Pesticides; Agricultural Worker Protection Standard Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[EPA-HQ-OPP-2011-0184; FRL-9395-8]

RIN 2070-AJ22

Pesticides; Agricultural Worker Protection Standard Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing updates and revisions to the existing worker protection regulation for pesticides. The proposed changes are in response to extensive stakeholder review of the regulation and its implementation since 1992, and reflect current research on how to mitigate occupational pesticide exposure to agricultural workers and pesticide handlers. EPA is proposing to strengthen the protections provided to agricultural workers and handlers under the worker protection standard by improving elements of the existing regulation, such as training, notification, communication materials, use of personal protective equipment, and decontamination supplies. EPA expects the revisions, once final, to prevent unreasonable adverse effects from exposure to pesticides among agricultural workers and pesticide handlers; vulnerable groups, such as minority and low-income populations, child farmworkers, and farmworker families; and the general public. EPA recognizes the importance and independence of family farms and is proposing to expand the immediate family exemption to the WPS.

DATES:

Comments must be received on or before June 17, 2014.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2011-0184, by one of the following methods:

• Federal eRulemaking Portal:

http://www.regulations.gov

. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail:

OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), Mail code: 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503.

• Hand Delivery:

To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at

http://www.epa.gov/dockets/contacts.htm

. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at

http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

Kathy Davis, Field and External Affairs Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-7002; fax number: (703) 308-2962; email address:

davis.kathy@epa.gov

.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

You may be potentially affected by this action if you work in or employ persons working in production agriculture where pesticides are applied.

The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

•

Agricultural Establishments (NAICS code 111000), establishments or persons, such as farms, orchards, groves, greenhouses, and nurseries, primarily engaged in growing crops, plants, vines, or trees and their seeds.

•

Nursery and Tree Production (NAICS code 111421), e.g., establishments or persons primarily engaged in (1) growing nursery products, nursery stock, shrubbery, bulbs, fruit stock, sod, and so forth, under cover or in open fields and/or (2) growing short rotation woody trees with a growth and harvest cycle of 10 years or less for pulp or tree stock.

•

Timber Tract Operations (NAICS code 113110), e.g., establishments or persons primarily engaged in the operation of timber tracts for the purpose of selling standing timber. Forest Nurseries and Gathering of Forest Products (NAICS code 113210), e.g., establishments or persons primarily engaged in (1) growing trees for reforestation and/or (2) gathering forest products, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and truffles.

•

Farm Labor Contractors and Crew Leaders (NAICS code 115115), e.g., establishments or persons primarily engaged in supplying labor for agricultural production or harvesting.

•

Farm Workers (NAICS codes 11511, 115112, and 115114), e.g., establishments or persons primarily engaged in providing support activities for growing crops; establishments or persons primarily engaged in performing a soil preparation activity or crop production service, such as plowing, fertilizing, seed bed preparation, planting, cultivating, and crop protecting services; and establishments or persons primarily engaged in performing services on crops, subsequent to their harvest, with the intent of preparing them for market or further processing.

•

Pesticide Manufacturers (NAICS code 325320), e.g., establishments primarily engaged in the formulation and preparation of agricultural and household pest control chemicals (except fertilizers).

•

Farm Worker Support Organizations (NAICS codes 813311, 813312, and 813319), e.g., establishments or persons primarily engaged in promoting causes associated with human rights either for a broad or specific constituency; establishments or persons primarily engaged in promoting the preservation and protection of the environment and wildlife; and establishments primarily engaged in social advocacy.

•

Farm Worker Labor Organizations (NAICS code 813930), e.g., establishments or persons primarily engaged in promoting the interests of organized labor and union employees.

•

Pesticide Handling in Forestry (NAICS code 115310), e.g., establishments or persons primarily providing support activities for forestry, such as forest pest control.

•

Administration of Conservation Programs (NAICS code 924120), e.g., government establishments primarily engaged in the administration, regulation, supervision and control of land use, including recreational areas; conservation and preservation of natural resources; erosion control; geological survey program administration; weather forecasting program administration; and the administration and protection of publicly and privately owned forest lands. Government establishments responsible for planning, management, regulation and conservation of game, fish, and wildlife populations, including wildlife management areas and field stations; and other administrative matters relating to the protection of fish, game, and wildlife are included in this industry.

•

Pesticide Handling on Farms (NAICS code 115112), e.g.,

establishments or persons primarily engaged in performing a soil preparation activity or crop production service, such as seed bed preparation, planting, cultivating, and crop protecting services.

•

Crop Advisors (NAICS codes 115112, 541690, 541712) e.g., establishments or persons who primarily provide advice and assistance to businesses and other organizations on scientific and technical issues related to pesticide use and pest pressure.

B. What should I consider as I prepare my comments for EPA?

1.

Submitting CBI.

Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2.

Tips for preparing your comments.

When submitting comments, remember to:

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

Federal Register

date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

II. Background

A. Executive Summary

1.

Purpose of the regulatory action.

The Environmental Protection Agency (EPA or the Agency) proposes to revise the existing Worker Protection Standard (WPS) at 40 CFR part 170 to reduce the incidence of occupational pesticide exposure and related illness among agricultural workers (workers) and pesticide handlers (handlers) covered by the rule. This regulation, in combination with other components of EPA's pesticide regulatory program, is intended to prevent unreasonable adverse effects of pesticides among pesticide applicators, workers, handlers, the general public, and vulnerable groups, such as minority and low-income populations.

2. Summary of the major provisions. This proposal revises the existing WPS in several areas: Training, notification, hazard communication, minimum age, and personal protective equipment. The key changes are described below.

For training, the proposal requires employers to ensure that workers and handlers receive pesticide safety training every year. The content of the training is expanded to include how to reduce take-home exposure to pesticides, as well as other topics. Employers are required to retain records of the training provided to workers and handlers for 2 years from the date of training.

For notification, the proposal requires employers to post treated areas when the product used has a restricted-entry interval (REI) greater than 48 hours. It also requires that workers performing early-entry tasks, i.e., entering a treated area when an REI is in effect, receive information about the pesticide used in the area where they will work, the specific task(s) to be performed, and the amount of time the worker may remain in the treated area. Finally, the proposal requires employers to keep a record of the information provided to workers performing early-entry tasks.

For hazard communication, the proposal eliminates the requirement for a central display of pesticide application-specific information. The proposal requires the employer to maintain and make available upon request the pesticide application-specific information, as well as the labeling and safety data sheets for pesticides used on the establishment for 2 years.

For minimum age, the proposal requires that handlers and workers performing early-entry tasks be at least 16 years old. This minimum age does not apply to immediate family members working on an establishment owned by another immediate family member.

For personal protective equipment (PPE), the proposal adopts the Occupational Safety and Health Act requirements for respirator use by handlers, i.e., fit test, medical evaluation, and training. In addition, the proposal adopts the existing California standard for closed systems.

3.

Costs and impacts.

Under section 3(f)(4) of Executive Order 12866 (58 FR 51735; October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this proposed rulemaking to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821; January 21, 2011), and any changes made in response to OMB recommendations have been documented in the public docket for this action.

EPA has prepared an analysis of the potential costs and impacts associated with this rulemaking. This analysis is summarized in greater detail in Unit II.G. of this proposal. The following chart provides a brief outline of the costs and impacts of this proposal:

Category

Description

Source

Monetized Benefits Avoided acute pesticide incidents

$5-14 million/year after adjustment for underreporting of pesticide incidents

EA Chapter 6.5.

Qualitative Benefits

• Willingness to pay to avoid acute effects of pesticide exposure beyond cost of treatment and loss of productivity

• Reduced latent effect of avoided acute pesticide exposure

• Reduced chronic effects from lower chronic pesticide exposure to workers, handlers, and farmworker families, including a range of illnesses such as Non-Hodgkins lymphoma, prostate cancer, Parkinson's disease, lung cancer, chronic bronchitis, and asthma

EA Chapter 6.

Monetized Costs

$62-73 million/year

EA Chapter 5.2.

Small Business Impacts

No significant impact on a substantial number of small entities

• The rulemaking will affect over 300,000 small farms, nurseries, and greenhouses and several hundred small commercial entities that are contracted to apply pesticides

• Impact less than 0.1% of the annual value of sales or revenues for the average small entity

EA Chapter 5.4.

Impact on Jobs

The rulemaking will have a negligible effect on jobs and employment

• The marginal cost of a typical farmworker is expected to increase $5/year

• The marginal cost for a more skilled pesticide handler is expected to increase by $60 per year, but this is less than 0.3 percent of the cost of a part-time employee

EA Chapter 5.3.

B. What action is the Agency taking?

The WPS is a regulation intended to reduce the risks of injury or illness resulting from agricultural workers' and handlers' use and contact with pesticides on farms, forests, nurseries and greenhouses. The rule does not cover persons working directly with livestock. The existing regulation has provisions for employers to provide workers and handlers with pesticide safety training, posting and notification of treated areas, entry restrictions, and PPE for workers who enter treated areas after pesticide application to perform crop-related tasks, as well as for handlers who mix, load, and apply pesticides. The rule was promulgated in 1992 and implementation was delayed until 1995.

The changes in this proposed revision of the WPS are intended to address shortcomings in the current regulations, such as:

•

Absence of a minimum age for handlers of pesticides and agricultural workers engaged in early-entry activities,

•

Inadequate hazard communication provisions,

•

Insufficient training of agricultural workers before they face potential pesticide exposure,

•

Unclear requirements regarding the decontamination supplies the WPS requires employers to provide, and

•

Insufficient recordkeeping to verify compliance with regulations.

EPA believes that the proposed changes offer targeted improvements that would reduce risk through protective requirements and improve operational efficiencies. EPA expects the proposed changes to:

•

Improve effectiveness of worker and handler training,

•

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

•

Improve protections for workers during and after pesticide applications,

•

Expand the information provided to workers, thus improving hazard communication protections,

•

Expand the content of pesticide safety information displayed, thus improving the display's effectiveness,

•

Improve the protections for crop advisor employees,

•

Increase the amounts of decontamination water available, thus improving the effectiveness of the decontamination process,

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Improve the emergency response when workers experience pesticide exposures,

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Improve the organization of the WPS, thus improving employers' ability to understand and comply with the provisions,

•

Clarify the coverage of the WPS to those employed and receiving a salary or wage to ensure protection for occupational pesticide workers,

•

Protect children by establishing a minimum age for handlers and for workers who enter a treated area during an REI while maintaining an exemption to the minimum age requirement for children working on the establishment of an immediately family member, and

•

Improve flexibility for small farmers and members of their immediate family by expanding the definition of immediate family members to be more inclusive and retaining the exemptions from almost all WPS requirements for owners and their immediate family members.

C. What is the Agency's authority for taking this action?

This action is issued under the authority of sections 2 through 35 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, and particularly section 25(a), 7 U.S.C. 136w(a).

D. Related Rulemaking

EPA is also considering a proposed rule to amend 40 CFR part 171, titled “Certification of Pesticide Applicators.” Since parts 170 and 171, along with other components of the pesticide program, work together to reduce and prevent unreasonable adverse effects to pesticides, EPA may use any comments received on the proposed amendments to part 171 when formulating a final rule to amend the current WPS at part 170.

E. Benefits of the Proposal

The proposed changes to the current WPS requirements are expected to lead to an overall reduction in incidents of unsafe pesticide exposure and to improve the occupational health of the nation's agricultural workers and pesticide handlers. This section provides an overview of the qualitative benefits of the proposal and the estimated benefits that would accrue from avoiding acute pesticide exposure in the population protected by the WPS. It also provides an estimate of the number of chronic illnesses with a plausible association with pesticide exposure that would have to be prevented by the proposed changes in order for the total estimated benefits to meet the estimated cost of the proposal.

A sizeable portion of the agricultural workforce may be exposed occupationally to pesticides and pesticide residues. These exposures can pose significant long- and short-term health risks. It is difficult to quantify a specific level of risk and project the risk reduction that would result from this proposal because workers and handlers are potentially exposed to a wide range of pesticides with varying toxicities and risks. However, there is strong evidence that workers and handlers may be exposed to pesticides at levels that can cause adverse effects and that both the exposures and the risks can be substantially reduced. EPA believes the provisions in the proposed rule would reduce pesticide exposures and the associated risks.

The estimated quantified benefits from reducing acute worker and handler exposure to pesticides total about $11.4 million annually (Ref. 1). This conservative estimate includes only the avoided costs in medical care and lost productivity to workers and handlers and assumes that just 25% of acute

pesticide incidents are reported. It does not include quantification of the reduction in chronic effects of pesticide exposure to workers and handlers, reduced effects of exposure including developmental impacts, to children and pregnant workers and handlers or willingness to pay to avoid symptoms of pesticide exposure. Because the chronic effects of pesticide exposures are seldom attributable to a specific cause, and thus are unlikely to be recorded in pesticide poisoning databases, EPA is not able to quantify the benefits expected to accrue from proposed WPS changes that would reduce chronic exposure to pesticides. However, associations between pesticide exposure and certain cancer and non-cancer chronic health effects are well documented in the peer-reviewed literature, and reducing these chronic health effects is an important FIFRA goal.

Even if the lack of quantitative data impairs the reliability of estimates of the total number of chronic illnesses avoided, it is reasonable to expect that the proposed changes to the WPS will reduce the incidence of chronic disease resulting from pesticide exposure. Therefore, EPA conducted a “break even” analysis to consider the plausibility of the proposed changes to the WPS reducing the incidence of chronic disease enough to cause the net benefits of the proposed rule to exceed its anticipated costs. Under this analysis, EPA looked at the costs associated with non-Hodgkin's lymphoma, prostate cancer, Parkinson's disease, lung cancer, bronchitis, and asthma and their frequency among agricultural workers, and found that reducing the incidence of lung cancer by 0.08% and the incidence of the other chronic diseases by 0.8% per year (about 53 total cases per year among the population of workers and handlers protected under the WPS) would produce quantified benefits sufficient to bridge the gap between the quantified benefits from reducing acute incidents and the $62.1 million to $72.9 million cost of the proposed rule. Overall, the weight of evidence suggests that the proposed requirements would result in long-term health benefits to agricultural workers and pesticide handlers in excess of the less than 1% reduction in just six diseases that corresponds with the break-even point for the proposed rule, not only by reducing their daily risk of pesticide exposures, but also by improving quality of life throughout their lives, resulting in a lower cost of health care and a healthier society.

The proposed changes to the current WPS requirements, specifically improved training on reducing pesticide residues brought from the treated area to the home on workers and handlers' clothing and bodies and establishing a minimum age for handlers and early entry workers, other than those covered by the immediate family exemption, mitigate the potential for children to be exposed to pesticides directly and indirectly. The unquantified benefit to adolescent workers and handlers, as well as children of workers and handlers is great; reducing exposure to pesticides could translate into fewer sick days, fewer days missed of school, improved capacity to learn, and better long-term health. Parents and caregivers reap benefits by having healthier families, fewer missed workdays, and better quality of life.

By proposing several interrelated exposure-reduction measures, the revised rule is expected to mitigate approximately 56% of reported acute WPS-related pesticide incidents. EPA believes the proposed rule would substantially mitigate for these workers and handlers the potential for adverse health effects (acute and chronic) from occupational exposures to such pesticides and their residues. These measures include requirements intended to reduce exposure by:

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Ensuring that workers and handlers are informed about the hazards of pesticides—the proposed rule changes the content and frequency of required pesticide safety training, as well as proposing changes to ensure that the pesticide safety training is more effective.

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Reducing exposure to pesticides—among other things, the proposed rule changes and clarifies the requirements for personal protective equipment. It also makes changes to the timing of applications when people are nearby. These and other provisions should directly reduce exposure in the agricultural workforce.

•

Mitigating the effects from exposures that occur—some accidental exposures are inevitable. EPA expects the proposed rule to mitigate the severity of health impacts by updating and clarifying what is required to respond to exposures.

Further detail on the benefits of this proposal is provided in the document titled “Economic Analysis of Proposed Revisions to the Worker Protection Standard” which is available in the docket for this rulemaking (Ref. 1). The following briefly highlights the anticipated benefits:

1. Reduce incidents of exposure and illness through:

a. Expanded and more frequent training for workers and handlers.

EPA's current requirement for training workers and handlers fails to address or to highlight the importance of some self-protective practices, such as reducing pesticide exposure to workers, handlers, and their families by avoiding bringing pesticide residues home on clothing, shoes, or skin. The existing regulation requires employers to provide training every 5 years. The proposed rule, if finalized, would expand the content of the training, increase the frequency of training to every year, and set higher standards for trainers. Providing workers and handlers with information on reducing pesticide exposure in a manner they understand, e.g., in a language they speak and at an appropriate education level, and at intervals more likely to result in retention of the information, would benefit workers and handlers. Thus, EPA believes the proposed rule would reduce overall pesticide exposure among workers, handlers, and their families.

b. Improved posting of pesticide-treated areas.

The current WPS allows growers to provide either an oral or posted warning to workers about which areas have been treated with a pesticide and are under an REI unless the pesticide label requires both an oral and posted warning. Many of the occupational pesticide illnesses reported to state health agencies have occurred when workers entered a treated area before the REI expired. The proposed regulation would require posting of all treated areas with an REI of greater than 48 hours, providing a visual reminder to workers not to enter the specific pesticide-treated area without proper protection.

c. Additional information before entering a pesticide-treated area under an REI.

As mentioned above, many incidents of pesticide exposure among workers result from entering an area while an REI is in effect. The proposed rule would require that worker training include information about the limited circumstances in which workers may enter a treated area under an REI, the hazards workers may face, and that the employer must provide the proper PPE. Employers would also have to inform workers entering a treated area under an REI about the conditions under which they enter the treated area and the maximum time they are permitted to stay in the treated area. Providing workers with general information about working in a treated area under an REI as well as with specific information about the circumstances of each instance should make them aware of the elevated risks and the steps necessary to protect themselves.

d. Access to more information about chemical hazards in the workplace.

The current WPS requires the employer to maintain records of what pesticides have been used or have had an REI in effect on the establishment in the last 30 days. The employer must provide the name of the pesticide, EPA registration number, and other general information at a central location on the establishment. The proposed rule would require employers to maintain a copy of pesticide labeling, the application records, and the Safety Data Sheet (SDS, formerly known as Material Safety Data Sheet, or MSDS), as well as the information currently required under the WPS, for 2 years after the product was applied on the establishment. The employer would be required to provide this information upon request and to ensure that health care providers treating a worker or handler who was exposed on the establishment receive a copy of this information. The more specific information required, longer retention period, and provision to provide additional information to health care providers should assist the health care provider in determining the specific types of pesticides to which a worker or handler may have been exposed and in more effectively treating the injured person.

e. Strengthened requirements for handlers during applications.

The risk of illness resulting from exposure to pesticides through drift is largely borne by agricultural workers. A recent study estimates that 37% to 68% of acute pesticide-related illnesses in agricultural workers are caused by spray drift (Ref. 2). The proposed rule would require handlers to immediately stop an application if, during the application, anyone other than a properly equipped handler enters the entry-restricted area or the area treated with pesticides. This, together with the proposal to create entry-restricted areas around the treated area for farms, forests and nurseries, is expected to result in reduced incidents of worker exposure through unintentional contact during application or through drift.

2. Strengthen protection for children through:

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

The current WPS does not have a minimum age for handlers or early-entry workers. These tasks involve contact with concentrated forms of pesticides, applying pesticides, or entering pesticide-treated areas before the REI has expired. Children may be more susceptible to the effects of pesticide exposure because their systems are developing, and research shows that adolescents have not fully developed informed decisionmaking skills. The Fair Labor Standards Act (FLSA) establishes a minimum age of 16 for youth engaged in occupations deemed hazardous by the Secretary of Labor (29 U.S.C. 213(c)(2)). This includes persons handling toxicity category I and II pesticides in agriculture 29 CFR 570.71(a)(9). The FLSA prohibits youth under the age of 16 engaged in nonagricultural employment from any work involving pesticides. Implementing a requirement for handlers and early-entry workers to be at least 16 years old would ensure that all persons handling pesticides, regardless of the toxicity level, are protected, thereby reducing their overall risk of pesticide exposure and illness. Persons under the age of 16 working on the establishment owned by an immediate family member would be exempt from the proposed minimum age requirements.

b. Improving training for workers and handlers on reducing take-home pesticide exposure.

The current WPS training does not provide specific information on how workers and handlers can minimize the possibility for transferring pesticide residues from their clothing, bodies, and shoes to their homes, vehicles, and family members. Although studies documenting the effects of take-home pesticide exposure are not conclusive, EPA has a reasonable concern about the potential for unreasonable adverse effects caused by exposure to workers, handlers, and their families. The proposed modest addition to training would educate workers and handlers on how to protect themselves and their families from take-home pesticide exposure.

3. Reduce some burdens on growers by:

a. Eliminating duplicative respirator requirements.

Agricultural worker and handler employers may also be subject to regulations issued by other federal agencies, such as the Occupational Safety and Health Administration (OSHA). The current WPS standard for proper use and maintenance of a respirator differs from the standard established by OSHA. The proposed rule harmonizes the requirements for agricultural employers that may be required to provide a respirator for their employees using pesticides under the WPS with those issued by OSHA for respirator use in agriculture beyond pesticide use in order to reduce the burden on employers to comply with two separate standards.

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

Under the current WPS employers may be uncertain about what measures they must take to verify whether a worker or handler has already received the required pesticide safety training on another establishment. EPA administers a voluntary training verification system, but it is not used nation-wide or consistently. As a result, many employers provide pesticide safety training to all new employees. The proposed revisions include a provision for the employer to provide the worker or handler with a copy of the record of the training, including worker or handler name, employer, trainer name, and date of training. Workers and handlers can provide this record to their next employer as proof of valid training and for the new employer to maintain a copy in his or her records. EPA believes a reliable training verification system will reduce overall burden on agricultural and handler employers.

c. Streamlining notification requirements between handler employers and agricultural establishment employers.

Under the current WPS, handler employers are required to notify the owner of the agricultural establishment about the start and end time of applications, as well as changes to the application start time and end time or application duration, before the application begins. The proposed changes would require handlers or their employers to provide changes to pesticide application plans to the agricultural employer within 2 hours of the end of the application rather than before the application. Changes to the estimated application end time of less than one hour would not require notification.

d. Improving clarity of the regulation.

The Agency proposes to revise and reorganize the WPS to enhance the ability of employers to understand their responsibilities under the regulation, which could lead to increased compliance with the rule. The proposed rule, if finalized, would reorganize the rule into four sections: (1) General requirements, (2) responsibilities of agricultural employers, (3) responsibilities of handler employers, and (4) exceptions. Employers' greater understanding and compliance with the WPS would ensure that workers and handlers are provided with the information and equipment they need to protect themselves. In turn, this should contribute to reduced incidents of unreasonable adverse effects from pesticide exposure.

F. Request for Comments

The Agency invites the public to provide its views and suggestions for changes on all of the proposals in this

document. Specifically, the Agency requests the public to consider and provide input on the following when providing comments:

• The need for, value of, and any alternatives to the requirements described in this document.

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

• The clarity of the proposed revisions.

• The ability to effectively enforce the proposed regulation.

• The economic analysis of the proposed rule, including its underlying assumptions, economic data, high- and low-cost options and alternatives, and benefits.

Additionally, in other parts of this proposed rule, EPA is specifically requesting comments on certain issues. EPA welcomes comments on these topics of particular interest to the Agency.

Commenters are encouraged to present any data or information that should be considered by EPA during the development of the final rule. Describe any assumptions and provide any technical information and data used in preparing your comments. Explain evaluations or estimates in sufficient detail to allow for them to be reproduced for validation. Commenters are reminded that the submission of data derived from human research should include information concerning the ethical conduct of such research, in compliance with the requirements at 40 CFR 26.1303.

G. Reasons for The Proposed Action

The WPS is more than 20 years old and EPA believes it can be improved. Since the late 1990s, EPA has engaged a wide range of stakeholders to evaluate the effectiveness of the WPS and to determine if improvements are necessary. EPA met with groups including, but not limited to, farmworker organizations, health care providers, state regulators, pesticide manufacturers, farmers, organizations representing agricultural commodity producers, and crop advisors. Through public meetings and federal advisory committees, and as individuals and small groups, a broad spectrum of stakeholders provided recommendations to EPA. Many of the proposed changes address their recommendations and concerns.

EPA has also reviewed available information about occupational pesticide exposure in agriculture. The Agency's review of these reports indicates that many incidents might have been avoided if workers and handlers had better training, were better notified of treated areas, and used PPE properly when required. For example, workers became ill after entering a treated area before the REI expired or without wearing the proper equipment, and through drift from a nearby pesticide application. EPA believes these types of incidents could be significantly reduced by enhancing the training for workers and handlers and strengthening provisions of the regulation designed to keep workers and handlers out of pesticide-treated areas unless they have the proper information and PPE.

The great majority of agricultural workers and handlers are disadvantaged. The National Agricultural Worker Survey (NAWS) data indicate the median family income range was $12,500-$14,999, many do not speak English and are not literate in their native language, and workers face challenges accessing health care and housing (Ref. 3). Workers and handlers experience risks from occupational pesticide exposure that are greater than those faced by the general population because workers and handlers work with and around pesticides on a daily basis, and language and literacy barriers make effective hazard communication a challenge. EPA is paying special attention to the disproportionate burden or risk carried by this disadvantaged community. The proposed rule as a whole addresses many worker safety concerns; throughout this document the environmental justice concerns relative to specific changes will be highlighted.

In conjunction with various non-regulatory programs, the WPS requirements are intended, among other things, to reduce the risks of illness or injury to workers and handlers resulting from occupational exposure to pesticides on agricultural establishments. Broadly speaking, the WPS provisions are meant to (1) inform workers and handlers about the hazards and risks from pesticides they use or to which they come into contact in the workplace, (2) protect workers and handlers from occupational exposure to pesticides and the potential adverse effects of pesticides, and (3) mitigate the potential adverse effects of unavoidable pesticide exposure, including accidents. Within these categories, EPA evaluated the costs and benefits of alternative requirements and is proposing a set of requirements that, in combination, is expected to achieve substantial benefits at minimum cost.

The overall costs of the proposal range from $62.1 to $72.9 million annually. These costs would be borne almost entirely by agricultural establishments, those who employ workers and handlers and use pesticides. Although the cost per establishment will vary by the number and type of employees, EPA estimates that the annual cost to large establishments would be $340 to $400 per year. Small establishments would incur a lower cost of $130 to $150 per year, which amounts to less than 0.1 percent of their annual revenue. Presented differently, the additional cost of employing a worker is estimated at less than $5 per year and the additional cost of employing a handler is estimated at about $60 per year. EPA does not believe the cost of the regulation will have a negative impact on employment.

The proposal, if finalized, would reduce the disproportionate risks associated with occupational pesticide exposure that currently fall on workers, handlers, and their families. Agricultural and handler employers are the group responsible for, and that benefit from, pesticide application on their establishments. Therefore, EPA believes it is appropriate for these employers to bear the cost of the protections for their employees, rather than to impose the costs on workers and handlers themselves. Through the WPS and these proposals, EPA seeks to have those responsible for making pesticide use decisions and applying pesticides internalize the effects of their decisions. This would minimize the externalities, i.e., undesirable or unintended consequences of decisions that result in negative consequences for other parties, to workers and handlers.

The benefits of the proposed rule primarily accrue to workers, handlers and, indirectly, to their families. EPA estimates the quantitative value of avoided acute incidents as a result of the proposed rule to be between $1.2 million to $2.8 million annually (Ref. 1). However, EPA recognizes that this estimate is biased downward by an unknown degree. First, pesticide incidents, like many illnesses and accidents, are underreported because sufferers may not seek medical care, cases may not be correctly diagnosed, and correctly diagnosed cases may not be filed with the central reporting database. Also, many symptoms of pesticide poisoning, such as a fatigue, nausea, rash, dizziness, and diarrhea, may be confused with other illnesses and may not be reported by the workers as related to their occupational exposure. Studies estimate that underreporting of pesticide exposure by workers and handlers ranges from 20 to 90 percent. Adjusting the estimate based on a reasonable assumption that only 25% of acute incidents are reported

brings the estimated benefits from reducing acute pesticide incidents to $11.4 million annually (Ref. 1).

Second, EPA's approach to estimating the quantitative benefits of the proposal only measures avoided medical costs and lost wages, not the willingness to pay to avoid possible symptoms due to pesticide exposure, which could be substantially higher. It also does not take into account the disenfranchised nature of this population and the relative impact that lost work time would have on their incomes and family health. An increase in protections across the entire worker population would be more beneficial and likely to effect positive change than requiring individuals to value and pay for their own increase in safety. Workers and handlers may not be able to pay for the improvements to their own safety, necessitating intervention by the government to ensure these populations are adequately protected.

Well-documented associations between pesticide exposure and certain cancer and non-cancer chronic health effects exist in peer-reviewed literature; however, the wide range of employment histories and pesticide exposures characteristic of the agricultural workforce generally prevents reliable estimates of the full impact of chronic pesticide exposure. In order to account for the reduction in chronic diseases expected as a result of the proposed WPS changes, OPP used a “break-even” analysis. Based on a literature review, EPA evaluated the costs associated with six chronic illnesses that have well-documented association with agricultural pesticide exposure: non-Hodgkin's lymphoma, prostate cancer, Parkinson's disease, lung cancer, bronchitis, and asthma. Owing to the high costs associated with these chronic illnesses, improvements to the WPS that could reduce the frequency of these illnesses among workers and handlers by less than 1% (53 total cases per year) would result in sufficient benefits to bridge the gap between the estimated costs of the revisions and the anticipated benefits associated with reducing acute pesticide exposures. For the reasons identified below, it is reasonable to expect that the proposed changes to the WPS will reduce chronic pesticide exposures enough to reduce the frequency of chronic illnesses by at least 0.08% for lung cancer and at least 0.8% for the other illnesses considered.

EPA believes the qualitative benefits of the proposed rule are substantial. The proposals for more frequent, expanded training, better identification of treated areas, strengthened requirements for PPE, and clarifying the responses and information required in the event of an emergency exposure all provide workers and handlers with more information and a better ability to protect themselves from risks associated with pesticide exposure. The proposals complement each other and the resulting benefits are derived from implementation of the whole package. Overall, the weight of evidence suggests that the proposed requirements will result in both short- and long-term health benefits to agricultural workers and pesticide handlers.

In addition, many of the proposed changes to current WPS requirements would specifically mitigate risks to children. The proposal would implement a minimum age of 16 for most handlers and early-entry workers; the minimum age would not apply to handlers and early-entry workers on an establishment owned by an immediate family member. EPA believes that these two tasks present a higher risk of exposure than do the general tasks assigned to a worker. Since children's bodies are still developing, they may be more susceptible to these elevated risks and therefore would benefit from strengthened protections. In addition, the proposal seeks through additional training to reduce the potential for workers to transport pesticide residues home to their families. Although studies are inconclusive about the effects of pesticides transferred from the treated area to the home, EPA believes that providing additional general information to workers and handlers about steps that may mitigate any potential risk would be prudent. Thus, the proposed changes are expected to reduce children's exposure to pesticides.

In the almost two decades since the 1992 WPS was implemented, EPA has learned from the Pesticide Program Dialogue Committee, National Assessment of the Pesticide Worker Safety Program process, meetings with state regulators, and other stakeholder interaction, that the 1992 rule needs improvements. EPA believes that the data available to the Agency supports this conclusion. The proposed rule reflects the Agency's commitment to pay particular attention to the health of children and environmental justice concerns. The proposal also aligns with the President's January 18, 2011 Executive Order 13563 (76 FR 3821), requesting that agencies review existing regulations to improve the efficacy of their protection, to balance costs and benefits, and to maximize their efficiency.

In proposing this revision, the Agency is mindful of the effects on small business, family farms, and other affected parties. The Agency has attempted to keep the costs to the regulated community as low as practicable, so that they are reasonably balanced against the anticipated risk reduction benefits of the measures proposed below.

H. Summary of Proposed Changes

EPA proposes to revise the WPS by:

• Amending the existing pesticide safety training content, retraining interval (frequency), and qualifications of trainers,

• Ensuring workers receive safety information before entering any pesticide treated area by amending the existing “grace period” and expanding the training required during the “grace period,”

• Establishing a minimum age of 16 for handlers and for workers who enter an area under an REI,

• Establishing requirements for specific training and notification for workers who enter an area under an REI,

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

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

• Modifying the content of the warning sign,

• Adding information employers must keep under the requirement to maintain application-specific information,

• Requiring recordkeeping for pesticide safety training and worker entry into areas under an REI,

• Ensuring the immediate family exemption includes an exemption from the proposed minimum age requirements for handlers and early-entry workers,

• Expanding the definition of “immediate family” to allow more family-owned operations to qualify for the exemptions to the WPS requirements,

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

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

III. Statutory Authority and Framework

This unit discusses the legal framework within which EPA regulates the safety of those who work with and around pesticides in agriculture.

A. FIFRA

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947 established a framework for the regulation of pesticide products. Major amendments in 1972 by the Federal

Environmental Pesticide Control Act (7 U.S.C. 136

et. seq.

) broadened federal pesticide regulatory authority to make it “unlawful for any person to use any registered product in a manner inconsistent with its labeling” (7 U.S.C. 136i (a)(2)(G)). The 1972 amendments provided civil and criminal penalties for violations of the Act (7 U.S.C. 136l) and authorized the Administrator to provide regulations to carry out the Act (7 U.S.C. 136w (a)). The new and revised provisions directed EPA to protect humans and the environment from unreasonable adverse effects of pesticides.

The legislative history of the 1972 amendments to FIFRA reflects the clear intent of Congress that farmers and agricultural workers were among those intended to be afforded protection under FIFRA. In discussing the 1972 amendments, the Senate Committee on Agriculture noted its intent of FIFRA to protect farmworkers and others from contacting pesticides or their residues. (Ref. 4)

EPA has implemented many protections for workers through use instructions on pesticide labeling, which have been legally binding on pesticide users since the 1972 amendments. See FIFRA section 12(a)(2)(G), which makes it unlawful “to use any registered pesticide in a manner inconsistent with its labeling”. In order to expand these protective measures without making individual product labeling inordinately complex, the Agency decided to consolidate common requirements in a single, uniform standard that could be incorporated into agricultural pesticide labels by reference, the Worker Protection Standard (WPS). In 1992, the Agency issued the WPS, which, where mandated on a pesticide label, provides a uniform system of protections to workers and handlers on farms, forests, nurseries, and greenhouses from occupational exposure to the pesticide product. The WPS establishes uniform requirements for practices that minimize exposure, regardless of the risks of specific pesticides, and the individual pesticide product labeling provides the specific requirements appropriate to each pesticide product. The WPS sets basic requirements for notification of a treated area, limited entry into a treated area, supplies related to decontamination and maintenance of PPE, and access to information about pesticides used on the agricultural establishment. It also requires that workers and handlers receive basic safety training to inform them about ways to minimize their exposure and risk.

B. EPA Regulation of Pesticides

In order to protect human health and the environment from unreasonable adverse effects that might be caused by pesticides, the Agency has developed and implemented a rigorous process for registering and re-evaluating pesticides. The registration process begins when a manufacturer submits an application to register a pesticide. The application must contain required test data, including information on the pesticide's chemistry, environmental fate, toxicity to humans and wildlife, and potential for human exposure. The Agency also requires a copy of the proposed labeling, including directions for use, and appropriate warnings.

Once an application for registration of a new pesticide product is received, EPA conducts an evaluation, which includes a detailed review of scientific data to determine the potential impact on human health and the environment. The Agency considers the risk assessments and results of any peer review and evaluates potential risk management measures that could mitigate risks above the Agency's level of concern. Risk management measures could include, among other things, extending the restricted-entry interval (REI), the period during which people are prohibited from entering the treated area, to allow the pesticide residues to reach an acceptable level before worker reentry is permitted. They could also require certain engineering controls, such as use of closed mixing systems to reduce potential exposure to those who mix and load pesticides, or specific PPE, such as respirators, to protect users against risks associated with inhalation of the product.

In the decision-making process, EPA evaluates the application to determine whether the proposed use(s) meets the Agency's standards for registration. FIFRA is a risk-benefit statute. In evaluating the impact of a pesticide on occupational health and safety, EPA weighs the risks associated with use of the pesticide (occupational, environmental) and the benefits associated with use of the pesticide (economic, public health, environmental). FIFRA does not require EPA to balance the risks and benefits for each audience. For example, a product may pose risks to workers, but risks may nevertheless be reasonable in comparison to the economic benefit of continued use of the product to society at large.

If the application does not contain enough evidence to prove that the pesticide meets all of these standards, EPA communicates to the applicant the need for more or better refined data, labeling modifications, or additional use restrictions. Once the applicant has demonstrated that a proposed product meets the statutory standards, and, if the pesticide is intended to be used on food, a tolerance or exemption from the requirement of a tolerance under the Federal Food, Drug, and Cosmetic Act can be established, EPA will approve the registration, subject to any risk mitigation measures necessary to achieve that approval. EPA devotes significant resources to the regulation of pesticides to ensure that each pesticide product meets the FIFRA requirement that pesticides not cause unreasonable adverse effects to the public and the environment.

When EPA approves a pesticide, the label reflects the risk mitigation measures required by the Agency. Since users must comply with the directions for use and use restrictions on a product's labeling, EPA uses the labeling to establish and convey mandatory requirements for how the pesticide must be used to protect people and the environment from pesticide exposure. As discussed in Unit III.A., above, the labeling for agricultural pesticides requires compliance with the WPS, in order that workers, handlers, and their employers have a single, uniform set of specific requirements for the protection of workers and handlers that complement the product-specific labeling requirements.

C. EPA's Pesticide Reregistration and Registration Review Programs

FIFRA requires EPA to review periodically the registration of pesticides currently registered in the U.S. The 1988 FIFRA amendments required EPA to establish a pesticide reregistration program. Reregistration was a one-time comprehensive review of the human health and environmental effects of pesticides first registered before November 1, 1984 to make decisions about these pesticides' future use. The Food Quality Protection Act of 1996 required that EPA establish, through rule making, an ongoing “registration review” process of all pesticides at least every 15 years. The final rule establishing the registration review program was signed and published in August 2006. The purpose of both re-evaluation programs is to review all pesticides registered in the U.S. to ensure that they continue to meet current safety standards based on up-to-date scientific approaches and data.

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

declared “eligible” for reregistration. The results of EPA's reviews are summarized in Reregistration Eligibility Decision (RED) documents. The last RED was completed in 2008. Often before a pesticide could be determined “eligible,” certain risk reduction measures had to be put in place. For a number of pesticides, measures intended to reduce exposure to handlers and workers were needed and are reflected on pesticide labeling. To address occupational risk concerns, REDs include mitigation measures such as voluntary cancellation; limiting the amount, frequency or timing of applications; other application restrictions; classification of a product or specific use as a “Restricted Use Pesticide” (RUP); PPE; specific REIs; user safety requirements; and improved use directions.

Rigorous education and enforcement are needed to ensure that these mitigation measures are appropriately implemented in the field. The framework provided by the WPS is critical for ensuring that the improvements brought about by reregistration, including worker risk mitigation measures, are realized. The rule changes being proposed in this notice are designed to enhance the effectiveness of the existing structure.

In summary, EPA's pesticide reregistration and registration reviews assess the specific risks associated with particular chemicals and ensure that the public and environment do not suffer unreasonable adverse effects from the risks. EPA implements the risk reduction and mitigation measures that result from the pesticide reregistration and registration review programs through individual pesticide product labeling.

D. Existing Worker Protection Standard

The WPS currently covers pesticide use at establishments engaged in the production of agricultural commodities: Farms, forests, nurseries, and greenhouses. The WPS does not cover persons working directly with livestock. WPS regulations are directed toward the working conditions of two types of employees: Workers and handlers.

• Workers perform tasks related to the cultivation and harvesting of agricultural products on agricultural establishments. Typical tasks include thinning, pruning, and harvesting commodities.

• Handlers mix, load, and apply pesticides, and do other activities linked to pesticide application on agricultural establishments.

The WPS defines general protections that cover all workers or handlers employed on an establishment that uses a pesticide that references the WPS on the label and complements the specific risk mitigation measures implemented through individual pesticide product labeling. The existing WPS requires agricultural employers to provide certain protections to their employees. Agricultural employers are required to notify workers of areas treated with pesticides so workers may avoid inadvertent exposures. Employers also must provide to all workers that may enter a treated area pesticide safety training that covers common routes of exposure, how to protect oneself from pesticide exposure, information on decontamination, and what to do in an emergency. Handlers receive more detailed training on using PPE, conducting pesticide application, and following safety principles. A central location on the establishment must have a pesticide safety poster and information on recent pesticide applications. Handlers and workers must be informed of specific requirements on the pesticide label related to the WPS.

The labeling of agricultural pesticides generally specifies REIs (a time during which entry into a treated area is strictly limited) for areas treated with pesticides. The existing WPS regulation provides detailed requirements regarding identifying areas under an REI and notifying workers about them, excluding workers and others from the treated areas, and the limited circumstances under which early entry may occur. The WPS provides detailed information concerning the types of PPE necessary for handlers and early-entry workers, if not specified on the label, and instruction that employers must provide to workers entering under an REI exception. The existing WPS also prohibits applicators from applying a pesticide in a way that will expose workers or other persons and excludes workers from areas while pesticides are being applied. These general requirements serve as a counterpart to the product-specific risk reduction measures implemented through the pesticide label.

The WPS also mitigates the risks associated with pesticide exposure by requiring agricultural employers to provide workers and handlers with water, soap, and towels for routine washing after working in or around areas where pesticides have been applied. There are also provisions for decontamination in the event of an emergency. The employer must provide transportation to a medical care facility for a worker or handler who may have been poisoned or injured, and provide information to the worker, handler, or medical personnel about the pesticide to which the person may have exposed.

A detailed history of the development of the 1992 WPS and the process leading to the proposed rule appears in Unit V.

IV. Overview of EPA's Protection of Pesticide Workers

A. Demographics of Agricultural Workers and Handlers

The task of protecting workers and handlers from occupational exposure to pesticides presents a challenge, given the complexity of the science issues involving pesticide use, variability of pesticide use patterns, and the diversity of the labor population being served and the tasks they perform.

According to information published by the Department of Labor's (DOL) NAWS in 2001-2002, 75% of agricultural workers in the United States were born in Mexico and 2% in Central America (Ref. 3 p. 3). A majority (81%) of this group speaks Spanish as a native language, but a growing percentage speaks languages such as Creole, Mixteco, and indigenous languages (Ref. 3 p. 17). Approximately 44% could not speak English at all, and 53% could not read any English (Ref. 3 p. 21). Many have received minimal formal education; the foreign born workers, on average, completed no more than a sixth grade education (Ref. 3 p. 18).

Approximately 43% of the survey respondents were classified as migrant, having traveled at least 75 miles in the previous year to find a job in agriculture (Ref. 3 p. 7). Over 20% of respondents lived in housing provided by their employer and 58% rented housing from someone other than their employer (Ref. 3 p. 43). In general, agricultural workers surveyed by NAWS do not use health care facilities. Estimates of agricultural workers lacking health insurance range from 77% to 85% and estimates from the late 1990s indicate only 20% of those surveyed had visited a health care facility in the preceding 2 years (Ref. 5 pp. 12-13). U.S. Department of Agriculture (USDA) research, based on NAWS data, also reports that workers have difficulty entering the health care system to receive treatment. Cost was a significant barrier for two-thirds of farmworkers, while about a third listed language barriers as an impediment to receiving care. The problem is more severe among undocumented workers because they fear seeking treatment will lead to deportation or other adverse legal action (Ref. 6).

USDA issued a report indicating that the factors mentioned above contribute

to the disadvantaged status of hired workers in agriculture (Ref. 6). Unemployment rates, counting both crop and livestock workers (livestock workers are outside the scope of the WPS), are twice that of all salary and wage workers. The NAWS found crop workers' average annual income was between $10,000 and $12,499, with total family income averaging between $15,000 and $17,499 (Ref. 3 p. 47).

B. Incident Data Sources and General Information

Incident monitoring programs have provided the Agency with a better understanding of common types of pesticide exposures and their outcomes. In 2007, EPA released a report detailing the coverage of all pesticide exposure incident reporting databases considered by the Agency (Ref. 7). EPA consults two major databases for information on occupational pesticide exposure incidents.

The first database, the Sentinel Event Notification System for Occupational Risk (SENSOR), is maintained by the Centers for Disease Control and Prevention (CDC)/National Institute for Occupational Safety and Health (NIOSH). SENSOR covers all occupational injuries and has a specific component for pesticides (SENSOR-Pesticides). EPA uses SENSOR-Pesticides to monitor trends in occupational health related to acute exposures to pesticides, to identify emerging pesticide problems, and to build and maintain state surveillance capacity. SENSOR-Pesticides is a state-based surveillance system with eleven state participants. The program collects most poisoning incident cases from:

•

Department of Labor workers' compensation claims when reported by physicians,

•

State Departments of Agriculture, and

•

Poison control centers.

A state SENSOR-Pesticides contact specialist follows up with workers and obtains medical records to verify symptoms, circumstances surrounding the exposure, severity, and outcome. Using a standardized protocol and case definitions derived from poison center reporting, SENSOR-Pesticides coordinators enter the incident interview description provided by the worker, medical report, and physician into the SENSOR data system. EPA believes that SENSOR-Pesticides provides the most comprehensive information on occupational pesticide exposure, but coverage is not nationwide and a majority of the data comes from California and Washington State.

The American Association of Poison Control Centers maintains the National Poison Data System (NPDS), formerly the Toxic Effects Surveillance System (TESS). NPDS is a computerized information system with geographically specific and near real-time reporting. While the main mission of Poison Control Centers (PCC) is helping callers respond to emergencies, not collecting specific information about incidents, NPDS data help identify emerging problems in chemical product safety. Hotlines at 61 PCCs nationwide are open 24 hours every day of the year. There are many bilingual PCCs in predominantly Spanish speaking areas. Hotlines are staffed by toxicology specialists to provide poisoning information and clinical care recommendations to callers with a focus on triage to give patients appropriate care. Using computer assisted data entry, standardized protocols, and strict data entry criteria, local callers report incidents that are retained locally and updated in summary form to the national database. Since 2000, nearly all calls in the system are submitted in a computer-assisted interview format by the 61 certified PCCs, adhering to clinical criteria designed to provide a consistent approach to evaluating and managing pesticide and drug related adverse incidents. Information calls are tallied separately and not counted as incidents. The NPDS system covers nearly the entire United States and its territories, but the system is clinically oriented and not designed to collect detailed occupational incident data.

Three studies showing undercounting of poison control data indicate the magnitude of the problem. The studies each focus on a specific region and compare cases reported to poison control with those poisonings for which there are hospital records. In all three cases, the studies indicate a substantial underreporting of poisoning incidents to poison control, especially related to pesticides (Ref. 8) (Ref. 9) (Ref. 10). Underreporting of pesticide incidents is a challenge for all available data sources for a number of reasons, as discussed below.

Symptoms of acute pesticide poisoning are often vague and mimic other causes, leading to incorrect diagnoses, and chronic effects are difficult to identify and track. The demographics of the worker population also contribute to underreporting of incidents. Many incident reports lack useful information, such as the exact product that was the source of the exposure, the amount of pesticide involved, or the circumstances of the exposure. There may not be enough information to determine if the adverse effects noted were in fact the result of pesticide exposure and not another contributing factor. A more complete discussion of the underreporting and its effect on pesticide incident reporting is located in the Economic Analysis for this proposal (Ref. 1).

The data available do provide a snapshot of the illnesses faced by workers and handlers in the field and the likely avenues of exposure. Review of these data sources shows that workers and handlers continue to face avoidable occupational pesticide exposure. The most common types of incidents are related to pesticide drift and unpermitted entry into an area under an REI (Ref. 11). Often handler exposure occurs when handlers are using PPE and do not wear the PPE properly or the PPE malfunctions. Generally, reports on the data note that many of the incidents could be prevented with strengthened training for handlers and workers and improved notification when an application is occurring or a treated area is under an REI (Ref. 11).

C. Other Worker Protection Programs

EPA's Pesticide Worker Safety Program is comprised of three major components: protections for agricultural labor through the WPS (40 CFR part 170), described in Unit III.D.; certification of RUP applicators; and the National Strategies for Health Care Providers: Pesticides Initiative (Health Care Providers Initiative). EPA uses its field programs and cooperative agreements to distribute information on the risks associated with pesticides, developing technology, and self-protection to avoid pesticide exposure. All three field programs solicit feedback from the regulated and affected communities to EPA about the effect of the pesticide labeling and mitigation measures. To implement these programs, the Office of Pesticide Programs works with an extensive network of partners, including state and tribal pesticide regulatory agencies; USDA's National Institute of Food and Agriculture (NIFA) (formerly the Cooperative State Research, Education, and Extension Service (CSREES)); university cooperative extension services; farmworker groups; and the regulated community. EPA funds collaborative field projects and activities through grants with governmental and non-governmental organizations with the goal of improving the health of workers, handlers, applicators, the public, and the environment.

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

competency of applicators who use RUPs. The rule requires applicators to demonstrate competency to become certified to apply RUPs. Part 171 also has a section outlining the requirements for states, federal agencies, and tribes to administer a program to certify applicators in their jurisdictions. All states and several tribes, territories, and federal agencies administer their own applicator certification programs. EPA provides funding through an interagency agreement with USDA to support the training of applicators using RUPs through the cooperative extension services in each state.

The third prong of the Pesticide Worker Safety Program is the Health Care Providers Initiative, aimed at improving the training of health care providers in the recognition, diagnosis, and treatment of occupational pesticide poisonings. EPA collaborated in the development of a manual for health care providers called “Recognition and Management of Pesticide Poisonings” (Ref. 12). This resource outlines the health effects associated with different classes of pesticides and suggests treatments based on the suspected exposure.

Under this initiative, EPA also works closely with the Migrant Clinicians Network, an organization of health care providers serving the migrant community, on a project to improve pesticide education and awareness and to train health care providers to recognize and treat pesticide-related conditions. This project also includes the development of relevant resources and tools that health care providers can use to deal effectively with pesticide-related health conditions, and the distribution of these products through training sessions, the Internet, and continuing education opportunities.

D. EPA-OSHA Relationship

The Occupational Safety and Health Act, 29 U.S.C. 651 et. seq., grants the Occupational Safety and Health Administration (OSHA) authority to promulgate regulations to mitigate significant risks that may occur in the occupational setting. Under its statutory authority, OSHA promulgated a Hazard Communication Standard (HCS) (29 CFR 1910.1200) to protect employees from general chemical hazards in the workplace. OSHA also establishes industry, chemical, and process-specific standards to address workplace hazards that warrant additional regulatory measures to ensure employees' occupational safety and health.

Except as limited by section 4(b)(1) of the Occupational Safety and Health Act, which prohibits OSHA from regulating working conditions or hazards where other federal agencies exercise statutory authority to prescribe or to enforce standards for occupational safety and health, OSHA's HCS covers all industries in which an employee may be exposed to a chemical hazard in the workplace. OSHA based the HCS on employees' right to know about chemical hazards in the workplace in order to make informed decisions about their work practices, to better protect themselves, and to reduce their chances of illness or injury from a workplace accident. OSHA determined that employees are at a significant risk of experiencing adverse health effects in the absence of knowledge of workplace hazards. Among other things, the HCS requires employers to provide the following protections in the workplace:

• Develop, implement, and maintain a written hazard communication program;

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

• Ensure labeling of all chemical containers;

• Provide employees with effective information and training on chemical hazards; and

• Maintain a copy of the safety data sheet (SDS, formerly known as Material Safety Data sheet, or MSDS) containing the chemical and physical hazard information for each hazardous chemical, and ensure that SDSs are readily accessible to employees when they are at the workplace.

To address the statutory limitation in section 4(b)(1) and to ensure workplace protections of agricultural workers and handlers, OSHA and EPA formed a working group to discuss the jurisdictional overlap between OSHA's authority over workplace safety and health and EPA's mandate to protect those who work with and around pesticides from the risks associated with exposure. OSHA and EPA sought to coordinate regulations related to workplace safety and health and to ensure that they were within the scope of each agency's statutes. EPA and OSHA agreed that OSHA's Field Sanitation Standard addresses general sanitary standards, while EPA's WPS decontamination requirements are specific to pesticide hazards. EPA stated that the intended reach of the WPS was limited to occupational safety for pesticides and that OSHA was not preempted from regulating any non-pesticide chemical or other workplace hazards in agriculture. OSHA established a policy not to cite employers covered under the WPS for pesticide-related HCS standards. The policy also defers to EPA's regulatory authorities for pesticide labeling and use, certification of pesticide applicators, and protection of handlers and workers on establishments covered by the WPS (Ref. 13).

V. Sources of Information for Improvement of Worker Protection

A. History of the WPS Regulation

In 1974, EPA promulgated the first version of the WPS (39 FR 16888; May 10, 1974). The regulation provided health protections for workers exposed to pesticides from hand labor activities during and after applications. The 1974 regulations contained four basic elements:

• A prohibition against spraying workers,

• Specific reentry intervals for 12 pesticides and a general reentry interval for all other agricultural pesticides, prohibiting entry until sprays had dried or dusts had settled;

• A requirement for protective clothing for any worker who had to reenter treated areas before the specific reentry interval had expired; and

• A requirement for “appropriate and timely” warnings.

A 1983 review of the WPS concluded that the 1974 regulation did not adequately protect workers (49 FR 32605; August 15, 1984). New information was becoming available about the use of pesticides and the impact on occupational safety and health. OSHA had promulgated occupational health standards for workers in non-agricultural industries that provided greater protections than those contained in the WPS. The OSHA Standards included requirements for notifying workers of workplace chemicals to which they are exposed, personal protective equipment to mitigate risks of exposure, hygiene facilities, medical surveillance, worker training programs, and recordkeeping. EPA considered the addition of similar protections to the WPS.

In addition to the shortcomings of the protections in the 1974 rule, there were legal issues with respect to the enforcement of the protections. EPA realized that the four existing requirements of the WPS were not typically included on the pesticide labeling. Without a reference to the regulation on the labeling, the requirements were not legally enforceable. Moreover, the regulation itself did not clearly assign responsibility for compliance with the requirements; for example, workers were prohibited from entering treated areas, but nobody was charged with

communicating the prohibition to the workers or ensuring that they did not enter.

The Agency also wanted to expand the scope of the regulation to cover sites that had been exempted but were similar to farms, i.e., forests, nurseries, and greenhouses, and to add another group of people facing occupational pesticide exposure in agriculture—handlers who mix, load, or apply pesticides. Handlers' occupational exposure profile is distinct from that of workers protected by the initial WPS. When mixing, handlers may face exposure while pouring the concentrated pesticide or stirring the diluted mix. Loaders and applicators handle many gallons of the diluted pesticide and may experience exposure while transferring the pesticide mixture into the application equipment or making the application. The Agency believed that expanding the WPS to include the additional sites and adding specific protections for handlers was necessary.

In 1984, the Agency published an Advance Notice of Proposed Rulemaking (49 FR 32605; August 15, 1984), announcing its intention to revise the 1974 rule for the reasons outlined above and soliciting public comment. EPA also initiated a process of regulatory negotiation with parties interested in or affected by the WPS. Stakeholders with competing interests worked to resolve issues through collaboration and compromise. EPA convened a Federal Advisory Committee Act (FACA) workgroup, “The Advisory Committee on WPS for Agricultural Pesticides,” that had members representing a spectrum of stakeholder perspectives from 25 entities. Certain labor representatives discontinued their participation early in the process. As a result, the full committee did not participate in decision making; therefore, a consensus on proposed changes to the regulation could not be reached.

The public comments helped the Agency refine the areas for proposed change. In 1988, EPA published a Notice of Proposed Rulemaking (NPRM) (53 FR 25970; July 8, 1988) that proposed significant changes to the then existing WPS, including the following:

• Expansion of the scope of establishments covered;

• Revision of reentry intervals to correlate with risks posed by each pesticide;

• Revision to the PPE requirements;

• Improvement to worker notification provisions; and

• Strengthening compliance with the regulation by designating specific responsibilities of agricultural employers.

Following the publication of the NPRM, EPA held public meetings across the country, primarily in major agricultural areas, to explain the proposed rule and to respond to questions. EPA received 380 written comments from the public on the proposed rule.

After review and careful analysis of the public comments, the Agency promulgated the final rule, revising the WPS and adding Subpart K (Labeling Requirements for Pesticides and Devices) to 40 CFR part 156 in August 1992 (57 FR 38101; August 21, 1992). Shortly after publication of the final rule, agricultural groups raised concerns related to the availability of materials necessary to implement the rule and insufficient numbers of qualified trainers. Based on these concerns, Congress enacted legislation delaying implementation of the final rule. In response to the concerns raised, EPA worked with stakeholders to develop training materials that were tested with focus groups to ensure that they were appropriate for the language and literacy level of the target training audiences. In response to identified training needs, EPA has developed training materials in many languages, including Spanish, Chinese (Mandarin), Tagalog, Haitian Creole, Hmong, Ilocano, Khmer, Laotian, Polish, Portuguese, and Vietnamese. EPA's revisions to the WPS were fully implemented in 1995. The expanded regulation provided protections for agricultural workers from pesticide exposure on farms and in forests, nurseries, and greenhouses; included agricultural handlers; and held agricultural employers and pesticide applicators responsible for complying with specific portions of the regulation.

Since promulgating the WPS in 1992, EPA has made several minor amendments. In 1995, EPA published a series of

Federal Register

notices: (1) Reducing the grace period for agricultural employers to provide pesticide safety training to workers from 15 days to 5 days (60 FR 21943; May 3, 1995), (2) establishing a 5-year retraining interval for workers and handlers (60 FR 21943; May 3, 1995), (3) exempting certain persons performing crop advisor tasks from WPS provisions except for pesticide safety training, (60 FR 21948; May 1995), and (4) creating exceptions to the WPS to allow workers to enter pesticide-treated areas during an REI under specified conditions to perform irrigation tasks (60 FR 21960; May 3, 1995) and tasks that involve limited contact with pesticide-treated surfaces (60 FR 21955; May 3, 1995).

In 1996, EPA amended the regulation to: (1) Reduce the number of days employers must provide to workers decontamination supplies (soap, water, paper towels) after application of pesticides that are low risk and have REIs of four hours or less (61 FR 33207; June 26, 1996), (2) allow substitution of the language commonly spoken and read by workers for the Spanish portion of the warning sign (61 FR 33202; June 26, 1996), and (3) allow the use of smaller signs in nurseries and greenhouses (61 FR 33202; June 26, 1996).

Lastly, in 2004, EPA published a notice in the

Federal Register

revising the WPS glove requirements. This notice allowed all early-entry workers and handlers to wear disposable glove liners under chemical-resistant gloves and eliminated the requirement for aerial applicators to wear chemical-resistant gloves when entering and exiting aircraft that have been used to apply pesticides unless required by the labeling (69 FR 53341; September 1, 2004).

During the course of the states' implementation of the 1992 WPS regulation, regulatory partners, the regulated community, and other stakeholders raised numerous policy and enforcement questions. EPA addressed most of these questions through reference to the official rule text or the Agency's responses to public comments on the proposed rule. Some questions, however, raised interpretive issues that required the Agency to develop and issue interim guidance. EPA coordinated the development of guidance through an interpretive guidance workgroup (IGW) using a collaborative process that included all relevant and affected EPA offices, and state regulatory partners from the Florida Department of Agriculture and Consumer Services and the New Mexico Department of Agriculture. The State FIFRA Issues Research and Evaluation Group nominated the state participants on the IGW.

The IGW addressed the questions raised by stakeholders. The final IGW guidance clarified definitions for terms used in the rule, the scope of the WPS exceptions, and the intended scope and/or limits of provisions. The final IGW guidance has been compiled into a document available to the public (Ref. 14).

Although the IGW document provided answers to many of the issues raised by stakeholders to EPA, it is only guidance. Therefore, the IGW document is not legally binding on EPA, workers, handlers, agricultural establishments, and others. EPA proposes to codify

certain of the elements in the IGW guidance document, as discussed in Units VII through XVIII.

At the same time EPA published the 1992 WPS, the Agency also published an NPRM on a Hazard Communication/Right-to-Know program for agricultural workers (57 FR 38167; August 21, 1992). This NPRM responded to comments received in response to the 1992 proposed rule noting that protections for agricultural workers could not be considered complete until workers were provided with specific hazard information. Many comments called for EPA to adopt requirements parallel to those imposed by OSHA rules. In the 1992 proposed rule, EPA proposed options for providing written information about the specific hazards posed by pesticides in the workplace, for alleviating confusion about possible conflict and duplication between EPA and OSHA regulation of occupational safety and health in pesticides, and for supporting states in developing their own hazard communication programs. EPA never promulgated a rule finalizing a Hazard Communication/Right-to-Know program for agricultural workers because Agency resources were diverted to develop training and compliance assistance materials to implement the WPS as mandated by Congress. The Agency also wanted to solicit more stakeholder feedback about states' experiences implementing different approaches to hazard communication before moving forward with a final regulation.

B. Stakeholder Engagement

Over the last 20 years, the Agency has repeatedly engaged the public and particularly affected stakeholders in the assessment of the 1992 WPS and its implementation. This stakeholder engagement process has provided EPA with a deep appreciation of the complex challenges facing federal, state and tribal authorities, agricultural employers, and workers and handlers in the ongoing effort to ensure pesticide use is safe.

Immediately following full implementation of the 1992 WPS, EPA began the Pesticide Dialogue Process. From 1996 to 2000, EPA held public meetings across the country for open dialogue on rule implementation, challenges in compliance, and perceived effectiveness. The meetings were open to the general public.

The Agency initiated the National Assessment of EPA's Pesticide Worker Safety Program (National Assessment) in 2000. Through this process, EPA convened stakeholder meetings in Texas, California, and Florida. Participants included representatives from farmworker organizations, cooperative extension services, commodity organizations, state regulatory agencies, federal agencies, pesticide manufacturers and distributors, and individual workers, handlers, and growers. Stakeholders provided information about the strengths and weaknesses of the WPS's protections and implementation. EPA established three workgroups: general training (Ref. 15), train-the-trainer (Ref. 16), and hazard communication. Each of the workgroups met apart from the public meetings to assess specific aspects of the WPS and to recommend improvements. EPA held a final meeting in Washington, DC at which the workgroups presented their findings to EPA.

The assessment concluded in 2005 with the presentation of the “Report on the National Assessment of EPA's Pesticide Worker Safety Program” (Ref. 17). The opinions and suggestions made during the course of the assessment centered on a few broad improvement areas: the expansion and upgrade of applicator competency and worker safety and promotion of safer work practices, improved training of and communication with all pesticide workers, increased enforcement efforts and improved training of inspectors, training of health care providers and monitoring of pesticide incidents, and finally, program operation, efficiency, and funding (Ref. 17 p. 1). While EPA addressed some of the recommendations through grants, program guidance, and other outreach, others required regulatory change (Ref. 17 p. 26).

During the initial stages of the framing of this proposal, EPA's Federal Advisory Committee, the Pesticide Program Dialogue Committee (PPDC), formed a workgroup in 2006 to provide feedback to EPA on different areas for change. The workgroup had over 70 members representing a wide range of stakeholders. EPA shared with the workgroup suggestions for regulatory change identified through the National Assessment and solicited comments. The workgroup convened for a series of meetings and conference calls to get more information on specific parts of the regulation and provided its thoughts to the Agency. The workgroup never reached consensus; it focused on evaluating possible changes under consideration by EPA providing feedback from each member's or organization's perspective. Comments from the PPDC workgroup members have been compiled into a single document and posted in the docket.

EPA convened a Small Business Advocacy Review (SBAR) Panel on potential revisions to the WPS in 2008. The SBAR Panel was convened under section 609(b) of the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement and Fairness Act (SBREFA). As part of the SBAR Panel's activities, EPA consulted with a group of Small Entity Representatives (SERs) from small businesses and organizations that could be affected by the potential revisions. EPA provided the SERs with information on the WPS and potential revisions and requested feedback on the proposals under consideration. EPA asked the SERs to offer alternate solutions to the potential proposals presented to provide flexibility or to decrease economic impact for small entities while still accomplishing the goal of improved safety.

The SERs provided feedback on the following areas: Requiring all treated areas to be posted, requiring pesticide safety training more frequently than every 5 years, eliminating the grace period between hiring a worker and providing pesticide safety training, and requiring showers on establishments that employ handlers. EPA compiled the responses from the SERs in an Appendix to the final Panel Report and posted the full report and appendix in the docket (Ref. 18). EPA considered the input from the SERs as part of the evaluation of available options for this rulemaking, and where appropriate, feedback from the SERs is discussed in various descriptions of proposed changes in this preamble.

In addition to formal stakeholder outreach, EPA met with numerous individual stakeholders when requested to discuss concerns and suggestions in detail. Stakeholders included farmworker organizations (Farmworker Justice, Migrant Clinicians Network, and El Comité de Apoyo a los Trabajadores Agrícolas [Farmworker Support Committee]); the National Association of State Departments of Agriculture (NASDA); the Association of American Pesticide Control Officials (AAPCO); Crop Life America (CLA); and others.

C. GAO Audits

In 1992, prior to the promulgation of the amended WPS, the General Accounting Office (now the Government Accountability Office; GAO) published “Hired Farmworkers: Health and Well-Being at Risk” (Ref. 19). The report discussed a number of services, such as social security, housing, field sanitation, job training and employment programs, children's education, and other issues that the government would need to

address to provide better conditions for farmworkers.

The 1992 report noted that at that time, EPA lacked an understanding of the health risks for many older pesticides, placing workers at risk from potentially unsafe exposure. The report also noted that the 1974 rule requirement to limit worker entry into treated areas was difficult for workers to follow. It prohibited reentry until “sprays have dried or dusts have settled,” language that involved subjective judgments. The 1992 amendments to the WPS partially addressed these issues by requiring interim protective intervals for worker entry into treated areas based on the acute toxicity of the product. Since that time, EPA's reregistration program, through which EPA reviewed and assessed older pesticides to ensure they continue to meet the FIFRA regulatory standard, has been completed. See Unit III.C. Through that process, chemical-specific protective reentry intervals have replaced the interim intervals.

In 2000, GAO issued another report, “Pesticides: Improvements Needed to Ensure the Safety of Farmworkers and Their Children,” (Ref. 20). In this report, GAO focused more specifically on the potential risks to children of entering a pesticide-treated area. It noted that children under 12 years old may have a higher risk of adverse effects related to pesticide exposure and should be protected adequately. It also cited EPA data on WPS enforcement, noting the lack of consistency and involvement by EPA in monitoring the inspections and the need to have target numbers of inspections. The report recommended that EPA “mitigate the potential adverse effects of pesticide exposure on children below the age of 12 who work in agriculture or are otherwise present in pesticide-treated fields” (Ref. 20 p. 24). It also suggested that EPA improve oversight of state-level WPS enforcement and set standard guidance for inspections.

D. Environmental Justice

Executive Order 12898 (59 FR 7629; February 16, 1994) established federal executive policy on environmental justice. It directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their missions by identifying and addressing disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations in the United States. The Executive Order establishes four areas for action:

• Promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations;

• Ensure greater public participation;

• Improve research and data collection relating to the health and environment of minority populations and low-income populations; and

• Identify differential patterns of consumption of natural resources among minority populations and low-income populations. In addition, the environmental justice strategy shall include, where appropriate, a timetable for undertaking identified revisions and consideration of economic and social implications of the revisions.

EPA's goal is to promote environmental justice for all communities and persons across the United States, regardless of race, color, national origin, or income. Ensuring environmental justice means not only protecting health and the environment for everyone, but also ensuring that all people are treated fairly and are given the opportunity to participate fully in the development, implementation, and enforcement of environmental laws, regulations, and policies. Consistent with the Executive Order, the Agency's environmental justice policies promote environmental protection by focusing EPA's attention and efforts on addressing environmental risks among minority populations.

As discussed above in Unit IV.A., most workers and handlers intended to be protected by the WPS face significant disadvantages. Most agricultural workers and handlers belong to minority groups. Agricultural workers tend to have low literacy in any language and very limited skills in English. Very often workers do not have permanent housing and generally reside close to agricultural areas where pesticides are applied. Many workers and handlers are not residents or legal aliens in the United States. The low literacy rates, range of non-English languages spoken by workers and handlers, economic situation, geographic isolation, difficulty accessing health care, and immigration status of workers and handlers pose challenges for communicating risk management information and ensuring that these groups are adequately protected.

Occupational tasks performed by workers and handlers create a significant risk of pesticide exposure, which is increased by the communication barriers discussed above. In addition to potential exposure through work duties, studies show that workers and handlers face a greater risk of exposure to pesticide drift from neighboring areas than does the general population (Ref. 21). Pesticide exposure can also come through residues transferred by workers and handlers on their clothing and body from the treated areas to their cars and homes, and from the proximity of the housing to agricultural areas treated with pesticides (Ref. 21) (Ref. 22) (Ref. 23) (Ref. 24). Finally, pesticide exposure may occur from the consumption of treated foods in the treated area or washing hands in pesticide contaminated water (Ref. 25) (Ref. 26) (Ref. 27 p. 25).

Throughout the development of this proposed rule, the Agency has continued to use research on the demographic characteristics, work habits, and culture of the worker and handler populations to revise the WPS to ensure it provides effective protection. Information for the assessment and development of the rule was gathered through field research and interaction with workers, handlers, worker and handler representatives, and stakeholders. EPA extensively engaged farmworker representatives, and when possible, worked directly with workers and handlers, to solicit their feedback on the current regulation and ideas for improvement.

With this stakeholder input, the Agency identified areas where the existing WPS does not provide an appropriate level of protection and evaluated the potential impact of various options for strengthening the WPS for the worker and handler populations. That analysis identified areas for improvement to the rule, such as expanding training to provide information on how to minimize worker and handler exposure and that of their families from pesticide residues carried from the treated area to the home. The Agency's efforts to address environmental justice through this rulemaking were reviewed repeatedly during the development of the rule and its supporting documents. EPA believes that the proposed changes would improve the health of workers and handlers by, for example, increasing the frequency of training, enhancing training content to include ways to minimize pesticide exposure to children and in the home, adding posting of treated areas near worker and handler housing to prevent accidental entry, and establishing a minimum age for pesticide handlers and early-entry workers.

E. Children's Protection

An Executive Order issued in 1997 (62 FR 19885; April 23, 1997) and modified in 2003 (68 FR 19931; April

23, 2003) requires federal agencies to identify and assess environmental health risks that may disproportionately affect children. In response to this mandate, EPA established the Children's Health Protection Advisory Committee (CHPAC) to advise and make recommendations to EPA on issues related to children's environmental health. The CHPAC recommended that EPA “re-evaluate the worker protection standard in order to determine whether it adequately protects children's health” (Ref. 28). In a

Federal Register

Notice issued on February 3, 1999, EPA committed to conducting an assessment of the implementation and enforcement of the WPS (64 FR 5277; February 3, 1999).

Children face risks from exposure to agricultural pesticides mainly through work in pesticide-treated areas. A 2003 study by Calvert, et al. identified 531 children under 18 years old with acute occupational pesticide-related illnesses over a ten-year period (Ref. 29). The same study raised concerns for chronic impacts: “because [the] acute illnesses affect young people at a time before they have reached full developmental maturation, there is also concern about unique and persistent chronic effects” (Ref. 29).

Although no conclusive data exist, studies have been conducted to evaluate whether children of agricultural workers and handlers may face elevated potential for exposure from pesticide residues brought to the home by their parents (Ref. 30) (Ref. 31). Studies have also been conducted to evaluate whether this exposure scenario may have contributed to negative health or developmental effects (Ref. 32). Higher concentrations of pesticide residues combined with the susceptibility of children to the effects of pesticide exposure may increase the likelihood that children will be adversely impacted. EPA recognizes the need for more conclusive data on exposure to children from pesticide residues brought into the home by agricultural workers. However, given EPA's commitment to protecting children and to the principles of environmental justice, EPA believes the cost of adding a few minutes to pesticide safety training is reasonable when compared to the benefit of reducing the potential risk.

The FLSA's child labor provisions, which are administered by the Department of Labor, permit children to work at younger ages in agricultural employment than in non-agricultural employment. Persons 12 and 13 years old may work in agriculture outside of school hours in nonhazardous jobs if they are either working on the same farm as a parent or person standing in the place of a parent, or working with parental permission. 29 U.S.C. 213(c)(1)(B). Children under 16 years old are prohibited from doing hazardous tasks, including handling or applying pesticides that are classified as toxicity category I or II but can apply pesticides that are classified with a lower acute toxicity. (29 CFR 570.71(a)(9))

In summary, children working in agriculture and children of agricultural workers and handlers may be at a higher risk of pesticide exposure and illness; EPA believes these potential risks warrant careful consideration in light of the provisions of the Executive Order on children's health (EO 13296). EPA believes that the proposed changes could protect children from many of the risks they may face.

F. Regulatory Review

In 2005, EPA reviewed the WPS pursuant to section 610 of the Regulatory Flexibility Act (5 U.S.C. 610). The purpose of the review was to determine whether the rule should be continued without change, amended, or rescinded to minimize economic impacts on small entities while still complying with the provisions of FIFRA. EPA solicited comment on the continued need for the WPS; the complexity of the WPS; the extent to which it overlaps, duplicates, or conflicts with other federal, state, or local government rules; and the degree to which technology, economic conditions or other relevant factors have changed since the WPS was promulgated. See EPA Docket ID number OPP-2003-0115 at

www.regulations.gov

. The Agency received no comment on the action and concluded that the rule needs no revisions to minimize impacts on small entities while still complying with FIFRA.

While EPA found that no changes were necessary to minimize the impacts on small entities, EPA believes that the WPS should be updated for the reasons discussed in the previous sections. Through the assessment process, EPA reviewed the 1992 WPS to determine whether the requirements were effective, sufficiently protective, and unduly burdensome on employers. As discussed in Unit V.B., EPA engaged in a substantial stakeholder engagement process, apart from the 2005 review mentioned in the previous paragraph, to review the effectiveness of the current regulatory requirements, to identify gaps in protection, and to determine flexible approaches to compliance for the regulated community. EPA engaged with small business representatives to explore flexible options for compliance. EPA believes the proposed changes reflect the current understanding of the risks faced by workers and handlers, thereby substantially improving the protections afforded to workers and handlers under the WPS and decreasing the overall burden associated with compliance for employers.

VI. Overview of Proposed Revisions to Part 170

Earlier Units of this preamble describe the various ways that workers, handlers, and their families can be exposed to pesticides. The stakeholder engagement described in Unit V.B. resulted in many recommendations for EPA to revise the regulation. Through the SBAR panel, SERs raised the need for EPA to be mindful of the burden the WPS imposes on small business and to reduce it wherever possible (Ref. 18).

As discussed earlier in this document, EPA has imposed requirements on the use of pesticides with the intent of averting unreasonable adverse effects to human health and the environment. These requirements include the WPS and pesticide-specific use restrictions found on product labeling. In spite of these protections, worker and handler illnesses resulting from pesticide exposure are documented, and the Agency believes they are underreported. Peer-reviewed studies, based on pesticide illness reporting and surveillance initiatives show evidence of illnesses to workers and handlers. For example, one study finds that acute pesticide poisoning incidents in the agriculture industry “continues to be an important problem” (Ref. 11). This study examined pesticide poisoning incidents among agricultural workers from 1998-2005, and analyzed 3,271 cases. Illness rates varied by category, but across agricultural worker categories, risks of poisoning were an order of magnitude higher than for almost all non-agricultural workers, which include farmers, processing/packing plant workers, and other miscellaneous agricultural workers. A study conducted by Das,

et al.,

identified 486 pesticide illness cases among California farmworkers for 1998-1999, based on a surveillance program with mandatory reporting by physicians. The study found that about half of all acute pesticide-related illness cases in the California surveillance system affected agricultural workers (Ref. 33). Over a quarter of the poisonings were to those mixing, loading or applying pesticides. The most common symptoms were dermatological (about 44%),

neurological (about 39%), and gastrointestinal (about 38%), and the most common route of exposure was skin contact, followed by inhalation and eye contact.

A 2008 report indicates that from 1998 to 2005 the major causes of occupational pesticide exposure were off-target drift, early reentry into a treated area, and pesticide use in conflict with the labeling (Ref. 11). Studies have been conducted to evaluate whether worker and handler families are exposed to pesticides because workers and handlers bring pesticide residues home on their body, shoes, and clothing (Ref. 23) (Ref. 24) (Ref. 34). These studies recommend that workers and handlers receive more specific information on how to protect their families and avoid exposure in the workplace (Ref. 23) (Ref. 24) (Ref. 34).

EPA believes the proposed changes address the specific avenues of occupational exposure and recognize the specific needs of the worker and handler population. Units VII. to XX. describe the proposed changes and alternative options considered by EPA. The presentation is generally structured to provide, where appropriate:

• A concise statement of the proposed change;

• The current WPS requirements;

• Stakeholder feedback and research supporting the proposed change;

• A detailed description of the proposed change and the rationale for the change;

• An estimated cost;

• A description of significant alternatives considered by EPA and the reasons for not proposing them; and

• Specific questions on which the Agency seeks feedback.

For purposes of discussion, EPA groups the proposed changes and considered alternatives as follows:

• Unit VII: Changes to the training for workers and handlers, including new recordkeeping requirements, multiple changes to the content of the training, and trainer qualifications.

• Unit VIII: Changes to the worker and handler notifications including posted and oral notifications and revisions to the warning sign content.

• Unit IX: Hazard communication materials.

• Unit X: Information that handlers and agricultural employers must exchange.

• Unit XI: Handler restrictions including minimum age requirements for handlers.

• Unit XII: Expansion of entry-restricted areas, minimum age requirements for workers entering a treated area under an REI, and clarification of the REI exceptions.

• Unit XIII: Pesticide safety information display, including location and content required.

• Unit XIV: Decontamination requirements for handlers and early entry workers.

• Unit XV: Emergency assistance.

• Unit XVI: Personal protective equipment, including the use of closed systems.

• Unit XVII: Monitoring handler exposure to cholinesterase-inhibiting pesticides.

• Unit XVIII: Exemptions for immediate family and crop advisors and exception to requirement for workers to be fully trained before entering a pesticide-treated area.

• Unit XIX: General revisions to the WPS.

• Unit XX: Implementation.

VII. Training for Workers and Handlers

The current WPS allows employers to utilize a “grace period” to provide workers with basic training before entering the treated area and before the 6th day that workers begin working in an area covered by the WPS to provide the full pesticide safety training discussed below. This provision is considered an exception to the training requirements; therefore, the current “grace period” and proposed amendments are discussed in Unit XVIII.C.

A. Shorten Retraining Interval for Workers and Handlers

1.

Overview.

The WPS currently requires employers to ensure that workers and handlers are trained once every five years. EPA proposes to establish an annual retraining interval for workers and handlers in order to improve the ability of workers and handlers to protect themselves and their families from pesticide exposure.

2.

Existing WPS regulations.

The WPS requires agricultural and handler employers to ensure that handlers and workers receive pesticide safety training once every five years (40 CFR 170.130(a) and 170.230(a)). This retraining time period was initially implemented to minimize burden on employers when pesticide safety training was first introduced, due to the limited number of trainers available at the time. Worker and handler trainings, as discussed in Unit VII.E., provide information on protecting oneself and family from pesticide exposure, recognizing and avoiding dangers in the workplace, and steps to take in the event of pesticide exposure.

3.

Summary of the issues.

Many stakeholders have commented that a 5-year retraining interval is too long for workers and handlers to retain the safety information (Ref. 17) (Ref. 28) (Ref. 35) (Ref. 15) (Ref. 36) (Ref. 37). Through the National Assessment, letters to the Agency, and feedback from PPDC on proposed options, various stakeholders have recommended shortening the current interval in order to improve workers' and handlers' understanding and recall of the material covered. The General Training Issues Workgroup, with representatives from across the agricultural community, recommended shortening the retraining interval for workers and for the Agency to base the standard on retraining intervals for other similar professions (Ref. 16).

Research has indicated the importance of repetition in an individual's retention of information (Ref. 38). Stakeholders, particularly pesticide safety educators, have noted that “repeating basic safety messages increases adoption of improved safety practices.” (Ref. 39) Providing training more frequently than the current requirement of every five years may be especially beneficial for workers and handlers with limited knowledge of English or another widely used language, e.g., Spanish, or who have recently started working in an agricultural job, who may need additional review to fully understand the material. Worker advocacy groups and educators have repeatedly noted that more frequent training is important for the worker community.

Additionally, a 2007 report for the EPA by JBS International titled “Hazard Communications for Agricultural Workers” reported that workers who were interviewed wanted more frequent training on pesticide safety (Ref. 40). Workers requested training to occur at least once a year.

The DOL's NAWS provides information on the nature of worker employment and turn-over rate. The most recent report available notes that “[i]n 2001-2002, crop workers, including foreign-born newcomers, had been employed with their current farm employer an average of four and a half years. Thirty-five percent had been working for their current employer for one year or less, and 12 percent had been employed at their current farm job for ten or more years (Ref. 3).

Agricultural employers that provided information to EPA during the SBAR panel process on the WPS stated that they already provide annual pesticide training, since verification of previous training can be difficult to achieve and the employers want to ensure they comply with the WPS to avoid liability. EPA has heard similar statements in

discussions with farmers in other venues, but recognizes that all employers may not provide annual training. The Panel recommendations recognized the value of retraining, and specifically its ability to emphasize and remind the worker of important safety principles (Ref. 18). State and federal enforcement agents have also noted the difficulty in determining if a worker or handler has been trained, when relying on his recall of the training material over a long time period, e.g., 5 years.

4.

Details of the proposal/rationale.

The Agency proposes to establish an annual retraining interval for workers and handlers. Accordingly, this would reduce the maximum time between trainings for workers and handlers from 5 years to 1 year.

EPA believes that more frequent repetition of the protective principles outlined in the pesticide safety training is particularly important given the demographics of the worker population. As data cited earlier show, workers generally have low literacy and limited understanding of English. Therefore, it is important for workers and handlers to receive the information in a manner they understand and with sufficient frequency to ensure they retain the information.

Research shows that adults remember only about 10% of what they hear and 50% of information that they see and hear (Ref. 41). EPA expects the more frequent review of pesticide safety information, in combination with the proposal for expanded display of pesticide safety information at decontamination sites [see Unit XIII.A.], would improve retention of safety principles and hygiene practices critical to self-protection, reinforce the importance of protecting families from pesticide exposure, encourage handlers' adherence to label requirements, and remind workers and handlers of the obligations of their employers under the rule.

This proposed rule reflects previously established training requirements for similar occupational hazards. Federal agencies already require annual training when hazardous substances may be encountered in the workplace in many other industries. OSHA regulations require employers to provide annual training to protect employees from chemical hazards in the workplace including lead (29 CFR 1962.62(l)(1)), asbestos (1926.1101(k)(9)), and cadmium (29 CFR 1926.1127(m)(4)). Under the Resource Conservation and Recovery Act (RCRA), EPA requires personnel at hazardous waste treatment, storage, and disposal facilities to have annual training as well (40 CFR parts 264 and 265). The risks from pesticide exposure through agricultural work are similar to the threats posed by hazardous chemicals in other industries, and the Agency believes training requirements to protect agricultural workers and handlers should be comparable to those required by OSHA. In addition, agricultural and handler employers may already be required to keep records of annual training required by other regulations, such as those listed above. EPA believes that agricultural and handler employers would track an annual requirement for WPS training along with required OSHA trainings and employment records, such as those required by the Department of Labor.

The proposed regulatory text concerning shorter retraining intervals for workers and handlers appears in §§ 170.101(a) and 170.201(a), respectively, of the proposed rule.

5.

Costs and benefits.

EPA estimates the cost of the requiring employers to provide pesticide safety to training workers annually would be $8.7 million per year. Training its workers would cost each agricultural establishment about $22 per year. EPA estimates the cost to employers to provide pesticide safety training to handlers annually would be $3.5 million per year. The average cost of training handlers would be about $17 per year for agricultural establishments and $66 per year for commercial pesticide handling establishments. For a complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of Proposed Revisions to the Worker Protection Standard,” Chapter 3 Cost Analysis (Ref. 1).

While EPA can estimate the costs of this proposed change, quantifying the benefits is more difficult. Nonetheless, based on the information and expert views described in this section, it is reasonable to expect that more frequent training would lead to better retention of information by workers and handlers, ultimately resulting in fewer incidents of pesticide exposure and illness in workers and handlers, reduced take-home exposure, and better protection of children. The Agency concludes that the estimated costs are reasonable when compared to the anticipated benefits resulting from the additional training.

6.

Alternative options considered but not proposed.

The Agency considered three alternative approaches to the retraining interval for workers and handlers. The first alternative was recommended by the SBAR panel, based on a comment from one of the SERs. This option would require annual retraining and offer small establishments, those with fewer than 10 employees, the option to provide training less frequently for workers (Ref. 18). A small establishment requesting flexibility would be required to maintain documentation to show that (1) no additional workers were hired within the retraining interval, (2) no new or different pesticide applications were made from the previous year, and (3) they provided training for the specific workers on the establishment previously. If the establishment added any new employees, it would not be eligible to provide less frequent training. The estimated cost for this option would be about $7.5 million annually, or $60 for large agricultural establishments and $12 for small agricultural establishments. The Agency agrees that this option could reduce the burden on small entities of providing annual training, but it would also reduce the benefit workers would receive from annual retraining. Moreover, EPA notes that implementation of such an exception would increase recordkeeping burdens on all small establishments that would offset, to some degree, the savings for some establishments from not having to provide training. The additional recordkeeping costs were not quantified. Under this exception, those small entities that added a new employee or applied a different pesticide during the year would actually have higher costs, even though the overall burden on small entities might be somewhat smaller. Based on the marginal cost reduction, increased recordkeeping burden, and potential risk to workers who would not receive training annually, the Agency thinks that requiring all establishments to provide annual training is more appropriate.

EPA also considered a 2-year retraining interval for all establishments. EPA estimates that biennial training for workers would cost about $3.2 million per year, or about $8 per agricultural establishment per year. Biennial training for handlers would cost about $1.6 million per year, or $8 per agricultural establishment and $27 per commercial pesticide handling establishment per year. While biennial training would provide more protection to workers and handlers than the current 5-year retraining interval, EPA believes the longer timeframe would not improve retention to the extent expected from annual training. Employers are already required to provide and track OSHA trainings and to maintain employment records, such as those required by the Department of Labor, on an annual basis; requiring pesticide safety training every 2 years could

increase the burden on agricultural and handler employers to track the WPS training on a different schedule. Representatives on the SBAR panel indicated that many employers already provide training on an annual basis as part of their hiring process (Ref. 42 p. 2). EPA believes that even with a biennial training requirement, many employers would continue to provide training annually. Therefore, the burden on employers would not be significantly reduced by a biennial training requirement. EPA believes the costs of more frequent annual training are reasonable when compared to the anticipated benefits, particularly when combined with the stakeholder reports that annual training is already provided in many cases.

Finally, EPA considered requiring a written test to gauge the workers' or handlers' knowledge about the topics covered in training to ensure that they have the information needed for self-protection. The Agency, however, was dissuaded from this alternative due to concerns for the ability of workers and handlers to successfully complete an exam, even when they have been adequately trained, on account of literacy and language challenges among workers and handlers. Some stakeholders have indicated that noncertified applicators, who have similar demographic profiles to workers and handlers, may find it difficult to pass a written examination due to literacy and language barriers; the Agency believes workers and handlers may have similar difficulty (Ref. 36) (Ref. 37). Concerns exist for the perceived burden on employers for providing the time for needed training and exam-taking, and for the potential reduction in workforce when workers or handlers cannot pass the exam, despite being aware of the training content (Ref. 36) (Ref. 37). While testing might be a useful approach in some situations, the Agency believes that in this context a testing requirement is less likely than annual retraining to produce the desired improvements in workers' and handlers' understanding of pesticide safety. Therefore, EPA is not proposing testing as an alternative to annual training.

7.

Request for comment.

EPA specifically requests comment on the following questions:

• Should EPA consider different pesticide safety training timing? If so, what timeframe and why?

• Do you have information concerning the relationship between the frequency of training of workers and handlers and the frequency of incidents of pesticide exposure or illness? If so, please provide.

• Are there other ways EPA could ensure that workers and handlers retain the information presented in pesticide safety training so the retraining interval can be longer than one year?

• Are there other burdens or benefits associated with a 2-year retraining interval that EPA has not considered?

• What would be the impact of a 1- or 2-year retraining interval on states and tribes?

• Should EPA consider retaining the current 5 year retraining interval for workers and handlers and adding a requirement for annual refresher training? Please provide information on the relative benefits to and burdens on employers, workers, and handlers. EPA currently envisions that, if adopted, the annual refresher training for workers would include the topics proposed at 170.309(e), the grace period training (see Unit XVIII for a full discussion of the proposed points for training workers under the grace period). The annual refresher training for handlers would include a review of information necessary for handlers to protect themselves, their families, workers, and the environment from pesticide exposure. EPA anticipates that the refresher training would be slightly shorter in duration than the proposed full pesticide safety training, but seeks comment on the duration of such refresher training. Retaining the current 5 year retraining interval and adding a requirement for annual refresher training would necessitate additional recordkeeping by the employer. The employer would maintain training records for workers and handlers as discussed in Unit VII.B. below, as well as records containing the same information for the refresher training.

B. Establish Recordkeeping Requirements To Verify Training for Workers and Handlers

1.

Overview.

The existing WPS does not establish any mandatory mechanism for verifying that a worker or handler has received pesticide safety training. To improve compliance with the WPS training requirements and to address the absence of documentation of worker and handler training, the Agency proposes to eliminate the voluntary training verification card system and to require employers to maintain records of WPS worker and handler training for two years. In addition, the employer would be responsible for providing a copy of the record to each worker or handler upon completion of the training. EPA believes a requirement for employers to maintain the training roster, an official record, of employees' training would address current enforcement difficulties in verifying whether a worker or handler has received training. The requirement to provide workers and handlers with a copy of the training record would allow a subsequent employer to verify that the worker or handler had received training and to copy the training verification record for the subsequent employer's own files.

2.

Existing WPS requirements.

Presently, the WPS does not require agricultural employers to document that they provided the training required under the WPS for workers or handlers. The WPS also does not require trainers or employers to record who they trained, what training they provided, or when they provided pesticide safety training. However, a voluntary program was established that allowed states, tribes, and agricultural employers to use verification cards to identify workers and handlers trained in accordance with the WPS. Participating states, territories, and tribes have opted to distribute cards printed by EPA or to generate agency-specific cards. States, territories, and tribes allow distribution of the cards by trainers qualified under the WPS or under stricter requirements. A few entities require trainers of workers or handlers to submit the names of those trained to the state regulatory agency; however, EPA does not maintain such a list. Under the current voluntary training verification card program, an agricultural or handler employer who hires workers and handlers with valid training verification cards does not need to provide training until the expiration date listed on the card. At least 20 states, territories, or tribes continue to use the voluntary training card system (Ref. 43).

3.

Summary of the issues.

Since 1998, EPA has received considerable feedback from stakeholders, including state regulatory partners, regarding the difficulty of enforcing the training provisions of the WPS rule, primarily due to a lack of recordkeeping (Ref. 17) (Ref. 18). Inspectors have noted that they cannot consult a record to determine if the workers and handlers on the establishment have been trained. Their primary method for evaluating compliance with training requirements is to interview workers and handlers regarding the content of training received or whether any training has occurred. Stakeholders, including state inspectors and farmworker organizations, have indicated that interview results may be compromised as workers and handlers may not recall the training they received, may not connect the questions with the training information, and may not be able to communicate with the inspector in a

language that both are comfortable speaking. Some workers and handlers may feel intimidated and provide inaccurate responses due to a lack of anonymity. Some states and territories, including AZ, CA, HI, NV, NH, NJ, PA, and PR, have addressed the issue through requiring a form of recordkeeping for worker and/or handler training, such as training records maintained by the employer, training records submitted to the state, or making mandatory the voluntary training verification card system. California has implemented a requirement for employers to maintain records of handler training for 2 years (3 CCR 6724(e)).

Some stakeholders voiced strong support for improved recordkeeping as discussed in reports from the National Assessment of EPA's Pesticide Worker Safety Program (Ref. 44). The General Training Issues Workgroup, convened as part of the National Assessment, recommended that all trainers be required to maintain records of trained workers for the duration of the retraining interval, and suggested that EPA offer a variety of methods for employers to demonstrate compliance (Ref. 15). Farmworker organizations as well as other stakeholders have repeatedly emphasized the need to improve enforcement and compliance verification capabilities in order to assure greater protection for workers (Ref. 17) (Ref. 35).

States, territories, and tribes have noted that the voluntary training verification card system is undermined by fraudulent cards. They cite instances of workers, handlers, and labor contractors illegally exchanging cards and altering the expiration date. Without an expiration year printed on each card and annual reprinting of current verification cards, it is difficult to assess the validity of the card. Without any requirement for creating and maintaining records of training, it is virtually impossible to verify who has been trained. States have informed the Agency that workers perceive the card as a credential that potential employers may use to determine their employability. As a result, state agencies have reported that falsified cards are common because workers and handlers want to show that they are employable. The Agency believes, based on information gathered since the implementation of the training verification card system, that the current system of voluntary training verification cards has proven to be an unreliable method of tracking and identifying trained workers (Ref. 37) (Ref. 45) (Ref. 46).

4.

Details of the proposal/rationale.

The Agency proposes to require agricultural and handler employers to keep records of all workers and handlers who receive pesticide safety training for 2 years on the agricultural establishment. Required information for the record of worker and handler training would include the trained worker's or handler's name, signature, date of birth, the date of training, the trainer's name, proof of trainer's qualification to train, the employer's name, employer's phone number or phone number of the establishment, and which EPA-approved training materials were used. EPA also proposes to require employers to provide a copy of the training record to each worker and handler upon completion of the training.

EPA believes these new recordkeeping requirements would address some of the difficulties in effectively enforcing the existing rule raised by regulatory and farmworker advocacy stakeholders. This proposal would allow inspectors to verify training through records retained by the employer and maintained by the workers and handlers themselves rather than solely through interviews with workers and handlers. The Agency's proposal is flexible in that it would allow paper or electronic recordkeeping, so an employer could scan the training records with employees' signatures and maintain electronic files.

The recorded date of birth would be used to verify that the minimum age for handlers and early-entry workers has been met. [See Units XI.B. and XII.A.] Retaining the trainer's proof of qualification to train would allow the inspector to determine if the trainer met the criteria to be a trainer. [See Unit VII.D]

EPA recognizes the importance of maintaining some mechanism for workers and handlers to change employers without repeating pesticide safety training each time they enter an establishment. EPA believes that the proposed option would meet the need for employers to verify that workers and handlers have received appropriate training by providing an official record rather than the voluntary training verification card. The proposal to require employers to maintain specific records of worker and handler training and to provide a copy of the training record to each trained worker and handler would make the voluntary training verification card program obsolete, redundant, and unnecessary. An employer could consider a worker or handler trained if either the employee or prior employer presents a copy of the training record. EPA believes requiring employers to provide a record of the training to workers and handlers would allow workers and handlers to show future employers they have received WPS training. In addition, future employers could maintain a copy of the workers' or handlers' record in their files to comply with the requirement to ensure the employees have received the appropriate training.

The proposed regulatory text concerning the recordkeeping requirements to verify training for workers and handlers appears in §§ 170.101(d) and 170.201(d), respectively, of the proposed rule.

5.

Costs and benefits.

EPA estimates the cost of requiring employers to maintain records of worker training for 2 years would be $1.6 million annually and about $4 per agricultural establishment per year. The cost for employers to maintain records for handler training for 2 years would be $160,000 annually, or less than $1 per agricultural establishment and about $3 per commercial pesticide handling establishment per year. For a complete discussion of the costs of the proposals and alternatives, see the “Economic Analysis of Proposed Revisions to the Worker Protection Standard,” Chapter 3 Cost Analysis (Ref. 1).

Although EPA cannot quantify the benefits of this specific proposed option, EPA believes that requiring records of worker and handler training would improve employers' compliance with the training requirements. Improved compliance would increase the likelihood that workers and handlers perform WPS tasks with the information necessary to mitigate exposure to pesticides for themselves and their family members.

6.

Alternative options considered but not proposed.

First, EPA considered an option to require the employer or trainer to provide every trained worker and handler with a wallet-sized verification record (similar to the current voluntary training verification card) that contains the proposed recordkeeping information, instead of the proposal to provide a photocopy of the training recordkeeping form. Distribution of the training verification cards would be limited to trainers who meet the proposed qualifications. [See Unit VII.D.] The cards would be issued by EPA on an annual basis and would indicate a date after which the card would no longer be valid, i.e., a 2015 card would state that it would not be considered a valid verification of training after 12/31/2016. The annual card issuance by EPA and clear statement of the card's longest potential

validity could help cut down the issues of fraudulent use raised by states and other stakeholders.

This alternative would increase the burden on trainers, employers, and EPA and states, territories, and tribes. Instead of providing a copy of the training record, the trainer would be required to copy the information onto each individual training verification card. Subsequent employers would need to verify the information on the card with the original trainer or employer and to obtain a copy of the original training record for their files. EPA would be responsible for printing cards annually. EPA and states, territories, and tribes would be responsible for distributing cards to approved trainers and tracking who received the cards. EPA estimates that a mandatory training verification card program for workers would add about $640,000 to the cost of training records, increasing the total cost to about $2.2 million. Based on the increased burden to trainers, employers, and states, territories, and tribes without significantly different anticipated benefits to workers, handlers, trainers, and employers, EPA decided not to propose this option.

Second, EPA also considered requiring agricultural and handler employers to submit worker and handler training records to EPA or to the state, territory, or tribal regulatory authority. The agency responsible at the federal or state, territory, or tribal level would then maintain a database of trained workers and handlers. The Agency believes that it is adequate for employers to maintain the records, making them available to inspectors upon request. The submission of training records to a central repository might benefit EPA and others wishing to verify a worker's or handler's status. However, employers would still bear the cost of either creating a record of the training in the central repository or verifying a worker's or handler's eligibility in the system. Since most workers and handlers have one or two employers per year, the burden on employers to report to and check with a central repository of information may not be justified. The proposed rule would require that the employer maintain records on-site for inspection purposes.

Third, EPA also considered an option to require trainers, rather than or in addition to employers, to retain records of those trained. EPA is not pursuing this option because the WPS focuses on the responsibilities of agricultural and handler employers. Trainers are not responsible for the use of the pesticide on the establishment and therefore cannot be legally responsible for following the labeling and complying with the WPS requirements. Ultimately, the agricultural or handler employer is responsible for ensuring that workers and handlers receive training and for tracking that training. Inspections focus on compliance of the agricultural or handler employer with the provisions of the WPS, not the trainer. The WPS would not prohibit the creation of training records by the trainer; however, the agricultural or handler employer would have to maintain a copy of the records.

Finally, the Agency considered establishing a 5-year interval for the record retention cycle, which would coincide with the statute of limitations for civil violations (28 U.S.C. 2462). The estimated cost of this requirement would be $2 million for worker training records and $290,000 for handler training records. The incremental cost between record retention for two or five years would be negligible. However, EPA believes based on state programs (e.g., California and Florida) and stakeholder feedback that a requirement to keep records for 2 years is sufficient. Therefore, EPA decided not to propose a 5-year interval for record retention.

7.

Request for comment.

EPA specifically requests comment on the following questions:

• Would a requirement for employers to report worker and handler training information to the state or federal government for compilation in a central repository have benefits? If so, please detail the potential benefits and cost.

• Should the Agency reconsider any of the alternate options presented in developing a final rule? If so, why? Please provide data to support your position.

• Are there changes that would make the training verification card program more effective and less prone to falsified cards? If so, please provide detailed suggestions for improving the system.

• Should EPA consider a performance standard to evaluate worker and handler training (asking questions based on the training content) rather than recordkeeping? Are there benefits or drawbacks to this approach that the Agency has not considered?

• Would employers rely on training records provided by the worker or handler as verification that the worker or handler had received pesticide safety training?

C. Require Employers To Provide Establishment-Specific Information for Workers and Handlers

1.

Overview.

The existing WPS does not require employers to provide to workers and handlers establishment-specific information on the location of decontamination supplies as part of their pesticide safety training. In order to allow workers and handlers to adequately protect themselves in the event of an unexpected exposure that could occur through spills, being sprayed, or other unusually high exposure situations, the Agency proposes that in addition to required general training employers must provide establishment-specific information about the location of decontamination supplies and pesticide safety and hazard information, as well as how to obtain medical assistance. Agricultural and handler employers would be required to provide this establishment-specific information to all workers and handlers, including those previously trained on other establishments. The Agency expects this change will equip workers and handlers with the knowledge and capability to assist in better protecting themselves from adverse effects of pesticide exposure.

2.

Existing WPS regulations.

Sections 170.135(e) and 170.235(e) require the employer to notify workers and handlers respectively about the location of the pesticide safety poster and the emergency medical information. Presently, part 170 has no requirement for employers to provide information on the location of decontamination supplies or hazard information to workers and handlers.

3.

Summary of the issues.

Farmworker organizations have raised to EPA the need for workers and handlers to receive establishment-specific information even if the employer can verify that the workers and handlers have already received pesticide safety training. The pesticide safety training covers general self-protection principles. Establishment-specific information on where to find, among other things, decontamination supplies, emergency contact information, and pesticide application information, is not consistent across establishments. While the workers and handlers may have received general information on how to protect themselves, without knowledge of where the necessary supplies are located or how to obtain emergency medical assistance they would not be able to use the knowledge to protect themselves.

4.

Details of the proposal/rationale.

The Agency proposes to require employers to provide establishment-specific pesticide safety training for workers and handlers when they enter the establishment and before beginning WPS tasks. Content for the establishment-specific information

would include the location of pesticide safety information, the location of pesticide application and hazard information, the location of decontamination supplies, and how to obtain emergency medical assistance. Employers would be required to provide this training prior to the handler performing handler activities or the worker performing worker activities orally in a manner that the handler or worker can understand, such as through a translator. Lastly, this training would be required even if the employer can verify that the worker or handler has already received pesticide safety training on another establishment.

EPA acknowledges that some of this information is already required under the current rule. However, EPA believes that consolidating the requirements for establishment-specific training would make them easier for employers to find and comply with, resulting in a higher likelihood that workers and handlers would receive the necessary information.

The proposed regulatory text concerning the requirement for employers to provide location-specific information to workers and handlers appears in §§ 170.103 and 170.203(b) of the proposed rule.

5.

Costs and benefits.

The estimated cost of this proposal is included in the cost of expanded training discussed in Unit VII.E. EPA assumes that employers cover this information as part of routine pesticide safety training and therefore including the establishment-specific information would add negligible time and cost.

6.

Alternative options considered but not proposed.

EPA did not consider any significant alternatives to the proposed option.

7.

Request for comment.

EPA specifically requests comment on the following question:

• To what extent do employers already provide this information to all workers and handlers when they first arrive at the establishment, for example, during the hiring process?

• The current rule requires employers to ensure that the workers and handlers receive information in a manner they understand. Are there any issues with the current requirement for employers? If so, please describe and provide data to support this position.

D. Establish Trainer Qualifications

1.

Overview.

The current rule allows workers and handlers to be trained by a variety of persons, including certified applicators and handlers. In order to ensure that the pesticide safety training received by workers and handlers is provided in a manner conducive to adult learning and provided in a language and manner in which they can understand, the Agency proposes to require trainers of workers to have completed an EPA-approved train-the-trainer program or be designated by EPA or an appropriate state or tribal agency as trainers of certified applicators. Certified applicators would no longer be automatically considered qualified to train workers. The Agency proposes to retain the existing qualifications for handler trainers, namely that in order to be a trainer of handlers, one must be a certified applicator under 40 CFR part 171 at the time of the training, to have completed train-the-trainer program, or be designated by EPA or an appropriate state or tribal agency as a trainer of certified applicators and to limit approval of train-the-trainer programs to EPA. In addition, EPA proposes to require trainers to be present throughout the training and to ensure that there are no distractions,

e.g.,

background videos, loud machinery, or other instructions, competing for the worker's or handler's attention.

2.

Existing WPS regulations.

The existing WPS designates the following groups as qualified to be pesticide safety trainers for workers:

• Applicators certified according to 40 CFR part 171 (private and commercial applicators of RUPs);

• Persons designated as trainers of certified applicators, or pesticide handlers by the appropriate state, federal, or tribal agency;

• Individuals who have completed an approved pesticide safety train-the-trainer program; or

• Persons who have completed WPS handler training.

The existing WPS designates the following groups as qualified to be pesticide safety trainers for handlers:

• Applicators certified according to 40 CFR part 171;

• Persons designated as trainers of certified applicators or pesticide handlers by the appropriate state, federal, or tribal agency; and

• Individuals who have completed an approved pesticide safety train-the-trainer program.

The current WPS also requires trainers to be present to answer questions but does not require that they be present for the entire length of the training.

3.

Summary of the issues.

When EPA proposed what would become the 1992 WPS (53 FR 25970; July 8, 1988), stakeholders, specifically USDA and farmer organizations, raised concerns about the need for adequate numbers of qualified WPS trainers. To ease the burden of transition for agricultural employers during the implementation of the rule, EPA made approved criteria for trainers in the final rule (57 FR 38102, 38128-29; Aug 21, 1992) intentionally broad. Since that time, the pool of qualified trainers has expanded due to the increase and availability of train-the-trainer programs. EPA has supported the Association of Farmworker Opportunity Programs (AFOP) “Serving America's Farmworkers Everywhere” AmeriCorps project for over ten years. This project connects trainers with farmworker communities to build training capacity and to provide free training services to agricultural and handler employers. In addition, EPA has developed a train-the-trainer handbook for worker training (Ref. 47). Many states have also increased the number of qualified trainers through train-the-trainer programs and other mechanisms.

Farmworker organizations and pesticide safety educators have raised to EPA the importance of pesticide safety trainers having expertise both in the subject matter covered and in adult education for low-literacy audiences. The Hazard Communications for Agricultural Workers Report by JBS International found that workers want to receive pesticide safety training from trainers who are knowledgeable and certified (Ref. 40). In order to convey information about routes of pesticide exposure, potential accidents and how to mitigate pesticide exposure, and avoiding exposure through basic hygiene, the trainer must have a strong knowledge of the subject matter. A person can obtain this knowledge in several ways. First, a person who has gone through a train-the-trainer program would become versed in the specific information to be conveyed to the training audience. Second, a person who is qualified, as a university professor or cooperative extension agent, to conduct training for a broad range of pesticide users, would have a working knowledge of the potential pesticide risks faced by workers and handlers. Lastly, handlers and applicators learn the subject matter in the training and certification programs, which cover the concepts presented in pesticide safety training in more detail.

Research and stakeholder input have highlighted the need for trainers to have specific skills to reach this type of audience. Farmworker organizations and pesticide educators expressed concern about the ability of individuals without knowledge of adult education practices to conduct effective pesticide safety training (Ref. 39) (Ref. 46) (Ref. 48). Stakeholders have also informed EPA that training may be presented

simultaneously with other information, preventing workers and handlers from focusing completely on the safety information presented.

Stakeholders have raised concerns that trainers lacking skills in adult education may be ineffective in communicating necessary pesticide safety information to workers (Ref. 35) (Ref. 36) (Ref. 48) (Ref. 46) (Ref. 39). Farmworker organizations have supported limiting eligibility of trainers of workers and handlers to those completing a train-the-trainer program “covering methods of conducting an informal adult participatory education session for low literacy learners, with limited English proficiency” (Ref. 35). A pilot train-the-trainer program in Washington State showed that participants who learned training techniques applicable to the worker population were more successful in communicating with their target audience than they had been prior to training, indicated by improved performance of the audience on a post-training evaluation of knowledge (Ref. 17).

4.

Details of the proposal/rationale.

EPA proposes to require trainers of workers to complete a pesticide safety train-the-trainer program approved by EPA or to be designated as a trainer of certified applicators by EPA or a state or tribal agency responsible for pesticide enforcement. The proposal would delete the option for certification under 40 CFR part 171 or training as a WPS handler to serve as sufficient qualifications for a person to be a trainer for workers.

Additionally, the Agency proposes to require trainers of workers and trainers of handlers to be present during the entirety of a training session and to answer questions. Trainers must also ensure that the training is presented in a manner free of distractions.

EPA proposes to retain the existing categories for trainers of handlers and to add a requirement that the train-the-trainer program be approved by EPA.

Under a cooperative agreement with the NASDA Research Foundation, EPA has developed the

National Worker Safety Trainer Handbook

(Ref. 47). This manual outlines the necessary pesticide safety information for workers, as well as describing adult education principles and how to communicate across languages and cultures. In addition to the

National Worker Safety Trainer Handbook,

EPA also supports the training of pesticide safety trainers of workers by AFOP. Both of these programs would serve as models for an EPA-approved train-the-trainer program. Using these models, EPA would develop guidance to describe the necessary elements of a train-the-trainer program and the process for seeking EPA approval. EPA anticipates that any interested organizations, including non-profit organizations, universities, state regulatory agencies, and the pesticide industry, could seek approval for and administer a train-the-trainer course that meets EPA's standards.

EPA proposes to retain the options for persons designated as trainers of certified applicators or handlers by EPA or a state or tribal agency responsible for pesticide enforcement because either EPA or the state or tribe has recognized that they have the subject matter expertise and qualifications necessary to convey the pesticide safety information to workers or handlers. Many cooperative extension services (part of land grant universities) have experts on pesticide safety that work with agricultural employers to provide information on safe pesticide use. EPA believes that in their role as educators and with knowledge of adult education, pesticide application, and safety principles, these persons are qualified to provide the information to workers and handlers. State regulatory agencies also hire or contract with adult educators to provide pesticide safety training to workers or handlers. Rather than increase the burden on the state or tribal lead agency by requiring that all persons complete a pesticide safety train-the-trainer course, EPA believes that state and tribal lead agencies would ensure that persons they designate as trainers can appropriately convey the information required under the proposed regulation to workers and handlers.

EPA proposes to eliminate the automatic authorization of certified applicators and WPS handlers to train workers. Although certified applicators have demonstrated competency in pesticide application and safety, they may not possess skills as trainers, particularly for low-literacy, non-English speaking, adult audiences. Handlers may possess pesticide safety knowledge and may have cultural and language abilities in common with workers, but they may lack teaching skills or sufficient technical knowledge needed to effectively convey the information. For training to make the most impact, trainers need to be competent not only in their knowledge of pesticide risks but also in communicating with adult learners with educational challenges. Trainers may have difficulty conveying the abstract concept of pesticide risk, due to barriers such as the limited English language skills, cultural differences, and low educational levels of many workers and handlers. EPA believes that there are sufficient qualified trainers to meet the proposed requirements now, as opposed to when the 1992 WPS was implemented, based on trainers qualified by AFOP initiatives and the publication and dissemination of an EPA train-the-trainer handbook.

EPA proposes to retain the option for certified applicators to train handlers. While the Agency has some concern regarding the ability of certified applicators to provide effective training for workers because worker trainers need to have specific capability to deliver basic information to an audience that may have a low education level and limited literacy and English skills, EPA thinks this group can be successful as trainers for handlers. There is a large overlap between the roles of applicators and handlers, which allows applicators to draw on their personal knowledge and skills needed to correctly and safely perform handler tasks. In addition, in the revisions to part 171, EPA is proposing to require certified applicators to provide training that mirrors the WPS handler training to noncertified applicators applying RUPs under their direct supervision. EPA believes that the certified applicators are appropriately qualified to convey the proper pesticide application techniques and importance of protecting oneself from pesticide exposure to handlers that will be performing similar tasks in areas that have been treated with pesticides.

EPA believes that increasing the qualifications of trainers will increase the value of training sessions by improving the quality of the training. Workers will benefit by improved understanding of the learning objectives and an increased ability to protect themselves and their families.

To ease implementation and ensure a sufficient cadre of qualified trainers is available, EPA proposes to continue allowing certified applicators to conduct worker training until two years following the effective date of the final rule. This transition period would allow time for applicators and other persons that do not meet the current requirements and who wish to conduct worker training to qualify as trainers under the proposed requirements, either by attending an EPA-approved train-the-trainer program or seeking designation as an approved trainer of workers from EPA or the state or tribe, and for all trainers to become familiar with new training materials developed as a result of the finalized rule.

EPA plans to support the development of training materials for workers and handlers that reflect the

new training requirements suc

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