8118 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 110

[SD–94–001]

RIN 0581–AB22

Recordkeeping Requirements for

Certified Applicators of Federally

Restricted Use Pesticides

AGENCY: Agricultural Marketing Service

(AMS), USDA.

ACTION: Final rule.

SUMMARY: The Agricultural Marketing

Service, United States Department of

Agriculture, is amending its regulations

governing recordkeeping of federally

restricted use pesticides by certified

applicators. The final regulations revise

the definitions of the terms ‘‘medical

emergency’’ and ‘‘licensed health care

professional,’’ provide new

requirements for recording the location

of ‘‘spot applications’’ of federally

restricted use pesticides, reduce the

time period for a certified applicator to

make a record of the application of a

federally restricted use pesticide, clarify

the circumstances under which licensed

health care professionals may obtain,

utilize, and release restricted use

pesticide records or record information,

and clarify the penalty provisions in the

regulations. The changes to the rule

ensure that the regulations are

consistent with the objectives of section

1491 of the Food, Agriculture,

Conservation, and Trade Act of 1990.

The changes should further ensure

accuracy of records of the application of

federally restricted use pesticides, and

improve the ability of licensed health

care professionals to provide medical

treatment to an individual who may

have been exposed to a federally

restricted use pesticide.

EFFECTIVE DATE: May 11, 1995.

FOR FURTHER INFORMATION CONTACT:

Bonnie Poli, Chief, Pesticide Records

Branch, Science Division, AMS, 8700

Centreville Road, Suite 200, Manassas,

VA 22110, 703–330–7826.

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been determined to be

significant for purposes of Executive

Order 12866 and therefore has been

reviewed by OMB.

This rule also has been reviewed

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). This rule will (1)

revise certain definitions within the

regulations; (2) require the location of

spot applications of federally restricted

use pesticides be designated as ‘‘spot

application’’ followed by a concise

description of location and treatment;

(3) reduce the time period within which

the information required by the

regulations must be recorded; (4) clarify

the availability of pesticide record

information to facilitate medical

treatment or first aid; (5) clarify the

utilization and release of pesticide

records or record information by

licensed health care professionals; and

(6) clarify the penalty provisions.

The Administrator of AMS has

determined that approximately 1.3

million certified pesticide applicators

(980,000 private and 300,000

commercial applicators) will be affected

by this final rule. However, we do not

anticipate that any of the revisions to

the regulations or additional

requirements will result in any

significant additional economic impact

on certified applicators of federally

restricted use pesticides. The

amendments to the rule will not

increase the amount of time necessary

for a certified applicator to record the

information required by the regulations.

Although the regulations will require

certified applicators to record a concise

description of the location of a ‘‘spot

application,’’ this requirement does not

significantly increase the time to make

a record.

Under these circumstances, the

Administrator of the Agricultural

Marketing Service has determined that

this action will not have a significant

economic impact on a substantial

number of small entities.

Executive Order 12778

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This rule: (1) will not preempt

any state or local laws, regulations, or

policies, unless they present an

irreconcilable conflict with this rule; (2)

will not have any retroactive effect; and

(3) will not require administrative

proceedings before parties may file suit

challenging this rule.

Paperwork Reduction Act

In accordance with Section 3507 of

the Paperwork Reduction Act of 1980

(44 U.S.C. 3507), the recordkeeping

provisions included in this rule have

been approved by the Office of

Management and Budget (OMB),

number 0581–0164.

Background

As part of the Food, Agriculture,

Conservation, and Trade Act of 1990 (7

U.S.C. 136i-1), hereinafter referred to as

the FACT Act, Congress mandated the

establishment by the Secretary of

Agriculture, in consultation with the

Administrator of the Environmental

Protection Agency, of requirements for

recordkeeping by all certified

applicators of federally restricted use

pesticides.

The regulations at 7 CFR part 110,

‘‘Recordkeeping Requirements for

Certified Applicators of Federally

Restricted Use Pesticides,’’ (hereinafter

referred to as the regulations) require

certified pesticide applicators to

maintain records of federally restricted

use pesticide applications for a period

of 2 years. The regulations also provide

for access to pesticide records or record

information by federal or state officials,

or by licensed health care professionals

when needed to treat an individual who

may have been exposed to restricted use

pesticides, and penalties for

enforcement of the recordkeeping and

access provisions. The regulations

became effective on May 10, 1993.

After publication of the regulations,

AMS proceeded with the

implementation of a national program

for recordkeeping of federally restricted

use pesticides. Early in the

implementation phase of the AMS

recordkeeping program, state regulatory

agencies and others raised issues

involving specific interpretations of the

regulations. A lawsuit was filed against

the Secretary of Agriculture and the

Administrator of the Environmental

Protection Agency by the National

Coalition Against the Misuse of

Pesticides and others. The lawsuit

challenged the substance of limited

portions of the final regulations

promulgated by AMS.

Proposed Rule

After a thorough review of the

regulations and consideration of the

issues raised by the lawsuit, we

published a document on April 6, 1994,

in the Federal Register (59 FR 16400–

16403), proposing to amend the

recordkeeping regulations for federally

restricted use pesticides.

Comments on the Proposed Rule

AMS solicited comments concerning

our proposal for a 60 day comment

period ending June 6, 1994. We received

47 comments from certified pesticide

applicators, medical professionals,

agricultural and farmworker

organizations, State Departments of

Agriculture, State Cooperative

Extension Services and other

individuals and groups. The comments

received and our responses to those

comments are as follows.
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8119

Section 110.2—Definitions

Licensed Health Care Professional

The current regulations define

‘‘licensed health care professional’’ as

‘‘a physician, nurse, emergency medical

technician or other qualified individual,

licensed by a State to provide medical

treatment.’’

AMS proposed to amend the

definition of a ‘‘licensed health care

professional’’ to mean ‘‘a physician,

nurse, emergency medical technician or

other qualified individual, licensed or

certified by a state to provide medical

treatment.’’ AMS proposed this

amendment to clarify our intention to

include qualified individuals who have

been certified by a state to provide

medical treatment in the definition of

‘‘licensed health care professional.’’

Many comments supported the

proposed change in the definition citing

the need to include all individuals who

are either state certified or licensed, and

are qualified to provide medical

treatment in cases of pesticide related

illness in the definition of ‘‘licensed

health care professional.’’ For example,

one commentor stated, ‘‘the proposed

definition recognizes the realities of

modern health care, in that many tasks

are performed by paraprofessionals and

other persons working under the

direction of licensed professionals.’’

Another commentor stated, ‘‘* * *

often the first responder for medical

emergencies or medical care is not a

licensed health care professional. The

definition needs to be broadened to

include other professionals to ensure

greater access to immediate and

appropriate medical treatment.’’

AMS agrees that under some

circumstances certified individuals are

qualified to provide medical treatment

for pesticide related exposures. Some

states use the term ‘‘certified’’ and

‘‘licensed’’ interchangeably. For

example, a ‘‘licensed nurse practioner’’

in one state may be classified as a

‘‘certified nurse practioner’’ in another

state. Therefore, this final rule amends

the definition of ‘‘licensed health care

professional’’ to include any qualified

individuals certified by a state to

provide medical treatment. However,

individuals who have been certified

only to provide first aid or

cardiopulmonary resuscitation (CPR)

through organizations such as the

American Red Cross are not included in

the definition of ‘‘licensed health care

professional’’ in this final rule.

AMS also received comments which

expressed concerns that allowing access

by ‘‘certified’’ individuals would greatly

expand access to private record

information to individuals who are not

qualified to provide proper treatment for

pesticide related illnesses. One

commentor stated, ‘‘* * * there are 23

different health care professionals

certified by the state including such

professions as: Athletic Training,

Chiropractic, Mental Health Practice,

Physical Therapy and Psychology.

Under the proposed changes, these

professionals would be able to request

records and release the information.

This change would not increase health

protection, but rather provide an avenue

for non-related health care professionals

to have access to private records.’’

We agree with comments received

expressing concerns that certified

individuals such as physical or athletic

therapists should not be able to request

pesticide record information. We are

addressing these concerns in section

110.5(a) by allowing only the attending

licensed health care professional, or an

individual acting under the direction of

the attending licensed health care

professional, access to record

information. This amendment to section

110.5(a) should eliminate the request for

pesticide record information by

individuals who are not qualified to

provide medical treatment for pesticide

related injuries or illness.

For these reasons, we are adopting the

proposed language. ‘‘Licensed health

care professional’’ shall be defined as ‘‘a

physician, nurse, emergency medical

technician, or other qualified

individual, licensed or certified by a

State to provide medical treatment.’’

Medical Emergency

The current regulations define

‘‘medical emergency’’ as ‘‘injuries or

illnesses which require immediate

medical attention to prevent lifethreatening or disabling conditions.’’

AMS proposed to change the

definition of ‘‘medical emergency’’ after

concerns were raised that the definition

was too restrictive and could hinder

medical treatment by licensed health

care professionals of individuals who

may have been exposed to a federally

restricted use pesticide. It was not the

intent of AMS to limit medical

treatment of persons who may have

been exposed to a restricted use

pesticide. Therefore, AMS proposed that

the term ‘‘medical emergency’’ be

defined as ‘‘a situation that requires

immediate medical treatment or first

aid.’’

AMS received 27 comments

concerning the proposed change to the

definition of ‘‘medical emergency.’’ The

commentors who supported the

proposed definition stated that the

current definition was too restrictive.

For example, one commentor stated that

the proposed definition ‘‘* * * ensures

that all instances of pesticide related

illnesses can be appropriately dealt

with; that they do not get omitted

inadvertently due to an overly narrow

definition.’’ Another commentor stated,

‘‘Expanding this definition ensures the

appropriate care and medical response

for all pesticide related illnesses.’’

Commentors who opposed the

proposed change stated that the current

and proposed definitions of ‘‘medical

emergency’’ are too broad because they

encompass illnesses or injuries that

have nothing to do with possible

pesticide poisonings. One of these

commentors stated that ‘‘The definition

should refer to and be limited to the

related pesticide situation to avoid

confusion and misunderstanding.’’

However, the comments opposing the

change to the definition did support

providing the record information when

appropriate for pesticide related illness.

AMS agrees that the current definition

of ‘‘medical emergency’’ is too

restrictive and could hinder appropriate

medical treatment to individuals who

may have been exposed to a federally

restricted use pesticide. After

considering the comments, we have

adopted a definition that is less

restrictive than the current definition

and provides for more appropriate

access to record information for a

medical emergency. The definition of

‘‘medical emergency’’ in the final rule

encompasses situations that require

immediate medical treatment or first aid

as set forth in the proposal. Further, in

response to the comments which stated

that the definition was too broad, we

added a phrase which limits the

definition of medical emergency to

situations that require treatment or first

aid ‘‘to treat possible symptoms of

pesticide poisoning or exposure.’’

Therefore, this final rule amends the

definition of ‘‘medical emergency’’ to

read as follows: ‘‘A situation that

requires immediate medical treatment

or first aid to treat possible symptoms of

pesticide poisoning or exposure.’’

Section 110.3(a)(6)—Spot Applications

The current pesticide recordkeeping

regulations provide reduced

requirements for recording information

for ‘‘spot applications.’’ Section

110.3(a)(6) provides that applications of

restricted use pesticides made on the

same day in a total area of less than onetenth (1/10) of an acre require the

following elements be recorded: (1)

Brand or product name and EPA

registration number; (2) total amount

applied; (3) location must be designated

as ‘‘spot application’’; and (4) the date

of application. Section 110.3(a)(6) does
8120 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

not apply to records maintained for

greenhouse and nursery applications.

The reduced requirements for

recordkeeping information for ‘‘spot

applications’’ were intended to provide

certified applicators with an incentive

to record small spot applications on

noxious weeds or similar type

applications, without recording each

location, due to the usually small

amount of pesticide associated with a

spot application.

After concerns were raised that the

required spot application record

information was not adequate for

medical treatment because a specific

location was not required to be recorded

for each spot application, AMS

proposed to delete section 110.3(a)(6),

the spot application record element. By

deleting section 110.3(a)(6), spot

applications would be recorded in the

same manner as all other federally

restricted use pesticide applications.

AMS received 35 comments

addressing the deletion of the spot

application provision. Comments which

supported the deletion of the spot

application provision generally stated

that specific locations can provide

important information for medical

treatments. For example one commentor

stated, ‘‘In cases where an individual

may have been poisoned by a spot

application, it may be critically

important to know the specific location

of the application.’’

Comments opposing the proposed

change stated that it would be extremely

difficult to record the specific location

of a spot application. For example one

commentor stated that ‘‘It would be very

difficult, if not impossible, to provide

the exact legal description of the area

treated.’’ Other commentors were

concerned that the proposed change

would be extremely burdensome to

certified applicators, increase their

workload and operating costs, and

therefore have an economic impact.

Other commentors stated that if the

recordkeeping requirements become too

burdensome, the net result would be

non-compliance.

AMS recognizes the importance of

location information where an entire

field or area has been treated. AMS also

recognizes that, in some instances,

knowing that a spot application was

performed could be valuable

information when needed to determine

if a possible pesticide exposure could

have occurred in a field or area.

Moreover, because the purpose of a

spot application is to apply pesticide to

a small area targeting a specific pest,

such as noxious weeds or an ant mound,

it would be impractical to require

certified applicators to supply a precise

description of each application within a

field or production area, in order to

make an exact determination if a

possible pesticide exposure occurred.

In order to provide information on the

location of spot pesticide applications,

and avoid a cumbersome recording

requirement for such spot applications,

this final rule maintains the spot

application provision in the regulations,

but requires a more detailed description

of the location of spot applications to be

recorded than is currently required by

section 110.3(a)(6). This final rule

requires the certified applicator to

provide location, designated as ‘‘spot

application,’’ followed by a concise

description of the location and

treatment for spot applications of a

federally restricted use pesticide. For

example, a certified applicator who

applied pesticides for noxious weeds

could record the location and treatment

as ‘‘spot application,’’ followed by a

concise description such as ‘‘treated

thistle over entire farm acreage;’’ a

certified applicator who treated for fire

ants could record the location of the

application by stating ‘‘spot application,

sprayed fire ant mounds on pastures of

lower creek farm.’’ The description of

the location of spot applications should

assist licensed health care professionals

to determine whether an individual has

been exposed to a federally restricted

use pesticide.

Additionally we are making other

changes for clarification and

consistency between the recordkeeping

requirements for spot applications and

those for other applications set forth at

section 110.3(a)(1–5) which is

redesignated in this final rule as section

110.3(a). We are amending section

110.3(a)(6)(iv) from ‘‘the date of

application’’ to ‘‘the month, day, and

year on which the restricted use

pesticide application occurred.’’ This

language is consistent with that used in

section 110.3(a)(4).

Accordingly, this final rule amends

the spot application provision in section

110.3(a)(6), which is redesignated in

this final rule as section 110.3(b), to

require certified applicators to maintain

records of applications of restricted use

pesticides made on the same day in a

total area of less than one-tenth (1/10)

of an acre. These records must include,

for the application, the brand or product

name and EPA registration number;

total amount applied; location,

designated as ‘‘spot application,’’

followed by a concise description of

location and treatment; and the month,

day, and year on which the restricted

use pesticide application occurred. This

final rule does not change requirements

as previously established for greenhouse

and nursery applications of restricted

use pesticides. The provisions for spot

applications do not apply to

applications of restricted use pesticides

in greenhouses and nurseries. Instead,

certified applicators who make

applications in greenhouses and

nurseries are required to keep all the

data elements required by section

110.3(a).

Section 110.3(b)—Time for Making an

Official Record

The current regulations provide that

the information required for a record

shall be recorded within 30 days

following the pesticide application.

Concerns were raised regarding the

accuracy of the records for both

collecting information for a pesticide

use data base and for medical treatment

if application information was only

required to be recorded within 30 days

following the pesticide application.

AMS responded by proposing that a

record of the application of a restricted

use pesticide be made within 7 days

following the pesticide application.

AMS received 41 comments on this

issue. Comments ranged from

suggestions that a record be completed

upon application, within 24 hours,

shortened to 2 days, 3 days, 5 days, 14

days and maintained at the 30 day time

period.

Some commentors supported

requiring certified applicators to record

the required pesticide information

within 7 days or less after application of

the pesticide in order to have

information available for medical

treatment of possible pesticide

exposure. AMS supports the need to

have accurate information available in

cases of medical treatment and has

addressed these concerns by requiring

in section 110.5(a), as amended by this

final rule, that certified applicators

provide the record information

promptly to the atttending licensed

health care professional when necessary

to provide medical treatment or first aid,

and immediately when the attending

licensed health care professional

determines that there is a medical

emergency.

AMS disagrees with those

commentors who stated that pesticide

application information must be

recorded shortly after the pesticide has

been applied so that it can be available

for medical treatment. The current

regulations require certified applicators

to provide accurate record information

for purposes of providing medical

treatment or first aid, in accordance

with section 110.5(a), whether or not the

time to make a written record has

elapsed. This final rule amends the
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8121

regulations by adding language which

clarifies the certified applicator’s

responsibility to provide federally

restricted use pesticide record

information for medical treatment.

AMS also received comments

supporting allowing 30 days to record

pesticide application information

because it was consistent with section

1491(a)(2) of the FACT Act which

requires certified commercial

applicators to provide a copy of a

restricted use application record within

30 days of the application. Although the

FACT Act requires certified commercial

applicators to provide a copy of the

record information to their clients

within 30 days of application, it does

not provide a time period within which

a certified applicator, private or

commercial, shall make a record.

In addition, numerous commentors

supported the 30 day period to make a

record because they believed the 7 days

did not provide certified applicators

adequate time to make a record in peak

production periods. AMS has

reevaluated the proposed 7 day time

period and agrees that during peak

production periods certified applicators

could need more time to make accurate

records due to the long hours many

applicators spend in the field during

those periods.

Therefore, to provide a balanced

approach to assure accurate information

for data collection on federally

restricted use pesticides and provide

adequate time for certified applicators to

make a record, we are amending section

110.3(b), which is redesignated in this

final rule as section 110.3(c), to require

that certified applicators must complete

the record within 14 days following the

pesticide application. However, whether

or not the written record has been

completed, the certified applicator shall

provide the information to be recorded

in accordance with section 110.5(a).

AMS also received comments from

certified commercial applicators

objecting to the change in the time

frame to provide copies of restricted use

application records to clients from 30

days to the proposed 7 days. We did not

propose to change, nor does this final

rule change the time within which

certified commercial applicators must

provide clients with copies of records of

restricted use applications. Certified

commercial applicators are still given 30

days to provide a copy of the federally

restricted use application record to their

clients.

AMS also received comments

requesting clarification of the use of the

term ‘‘official record’’ in the

supplementary information in the

proposed rule. The use of the term

‘‘official record’’ was incorrect. Its use

was our attempt to describe the

recording of a pesticide application as

required under 7 CFR part 110.

Section 110.5(a)—Availability of

Records To Facilitate Medical

Treatment

Currently, section 110.5(a) of the rule

states: ‘‘When a licensed health care

professional determines that any record

of the application of restricted use

pesticide required to be maintained

under § 110.3 of this part is necessary to

provide medical treatment or first aid to

an individual who may have been

exposed to the restricted use pesticide

for which the record is maintained, the

certified applicator required to maintain

the record shall provide the record

information and any available label

information promptly to the licensed

health care professional. If it is

determined by a licensed health care

professional to be a medical emergency,

the record information of the restricted

use pesticide relating to the medical

emergency shall be provided

immediately.’’

AMS proposed to amend section

110.5(a) to address concerns that if a

strict interpretation was applied to this

section, it would require the licensed

health care professional to personally

make the record information request

and possibly hinder access to record

information and medical treatment.

AMS never intended to prevent an

individual acting under the direction of

the attending licensed health care

professional from requesting record

information. We are aware that, in some

instances, the attending licensed health

care professional may rely on a person

acting under his/her direction to make

the contacts necessary to obtain the

pesticide record information.

In order to clarify the regulations

concerning the availability of pesticide

record information to facilitate medical

treatment, AMS proposed to amend

section 110.5(a) to provide that either

the licensed health care professional or

an individual acting under the direction

of the attending licensed health care

professional could request record

information when necessary to provide

medical treatment or first aid. The

proposed amendment reads as follows:

‘‘When a licensed health care

professional, or an individual acting

under the direction of the attending

licensed health care professional,

determines that any record of the

application of restricted use pesticide

required to be maintained under § 110.3

of this part is necessary to provide

medical treatment or first aid to an

individual who may have been exposed

to the restricted use pesticide for which

the record is or will be maintained, the

certified applicator required to maintain

the record shall promptly provide the

record information and any available

label information. If it is determined by

a licensed health care professional, or

an individual acting under the direction

of the attending licensed health care

professional, to be a medical emergency,

the record information of the restricted

use pesticide, relating to the medical

emergency, shall be provided

immediately.’’

AMS received 28 comments regarding

proposed section 110.5(a). Most of the

commentors supported the proposed

change. Additionally, several

commentors supported the concept of

the proposed amendment, but suggested

changes in the proposed language to

decrease the possibility of unqualified

licensed health care professionals

obtaining the record information.

After consideration of the comments,

AMS agrees that the proposed language

could be more specifically worded to

address comments received regarding

access to records by licensed health care

professionals who may not be qualified

to provide treatment for pesticide

related illness. Therefore, we are adding

the word ‘‘attending’’ to licensed health

care professional to be consistent

throughout the rule and help eliminate

request for records or record

information from individuals who may

be licensed or certified by a state to

provide medical treatment or first aid,

but are not qualified to provide medical

treatment for possible pesticide injury

or illness. This final rule amends

section 110.5(a) to read as follows:

When the attending licensed health

care professional, or an individual

acting under the direction of the

attending licensed health care

professional, determines that any record

of the application of a restricted use

pesticide required to be maintained

under § 110.3 is necessary to provide

medical treatment or first aid to an

individual who may have been exposed

to the restricted use pesticide for which

the record is or will be maintained, the

certified applicator required to maintain

the record shall promptly provide the

record information and any available

label information. If it is determined by

the attending licensed health care

professional, or an individual acting

under the direction of the attending

licensed health care professional, to be

a medical emergency, the record

information of the restricted use

pesticide, relating to the medical

emergency, shall be provided

immediately.
8122 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

Section 110.5(b)—Release of Record

Information by Licensed Health Care

Professionals

Under the current regulations,

licensed health care professionals may

release record information obtained

through section 110.5(a) only when

necessary to provide medical treatment

or first aid to an individual who may

have been exposed to the restricted use

pesticide for which the record is

maintained. Section 110.5(b) provides:

‘‘No licensed health care professional

shall release any record or information

from the record obtained under

paragraph (a) of this section except as

necessary to provide medical treatment

or first aid to an individual who may

have been exposed to the restricted use

pesticide for which the record is

maintained.’’

Due to concerns that section 110.5(b)

was too restrictive, AMS proposed to

expand the circumstances under which

the pesticide record information could

be utilized and released, and to clarify

who had the authority to release this

information. Accordingly, AMS

proposed to amend section 110.5(b) to

provide: A licensed health care

professional, or an individual acting

under the direction of the attending

licensed health care professional, may

utilize and release the record or record

information obtained under paragraph

(a) of this section when necessary to

provide medical treatment or first aid to

an individual or individuals who may

have been exposed to the restricted use

pesticide for which the record is or will

be maintained. Further utilization and

release of such record or record

information is limited to licensed health

care professionals who may use it: (1)

To submit pesticide poisoning incident

reports to appropriate State or Federal

agencies, or (2) where consideration of

medical ethics may necessitate such

utilization and release.

In general, the comments received

supported the proposed amendments to

section 110.5(b). However, many

comments expressed concern with the

use of the term ‘‘medical ethics’’ as a

criterion for the release of pesticide

record information. One commentor

stated, ‘‘* * * matters of ethics are, in

some respects, shared by a group, but

are also inherently personal and

subjective.’’ Numerous commentors also

thought that the use of ‘‘medical ethics’’

was vague and were opposed to the

proposal unless the phrase was clarified

as to what constitutes ‘‘consideration of

medical ethics.’’ However, the

comments generally supported the use

of record information by the licensed

health care professional if it would

prevent further pesticide health hazards.

AMS agrees with the comments

stating that the attending licensed

health care professional in some

instances should be able to utilize

pesticide record information to prevent

additional poisoning or injuries. AMS

also agrees with the commentors that

stated that the use of the term ‘‘medical

ethics’’ is vague and open for broad

interpretation. Therefore, the amended

language deletes the use of the phrase

‘‘medical ethics.’’ Accordingly, this final

rule provides the attending licensed

health care professional with the ability

to release pesticide record information

to appropriate agencies when necessary

to prevent further injury or illness.

In addition, comments expressed the

need to allow licensed health care

professionals the flexibility to meet

requirements of pesticide poisoning

incident reporting. Again, comments

generally supported the concept.

However, some commentors were

concerned about the certified

applicator’s right to confidentiality in

the process of reporting.

AMS agrees that the proposed

language can be improved in order to

address many of the comments and still

provide the needed flexibility to assure

that licensed health care professionals

can utilize and release the pesticide

record information for appropriate

reasons.

Therefore, we are amending section

110.5(b) to read as follows:

(1) The attending licensed health care

professional, or an individual acting

under the direction of the attending

licensed health care professional, may

utilize and release the record or record

information obtained under paragraph

(a) of this section when necessary to

provide medical treatment or first aid to

an individual who may have been

exposed to the restricted use pesticide

for which the record is or will be

maintained. (2) The attending licensed

health care professional may release the

record or record information to

appropriate federal or state agencies that

deal with pesticide use or any health

issue related to the use of pesticides

when necessary to prevent further

injury or illness. (3) A licensed health

care professional may release the record

or record information to submit

pesticide poisoning incident reports to

appropriate state or federal agencies.

Section 110.7—Penalties

Section 110.7 provides that ‘‘any

certified applicator who violates 7

U.S.C. 136i–1 (a), (b), or (c) shall be

liable for a civil penalty of not more

than $500 in the case of the first offense,

and of not less than $1,000 in the case

of each subsequent offense, except that

the penalty shall be less than $1,000 for

a second offense if the Administrator

determines that the certified applicator

made a good faith effort to comply with

this part.’’

Several state pesticide regulatory

agencies had questions regarding the

application of the penalty provisions in

section 110.7. After reexamining the

issue, AMS proposed to amend section

110.7 to eliminate any ambiguity and

make it clear that the Administrator of

AMS, or the Administrator’s designee,

has flexibility in assessing civil

penalties. The proposed changes

paralleled the language in subsection (d)

of the FACT Act. AMS proposed to

amend section 110.7 to provide that

‘‘any certified applicator who violates

the requirements of 7 U.S.C. 136i–1 (a),

(b), or (c) shall be subject to a civil

penalty of not more than $500 in the

case of the first offense, and in the case

of subsequent offenses, be subject to a

fine of not less than $1,000 for each

violation, except that the penalty shall

be less than $1,000 if the Administrator,

or his designee, determines that the

certified applicator made a good faith

effort to comply with this Part.’’

Numerous comments supported the

proposed amendment. For example, one

commentor stated, ‘‘* * * the flexibility

to tailor penalties to specific situations

and consider the effort made to comply

with the regulations are essential

elements of good program

implementation and enforcement.’’

Comments opposing the proposed

change asserted that the Secretary of

Agriculture should not have the

discretion to waive the fine. AMS

disagrees. The FACT Act provides the

Secretary discretion to determine

whether or not a penalty shall be

assessed for violations of the FACT Act,

and to assess a penalty of less than

$1,000 if the Secretary determines that

the certified applicator made a good

faith effort to comply.

Therefore, we are adopting the

proposed language, with some minor

changes for clarity. This final rule

amends section 110.7 to read as follows:

‘‘Any certified applicator who violates

the requirements of 7 U.S.C. 136i–1 (a),

(b), or (c) or this part shall be subject to

a civil penalty of not more than $500 in

the case of the first offense, and in the

case of subsequent offenses, be subject

to a civil penalty of not less than $1,000

for each violation, except that the civil

penalty shall be less than $1,000 if the

Administrator determines that the

certified applicator made a good faith

effort to comply with 7 U.S.C. 136i–1

(a), (b), and (c) and this part.’’
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8123

Other Comments

We also received a number of

comments which are beyond the scope

of this rulemaking proceeding, and

therefore we are not addressing those

comments in this final rulemaking

document.

Conclusion

Based upon the rationale in the

proposed rule and this rulemaking

document, we are adopting the

provisions of the proposal as a final

rule, except as previously discussed in

this document and except for minor

editorial changes for clarity.

List of Subjects in 7 CFR Part 110

Pesticide and pests, reporting and

recordkeeping requirements.

Therefore, 7 CFR part 110, is amended

as follows:

PART 110—RECORDKEEPING ON

RESTRICTED USE PESTICIDES BY

CERTIFIED APPLICATORS; SURVEYS

AND REPORTS

1. The authority citation for part 110

is revised to read as follows:

Authority: 7 U.S.C. 136a(d)(1)(c), 136i–1,

and 450; 7 CFR 2.17, 2.50.

2. In § 110.2, the definition of the term

‘‘licensed health care professional’’ is

amended by adding the phrase ‘‘or

certified’’ immediately following the

word ‘‘licensed’’.

3. In § 110.2, the definition of the term

‘‘medical emergency’’ is revised to read

as follows:

§ 110.2 Definitions.

* * * * *

Medical emergency. A situation that

requires immediate medical treatment

or first aid to treat possible symptoms of

pesticide poisoning or exposure.

* * * * *

4. In § 110.2, the definition of the

word ‘‘recordkeeping’’ is amended by

removing the reference to ‘‘§ 110.3(a)(1)

through (6) of this part’’ and adding

‘‘§ 110.3(a) and (b)’’ in its place.

5. Section 110.3 is amended as

follows:

a. Paragraph (a) is revised as set forth

below.

b. Paragraphs (b) through (g) are

redesignated as paragraphs (c) through

(h) respectively.

c. New paragraph (b) is added to read

as set forth below.

d. Redesignated paragraph (c) is

revised as set forth below.

§ 110.3 Records, retention, and access to

records.

(a) Certified applicators of restricted

use pesticides shall maintain records of

the application of restricted use

pesticides. Except as provided in

paragraph (b) of this section, these

records shall include the following

information for each application:

(1) The brand or product name, and

the EPA registration number of the

restricted use pesticide that was

applied;

(2) The total amount of the restricted

use pesticide applied;

(3) The location of the application, the

size of area treated, and the crop,

commodity, stored product, or site to

which a restricted use pesticide was

applied. The location of the application

may be recorded using any of the

following designations:

(i) County, range, township, and

section;

(ii) An identification system utilizing

maps and/or written descriptions which

accurately identify location;

(iii) An identification system

established by a United States

Department of Agriculture agency

which utilizes maps and numbering

system to identify field locations; or

(iv) The legal property description.

(4) The month, day, and year on

which the restricted use pesticide

application occurred; and

(5) The name and certification

number (if applicable) of the certified

applicator who applied or who

supervised the application of the

restricted use pesticide.

(b) Certified applicators shall

maintain records of the application of

restricted use pesticides made on the

same day in a total area of less than onetenth (1⁄10) of an acre. Except for

applications of restricted use pesticides

in greenhouses and nurseries, to which

the requirements of paragraph (a) of this

section apply, these records shall

include the following information for

the application:

(1) The brand or product name, and

the EPA registration number of the

restricted use pesticide that was

applied;

(2) The total amount of the restricted

use pesticide applied;

(3) The location of the application,

designated as ‘‘spot application,’’

followed by a concise description of

location and treatment; and

(4) The month, day, and year on

which the restricted use pesticide

application occurred.

(c) The information required in this

section shall be recorded within 14 days

following the pesticide application.

However, whether or not the written

record has been completed, the certified

applicator shall provide the information

to be recorded in accordance with

§ 110.5(a).

* * * * *

6. Section 110.5 is revised to read as

follows:

§ 110.5 Availability of records to facilitate

medical treatment.

(a) When the attending licensed

health care professional, or an

individual acting under the direction of

the attending licensed health care

professional, determines that any record

of the application of any restricted use

pesticide required to be maintained

under § 110.3 is necessary to provide

medical treatment or first aid to an

individual who may have been exposed

to the restricted use pesticide for which

the record is or will be maintained, the

certified applicator required to maintain

the record shall promptly provide the

record information and any available

label information. If it is determined by

the attending licensed health care

professional, or an individual acting

under the direction of the attending

licensed health care professional, to be

a medical emergency, the record

information of the restricted use

pesticide, relating to the medical

emergency, shall be provided

immediately.

(b)(1) The attending licensed health

care professional, or an individual

acting under the direction of the

attending licensed health care

professional, may utilize and release the

record or record information obtained

under paragraph (a) of this section when

necessary to provide medical treatment

or first aid to an individual who may

have been exposed to the restricted use

pesticide for which the record is or will

be maintained.

(2) The attending licensed health care

professional may release the record or

record information to appropriate

federal or state agencies that deal with

pesticide use or any health issue related

to the use of pesticides when necessary

to prevent further injury or illness.

(3) A licensed health care professional

may release the record or record

information to submit pesticide

poisoning incident reports to

appropriate state or federal agencies.

7. Section 110.7 is revised to read as

follows:

§ 110.7 Penalties.

Any certified applicator who violates

7 U.S.C. 136i–1 (a), (b), or (c) or this part

shall be subject to a civil penalty of not

more than $500 in the case of the first

offense, and in the case of subsequent

offenses, be subject to a civil penalty of

not less than $1,000 for each violation,

except that the civil penalty shall be less
8124 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

than $1,000 if the Administrator

determines that the certified applicator

made a good faith effort to comply with

7 U.S.C. 136i–1 (a) (b), and (c) and this

part.

Dated: February 2, 1995.

Lon Hatamiya,

Administrator.

[FR Doc. 95–3287 Filed 2–9–95; 8:45 am]

BILLING CODE 3410–02–P