Pesticide Worker Protection Standard; Grace Period for Providing Worker Safety Training

SUMMARY: EPA is amending the 1992 Worker Protection Standard (WPS), by

making the 5-day grace period (the number of days of employment before

workers must be trained) effective January 1, 1996. Additionally,

effective January 1, 1996, EPA is requiring agricultural employers to

assure that untrained workers receive basic pesticide safety

information before they enter a treated area on the establishment.

EFFECTIVE DATE: This rule will become effective July 17, 1995.

FOR FURTHER INFORMATION CONTACT: Jeanne Heying, Office of Pesticide

Programs (7506C), Environmental Protection Agency, 401 M St., SW.,

Washington, DC 20460. Office location and telephone number and e-mail

address: Room 1121, Crystal Mall #2, 1921 Jefferson Davis Highway,

Arlington VA, Telephone: 703-305-7164, Heying.J[email protected].

ADDRESSES: The Agency invites any interested person who has concerns

about the implementation of this action to submit written comments

identified by docket number ``OPP-250097A'' to: By mail: Public

Response and Program Resources Branch, Field Operations Division

(7506C), Environmental Protection Agency, 401 M St., SW., Washington,

DC 20460. In person, bring comments to: Rm. 1132, Crystal Mall #2, 1921

Jefferson Davis Highway, Arlington, VA 22202.

Comments and data may also be submitted electronically by sending

electronic mail (e-mail) to: [email protected]. Electronic

comments must be submitted as an ASCII file avoiding the use of special

characters and any form of encryption. Comments and data will also be

accepted on disks in WordPerfect in 5.1 file format or ASCII file

format. All comments and data in electronic form must be identified by

the docket number ``OPP-250097A.'' No Confidential Business Information

(CBI) should be submitted through e-mail. Electronic comments on this

document may be filed online at many Federal Depository Libraries.

Additional information on electronic submissions can be found in Unit

VI of this document.

Information submitted as a comment concerning this document may be

claimed confidential by marking any part or all of that information as

CBI. Information so marked will not be disclosed except in accordance

with procedures set forth in 40 CFR part 2. A copy of the comment that

does not contain CBI must be submitted for inclusion in the public

record. Information not marked confidential may be disclosed publicly

by EPA without prior notice. All written comments will be available for

public inspection in Rm. 1132 at the Virginia address given above from

8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

SUPPLEMENTARY INFORMATION: This document discusses the background

leading to this final rule amending the Worker Protection Standard;

summarizes the public's comments on the provisions of the proposed

amendments (60 FR 2820, January 11, 1995); provides EPA's response to

comments and final determination with respect to modifying the training

provisions of the Worker Protection Standard, and provides information

on the applicable statutory and regulatory review requirements.

I. Statutory Authority

This rule is issued under the authority of section 25(a) of the

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.

136w(a).

II. Background

In 1992 EPA revised its Worker Protection Standard (40 CFR part

170) (57 FR 38102, August 21, 1992) which is intended to reduce the

risk of pesticide poisonings and injuries among agricultural workers

who are exposed to pesticide residues. The WPS is also intended to

reduce the risk of pesticide poisonings and injuries among pesticide

handlers who may face more hazardous levels of exposure. The 1992 WPS

superseded the 1974 WPS and expanded the WPS scope not only to include

workers performing hand labor operations in fields treated with

pesticides, but also to include workers in or on farms, forests,

nurseries, and greenhouses, as well as pesticide handlers who mix,

load, apply, or otherwise handle pesticides. The WPS contains

requirements for pesticide safety training, notification of pesticide

applications, use of personal protective equipment, restricted entry

intervals following pesticide application, and decontamination and

emergency medical assistance in the event of an accident.

The 1992 WPS requires agricultural employers to assure that before

the 6th day of employment (referred to as the grace period) a worker

receives basic pesticides safety training before entering any areas on

the agricultural establishment where, within the last 30 days, a

pesticide has been applied or a restricted entry interval (REI) has

been in effect. For the first 5 years after the effective date of the

WPS, however, the WPS allows employers up to the 16th day of employment

to assure that the worker receives the training. Additionally, workers

are required to be retrained at 5-year intervals.

Since the issuance of the 1992 WPS, farmworker groups have

expressed an interest in enhancing specific protection measures, while

grower groups, the National Association of State Departments of

Agriculture and others have expressed an interest in addressing

practical, operational concerns. The Agency received various requests

and comments in the form of letters, petitions, and individual and

public meetings to address concerns with the WPS, some specifically

suggesting changes to the training requirements.

In response, EPA proposed five actions to revise elements of the

WPS. These actions were published on January 11, 1995 (60 FR 2820), and

proposed to:

(1) Shorten the time periods before which employers must train

workers and retrain workers and handlers in pesticide safety.

(2) Exempt those who perform crop advising tasks from certain

requirements.

(3) Allow early entry to pesticide treated areas to perform certain

time-sensitive irrigation activities.

(4) Allow early entry to pesticide treated areas to perform certain

time-sensitive activities resulting in ``limited contact'' with

pesticide-treated surfaces.

(5) Allow workers to enter areas treated with certain lower risk

pesticides after 4 hours rather than 12 hours.

This action addresses the proposed rulemaking to shorten the time

periods before which employers must train workers and retrain workers

and handlers in pesticide safety. Final determinations on the other

four actions mentioned above are being published elsewhere in this

issue of the Federal Register. [[Page 21945]]

III. Summary of the Final Rule Amendment

The Agency is revising 40 CFR 170.130(a)(3) to require that basic

pesticide safety information be provided to workers before entry. New

Sec. 170.130(a)(3)(iii), the exception for the first 5-year period,

allows a 15-day grace period until January 1, 1996. The Agency is

thereby accelerating the transition to a 5-day grace period by

approximately 2 years.

The Agency is adding a new paragraph Sec. 170.130(c) and

redesignating existing paragraphs to specify the content by including a

reference to new paragraph (c). The Agency has decided to retain the 5-

year retraining interval in Sec. 170.130(a)(1). No other sections of

the training provisions are affected by this final action.

IV. Summary of Response to Comments

EPA received 91 comments referring to the pesticide safety training

proposal from farm worker groups, individuals, State, commodity groups,

and growers. Many comments from farmworker groups were supportive of

eliminating a grace period provision and requiring retraining annually.

Comments from commodity groups, growers and State Departments of

Agriculture expressed concern regarding eliminating a grace period and

supported maintaining a grace period and a longer retraining interval.

A more detailed summary of the issues addressed by comments is

presented below and in the Response to Comments document contained in

the public docket.

A. Grace Period and Interim Grace Period

EPA proposed several options: eliminating the grace period (from

the current 15 days to 0 days) after 1 year; shortening the grace

period from 15 days to between 1 and 5 days; or establishing a weekly

training program for those requiring training.

Comments, received primarily from farmworker groups, opposed a

grace period of any length stating that training prior to potential

exposure would provide greater protection for workers. Other industries

which require worker training before potential exposure were cited as

examples of how a 0-day grace period could be feasible in agriculture.

Comments also stated that a grace period can create greater

administrative cost and difficulty with enforcement given diverse crop

production practices and high worker turnover.

Growers and many States noted that a training grace period is

necessary to cope with unanticipated circumstances that might require

hiring large numbers of workers to harvest a crop quickly, for example,

and with no time or capacity to train them. Additionally, the U.S.

Department of Agriculture (USDA) and others pointed out that the

training provisions are supplemental to other WPS provisions, such as

central posting, that are intended to prevent or mitigate worker

exposure to pesticides and that WPS training is not the primary means

to avoid such exposure. USDA comments noted that WPS training is

valuable reinforcement for the other WPS protections; however the

existence of other methods of risk prevention and mitigation reduces

the urgency for workers to have had training prior to the commencement

of work at each new job.

Some comments also supported making training available on a weekly

basis for similar reasons discussed above, emphasizing the benefit of

flexibility, the ability to absorb training costs, and the ability to

plan training sessions based on hiring needs and practices. In addition

to the options proposed, several comments supported alternative grace

period options or providing an orientation session covering basic

pesticide safety information before a new employee begins work. The

more complete WPS pesticide safety training program would follow.

EPA believes the WPS is comparable, in large measure, to

requirements in other industries for training prior to exposure to

hazardous chemicals. Pesticide handlers and early-entry workers must be

trained prior to applying pesticides or entering treated areas during

the restricted-entry interval (REI). The current training grace period

applies only to agricultural workers who do not handle pesticides but

may be exposed to pesticide residues after the REI. Prior to or in the

absence of the worker training, the REI serves its intended purpose of

limiting agricultural workers' exposure to pesticides by prohibiting

routine early entry to pesticide-treated areas.

EPA agrees that providing training before potential exposure would

be more protective than after potential exposure, and that such a

requirement would be easier to enforce. EPA strongly recommends that

all agricultural employers provide the full WPS pesticide safety

training to workers before they are allowed to enter pesticide treated

areas on the establishment. However, EPA acknowledges that, given the

diversity of agricultural operations across the United States, a

training grace period may be needed to provide flexibility to

agricultural establishment owners and will likely reduce administrative

and compliance costs. EPA believes, that under some circumstances,

without a grace period, agricultural employers may be in the position

of needing to provide daily training during busy harvest periods. Daily

training (estimated to take 30 to 40 minutes at a minimum), along with

the need to hire a translator in some cases, could mean a significant

loss in time, increase in cost and loss of agricultural productivity.

Notwithstanding, EPA believes that it is feasible to provide basic

safety information before untrained workers enter treated areas without

compromising the flexibility afforded by a 5-day grace period.

Effective January 1, 1996, EPA is requiring that all agricultural

employers assure that untrained workers receive basic pesticide safety

information before they enter a pesticide treated area on the

establishment. The agricultural employer must assure the basic

pesticide safety information is communicated to agricultural workers in

a manner they can understand (e.g., by providing written materials,

handouts, posters, or oral communication or by other means). Employers

must be able to verify that they have complied with this requirement.

EPA recommends a system which involves employee signature acknowledging

receipt of the required information. Other verifiable means of showing

compliance would be acceptable. EPA will develop and distribute, in

cooperation with USDA and States, a model handout that will contain the

basic pesticide safety information to satisfy this requirement.

Agricultural employers can use this particular handout, develop their

own, or use other materials that contain the basic pesticide safety

information required by this rule. No more than five days after initial

employment has commenced, all agricultural workers must receive

complete WPS pesticide safety training before they enter pesticide

treated areas.

A few comments specifically addressed the issue of when the 15-day

grace period should expire. Some comments supported keeping the 15-day

grace period until October 20, 1997, while others preferred ending the

15-day grace period after 1 year. EPA believes that a year (from

implementation) is sufficient time to enhance training programs,

acquire training materials and identify translators in the necessary

languages. A lengthy (about 2 years) lead time was provided before the

training provisions of the 1992 rule were enforceable. The

[[Page 21946]] lead time, until January 1, 1996, allows for a

substantial number of workers to be trained before the 5-day grace

period is effective. The majority of workers are expected to be trained

the first year under a 15-day grace period. Training after the first

year is expected to be limited to new entrants to the workforce and

those whose training is not recognized by a new employer.

Therefore the Agency has decided to retain a 15-day grace period

until January 1, 1996; thereafter a grace period of 5 days will become

effective.

EPA is revising Sec. 170.130(a)(3) by adding a new paragraph (i) to

require that basic pesticide safety information be provided to workers

before entry. The remaining paragraphs in this section are renumbered

accordingly. Also EPA is revising Sec. 170.130(a)(3)(iii) to eliminate

the 15-day grace period on December 31, 1995 and replace it with a 5-

day grace period.

EPA is adding a new paragraph Sec. 170.130(c) to specify the

content of the pesticide safety information. The remaining paragraphs

in this section are renumbered accordingly and EPA is revising new

Sec. 170.130(e) by including a reference to new paragraph (c).

B. Retraining Interval for Workers and Handlers

EPA proposed the following options for the retraining interval:

keep the 5 year retraining interval; establish a 3 year retraining

interval; or require annual retraining.

The following types of comments were supportive of a 5-year

retraining interval: the level of safety information was fairly basic;

the training would be easily retained, especially as workers

incorporate the training into their work habits; that WPS signs,

posters, and supervisor instructions would reinforce worker safety

protections. Some comments noted that a 5-year interval would allow

States the flexibility to establish a more frequent retraining interval

that might better adapt to existing agricultural practices, workforce

characteristics and educational and administrative programs in each

State. Some comments supported shorter retraining interval for handlers

and a 5-year retraining interval for workers.

Some comments supported a 3-year retraining interval for both

handlers and workers. A few comments supported a 3-year retraining

period for handlers, noting increased risk of exposure for handlers

compared to workers.

Numerous comments supported an annual retraining requirement noting

the need for repetitive training to improve retention. Some comments

supported annual retraining for handlers only. A few comments indicated

that training programs and materials were now available to reduce the

costs of frequent training. However, many comments specifically noted

that annual retraining would increase employer costs, especially for

small growers, who may have to secure the services of trainers and

interpreters.

EPA has decided to maintain the 5 year retraining interval for

workers and handlers. The Agency believes that the 5-year interval is

adequate to cover basic safety principles without undue burden. The 5-

year retraining interval will continue to allow States and growers the

flexibility to tailor their individual retraining intervals to best fit

their needs and capabilities.

Therefore, no change is made to the retraining provision in

Sec. 170.130(a).

V. Reevaluation of Training Rule

The Agency is adopting this amendment in order to ensure that

agricultural workers receive needed training while still providing the

agricultural sector flexibility to address practical concerns with

regard to the timing and cost of training. As discussed more fully

above, the Agency believes that any added risks associated with

pesticide exposure of workers from activities conducted during the 5-

day grace period will be limited by other requirements in the WPS. EPA

intends to reevaluate this decision after it has been implemented,

because the WPS program is relatively new and there is relatively

little experience either with the practical consequences of compliance

or the extent of worker risks under the WPS.

The Agency intends to collect information over the next several

growing seasons to evaluate the effectiveness of this amendment. In

particular, EPA is interested in determining whether, collectively, the

requirements imposed by the WPS successfully protect workers against

pesticide poisonings. EPA is also interested in better characterizing

the extent and timing of training and in understanding whether the 5-

day grace period addresses the needs of growers and workers adequately.

Finally, EPA would like to obtain information on the extent of

compliance with the conditions in the training requirement and any

practical problems with enforcement.

To obtain a better understanding of the implementation and impacts

of this amendment, EPA will work with USDA and States to gather

relevant information. The Agency will hold public meetings in

agricultural areas to provide those directly affected by the WPS--

growers, enforcement staff, and agricultural workers--an opportunity to

comment on these actions and the WPS rule in general. As appropriate,

EPA may conduct surveys and review incident data to assess how the

rules are affecting agriculture. The Agency invites any interested

person who has concerns about the implementation of this action to send

comments to the Agency at the address listed at the beginning of this

rule under the ADDRESSES section.

VI. Public Docket

A record has been established for the rulemaking and this

administrative decision under docket number ``OPP-250097A'' (including

comments and data submitted electronically as described below). A

public version of this record, including printed, paper versions of

electronic comments, which does not include any information claimed as

CBI, is available for inspection from 8 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The public record is located

in Rm. 1132 of the Public Response and Program Resources Branch, Field

Operations Division (7506C), Office of Pesticide Programs,

Environmental Protection Agency, Crystal Mall #2, 1921 Jefferson Davis

Highway, Arlington, VA.

Electronic comments can be sent directly to EPA at:

[email protected]

Electronic comments must be submitted as an ASCII file avoiding the

use of special characters and any form of encryption.

The official record for the rulemaking and this administrative

decision, as well as the public version, as described above will be

kept in paper form. Accordingly, EPA will transfer all comments

received electronically into printed, paper form as they are received

and will place the paper copies in the official rulemaking record which

will also include all comments submitted directly in writing. The

official rulemaking record is the paper record maintained at the

address in ADDRESSES at the beginning of this document.

VII. Statutory Review

As required by FIFRA Section 25(a), this rule was provided to the

USDA, and to Congress for review. EPA consulted informally with USDA

during the development of the final rule and, through this exchange,

addressed all of the Department's comments. The final rule was provided

formally to USDA, as required by FIFRA. USDA had no

[[Page 21947]] comment on the final rule. The FIFRA Scientific Advisory

Panel waived its review.

VIII. Regulatory Assessment Requirements

A. Executive Order 12866

Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),

it has been determined that this is a ``significant regulatory action''

because it raises potentially novel legal or policy issues. This action

was submitted to the Office of Management and Budget (OMB) for review

under the Executive Order. Any comments or changes made during OMB

review, have been documented in the public record.

The total cost of this regulatory action will depend upon the

additional training costs that may be incurred as a result of a shorter

training grace period for the period from January 1, 1996 to October

20, 1997, as well as the cost of providing basic safety information to

all workers before they enter areas subject to WPS pesticide safety

training. The cost of reducing the training grace period from 15 days

to 5 days has been estimated by EPA and is presented in the Impact

Assessment for the Worker Protection Standard, Training Provisions

Rule. EPA has reviewed its Impact Assessment and has determined (with

the concurrence of USDA) that whatever the incremental cost of this

revision may be, it should be modest and that these additional costs

are warranted.

B. Executive Order 12898

Executive Order 12898 (environmental justice) was taken into

account in developing the WPS amendments.

C. Unfunded Mandates Reform Act

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, EPA has assessed

the effects of this regulatory action on State, local, and tribal

governments, and the private sector. This action does not result in the

expenditure of $100 million or more by any State, local or tribal

governments, or by anyone in the private sector. The costs associated

with this action are described in Unit VIII.A. above.

In addition to the consultations prior to proposal, EPA has had

several informal consultations regarding the proposed rule with some

States through the EPA regional offices and at regularly scheduled

State meetings. No significant issues or information was identified as

a result of EPA's discussion with the States.

D. Regulatory Flexibility Act

This rule was reviewed under the provisions of sec. 3(a) of the

Regulatory Flexibility Act, and it was determined that the rule would

not have an adverse impact on small entities. The smallest entities

regulated under the Worker Protection Standard are family-operated

agricultural establishments with no hired labor. These operations are

not subject to the WPS training requirements, and therefore have no

training cost associated with this rule. These small entities (with no

hired labor) represent about 45 percent of the agricultural

establishments within the scope of the WPS. The smallest of those

entities which do hire labor are those with only one hired employee.

Estimated costs per worker or handler are similar for an establishment

with one employee as for larger establishments, causing no significant

disproportionate burden on small entities.

I therefore certify that this proposal does not require a separate

analysis under the Regulatory Flexibility Act.

E. Paperwork Reduction Act

EPA has determined that there are no information collection burdens

under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et

seq., associated with the requirements contained in this final

amendment.

List of Subjects in 40 CFR Part 170

Environmental protection, Pesticides and pests, Intergovernmental

relations, Occupational safety and health, Reporting and recordkeeping

requirements.

Dated: April 26, 1995.

Lynn M. Browner,

Administrator.

Therefore, 40 CFR part 170 is amended as follows:

PART 170--[AMENDED]

1. The authority citation continues to read as follows:

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

2. Section 170.130 is amended by revising the section heading and

paragraph (a)(3), redesignating paragraphs (c) and (d) as paragraphs

(d) and (e), respectively, adding paragraph (c), and revising newly

designated paragraph (e)(1) to read as follows:

Sec. 170.130 Pesticide safety training for workers.

(a) * * *

(3) Requirements for other agricultural workers--(i) Information

before entry. As of January 1, 1996, and except as provided in

paragraph (a)(2) of this section, before a worker enters any areas on

the agricultural establishment where, within the last 30 days a

pesticide to which this subpart applies has been applied or the

restricted-entry interval for such pesticide has been in effect, the

agricultural employer shall assure that the worker has been provided

the pesticide safety information specified in paragraph (c), in a

manner that agricultural workers can understand, such as by providing

written materials or oral communication or by other means. The

agricultural employer must be able to verify compliance with this

requirement.

(ii) Training before the 6th day of entry. Except as provided in

paragraph (a)(2) of this section, before the 6th day that a worker

enters any areas on the agricultural establishment where, within the

last 30 days a pesticide to which this subpart applies has been applied

or a restricted-entry interval for such pesticide has been in effect,

the agricultural employer shall assure that the worker has been

trained.

(iii) Exceptions during interim period. Until December 31, 1995,

and except as provided by paragraph (a)(2) of this section, before the

16th day that a worker enters any areas on the agricultural

establishment where, within the last 30 days a pesticide to which this

subpart applies has been applied or a restricted-entry interval has

been in effect, the agricultural employer shall assure that the worker

has been trained. After December 31, 1995 this exception no longer

applies.

* * * * *

(c) Pesticide safety information. The pesticide safety information

required by paragraph (a)(3)(i) shall be presented to workers in a

manner that the workers can understand. At a minimum, the following

information shall be provided:

(1) Pesticides may be on or in plants, soil, irrigation water, or

drifting from nearby applications.

(2) Prevent pesticides from entering your body by:

(i) Following directions and/or signs about keeping out of treated

or restricted areas.

(ii) Washing before eating, drinking, using chewing gum or tobacco,

or using the toilet.

(iii) Wearing work clothing that protects the body from pesticide

residues.

(iv) Washing/showering with soap and water, shampoo hair, and put

on clean clothes after work.

(v) Washing work clothes separately from other clothes before

wearing them again. [[Page 21948]]

(vi) Washing immediately in the nearest clean water if pesticides

are spilled or sprayed on the body. As soon as possible, shower,

shampoo, and change into clean clothes.

(3) Further training will be provided within 5 days.

* * * * *

(e) Verification of training. (1) Except as provided in paragraph

(e)(2) of this section, if the agricultural employer assures that a

worker possesses an EPA-approved Worker Protection Standard worker

training certificate, then the requirements of paragraph (a) and (c) of

this section will have been met.

* * * * *

[FR Doc. 95-10871 Filed 5-2-95; 8:45 am]

BILLING CODE 6560-50-F