2820 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 170

[OPP–250097; FRL–4901–4]

RIN No. 2070–AC69

Pesticide Safety Training for Workers

and Handlers; Grace Period and

Retraining Interval

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to revise the

Worker Protection Standard (WPS) for

agricultural pesticides by providing

three options for a training grace period

(number of days of employment before

workers must be trained) and a phasein period associated with the grace

period. EPA is also proposing options

for the retraining interval (number of

years before workers or handlers must

be retrained). The objective of the

proposed changes to the Standard is to

help meet the goal of providing a

trained workforce capable of better

protecting itself against pesticide illness

and injury without imposing

unreasonable costs on agricultural

employers.

DATES: Written comments, identified by

the document control number OPP–

250097, must be received on or before

February 10, 1995. EPA does not intend

to extend this comment period.

ADDRESSES: By mail, submit written

comments to: Public Response Section,

Field Operations Division (7506C),

Office of Pesticide Programs,

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460. In

person, bring comments to: Rm. 1132,

CM #2, 1921 Jefferson Davis Highway,

Arlington, VA. Information submitted as

comment concerning this document

may be claimed confidential by marking

any part or all of that information as

‘‘Confidential Business Information’’

(CBI). Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR part 2.

A copy of the comment that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

may be disclosed publicly by EPA

without prior notice. All written

comments will be available for public

inspection in Rm. 1132 at the Virginia

address given above, from 8 a.m. to 4

p.m., Monday through Friday, excluding

legal holidays.

Comments and data may also be

submitted electronically by any of three

different mechanisms: by sending

electronic mail (e-mail) to: DocketOPPTS@epamail.epa.gov; by sending a

‘‘Subscribe’’ message to

listserver@unixmail.rtpnc.epa.gov and

once subscribed, send your comments to

RIN-2070-AC69; or through the EPA

Electronic Bulletin Board by dialing

202-488-3671, enter selection ‘‘DMAIL,’’

user name ‘‘BB—USER’’ or 919-541-

4642, enter selection ‘‘MAIL,’’ user

name ‘‘BB—USER.’’ Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Comments and data will also be

accepted on disks in WordPerfect in 5.1

file format or ASCII file format. All

comments and data in electronic form

must be identified by the docket number

OPP–250097 since all five documents in

this separate part provide the same

electronic address. No CBI should be

submitted through e-mail. Electronic

comments on this proposed rule, but not

the record, may be viewed or new

comments filed online at many Federal

Depository Libraries. Additional

information on electronic submissions

can be found in unit VII. of this

document.

FOR FURTHER INFORMATION CONTACT:

Jeanne Heying, Certification and

Training, and Occupational Safety

Branch (7506C), Office of Pesticide

Programs, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460. Office location and telephone

number: Rm. 1109D, CM #2, 1921

Jefferson Davis Highway, Arlington VA,

Telephone: 703–305–7371.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

This proposal is issued under the

authority of section 25(a) of the Federal

Insecticide, Fungicide, and Rodenticide

Act (FIFRA), 7 U.S.C. 136w(a).

II. Background

This proposed WPS rule amendment

is one of a series of Agency actions in

response to concerns raised since

publication of the final rule in August

1992 by those interested in and affected

by the rule. In addition to this proposed

amendment, EPA is publishing four

other notices soliciting public comment

on concerns raised by various affected

parties. Other actions EPA is

considering include: (1) Modifications

to the requirements for those performing

crop advisor tasks, (2) An exception to

early entry restrictions for irrigation

activities; (3) Reduced restricted entry

intervals (REIs) for low risk pesticides;

and (4) Reduced early entry restrictions

for activities involving limited contact

with treated surfaces.

FIFRA authorizes the EPA to regulate

the sale, distribution, and use of

pesticides in the United States. The Act

requires generally that EPA license by

registration each pesticide product sold

or distributed in the United States, if

use of the pesticide products will not

cause ‘‘unreasonable adverse effects on

the environment,’’ a determination that

takes into account the economic, social,

and environmental costs and benefits of

the use of any pesticide.

In 1992 EPA revised the Worker

Protection Standard (40 CFR part 170)

(57 FR 38102, August 21, 1992) which

is intended to protect agricultural

workers and handlers from risks

associated with agricultural pesticides.

The 1992 WPS superseded the original

WPS promulgated in 1974. The 1992

WPS expanded the scope of the original

WPS to include not only workers

performing hand labor operations in

fields treated with pesticides, but also

workers in or on farms, forests,

nurseries, and greenhouses, as well as

handlers who mix, load, apply, or

otherwise handle pesticides for use at

these locations in the production of

agricultural commodities. The WPS

contains requirements for training,

notification of pesticide applications,

use of personal protective equipment,

restricted entry intervals,

decontamination, and emergency

medical assistance.

In § 170.130(c)(4), the WPS sets out

required training elements for workers,

including information on pesticide

hazards and exposures, signs and

symptoms of pesticide poisoning, how

to obtain emergency medical care,

decontamination measures in case of

exposure and other pesticide hazards

that may arise in the course of their

work.

Section 170.230(c)(4) of the WPS

establishes the required training

elements for handlers. These include

generally the same information as for

workers. However, handlers are

provided additional information related

to their handling activities: the meaning

and format of pesticide labels;

information on personal protective

equipment; signs, symptoms and

treatment for heat-related illness;

handling pesticides and pesticide

containers; environmental

contamination and hazards to non-target

species; and other information on their

responsibilities as handlers. Training for

handlers is more detailed than for

workers, and is targeted specifically

toward handling needs and

responsibilities.

Training for workers or handlers may

be conducted by certified applicators or

other trainers who meet State, Federal,
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules 2821

or Tribal requirements. The agricultural

employer, however, is responsible for

assuring that workers receive required

training and the handler employer is

responsible for assuring that handlers

receive the required training.

To assist agricultural employers in

fulfilling their responsibilities to ensure

training and to provide a uniform

national standard for the conduct of

worker training, EPA and the U.S.

Department of Agriculture have

established a joint training verification

program. Under this program, which

would be administered on a voluntary

basis by States through agreements with

EPA, workers who have been trained

may be issued a training verification

card. The card could be shown to each

agricultural employer who hires the

worker. Under § 170.130(d) possession

of a valid card serves as proof of

training, thus relieving the employer of

having to provide training or to

determine whether and when training is

required.

The training verification program is

beneficial to the agricultural employer

and workers alike in that it provides a

common basis for agreement that

training provided to the worker meets

the requirements of the WPS. EPA

expects the training verification card

program to benefit agricultural

employers because it obviates the need

to train a worker, thus minimizing the

costs of the WPS training requirement.

Without such a card system, the

employer might have to provide training

more frequently and to more workers to

assure that all had received training.

For workers, possession of a card

assures that they will be able to work

immediately without unnecessary delay

for training.

III. Current WPS Training Provisions at

Issue

This proposal addresses three

elements of the worker training

requirements. The three elements are:

the grace period before training must be

provided; the phase-in period for the

grace period for workers; and the

retraining requirement for workers and

handlers.

1. The grace period before training

must be provided. Section

170.130(a)(3)(i) requires agricultural

employers to assure that workers have

been trained in pesticide safety before

their 6th day of entry into areas on the

agricultural establishment that have

been treated with a pesticide or that

have been under a restricted entry

interval (REI) within the previous 30

days.

EPA emphasizes that the grace period

applies only to routine worker training,

not early-entry training or handler

training. No changes are being proposed

or considered for early entry or handler

training.

2. The interim grace period for

workers. The current WPS requires that

the agricultural employer assure that a

worker receives pesticide safety training

before the 6th day of entry into any

treated area on the agricultural

establishment. Section 170.130(a)(3)(ii)

provides for an exception for a 5–year

period until October 20, 1997, during

which time workers would be allowed

to enter treated areas at the

establishment for 15 days before the

employer must assure that they have

been trained. After October 20, 1997, the

15–day grace period is no longer in

effect.

3. The retraining requirement for

workers and handlers. Section

170.130(a)(1) requires that agricultural

employers assure that each worker has

been trained within the previous 5

years. Section 170.230(a)(1) requires

that handler employers assure that each

handler has been trained within the

previous 5 years.

IV. Reasons for this Proposal

The WPS is intended to reduce the

risk of pesticide poisonings and injuries

among agricultural workers and

pesticide handlers through

implementation of appropriate

measures. Pesticide safety training is a

key component of the Standard -

trained, informed workers and handlers

can take steps to avoid exposure or

mitigate harmful pesticide effects,

thereby reducing the number and

severity of pesticide poisonings and

other adverse effects.

Subsequent to promulgation of the

final rule in 1992, the Agency received

comments from farm worker groups

suggesting changes in the grace period

and the retraining interval.

Additionally, the Agency was petitioned

by the National Association of State

Departments of Agriculture (NASDA) to

eliminate the interim grace period. The

Agency also met a number of times with

farm worker groups to hear their

concerns on the worker training

provisions. Following is a summary of

their concerns on the training grace

period and 5–year retraining interval.

A. Training Grace Period

Farm worker groups are concerned

that the current grace period would

result in untrained workers being

harmed on the job. They contrasted the

WPS grace period with the

Occupational Safety and Health

Administration’s (OSHA) Hazard

Communication Standard training

requirement (29 CFR 1910.1200), under

which workers must be trained about

hazardous chemicals in their work area

before first exposure.

States and farm worker groups

asserted that the grace period would be

difficult to enforce. Subsequent to

publication of the WPS, the California

Department of Pesticide Regulation

(CDPR) raised concern about the

anticipated difficulties in enforcing the

training requirement. They asserted that

it may not be feasible to track

accumulated days in treated areas in

anticipation of the required training and

that employers cannot track the

activities of every worker in their

employ.

Additionally, farm worker groups

were concerned that the grace period

could encourage employers to avoid

providing the required training. They

were particularly concerned that,

because of the transient nature of the

agricultural workforce, workers who

move frequently might never be trained

if training were required only after a 5–

day grace period per establishment.

They noted that some workers might not

spend 5 days on any particular

establishment.

Finally, the farm worker groups

argued that all workers should be

entitled to know how to protect

themselves from pesticide residues

before entering treated areas; for training

to be effective in reducing risk, they

argued, training must take place before

possible exposure to pesticides.

B. Five-Year Retraining

Farm worker groups are concerned

that the 5–year retraining interval is too

long to be effective. They assert that

large numbers of workers and handlers,

particularly field labor contractor

employees, might not have regular

access to the safety poster displayed on

the agricultural establishment because

they are hired off the farm and taken

directly to the field. EPA’s confidence in

the safety poster as a means of

reinforcing training, they claim, is

misplaced. Also, many workers and

handlers may not read well (or not be

literate in the poster language), so the

impact of poster messages might be

limited. Qualified trainers assert that

repeat training enhances the retention of

safety training information.

The farm worker groups also

requested a shorter retraining interval.

They pointed to other regulatory

programs under OSHA, EPA, and State

initiatives that require annual

retraining. They also noted that

agricultural employment is seasonal in

nature, and farm workers realistically

cannot be expected to remember
2822 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules

training information for such a long

period of time. The groups asserted that

more frequent retraining is needed for

farm workers who are illiterate or have

poor reading skills, and cannot rely on

written materials to refresh their

training.

In response to these concerns, EPA

proposes to revise the Worker Protection

Standard as described in units V. and

VI. of this document.

V. The Grace Period and Interim Grace

Period

EPA is proposing three options for

consideration and comment: the first

option involves eliminating the 15–day

grace period so that employers would

have to train workers before they enter

a treated area, and providing a 1–year

interim period before the 0– day grace

period would go into effect, the second

option involves shortening the 15–day

grace period so that employers would be

required to train workers between 1 and

5 days after the worker has been hired

and the third option involves requiring

a weekly training program. The Agency

is interested in receiving comments on

all options presented.

(1) Shortening the grace period from

15 to 0 days after a 1 year interim grace

period. The Agency is considering

eliminating the training grace period If

the grace period were eliminated

entirely, all new workers would have to

be trained before entering a treated area.

An interim grace period of 1 year is

being proposed to allow employers to

prepare for the elimination of the grace

period.

Training new workers before any

possible exposure may be the most

protective option. No worker would lack

training because he or she had not

worked enough days with a single

employer. By eliminating the grace

period, it is expected that compliance

would be easier for the employer and

state enforcement officer, because there

would be no need to determine whether

the worker had accumulated the

requisite number of workdays on the

establishment.

A 0–day grace period could result in

the need for more frequent, possibly

daily, training sessions. More frequent

training sessions could result in

increased training costs. Also, workers

may have to be trained more than once

if the employer could not assure that the

worker had already received training.

(2) Shortening the grace period from

15 days to between 1 and 5 days. The

Agency is considering shortening the

grace period from 15 days to between 1

and 5 days. Workers would be trained

earlier and perhaps better able to avoid

or mitigate pesticide exposures. By

shortening the grace period, the

possibility that workers would remain

untrained because they moved

frequently from employer to employer

without accumulating the requisite

number of days at any given

establishment to require training would

decrease.

Shortening the grace period is likely

to increase the costs of training, since

employers with higher rates of turnover

in the workforce would have to

schedule more frequent training

sessions. Any grace period at all could

mean that agricultural employers would

need to track the number of days of

entry each worker has accumulated in

order to determine whether training

must be provided. This could present a

burden which could be substantial

depending on the number of workers

hired at the establishment, and the

number who possess training

verification cards.

(3) Requiring a weekly training

program. The Agency is considering an

option, where an employer would be

required to provide a training session

once a week to all untrained workers.

This option might reduce the instances

of workers entering treated areas before

being trained, while reducing the

training burden on employers by

allowing predictability in providing

training on a scheduled basis. A weekly

training session may also result in less

disruption to field labor activities. Also,

a weekly training session may reduce

cost by allowing for more trainees per

session. For establishments with

employee turnover, a weekly training

session allows employers to

‘‘accumulate’’ new hires over the span

of the week, potentially resulting in

fewer training sessions needed than if

employers were required to train each

employee before applicable field entry.

A weekly training session for untrained

workers may, however, add a

recordkeeping burden to the employer.

The Agency is interested in receiving

information and comments on all

options, particularly the benefits

expected to be gained by shortening the

grace period, as well as expected costs.

Specifically, the Agency is seeking

information on the following: the

practicality and effectiveness of the

options, how the frequency of new hires

may effect the frequency of training

sessions, the rate of turnover in

employment among agricultural workers

and handlers, situations where training

before entry would not be possible, the

risks and/or benefits of providing safety

training information before or after

entering a treated area, the feasibility of

providing training on a short notice to

English and non-English speaking

workers, mechanisms that are available

or will be available to provide training

on short notice, the impact on the

employer and agricultural worker of a 1

year interim grace period before the 0–

day grace period would go into effect,

specific problems caused by eliminating

or shortening the interim grace period 5

years to 1 year and what could be done

to eliminate those problems, what the

regulated community has done to

develop training programs in the 2 years

since the WPS was issued and the

estimated costs of a 0–day, 1 to 5–day

grace period or a weekly training

regimen.

VI. The Retraining Interval for Workers

and Handlers

The Agency is proposing for comment

three options for the retraining interval

for workers and handlers; (1) retaining

the 5 year retraining interval, (2)

shortening the retraining interval from 5

to 3 years or (3) provide annual

retraining.

Since chemical use patterns

frequently change, and new hazards

may be identified for existing chemicals,

a shortened retraining interval would be

helpful in mitigating the potential

hazards to farm workers and handlers.

The cost to employers of providing

training to workers and handlers during

an ‘‘out’’ year (any year after the first

year of implementation) increases as the

retraining period decreases. First year

training costs are unaffected by the

retraining interval. All workers must be

trained during the first year, and

handlers must be trained before they

first handle pesticides. Due to turnover

in the workforce, training after the first

year will not be limited to every third

year for a 3 year retraining interval.

Rather, some mix of training and

retraining will occur during all typical

out years. A shorter retraining interval

may require more training sessions

during the average out year, with higher

total costs. Also, if training of new

workers and retraining of workers in out

years are done at the same time, the

costs of retraining (regardless of

frequency) may be partially subsumed

in the costs for initial training.

The Agency is interested in receiving

information and comments on all

options, particularly the benefits

expected to be gained by shortening the

retraining interval, as well as the

impacts of a 5 year, 3 year and annual

retraining interval. Specifically, the

Agency is seeking information on the

following: worker and handler retention

of safety training information, whether

agricultural workers and handlers have

a greater need for retraining than

workers in other occupations, the
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules 2823

effectiveness of the pesticide poster in

reinforcing previous training and the

burdens the various retraining options

might place on agricultural employers

or other entities that may perform

worker or handler training. Concerns

with each of the options are requested

as well.

Commenters supporting retaining the

current 5–year retraining interval,

shortening the retraining interval to 3

years, or providing annual retraining,

should state explicitly the reasons for,

and provide information on the need,

costs and feasibility of, the

recommended option.

VII. Solicitation of Comments

A record has been established for this

rulemaking under docket number

‘‘OPP–250097’’ (including comments

and data submitted electronically as

described below). A public version of

this record, including printed, paper

versions of electronic comments, which

does not include any information

claimed as confidential business

information (CBI), is available for

inspection from 8 a.m. to 4 p.m.,

Monday through Friday, excluding legal

holidays. The public record is located in

Room1132 of the Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, CM #2, 1921

Jefferson Davis Highway, Arlington, VA.

Written comments should be mailed to:

Public Response and Program Resources

Branch, Field Operations Division

(7506C) Office of Pesticide Programs,

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460.

EPA is interested in receiving

comments and information on all of the

proposed options. Comments are

requested on: (1) general worker and

handler hiring and employment

practices, such as the rate of turnover

and employment among agricultural

workers and handlers, (2) the

practicality and effectiveness of the

grace period options, including how the

frequency of hiring would affect the

frequency of training sessions,

situations where training before entry

would not be possible, mechanisms that

are available or will be available to

provide training on short notice and the

estimated costs of reducing or

eliminating the grace period or

providing a weekly training regimen, (3)

the practicality and effectiveness of

eliminating the interim grace period for

training and (4) the retraining interval,

including the impacts of a retraining

interval of less than 5 years, worker and

handler retention of safety training

information over time, whether

agricultural workers and handlers have

a greater need for retraining than

workers in other occupations, the

effectiveness of the pesticide poster in

reinforcing previous training and the

burdens the various retraining options

might place on agricultural employers

or other entities that may perform

worker or handler training. Comments

should be distinguished as applying to

workers, handlers, or both, as

applicable.

As part of an interagency

‘‘streamlining’’ initiative, EPA is

experimenting with submission of

public comments on selected Federal

Register actions electronically through

the Internet in addition to accepting

comments in traditional written form.

This proposed exception is one of the

actions selected by EPA for this

experiment. From the experiment, EPA

will learn how electronic commenting

works, and any problems that arise can

be addressed before EPA adopts

electronic commenting more broadly in

its rulemaking activities. Electronic

commenting through posting to the EPA

Bulletin Board or through the Internet

using the ListServe function raise some

novel issues that are discussed below in

this Unit.

To submit electronic comments,

persons can either ‘‘subscribe’’ to the

Internet ListServe application or ‘‘post’’

comments to the EPA Bulletin Board. To

‘‘Subscribe’’ to the Internet ListServe

application for this proposed exception,

send an e-mail message to:

listserver@unixmail.rtpnc.epa.gov that

says ‘‘Subscribe RIN–2070–AC69 <first

name> <last name>.’’ Once you are

subscribed to the ListServe, comments

should be sent to: RIN–2070–

AC69@unixmail.rtpnc.epa.gov. All

comments and data in electronic form

should be identified by the docket

number OPP-250097 since all five

documents in this separate part provide

the same electronic address.

For online viewing of submissions

and posting of comments, the public

access EPA Bulletin Board is also

available by dialing 202–488–3671,

enter selection ‘‘DMAIL,’’ user name

‘‘BB—USER’’ or 919–541–4642, enter

selection ‘‘MAIL,’’ user name ‘‘BB—

USER.’’ When dialing the EPA Bulletin

Board type <Return> at the opening

message. When the ‘‘Notes’’ prompt

appears, type ‘‘open RIN– 2070–AC69’’

to access the posted messages for this

document. To get a listing of all files,

type ‘‘dir/all’’ at the prompt line.

Electronic comments can also be sent

directly to EPA at:

Docket-OPPTS@epamail.epa.gov.

Electronic comments must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption. To obtain further

information on the electronic comment

process, or on submitting comments on

this proposed exception electronically

through the EPA Bulletin Board or the

Internet ListServe, please contact John

A. Richards (Telephone: 202–260–2253;

FAX: 202–260–3884; Internet:

richards.john@epamail.epa.gov).

Persons who comment on this

proposed rule, and those who view

comments electronically, should be

aware that this experimental electronic

commenting is administered on a

completely public system. Therefore,

any personal information included in

comments and the electronic mail

addresses of those who make comments

electronically are automatically

available to anyone else who views the

comments. Similarly, since all

electronic comments are available to all

users, commenters should not submit

electronically any information which

they believe to be CBI. Such information

should be submitted only directly to

EPA in writing as described earlier in

this Unit.

Commenters and others outside EPA

may choose to comment on the

comments submitted by others using the

RIN–2070–AC69 ListServe or the EPA

Bulletin Board. If they do so, those

comments as well will become part of

EPA’s record for this rulemaking.

Persons outside EPA wishing to discuss

comments with commenters or

otherwise communicate with

commenters but not have those

discussions or communications sent to

EPA and included in the EPA

rulemaking record should conduct those

discussions and communications

outside the RIN–2070–AC69 ListServe

or the EPA Bulletin Board.

The official record for this

rulemaking, as well as the public

version, as described above will be kept

in paper form. Accordingly, EPA will

transfer all comments received

electronically in the RIN–2070–AC69

ListServe or the EPA Bulletin Board, in

accordance with the instructions for

electronic submission, into printed,

paper form as they are received and will

place the paper copies in the official

rulemaking record which will also

include all comments submitted directly

in writing. All the electronic comments

will be available to everyone who

obtains access to the RIN–2070–AC69

ListServe or the EPA Bulletin Board;

however, the official rulemaking record

is the paper record maintained at the

address in ‘‘ADDRESSES’’ at the

beginning of this document. (Comments
2824 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules

submitted only in written form will not

be transferred into electronic form and

thus may be accessed only by reviewing

them in the Public Response and

Program Resources Branch as described

above.)

Because the electronic comment

process is still experimental, EPA

cannot guarantee that all electronic

comments will be accurately converted

to printed, paper form. If EPA becomes

aware, in transferring an electronic

comment to printed, paper form, of a

problem or error that results in an

obviously garbled comment, EPA will

attempt to contact the comment

submitter and advise the submitter to

resubmit the comment either in

electronic or written form. Some

commenters may choose to submit

identical comments in both electronic

and written form to ensure accuracy. In

that case, EPA requests that commenters

clearly note in both the electronic and

written submissions that the comments

are duplicated in the other medium.

This will assist EPA in processing and

filing the comments in the rulemaking

record.

As with ordinary written comments,

at the time of receipt, EPA will not

attempt to verify the identities of

electronic commenters nor to review the

accuracy of electronic comments.

Electronic and written comments will

be placed in the rulemaking record

without any editing or change by EPA

except to the extent changes occur in

the process of converting electronic

comments to printed, paper form.

If it chooses to respond officially to

electronic comments on this proposed

rule, EPA will do so either in a notice

in the Federal Register or in a response

to comments document placed in the

rulemaking record for this proposed

rule. EPA will not respond to

commenters electronically other than to

seek clarification of electronic

comments that may be garbled in

transmission or conversion to printed,

paper form as discussed above. Any

communications from EPA employees

to electronic commenters, other than

those described in this paragraph, either

through Internet or otherwise are not

official responses from EPA.

VIII. Statutory Requirements

As required by FIFRA section 25(a),

this proposed rule was provided to the

U.S. Department of Agriculture and to

Congress for review. The FIFRA

Scientific Advisory Panel waived its

review.

USDA provided extensive written

comment. The general tenor of USDA

comments suggest suspending the

proposed changes to the training

requirement until EPA observes the

efficacy of current training provisions

and the feasibility of a 0–day grace

period. However, the Agency maintains

that the options being proposed increase

the chance of protection through earlier

provision of safety training. The Agency

intends to observe and evaluate the

effectiveness of training in the field,

with whatever option is selected.

USDA’s specific comments focused

on the following areas: (1) Elimination

of the grace period; (2) retraining

interval; (3) training requirements by

category; (4) the regulatory impact

analysis; (5) training verification.

(1) USDA expressed concern that

elimination of the 5–day grace period

would create costs for the employer, by

preventing scheduled training for large

groups, while providing little or no

increase in the protection for workers.

EPA believes that the elimination of the

grace period will provide increased

protection to workers by providing

safety information before workers enter

a treated area. The incremental cost

incurred by the employer does not

appear to outweigh the benefits that

come with the potential prevention of

exposure.

EPA and USDA have differing

opinions regarding the employer

recordkeeping burden necessitated by a

grace period. However, it is agreed that,

for state regulators to verify compliance

with the regulations, some employer

burden of recordkeeping would be

necessary during a grace period.

USDA questions the need to train

workers before they enter a treated field,

due to other WPS protection provided

workers, while EPA believes that these

provisions are part of an integrated

package of measures that are effective

only after being explained through

training. USDA suggests that, as a means

to enhance understanding of pesticide

safety, employers distribute the WPS

worker training handbook to newly

hired employees and follow with

training in a few days, however this

assumes that all employees would be

able to read and understand the

materials.

(2) USDA questions the need for a

shorter retraining interval, however,

professional training organizations and

farmworker groups assert that more

frequent retraining is needed in order to

assure retention of the substance of

training sessions. More frequent

retraining is especially needed for

workers who may have poor reading

skills and cannot rely on written

materials to recall all safety information.

(3) USDA expresses concern that clear

distinctions be made among handlers,

early-entry workers, production laborers

and harvesters, and that they may also

warrant different training requirements.

EPA believes that the current

regulation’s distinctions between

workers, handlers, and early-entry

workers address USDA’s concerns since

these categories have different training

requirements. This proposal does not

address the substance of training or the

training requirements.

(4) USDA questions the strength of the

conclusions of studies used in the

regulatory impact analysis to support

the assumption that risk is reduced

through modifications of behavior after

training. They also note that EPA uses

the same number estimate for workers

trained with a 0–day grace period and

a 15–day grace period. In the absence of

data, EPA did use the same estimate of

workers, and, as a consequence,

conservatively overestimated the cost of

a 0–day grace period. USDA questions

the accuracy of other data that EPA used

in the analysis of the costs of a 0–day

grace period, however, EPA used USDA

data and agricultural census data for

this analysis.

USDA asserts that the effect of a 0–

day grace period could influence the

employer to lower pay, possibly

eliminate jobs. EPA believes that the

cost of training would be small relative

to the total cost of labor. USDA noted

that EPA’s estimate of the number of

workers is incorrect. EPA used the same

estimate of the number of workers as

was used, and agreed upon by USDA,

for the 1992 WPS. USDA pointed out

that EPA’s estimate of the number of

handlers and workers is incorrect due to

the use of 1987 data instead of 1990

data. EPA believed that the 1987 data

were better in that they were

agricultural census data as opposed to

general census data.

USDA questions the use of 30 minutes

per worker training session in EPA’s

cost estimates. EPA’s worker training

program was field tested in both English

and Spanish, and, with questions, took

approximately 30 minutes.

(5) USDA claims that the additional

proof-of-identity requirement would be

extremely difficult for employers to

meet and would be a disincentive for

employers to issue cards. This is a

misreading of the WPS provision that

...‘‘If the agricultural employer is aware

or has reason to know that an EPA

training verification card has not been

issued in accordance with the

provisions of WPS, or has not been

issued to the employee bearing the card,

or the date for retraining has past, an

employee’s possession of that training

verification card does not relieve the

employer of the training obligations

under WPS.’’
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules 2825

USDA noted that issuing training

cards would assist other employers who

hire already trained workers. In

addition, USDA is concerned that

handlers and workers that possess cards

will become preferred job applicants.

USDA fears that since not all states on

or verification cards it will cause a

burden to job applicants in states where

cards are not honored and give job

preference to those employees who

possess cards.

The regulation establishes a training

verification program that is voluntary,

therefore, not all employers will

participate. However, employers who do

participate will relieve themselves from

the burden of retraining workers who

have already been trained.

Forty states, Puerto Rico and 2 tribes

have entered into an agreement to issue

training verification cards. Three

additional states say they will be

entering into an agreement. Four states

already have programs that are identical

to the Federal program and will issue

state cards. Over 2.5 million cards have

been delivered to states who have

entered into the program. By law, the

employer can accept the card as

verification that the employee was

trained.

USDA raised concern over the

verification cards that have an

expiration date based on the initial 5–

year retraining interval date. Training

cards are valid until the expiration date

stated on the card. When the retraining

interval is changed, these training cards

will remain valid until the expiration

date on the card.

IX. Regulatory Assessment

Requirements

A. Executive Order 12866

Pursuant to Executive Order 12866

(58 FR 51735, October 4, 1993), it has

been determined that this is a

‘‘significant regulatory action’’ because

it raised potentially novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order. The

total cost of this rule depends on the

combination of options under the grace

period and the retraining interval

selected. The costs have been estimated

by EPA and are presented in the Impact

Assessment for the Worker Protection

Standard, Training Provisions Rule.

This proposal was submitted to OMB for

review, and any comments or changes

made have been documented in the

public record.

B. Regulatory Flexibility Act

This rule was reviewed under the

provisions of sec. 3(a) of the Regulatory

Flexibility Act, and it was determined

that the rule would not have a

significant adverse impact on a

substantial number of small entities.

The smallest entities regulated under

the Worker Protection Standard, familyoperated agricultural establishments

with no hired labor, are not subject to

the training requirements, and therefore

have no cost associated with this rule.

These small entities (with no hired

labor) represent about 45 percent of the

agricultural establishments within the

scope of the WPS. The smallest of those

entities which do hire labor are those

with only one hired employee.

Estimated costs per worker or handler

are similar for an establishment with

one employee as for larger

establishments, causing no significant

disproportionate burden on small

entities. After the first year of

implementation, the average annual

training costs to comply with these

regulations (not including the costs

already being incurred) is also very

modest, estimated at about $2.20 per

worker.

The largest difference in costs per

worker occurs on vegetable/fruit/nut

farms, where estimated incremental first

year cost per worker is $4.13 on small

farms and $3.06 on larger farms;

incremental first year cost per handler is

estimated at $11.55 for both small and

large farms. The largest cost per

establishment is also on vegetable/fruit/

nut farms, where incremental first year

cost per establishment is estimated to be

$4.13 to $11.55 for small (singleemployee) farms, and $77.49 for the

typical large farm. Incremental cost of

the proposed training options is also

very modest. Average incremental cost

to vegetable/fruit/nut farms (all sizes), is

estimated at $37.15 the first year and

$17.51 in subsequent years.

I therefore certify that this proposal

does not require a separate analysis

under the Regulatory Flexibility Act.

C. Paperwork Reduction Act

This proposal contains no information

collection requirements, and is therefore

not subject to the Paperwork Reduction

Act.

D. Public Docket

EPA has established a public docket

(OPP–250097) containing the

information used in developing this

proposed rule. The public docket is

open Monday through Friday from 8

a.m. to 4 p.m. and is located in Crystal

Mall #2, Room 1132, 1921 Jefferson

Davis Highway, Arlington, VA.

List of Subjects in Part 170

Environmental protection, Pesticides

and pests, Intergovernmental relations,

Occupational safety and health,

Reporting and recordkeeping

requirements.

Dated: January 3, 1995.

Carol M. Browner,

Administrator.

Therefore, 40 CFR part 170 is

proposed to be amended as follows:

1. The authority citation would

continue to read as follows:

Authority: 7 U.S.C. 136w.

2. In § 170.130, by revising the section

heading and paragraph (a)(1), removing

paragraph (a)(3), and by revising

paragraph (d)(2) to read as follows:

§170.130 Pesticide safety training for

workers.

(a) * * *

(1) Requirement. The agricultural

employer shall assure that each worker

required by this section to be trained

has been trained in accordance with

paragraph (c) of this section before the

worker enters, or before between the 1st

and 6th day that the worker enters any

area or during the first weekly training

session available to each worker

provided by the employer [grace period

to be determined based on public

comment will be insert in the final rule]

on the agricultural establishment where,

within the last 30 days, a pesticide to

which this subpart applies has been

applied or a restricted-entry interval for

such pesticide has been in effect. The

agricultural employer shall assure that

each such worker has been trained

during the last (Agency will insert 1, 3,

or 5 years in the final rule based on

public comment) counting from the end

of the month in which the training was

completed.

* * * * *

(d) * * *

(2) If the agricultural employer is

aware or has reason to know that an

EPA-approved Worker Protection

Standard worker training certificate has

not been issued in accordance with this

section, or has not been issued to the

worker bearing the certificate, or the

training was completed more than

(Agency will insert 1, 3, or 5 years in the

final rule based on public comment)

before the beginning of the current

month, a worker’s possession of that

certificate does not meet the

requirements of paragraph (a) of this

section.

* * * * *
2826 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Proposed Rules

3. In §170.230, by revising the section

heading and paragraphs (a) and (d)(2) to

read as follows:

§170.230 Pesticide safety training for

handlers.

(a) Requirement. Before any handler

performs any handling task, the handler

employer shall assure that the handler

has been trained in accordance with this

section during the last (Agency will

insert 1, 3, or 5 years in the final rule

based on public comment) counting

from the end of the month in which the

training was completed.

* * * * *

(d) * * *

(2) If the handler employer is aware

or has reason to know that an EPAapproved Worker Protection Standard

handler training certificate has not been

issued in accordance with this section,

or has not been issued to the handler

bearing the certificate, or the handler

training was completed more than

(Agency will insert 1, 3, or 5 years in the

final rule based on public comment)

before the beginning of the current

month, a handler’s possession of that

certificate does not meet the

requirements of paragraph (a) of this

section.

[FR Doc. 95–583 Filed 1–6–95; 12:17 pm]

BILLING CODE 6560–50–P

40 CFR Part 170

[OPP–250100; FRL–4928–7]

RIN 2070–AC82

Pesticide Worker Protection Standard;

Requirements for Crop Advisors

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: EPA is proposing to amend

the worker protection requirements for

agricultural establishments, by

exempting certified or licensed crop

advisors from the requirements. EPA is

also proposing to exempt crop advising

employees of certified or licensed crop

advisors from the WPS requirements

except pesticide safety training. A

temporary exemption for all persons

doing crop advising tasks to allow time

for acquiring licensing or certification is

also proposed.

DATES: Written comments must be

received on or before February 10, 1995.

ADDRESSES: By mail, submit written

comments to: Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. In person, bring

comments to: Room 1132, Crystal Mall

2, 1921 Jefferson Davis Highway,

Arlington, VA 22202. Information

submitted in any comment concerning

this document may be claimed

confidential by marking any part or all

of that information as ‘‘Confidential

Business Information’’ (CBI).

Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR Part 2.

A copy of the comment that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

may be disclosed publicly by EPA

without prior notice. All written

comments, including non-CBI copies,

will be available for public inspection in

Rm. 1132 at the Virginia address given

above, from 8 a.m. to 4 p.m., Monday

through Friday, excluding legal

holidays.

Comments and data may also be

submitted electronically by any of three

different mechanisms: by sending

electronic mail (e-mail) to: DocketOPPTS@epamail.epa.gov; by sending a

‘‘Subscribe’’ message to

listserver@unixmail.rtpnc.epa.gov and

once subscribed, send your comments to

RIN–2070–AC69; or through the EPA

Electronic Bulletin Board by dialing

202–488–3671, enter selection

‘‘DMAIL,’’ user name ‘‘BB—USER’’ or

919–541–4642, enter selection ‘‘MAIL,’’

user name ‘‘BB—USER.’’ Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Comments and data will also be

accepted on disks in WordPerfect in 5.1

file format or ASCII file format. All

comments and data in electronic form

must be identified by the docket number

OPP–250100 since all five documents in

this separate part provide the same

electronic address. No CBI should be

submitted through e-mail. Electronic

comments on this proposed rule, but not

the record, may be viewed or new

comments filed online at many Federal

Depository Libraries. Additional

information on electronic submissions

can be found in unit VI. of this

document.

FOR FURTHER INFORMATION CONTACT:

Donald E. Eckerman Office of Pesticide

Programs (7506C) Environmental

Protection Agency 401 M Street, SW

Washington, DC 20460 Office location

and telephone number: Room 1101,

Crystal Mall 2 1921 Jefferson Davis

Highway Arlington, VA 22202

Telephone: 703–305–7371.

SUPPLEMENTARY INFORMATION: EPA is

proposing this rule in response to

comments received from crop advisor

groups requesting exemptions from the

Worker Protection Standard (WPS).

Specifically, EPA is proposing to amend

40 CFR Part 170, governing worker

protection requirements on agricultural

establishments, to exempt certified or

licensed crop advisors from the

requirements of the rule. EPA is also

proposing to exempt crop advising

employees of certified or licensed crop

advisors from the WPS requirements

except pesticide safety training. A

temporary exemption for all persons

doing crop advising tasks to allow time

for acquiring licensing or certification is

also proposed.

I. Statutory Authority

This proposed rule is issued under

the authority of section 25(a) of the

Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA), 7 U.S.C.

136w(a).

II. Background

This proposed WPS rule amendment

is one of a series of Agency actions in

response to concerns raised since

publication of the final rule in August

1992 by those interested in and affected

by the rule. In addition to this proposed

amendment, EPA is publishing four

other notices soliciting public comment

on concerns raised by various affected

parties. Other actions EPA is

considering include: (1) modification to

the worker training requirements; (2)

exceptions to early entry restrictions for

irrigation activities; (3) reduced

restricted entry intervals (REIs) for low

risk pesticides; and (4) reduced early

entry restrictions for activities involving

limited contact with treated surfaces.

The Agency is interested in receiving

comments on all options and questions

presented.

FIFRA authorizes EPA to regulate the

sale, distribution, and use of pesticides

in the United States. The Act generally

requires that EPA license by registration

each pesticide product sold or

distributed in the United States, if use

of that the pesticide product will not

cause ‘‘unreasonable adverse effects on

the environment,’’ a determination that

takes into account the economic, social,

and environmental costs and benefits of

the use of the product.

In 1992 EPA revised the WPS (40 CFR

Part 170) (57 FR 38102, August 21,

1992) which is intended to protect

agricultural workers and handlers from

risks associated with agricultural

pesticides. The 1992 WPS superseded

the original WPS promulgated in 1974

and expanded the WPS scope to include

not only workers performing hand labor

operations in fields treated with