 6977

ensure that no pesticide is applie d so as to contact, directly or through drift, any worker or other 6978

person, other than an appropriate ly trained and equipped handler located on the establishment. 6979

(b) Suspending applications. After [date 2 years after effectiv e date of final rule specified 6980

in § 170.7], the handler performing the application must immediately stop or suspend a pesticide 6981

application if any worker or other person, othe r than an appropriatel y trained and equipped 6982

handler, is in the treated area or entry-restricted area. 6983

(c) Handlers using highly toxic pesticides . The handler employer must ensure that any 6984

handler who is performing any ha ndler activity with a pesticide product that has the skull-and- 6985*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 317 of 340 [RIN 2070–AJ22] crossbones symbol on the front pane l of the pesticide product labe l is monitored visually or by 6986

voice communication at least every 2 hours. 6987

(d) Fumigant applications in enclosed space production . The handler employer must 6988

ensure all of the following: 6989

(1) That any handler who enters an entry- restricted area descri bed in Table 2 of §170.105, 6990

maintains continuous visual or vo ice contact with another handle r stationed immediately outside 6991

of the enclosed space. 6992

(2) That the handler stati oned outside the enclosed space has immediate access to and 6993

uses the personal protective equipment required by the fumigant labeling for handlers, in the 6994

event that entry becomes necessary for rescue. 6995

§ 170.207 Personal protective equipment. 6996

(a) Handler responsibilities . Any person who performs ha ndler activities involving a 6997

pesticide product bearing a label requiring complia nce with this part must use the clothing and 6998

personal protective equipment specified on the pest icide product labeling for use of the product. 6999

(b) Employer responsibilities for provid ing personal protective equipment. The handler 7000

employer must provide to the handler the pers onal protective equipment required by pesticide 7001

product labeling in accordance with this section. The handler em ployer must ensure that the 7002

personal protective equipment is clean and in pr oper operating condition. For the purposes of this 7003

section, long-sleeved shirts, short- sleeved shirts, long pants, short pants, shoes, and socks are not 7004

considered personal protective equipment, even though pesticide labeling may require such work 7005

clothing to be worn. 7006*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 318 of 340 [RIN 2070–AJ22] (1) When "chemical-resistant" personal protect ive equipment is specified by the pesticide 7007

product labeling to be worn, it must be made of material that the manufac turer has declared, in 7008

writing, to be chemical resistant. 7009

(2) When "waterproof" personal protective equipment is specified by the pesticide 7010

product labeling to be worn, it must be made of ma terial that allows no m easurable movement of 7011

water or aqueous solutions through the mate rial during ordinary conditions of use. 7012

(3) When a "chemical-resistant suit" is sp ecified by the pesticide product labeling to be 7013

worn, it must be a loose-fitting, one- or two-piec e chemical-resistant garment that covers, at a 7014

minimum, the entire body except head, hands, and feet. 7015

(4) When "coveralls" are specified by the pesticide product labeling to be worn, they 7016

must be loose-fitting, one- or two-piece garmen ts that cover, at a minimum, the entire body 7017

except head, hands, and feet. 7018

(5) Gloves must be the type specif ied on the pesticide product labeling. 7019

(i) Gloves made of leather, cotton, or other absorbent materials may not be worn while 7020

performing handler activities unles s gloves made of these material s are listed as acceptable for 7021

such use on the pestic ide product labeling. 7022

(ii) Separable glove liners may be worn beneath chemical-resistant gloves, unless the 7023

pesticide product labeling specifica lly prohibits their use. Separa ble glove liners are defined as 7024

separate glove-like hand coverings, made of light weight material, with or without fingers. Work 7025

gloves made from lightweight cott on or poly-type material are cons idered to be glove liners if 7026

worn beneath chemical-resistant gloves. Sepa rable glove liners may not extend outside the 7027

chemical-resistant gloves under which they ar e worn. Chemical-resistant gloves with non7028

separable absorbent lining materials are prohibited. 7029*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 319 of 340 [RIN 2070–AJ22] (iii) If used, separable glove liners must be discarded immediately af ter a total of no more 7030

than 10 hours of use or within 24 hours of when first put on, whichever comes first. The liners 7031

must be replaced immediately if directly contac ted by pesticide. Used glove liners must not be 7032

reused. Contaminated liners must be disposed of in accordance with any federal, state, or local 7033

regulations. 7034

(6) When "chemical-resistant footwear" is sp ecified by the pesticide product labeling to 7035

be worn, one of the following type s of footwear must be worn: 7036

(i) Chemical-resistant shoes. 7037

(ii) Chemical-resistant boots. 7038

(iii) Chemical-resistant shoe cove rings worn over shoes or boots. 7039

(7) When "protective eyewear" is specified by the pesticide product labeling to be worn, 7040

one of the following types of eyewear must be worn: 7041

(i) Goggles. 7042

(ii) Face shield. 7043

(iii) Safety glasses with front , brow, and temple protection. 7044

(iv) Full-face respirator. 7045

(8) When a "chemical-resistant apron" is spec ified by the pesticide pr oduct labeling to be 7046

worn, an apron that covers the front of the body from mid-chest to the knees must be worn. 7047

(9) The respirator specified by the pesticide product labeling must be used. Whenever a 7048

respirator other than a dust/mis t filtering respirator is require d by the pesticide product labeling, 7049

the handler employer must ensure that the requirements of paragra phs (b)(9)(i) through (iii) of 7050

this section are met before the handler perf orms any pesticide handler activity where the 7051

respirator is required to be worn. The handler employer must maintain for 2 years, on the 7052*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 320 of 340 [RIN 2070–AJ22] establishment, records documenting the completi on of the requirements of paragraphs (b)(9)(i) 7053

through (iii) of this section. 7054

(i) Handler employers must provi de handlers with fit-testing us ing the respirator specified 7055

on the pesticide product label in a manner that conforms to the pr ovisions of 29 CFR 1910.134. 7056

(ii) Handler employers must pr ovide handlers with training in the use of the respirator 7057

specified on the pesticide product label in a manne r that conforms to the provisions of 29 CFR 7058

1910.134. 7059

(iii) Handler employers must provide handl ers with a medical evaluation by a physician 7060

or other licensed health care professional that conforms to the provisions of 29 CFR § 1910.134 7061

to ensure the handler’s physical ability to safely wear the respirator specified on the pesticide 7062

product label. 7063

(10) When "chemical-resistant headgear" is specified by the pesticide product labeling, it 7064

must be either a chemical-resistant hood or a chemical-resistant hat with a wide brim. 7065

(c) Use of personal protective equipment . (1) The handler employer must ensure that 7066

personal protective equipment is used correctly fo r its intended purpose and is used according to 7067

the manufacturer's instructions. 7068

(2) The handler employer must ensure that, before each day of use, all personal protective 7069

equipment is inspected for leaks, holes, tears, or worn places, and any damaged equipment is 7070

repaired or discarded. 7071

(d) Cleaning and maintenance . (1) The handler employer must ensure that all personal 7072

protective equipment is cleaned according to the manufacturer's in structions or pesticide product 7073

labeling instructions before each day of reuse. In the absence of any such instructions, it must be 7074

washed thoroughly in dete rgent and hot water. 7075*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 321 of 340 [RIN 2070–AJ22] (2) If any personal protective equipment cannot be cleaned pr operly, the handler 7076

employer must render the pers onal protective equipment unusab le and dispose of it in 7077

accordance with any applicable federal, state, a nd local regulations. Coveralls or other absorbent 7078

materials that have been drenched or heavily co ntaminated with a pesticide that has the signal 7079

word “DANGER” or “WARNING” on th e label must not be reused. 7080

(3) The handler employer must ensure that contaminated personal protective equipment is 7081

kept separately and washed separately from any other clot hing or laundry. 7082

(4) The handler employer must ensure that all washed personal protective equipment is 7083

dried thoroughly before be ing stored or reused. 7084

(5) The handler employer must ensure that all clean personal pr otective equipment is 7085

stored separately from personal clothing and apart from pesticide-contaminated areas. 7086

(6) The handler employer must ensure that wh en dust/mist filtering respirators are used, 7087

they are replaced when one of the following conditions is met: 7088

(i) When breathing resistance becomes excessive. 7089

(ii) When the filter element has physical damage or tears. 7090

(iii) According to manufacturer's recomm endations or pesticide product labeling, 7091

whichever is more frequent. 7092

(iv) In the absence of any othe r instructions or indications of service life, at the end of 8 7093

hours of cumulative use. 7094

(7) The handler employer must ensure that when gas- or vapor-removing respirators are 7095

used, the gas- or vapor-removing canisters or cartr idges are replaced before further respirator use 7096

when one of the following conditions is met: 7097

(i) At the first indication of odor, taste, or irritation. 7098*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 322 of 340 [RIN 2070–AJ22] (ii) When breathing resistance becomes excessive. 7099

(iii) According to manufacturer's recomm endations or pesticide product labeling 7100

instructions, whichever is more frequent. 7101

(iv) In the absence of any othe r instructions or indications of service life, at the end of 8 7102

hours of cumulative use. 7103

(8) The handler employer must inform any person who cleans or launders personal 7104

protective equipment of all the following: 7105

(i) That such equipment may be contaminated with pesticides. 7106

(ii) The potentially harmful effect s of exposure to pesticides. 7107

(iii) The correct way(s) to clean personal pr otective equipment and to protect themselves 7108

when handling such equipment. 7109

(iv) Proper decontamination and personal hygiene practices. 7110

(9) The handler employer must ensure that ha ndlers have a place(s) away from pesticide 7111

storage and pesticide use areas where they may do all of the following: 7112

(i) Store personal clothing not in use. 7113

(ii) Put on personal protective equipment at the start of any exposure period. 7114

(iii) Remove personal protective equipmen t at the end of any exposure period. 7115

(10) The handler employer must not allow or di rect any handler to w ear home or to take 7116

home personal protective equipment contaminated with pesticides. 7117

(e) Heat-related illness . Where a pesticide label requires the use of personal protective 7118

equipment for a handler activity, th e handler employer must take a ppropriate measures to prevent 7119

heat-related illness. 7120

7121*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 323 of 340 [RIN 2070–AJ22] §170.209 Handler decontamin ation supplies. 7122

(a) Requirement . The handler employer must provi de decontamination supplies in 7123

accordance with this section for any handler that is performing any handler activity or removing 7124

personal protective equipment at the place for changing required by §170.207(d)(9). 7125

(b) General conditions. The decontamination supplies requi red in paragraph (a) of this 7126

section must include: at least 3 gallons of water per handler for routine hand washing, emergency 7127

eye flushing, and washing the entire body in case of an emergency; soap ; single-use towels; and 7128

clean clothing for use in an emergency. The de contamination supplies mu st meet all of the 7129

following requirements: 7130

(1) Water. At all times when this section requ ires handler employers to make water 7131

available to handlers, the handler employer must ensure that it is of a quality and temperature 7132

that will not cause illness or injury when it contacts the skin or eyes or if it is swallowed. When 7133

water stored in a tank is to be used for mixing pe sticides, it must not be used for decontamination 7134

or eye flushing, unless the tank is equipped with properly functioning valves or other 7135

mechanisms that prevent movement of pesticid es into the tank, such as anti-backflow siphon 7136

devices, one-way or check valves, or an ai r gap sufficient to prevent contamination. 7137

(2) Soap and single-use towels . The handler employer must provide soap and single-use 7138

towels for drying in quantities sufficient to meet the handlers' needs. Hand sanitizing gels and 7139

liquids or wet towelettes do not meet the requir ement for soap. Wet towelettes do not meet the 7140

requirement for single-use towels. 7141

(3) Clean change of clothing. The handler employer must provide one clean change of 7142

clothing, such as coveralls, for use in an emergency. 7143*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 324 of 340 [RIN 2070–AJ22] (c) Location. The decontamination supplies must be located together outside of any 7144

treated area, and be reasonably accessible to an d not more than 1/4 mile from each handler 7145

during the handler activity. 7146

(1) Exception for mixing sites. For mixing activities, decontamination supplies must be at 7147

the mixing site. 7148

(2) Exception for pilots. Decontamination supplies for a pilot who is applying pesticides 7149

aerially must be in the aircraft or at the aircraft loading site. 7150

(3) Exception for handling pesticides in remote areas . Where handler activities are 7151

performed more than 1/4 mile from the nearest place of vehicular access, the soap, single-use 7152

towels, clean change of clothing, and water may be at the nearest place of vehicular access. 7153

(4) Exception for treated areas. The decontamination supplies must be outside any 7154

treated area or area subject to a restricted-entry interval, unless all of the following conditions are 7155

met: 7156

(i) The soap, single-use towels, and clean chan ge of clothing are prot ected from pesticide 7157

contamination in closed containers. 7158

(ii) The water is protected from pestic ide contamination in closed containers. 7159

(d) Emergency eyeflushing . If the product label requires pr otective eyewear for handlers, 7160

the following requirements apply. 7161

(1) To provide for emergency eyeflushing, th e handler employer must provide at least 1 7162

pint of water per handler in por table containers that are immedi ately available to each handler 7163

who is performing activities for which the pe sticide labeling requires protective eyewear. 7164*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 325 of 340 [RIN 2070–AJ22] (2) A system capable of delivering at least 1.5 liters (0.4 gallons) of water per minute for 7165

15 minutes must be provided at all permanent pesticide mixing and loading sites when the label 7166

requires protective eyewear for mixing, loading, or applying. 7167

Subpart D - Exemptions and Exceptions 7168

§170.301 Exemptions. 7169

(a) Exemption for owners of agricultural est ablishments and their immediate families . (1) 7170

On any agricultural establishment that is wholly owned by an individual , or where all of the 7171

owners of the establishment are members of th e same immediate family, the owner(s) of the 7172

establishment are not required to provide the protections of the following provisions to 7173

themselves or members of their immediate fam ily when they are performing handling tasks or 7174

tasks related to the production of agricultural plants that would otherwise be covered by this part 7175

on their own agricultural establishment. 7176

(i) §170.9(c). 7177

(ii) §170.9(f) through (j). 7178

(iii) §170.11. 7179

(iv) §170.101. 7180

(v) §170.103. 7181

(vi) §170.109. 7182

(vii) §170.111 and 170.209. 7183

(viii) §170.201. 7184

(ix) §170.203. 7185

(x) §170.205(c) and (d). 7186

(xi) §170.207(c) through (e). 7187*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 326 of 340 [RIN 2070–AJ22] (xii) §170.305(a) through (c ) and (e) through (k). 7188

(2) The owners of agricultural establishmen ts must provide all of the applicable 7189

protections required by this part for any employees or other persons on the establishment that are 7190

not members of their immediate family. 7191

(b) Certified crop advisors . The requirements of §§ 170.9(e), 170.203(a), 170.207 and 7192

170.209 of this part do not apply to certified crop advisors provided the a pplication is complete 7193

and all of the following conditions are met: 7194

(1) The crop advisor is certified or licen sed as a crop advisor by a program acknowledged 7195

as appropriate in writing by EPA or a state or tribal agency responsible for pesticide 7196

enforcement. 7197

(2) The certification or licensing program requi res pesticide safety training that includes 7198

all the information in §170.201(c)(2) and (3). 7199

(3) The crop advisor who enters a treated area during a restricted-entry interval only 7200

performs crop advising tasks while in the treated area. 7201

§ 170.303 Exceptions for entry by workers during restricted-entry intervals. 7202

An agricultural employer may direct workers to enter treated areas where a restricted7203

entry interval is in effect to perform certain activities as provi ded in this section, and provided 7204

that the agricultural employer ensu res that the worker is at le ast 16 years old and all of the 7205

applicable conditions of this sect ion and §170.305 of this part are met. 7206

(a) Exception for activities with no contact . A worker may enter a treated area during a 7207

restricted-entry interval if the agricultural em ployer ensures that all of the following conditions 7208

are met: 7209*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 327 of 340 [RIN 2070–AJ22] (1) The worker will have no contact with anythi ng that has been treated with the pesticide 7210

to which the restricted-entry in terval applies, including, but not limited to, soil, water, air, or 7211

surfaces of plants. This exception does not allow workers to perform any activities that involve 7212

contact with treated surfaces ev en if workers are wearing pe rsonal protective equipment. 7213

(2) No such entry is allowed until any inhala tion exposure level listed in the pesticide 7214

product labeling has been reached or any vent ilation criteria required by §170.105(b)(3) or the 7215

pesticide product labeling have been met. 7216

(b) Exception for short-term activities. A worker may enter a treated area during a 7217

restricted-entry interval for short-term activities, if the agricultural employer ensures that all of 7218

the following requirements are met: 7219

(1) No hand labor activity is performed. 7220

(2) The time in treated areas wh ere a restricted-entry interval is in effect does not exceed 7221

1 hour in any 24-hour period for any worker. 7222

(3) No such entry is allowed during the fi rst 4 hours after the application ends. 7223

(4) No such entry is allowed until any inhala tion exposure level listed in the pesticide 7224

product labeling has been reached or any vent ilation criteria required by §170.105(b)(3) or the 7225

pesticide product labeling have been met. 7226

(c) Exception for an agricultural emergency. (1) An agricultural emergency means a 7227

sudden occurrence or set of circumstances wh ich the agricultural employer could not have 7228

anticipated and over which the agricultural empl oyer has no control, and which requires entry 7229

into a treated area during a rest ricted-entry interval, when no a lternative practices would prevent 7230

or mitigate a substantial economic loss. A substa ntial economic loss means a loss in profitability 7231

greater than that which would be expected ba sed on the experience and fluctuations of crop 7232*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 328 of 340 [RIN 2070–AJ22] yields in previous years. Only losses cause d by the agricultural emergency specific to the 7233

affected site and geographic ar ea are considered. Losses resul ting from mismanagement cannot 7234

be included when determining wh ether a loss is substantial. 7235

(2) A worker may enter a treated area where a re stricted-entry interval is in effect in an 7236

agricultural emergency to perform tasks necessary to mitigate the effects of the agricultural 7237

emergency, including hand labor tasks, if the agri cultural employer ensures that all the following 7238

criteria are met: 7239

(i) EPA, the state department of agriculture, or the state or tribal agency responsible for 7240

pesticide enforcement declares the existence of circumstances that could cause an agricultural 7241

emergency on that agricultural establishment. 7242

(ii) The agricultural employer determines that the agricultural establishment is subject to 7243

the circumstances that result in an agricultural emergency meeting the crite ria of paragraph (c)(1) 7244

of this section. 7245

(iii) If the labeling of any pesticide product applied to the treated area requires workers to 7246

be notified of the location of treated areas by both posting an d oral notification, then the 7247

agricultural employer must ensure that no individual worker spends more than 4 hours out of any 7248

24-hour period in treated areas where such a restricted-entry inte rval is in effect. 7249

(d) Exceptions for limited contac t and irrigation activities . A worker may enter a treated 7250

area during a restricted-entry interval for limited c ontact or irrigation activities, if the agricultural 7251

employer ensures that all of th e following requirements are met: 7252

(1) No hand labor activity is performed. 7253

(2) No worker is allowed in the treated area for more than 8 hours in a 24-hour period. 7254

(3) No entry is allowed during the fi rst 4 hours after the application ends. 7255*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 329 of 340 [RIN 2070–AJ22] (4) No such entry is allowed until any inhala tion exposure level listed in the pesticide 7256

product labeling has been reached or any vent ilation criteria required by §170.105(b)(3) or the 7257

pesticide product labeling have been met. 7258

(5) The task is one that, if not performed be fore the restricted-entry interval expires, 7259

would cause substantial economic loss, and ther e are no alternative tasks that would prevent 7260

substantial loss. 7261

(6) With the exception of irrigation tasks, th e need for the task could not have been 7262

foreseen. 7263

(7) The worker has no contact with pesticide- treated surfaces other than minimal contact 7264

with feet, lower legs, hands, and forearms. 7265

(8) The label of the product that was app lied does not require both posting and oral 7266

notification. 7267

§ 170.305 Agricultural employer respon sibilities to protect work ers entering treated areas 7268

during a restricted-entry interval

. 7269

If an agricultural employer directs a worker to perform activities in a treated area where a 7270

restricted-entry interval is in effect, a ll of the following requirements must be met: 7271

(a) Prior to early entry, the agricultural em ployer must inform each early entry worker 7272

with the information in paragra phs (a)(1) through (9) of this se ction. The information must be 7273

provided orally in a manner th at the worker can understand. 7274

(1) Date of the entry. 7275

(2) Location of early entry area. 7276

(3) Pesticide(s) applied. 7277

(4) Dates and times that the restrict ed-entry interval begins and ends. 7278*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 330 of 340 [RIN 2070–AJ22] (5) Which exception in §170.303 is the basis for th e early entry, and a de scription of tasks 7279

that may be performed under the exception. 7280

(6) Whether contact with treated surf aces is permitted under the exception. 7281

(7) Amount of time the worker is allowed to remain in the treated area. 7282

(8) Personal protective equi pment required by the pesticid e product labeling for early 7283

entry. 7284

(9) Location of the pesticide safety informa tion and the location of the decontamination 7285

supplies required by §§170.11(a)(1) and 170.111(d). 7286

(b) The agricultural employer must maintain on the agricultural establishment for 2 years 7287

a record of the information provided to early en try workers under paragraph (a) of this section, 7288

along with the printed name, date of birth, and signature of each early entry worker who received 7289

the information. 7290

(c) Prior to early entry, the agricultural employe r must ensure that each worker either has 7291

read the pesticide product labeli ng or has been informed, in a manner that the worker can 7292

understand, of all labeling requirements and statem ents related to human hazards or precautions, 7293

first aid, and user safety. 7294

(d) The agricultural employer must ensure that each worker who enters a treated area 7295

during a restricted-entry interval is provided the personal protective equipment specified in the 7296

pesticide product labeling for early entry workers. The agricultural employer must ensure that the 7297

worker uses the personal protective equipm ent as intended according to manufacturer’s 7298

instructions and follows any ot her requirements on the pesticide product labeling regarding early 7299

entry. Personal protective equipment must c onform to the standards in §170.207 (b)(1) through 7300

(8). 7301*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 331 of 340 [RIN 2070–AJ22] (e) The agricultural employer must maintain the personal protective equipment in 7302

accordance with §170.207(d)(1) through (8). 7303

(f) The agricultural employer must ensure that no worker is allowed or directed to wear 7304

personal protective equipment, without implementi ng measures sufficient to prevent heat-related 7305

illness and that each worker is instructed in th e prevention, recognition, and first aid treatment of 7306

heat-related illness. 7307

(g) The agricultural employer must not allow or direct any worker to wear home or to 7308

take home employer-provided personal protective equipment contaminated with pesticides. 7309

(h) During any early entr y activity, the agricultura l employer must provide 7310

decontamination supplies in accordance with §170.209, except the decontamination supplies 7311

must be outside any area being treat ed with pesticides or subject to a restricted-entry interval, 7312

unless the decontamination supplies would othe rwise not be reasonably accessible to those 7313

workers. 7314

(i) If the pesticide pr oduct labeling of the product applied requires protective eyewear, the 7315

agricultural employer must provide at least 1 pint of water per work er in portable containers that 7316

are immediately available to each worker who is performing early entry activities for emergency 7317

eyeflushing. 7318

(j) At the end of any early entry activities the agricultural employer must provide, at the 7319

site where the workers remove personal protectiv e equipment, soap, single-use towels and at 7320

least 3 gallons of water per worker so that the workers may wash thoroughly. 7321

§ 170.307 Exceptions to personal protective equi pment requirements speci fied on pesticide 7322

product labeling. 7323*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 332 of 340 [RIN 2070–AJ22] (a) Body protection . (1) A chemical-resistant suit may be substituted for coveralls, and 7324

any requirement for an additi onal layer of clothing beneath the coveralls is waived. 7325

(2) A chemical-resistant suit may be substitu ted for coveralls and a chemical-resistant 7326

apron. 7327

(b) Boots . If chemical-resistant footwear with su fficient durability and a tread appropriate 7328

for wear in rough terrain is not obtainable, then leat her boots may be worn in such terrain. 7329

(c) Gloves . If chemical-resistant gloves with suffi cient durability and suppleness are not 7330

obtainable, then during activities with plants w ith sharp thorns, leather gloves may be worn over 7331

chemical-resistant glove liners. However, once leat her gloves are worn for this use, thereafter 7332

they must be worn only with chemical-resistant liners and they must not be worn for any other 7333

use. 7334

(d) Closed systems. (1) When pesticides are being mixed or loaded using a closed system 7335

as defined in §170.5 that meets a ll of the criteria in paragraph (d)(2) of this section, and the 7336

handler employer meets the requirements of pa ragraph (d)(3) of this section, the following 7337

exceptions to labeling-specified persona l protective equipmen t are permitted: 7338

(i) Handlers using a closed system to mix or load pesticides with a signal word of 7339

“DANGER” or “WARNING” may subs titute a long-sleeved shirt, l ong pants, shoes and socks, 7340

chemical-resistant apron, protective eyewear, and any protective gloves sp ecified on the labeling 7341

for handlers for the labeling-specified personal protective equipment. 7342

(ii) Handlers using a closed system to mix or load pe sticides other than those specified in 7343

paragraph (d)(1)(i) of this sect ion may substitute protective ey ewear, long-sleeved shirt, long 7344

pants, and shoes and socks for the labeling- specified personal prot ective equipment. 7345*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 333 of 340 [RIN 2070–AJ22] (2) The exceptions of paragraph (d)(1) of this section apply only where the closed system 7346

meets all of the following criteria: 7347

(i) The pesticide must be removed from its original shipping cont ainer and transferred 7348

through connecting hoses pipes, and/or couplings that are sufficiently tig ht to prevent exposure 7349

of any person to the concentrate, use dilution, or rinse solution. 7350

(ii) All hoses, piping, tanks, and connections used in conjunction with a closed system 7351

must be of a type appropriate for the pesticide being used and, the pres sure and vacuum of the 7352

system. 7353

(iii) All sight gauges must be protected agai nst breakage. Sight gauges must be equipped 7354

with valves so the pipes to th e sight gauge can be shut off in case of breakage or leakage. 7355

(iv) The closed system must adequately measure the pesticide being used. Measuring 7356

devices must be accurately calibrated to the smalle st unit in which the material is being weighed 7357

or measured. 7358

(v) The movement of a pesticide concentrate beyond a pump by positive pressure must 7359

not exceed 25 pounds per square inch (psi) of pressure. 7360

(vi) A probe must not be removed from a c ontainer except when the pesticide is used 7361

without dilution and the container has been emptied or the containe r is emptied and the inside, as 7362

well as the probe, have been rinsed in accordance with §170.307(d)(2)(viii). 7363

(vii) Shut-off devices must be installed on th e exit end of all hoses and at all disconnect 7364

points to prevent the pesticide from leaking when the transfer is stopped and the hose is removed 7365

or disconnected. If the hose carried pesticide conc entrate and has not been rinsed in accordance 7366

with §170.307(d)(2)(viii), a dry break coupler that will minimize pesticide loss to not more than 7367

two milliliters per disconnect mu st be installed at the disconne ct point. If the hose carried a 7368*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 334 of 340 [RIN 2070–AJ22] pesticide use dilution or rinse so lution, a reversing action pump or a similar system that will 7369

empty the hose may be used as an alternative to a shutoff device. 7370

(viii) When the pesticide is to be diluted for use, the closed system must provide for 7371

adequate rinsing of containers th at have held less than 60 gallons of a liquid pesticide. Rinsing 7372

must be done with a medium, such as water, th at contains no pesticide. The system must be 7373

capable of spray-rinsing the inner surfaces of th e container and the rinse solution must go into 7374

the pesticide mix tank or applicator vehicle via the closed system. The system must be capable of 7375

rinsing the probe, if used, and all hoses, measuri ng devices, etc. A minimum of 15 psi of pressure 7376

must be used for rinsing. The rinsing must be continued until minimum of 10 gallons or one-half 7377

of the container volume, whichever is less, has been used. The rinse solution must be removed 7378

from the pesticide container c oncurrently with introduction of the rinse medium. Pesticide 7379

containers must be protected ag ainst excessive pressure during th e container rinse operation. The 7380

maximum container pressure must not exceed five psi. 7381

(ix) Each commercially produced closed system or component to be used with a closed 7382

system must be sold with complete instructi ons consisting of a functi onal operating manual and a 7383

decal(s) covering the basic operation. The decal(s) must be placed in a prominent location on the 7384

system. The system must include specific direct ions for cleaning and maintenance of the system 7385

on a scheduled basis and information on any restri ctions or limitations relating to the system, 7386

such as pesticides that are incompatible with materials used in the construction of the system, 7387

types (or sizes) of containers or closures th at cannot be handled by the system, any limits on 7388

ability to correct or over measurement of a pestic ide, or special procedures or limitations on the 7389

ability of the system to deal with partial containers 7390*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 335 of 340 [RIN 2070–AJ22] (3) The exceptions of paragraph (d)(1) of th is section apply only where the handler 7391

employer has satisfied the requirements of §170.13 and all of the following conditions: 7392

(i) The written operating instructions for the closed system must be available at the 7393

mixing or loading site and must be made availa ble to any handlers who use the system and for 7394

inspection by authorized officials. 7395

(ii) The handler employer must assure that any handler operating the closed system is 7396

trained in its use and operates the closed system in accordance with the manufacturer’s written 7397

operating instructions. 7398

(iii) The closed system must be cleaned and ma intained as specified in the manufacturer's 7399

written operating instructions and as needed to make sure the system f unctions properly. If the 7400

system is not a commercially produced system it must be maintained on a regular basis. 7401

(iv) A record of the cleaning and maintenan ce must be maintained on the establishment 7402

for 2 years. 7403

(v) All personal protective equipment speci fied in the pesticid e product labeling is 7404

immediately available to the ha ndler for use in an emergency. 7405

(vi) The handler employer ensures that protective eyewear is worn when using closed 7406

systems operating under pressure. 7407

(e) Enclosed cabs . (1) If a handler applies a pesticide from inside an enclosed cab, and if 7408

the conditions listed in paragraph (e)(2) of this section are met, handlers may substitute a long7409

sleeved shirt, long pants, shoes, and socks for the labeling-specifie d personal protective 7410

equipment. 7411

(2) All of the applicator pe rsonal protective equipment required by the pesticide product 7412

labeling must be immediately available and stored in an enclosed container, such as a plastic bag, 7413*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 336 of 340 [RIN 2070–AJ22] to prevent contamination. Handl ers must wear chemical-resist ant gloves in addition to any 7414

personal protective equipment required by the pestic ide product labeling for applicators, if they 7415

exit the cab within a trea ted area during application or when a restricted-entry interval is in 7416

effect. Once personal protective equipment is worn in a treated area, it must be removed before 7417

reentering the cab. 7418

(f) Aerial applications -- (1) Use of gloves . Chemical-resistant gloves must be worn when 7419

entering or leaving an aircraft th at may be contaminated by pesticid e residues. In the cockpit, the 7420

gloves must be kept in an enclos ed container, such as a plastic bag, to prevent contamination of 7421

the inside of the cockpit. 7422

(2) Open cockpit . Handlers occupying an open cockpit must use the personal protective 7423

equipment specified in the pesticide product la beling for use during appl ication, except that 7424

chemical-resistant footwear need not be wor n. A helmet may be substituted for chemical7425

resistant headgear. A helmet with a face shield lowered to cover the face may be substituted for 7426

protective eyewear. 7427

(3) Enclosed cockpit . Handlers occupying an enclosedcockpit may substitute a long7428

sleeved shirt, long pants, shoes, and socks for labeling-specified personal protective equipment. 7429

(g) Crop advisors . Crop advisors entering tr eated areas while a restri cted-entry interval is 7430

in effect may wear the personal protective equipm ent specified on the pesticide labeling for early 7431

entry activities instead of the personal protective e quipment specified on the pesticide labeling 7432

for handler activities, provided that al l of the following conditions are met: 7433

(1) The application has been co mplete for at least 4 hours. 7434*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 337 of 340 [RIN 2070–AJ22] (2) No such entry is allowed until any inhala tion exposure level listed in the pesticide 7435

product labeling has been reached or any vent ilation criteria required by §170.105(b)(3) or the 7436

pesticide product labeling have been met. 7437

§ 170.309 Exception to training requirements for workers. 7438

An agricultural employer may a llow or direct a worker to perform tasks in a treated area 7439

on an agricultural establishment for up to two days without training th e worker in accordance 7440

with §170.101 provided the agricultural employer ensure s all of the conditions of this section are 7441

met. 7442

(a) The worker is trained in accordance with §170.101 before the third day of working in 7443

a treated area on the establishment. 7444

(b) The worker will not enter a treated ar ea on the agricultural establishment while any 7445

restricted-entry interval is in effect. 7446

(c) The worker is provided with a copy of a pe sticide information sheet that contains all 7447

of the points and information listed in §170.309(e) (1) through (15) prior to conducting any tasks 7448

in a treated area, and that same information is communicated to the worker orally in a manner the 7449

worker understands. 7450

(d) The agricultural employer must maintain on the agricultural establishment for a 7451

period of 2 years a record of the informa tion provided to the wo rker under §170.309(c), along 7452

with the printed name of the wo rker, date of birth, the date the information was provided, the 7453

employer’s name, and employer’s phone number or phone number of the establishment, and 7454

signature of the worker affirming that he or she has been provided a copy of the information 7455

sheet required by §170.309(c), has had the informati on communicated to him or her orally in a 7456

manner the worker understands, and has understood the information. 7457*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 338 of 340 [RIN 2070–AJ22] (e) Pesticide information sheets require d by §170.309(c) must convey the following 7458

points and information: 7459

(1) Agricultural employers are required to provide workers with information and 7460

protections designed to reduce work-related pesticide exposures and illnesses, including the 7461

following: 7462

(i) Employers are required to provide pesticide safety in formation to workers before 7463

being asked to work in pesticide treated areas if they have not received full pesticide safety 7464

training. 7465

(ii) Employers are required to provide the full pesticide safe ty training to workers before 7466

their third day of work in pesticide treated areas. 7467

(iii) Employers are required to provide pest icide safety information, pesticide hazard 7468

information for products used on the establis hment, decontamination supplies, emergency 7469

medical assistance, and notificati on to workers of restrictions dur ing applications and on entering 7470

pesticide treated areas. 7471

(2) Agricultural employers must inform workers how to recognize and understand the 7472

meaning of the posted warning signs used for notifying workers of restrictions on entering 7473

pesticide treated areas on the establishment. Workers must follow employer directions and/or 7474

signs about keeping out of entry restricted or pe sticide treated areas. 7475

(3) Agricultural employers must not allow or direct any worker who has not received full 7476

pesticide safety training and additional early entry worker trai ning to work in any area that is 7477

currently under a restricted-entry interval . Employers must comply with minimum age 7478

restrictions and notification requ irements in order to direct workers to perform early-entry 7479

activities. 7480*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 339 of 340 [RIN 2070–AJ22] (4) Agricultural employers must not allow or direct any worker to mix, load, or apply 7481

pesticides or assist in the a pplication of pesticides unless the worker has been trained as a 7482

handler. 7483

(5) Agricultural employers are prohibited from intimidating, threatening, coercing, or 7484

discriminating against any worker for the purpose s of interfering with any attempt to comply 7485

with the requirements of this part, or because the worker ha s made a complaint, testified, 7486

assisted, or participated in any manner in an investigation, proceed ing, or hearing pursuant to this 7487

part. 7488

(6) There are potential sources of pesticide exposure on ag ricultural establishments and 7489

pesticides and/or pesticide re sidues may be encountered du ring work activities. Pesticide 7490

residues may be on or in plants, soil, irrigation water, tractors, application equipment, or used 7491

personal protective equipment. Pesticides can al so drift through air fr om nearby applications. 7492

Maintain a safe distance from nearby pesticide applications and leave the area immediately if 7493

pesticide sprays are contacting you. 7494

(7) Pesticides can cause illness or injury if they enter your body. Pesticides can enter the 7495

body by getting them on your skin or in your eyes , by swallowing them, or by breathing in their 7496

vapors. 7497

(8) There are potential hazards from toxicity and exposure that pesticides present to 7498

workers, including acute and chronic illnesses and effects, delayed effects, and sensitization. 7499

(9) There are potential hazards to children and pregnant women from pesticide exposure. 7500

(10) When working near pesticides or in pe sticide treated areas wear work clothing that 7501

protects the body from pesticide residues and always wash hands before eating, drinking, using 7502

chewing gum or tobacco, or using the toilet. 7503*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review ***

Page 340 of 340 [RIN 2070–AJ22] (11) Wash or shower with soap and water, shampoo hair, and change into clean clothes as 7504

soon as possible after working near or in pesticide treated areas. 7505

(12) There are potential hazards from the pesticide residues that may be on work 7506

clothing. Wash work clothes be fore wearing them again, and always wash work clothes 7507

separately from other clothes. 7508

(13) Pesticides may cause skin rashes or hurt your eyes, nose or throat. Pesticides can 7509

make you feel sick in different ways, such as headache or dizziness, muscles pain or cramps, 7510

nausea or vomiting, sweating, droolin g, fatigue, or trouble breathing. 7511

(14) Wash immediately in the nearest clean wa ter if pesticides are spilled or sprayed on 7512

the body. Shower, shampoo hair, and change into clean clothes as soon as possible. If a pesticide 7513

gets in your eyes, hold them open an d rinse with a gentle stream of cool water. Rinse eyes for 15 7514

minutes. 7515

(15) If you or someone you work with gets sick while working, tell your employer right 7516

away. If you suspect you have been injured or made ill from pesticides, get medical help as soon 7517

as possible. If you have been injured from pes ticides while working, your employer must provide 7518

emergency transportation from the establishment to a nearby medical facility and provide 7519

information about the pesticide or pes ticides that may have made you sick. 7520