Recordkeeping Requirements for Certified Applicators of Federally Restricted Use Pesticides

Federal RegisterFeb 10, 1995

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SUMMARY: The Agricultural Marketing Service, United States Department

of Agriculture, is amending its regulations governing recordkeeping of

federally restricted use pesticides by certified applicators. The final

regulations revise the definitions of the terms ``medical emergency''

and ``licensed health care professional,'' provide new requirements for

recording the location of ``spot applications'' of federally restricted

use pesticides, reduce the time period for a certified applicator to

make a record of the application of a federally restricted use

pesticide, clarify the circumstances under which licensed health care

professionals may obtain, utilize, and release restricted use pesticide

records or record information, and clarify the penalty provisions in

the regulations. The changes to the rule ensure that the regulations

are consistent with the objectives of section 1491 of the Food,

Agriculture, Conservation, and Trade Act of 1990. The changes should

further ensure accuracy of records of the application of federally

restricted use pesticides, and improve the ability of licensed health

care professionals to provide medical treatment to an individual who

may have been exposed to a federally restricted use pesticide.

EFFECTIVE DATE: May 11, 1995.

FOR FURTHER INFORMATION CONTACT: Bonnie Poli, Chief, Pesticide Records

Branch, Science Division, AMS, 8700 Centreville Road, Suite 200,

Manassas, VA 22110, 703-330-7826.

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and Regulatory Flexibility Act

This rule has been determined to be significant for purposes of

Executive Order 12866 and therefore has been reviewed by OMB.

This rule also has been reviewed under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). This rule will (1) revise certain

definitions within the regulations; (2) require the location of spot

applications of federally restricted use pesticides be designated as

``spot application'' followed by a concise description of location and

treatment; (3) reduce the time period within which the information

required by the regulations must be recorded; (4) clarify the

availability of pesticide record information to facilitate medical

treatment or first aid; (5) clarify the utilization and release of

pesticide records or record information by licensed health care

professionals; and (6) clarify the penalty provisions.

The Administrator of AMS has determined that approximately 1.3

million certified pesticide applicators (980,000 private and 300,000

commercial applicators) will be affected by this final rule. However,

we do not anticipate that any of the revisions to the regulations or

additional requirements will result in any significant additional

economic impact on certified applicators of federally restricted use

pesticides. The amendments to the rule will not increase the amount of

time necessary for a certified applicator to record the information

required by the regulations. Although the regulations will require

certified applicators to record a concise description of the location

of a ``spot application,'' this requirement does not significantly

increase the time to make a record.

Under these circumstances, the Administrator of the Agricultural

Marketing Service has determined that this action will not have a

significant economic impact on a substantial number of small entities.

Executive Order 12778

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule: (1) will not preempt any state or local

laws, regulations, or policies, unless they present an irreconcilable

conflict with this rule; (2) will not have any retroactive effect; and

(3) will not require administrative proceedings before parties may file

suit challenging this rule.

Paperwork Reduction Act

In accordance with Section 3507 of the Paperwork Reduction Act of

1980 (44 U.S.C. 3507), the recordkeeping provisions included in this

rule have been approved by the Office of Management and Budget (OMB),

number 0581-0164.

Background

As part of the Food, Agriculture, Conservation, and Trade Act of

1990 (7 U.S.C. 136i-1), hereinafter referred to as the FACT Act,

Congress mandated the establishment by the Secretary of Agriculture, in

consultation with the Administrator of the Environmental Protection

Agency, of requirements for recordkeeping by all certified applicators

of federally restricted use pesticides.

The regulations at 7 CFR part 110, ``Recordkeeping Requirements for

Certified Applicators of Federally Restricted Use Pesticides,''

(hereinafter referred to as the regulations) require certified

pesticide applicators to maintain records of federally restricted use

pesticide applications for a period of 2 years. The regulations also

provide for access to pesticide records or record information by

federal or state officials, or by licensed health care professionals

when needed to treat an individual who may have been exposed to

restricted use pesticides, and penalties for enforcement of the

recordkeeping and access provisions. The regulations became effective

on May 10, 1993.

After publication of the regulations, AMS proceeded with the

implementation of a national program for recordkeeping of federally

restricted use pesticides. Early in the implementation phase of the AMS

recordkeeping program, state regulatory agencies and others raised

issues involving specific interpretations of the regulations. A lawsuit

was filed against the Secretary of Agriculture and the Administrator of

the Environmental Protection Agency by the National Coalition Against

the Misuse of Pesticides and others. The lawsuit challenged the

substance of limited portions of the final regulations promulgated by

AMS.

Proposed Rule

After a thorough review of the regulations and consideration of the

issues raised by the lawsuit, we published a document on April 6, 1994,

in the Federal Register (59 FR 16400-16403), proposing to amend the

recordkeeping regulations for federally restricted use pesticides.

Comments on the Proposed Rule

AMS solicited comments concerning our proposal for a 60 day comment

period ending June 6, 1994. We received 47 comments from certified

pesticide applicators, medical professionals, agricultural and

farmworker organizations, State Departments of Agriculture, State

Cooperative Extension Services and other individuals and groups. The

comments received and our responses to those comments are as follows.

[[Page 8119]]

Section 110.2--Definitions

Licensed Health Care Professional

The current regulations define ``licensed health care

professional'' as ``a physician, nurse, emergency medical technician or

other qualified individual, licensed by a State to provide medical

treatment.''

AMS proposed to amend the definition of a ``licensed health care

professional'' to mean ``a physician, nurse, emergency medical

technician or other qualified individual, licensed or certified by a

state to provide medical treatment.'' AMS proposed this amendment to

clarify our intention to include qualified individuals who have been

certified by a state to provide medical treatment in the definition of

``licensed health care professional.''

Many comments supported the proposed change in the definition

citing the need to include all individuals who are either state

certified or licensed, and are qualified to provide medical treatment

in cases of pesticide related illness in the definition of ``licensed

health care professional.'' For example, one commentor stated, ``the

proposed definition recognizes the realities of modern health care, in

that many tasks are performed by paraprofessionals and other persons

working under the direction of licensed professionals.'' Another

commentor stated, ``* * * often the first responder for medical

emergencies or medical care is not a licensed health care professional.

The definition needs to be broadened to include other professionals to

ensure greater access to immediate and appropriate medical treatment.''

AMS agrees that under some circumstances certified individuals are

qualified to provide medical treatment for pesticide related exposures.

Some states use the term ``certified'' and ``licensed''

interchangeably. For example, a ``licensed nurse practioner'' in one

state may be classified as a ``certified nurse practioner'' in another

state. Therefore, this final rule amends the definition of ``licensed

health care professional'' to include any qualified individuals

certified by a state to provide medical treatment. However, individuals

who have been certified only to provide first aid or cardiopulmonary

resuscitation (CPR) through organizations such as the American Red

Cross are not included in the definition of ``licensed health care

professional'' in this final rule.

AMS also received comments which expressed concerns that allowing

access by ``certified'' individuals would greatly expand access to

private record information to individuals who are not qualified to

provide proper treatment for pesticide related illnesses. One commentor

stated, ``* * * there are 23 different health care professionals

certified by the state including such professions as: Athletic

Training, Chiropractic, Mental Health Practice, Physical Therapy and

Psychology. Under the proposed changes, these professionals would be

able to request records and release the information. This change would

not increase health protection, but rather provide an avenue for non-

related health care professionals to have access to private records.''

We agree with comments received expressing concerns that certified

individuals such as physical or athletic therapists should not be able

to request pesticide record information. We are addressing these

concerns in section 110.5(a) by allowing only the attending licensed

health care professional, or an individual acting under the direction

of the attending licensed health care professional, access to record

information. This amendment to section 110.5(a) should eliminate the

request for pesticide record information by individuals who are not

qualified to provide medical treatment for pesticide related injuries

or illness.

For these reasons, we are adopting the proposed language.

``Licensed health care professional'' shall be defined as ``a

physician, nurse, emergency medical technician, or other qualified

individual, licensed or certified by a State to provide medical

treatment.''

Medical Emergency

The current regulations define ``medical emergency'' as ``injuries

or illnesses which require immediate medical attention to prevent life-

threatening or disabling conditions.''

AMS proposed to change the definition of ``medical emergency''

after concerns were raised that the definition was too restrictive and

could hinder medical treatment by licensed health care professionals of

individuals who may have been exposed to a federally restricted use

pesticide. It was not the intent of AMS to limit medical treatment of

persons who may have been exposed to a restricted use pesticide.

Therefore, AMS proposed that the term ``medical emergency'' be defined

as ``a situation that requires immediate medical treatment or first

aid.''

AMS received 27 comments concerning the proposed change to the

definition of ``medical emergency.'' The commentors who supported the

proposed definition stated that the current definition was too

restrictive. For example, one commentor stated that the proposed

definition ``* * * ensures that all instances of pesticide related

illnesses can be appropriately dealt with; that they do not get omitted

inadvertently due to an overly narrow definition.'' Another commentor

stated, ``Expanding this definition ensures the appropriate care and

medical response for all pesticide related illnesses.''

Commentors who opposed the proposed change stated that the current

and proposed definitions of ``medical emergency'' are too broad because

they encompass illnesses or injuries that have nothing to do with

possible pesticide poisonings. One of these commentors stated that

``The definition should refer to and be limited to the related

pesticide situation to avoid confusion and misunderstanding.'' However,

the comments opposing the change to the definition did support

providing the record information when appropriate for pesticide related

illness.

AMS agrees that the current definition of ``medical emergency'' is

too restrictive and could hinder appropriate medical treatment to

individuals who may have been exposed to a federally restricted use

pesticide. After considering the comments, we have adopted a definition

that is less restrictive than the current definition and provides for

more appropriate access to record information for a medical emergency.

The definition of ``medical emergency'' in the final rule encompasses

situations that require immediate medical treatment or first aid as set

forth in the proposal. Further, in response to the comments which

stated that the definition was too broad, we added a phrase which

limits the definition of medical emergency to situations that require

treatment or first aid ``to treat possible symptoms of pesticide

poisoning or exposure.''

Therefore, this final rule amends the definition of ``medical

emergency'' to read as follows: ``A situation that requires immediate

medical treatment or first aid to treat possible symptoms of pesticide

poisoning or exposure.''

Section 110.3(a)(6)--Spot Applications

The current pesticide recordkeeping regulations provide reduced

requirements for recording information for ``spot applications.''

Section 110.3(a)(6) provides that applications of restricted use

pesticides made on the same day in a total area of less than one-tenth

(1/10) of an acre require the following elements be recorded: (1) Brand

or product name and EPA registration number; (2) total amount applied;

(3) location must be designated as ``spot application''; and (4) the

date of application. Section 110.3(a)(6) does [[Page 8120]] not apply

to records maintained for greenhouse and nursery applications.

The reduced requirements for recordkeeping information for ``spot

applications'' were intended to provide certified applicators with an

incentive to record small spot applications on noxious weeds or similar

type applications, without recording each location, due to the usually

small amount of pesticide associated with a spot application.

After concerns were raised that the required spot application

record information was not adequate for medical treatment because a

specific location was not required to be recorded for each spot

application, AMS proposed to delete section 110.3(a)(6), the spot

application record element. By deleting section 110.3(a)(6), spot

applications would be recorded in the same manner as all other

federally restricted use pesticide applications.

AMS received 35 comments addressing the deletion of the spot

application provision. Comments which supported the deletion of the

spot application provision generally stated that specific locations can

provide important information for medical treatments. For example one

commentor stated, ``In cases where an individual may have been poisoned

by a spot application, it may be critically important to know the

specific location of the application.''

Comments opposing the proposed change stated that it would be

extremely difficult to record the specific location of a spot

application. For example one commentor stated that ``It would be very

difficult, if not impossible, to provide the exact legal description of

the area treated.'' Other commentors were concerned that the proposed

change would be extremely burdensome to certified applicators, increase

their workload and operating costs, and therefore have an economic

impact. Other commentors stated that if the recordkeeping requirements

become too burdensome, the net result would be non-compliance.

AMS recognizes the importance of location information where an

entire field or area has been treated. AMS also recognizes that, in

some instances, knowing that a spot application was performed could be

valuable information when needed to determine if a possible pesticide

exposure could have occurred in a field or area.

Moreover, because the purpose of a spot application is to apply

pesticide to a small area targeting a specific pest, such as noxious

weeds or an ant mound, it would be impractical to require certified

applicators to supply a precise description of each application within

a field or production area, in order to make an exact determination if

a possible pesticide exposure occurred.

In order to provide information on the location of spot pesticide

applications, and avoid a cumbersome recording requirement for such

spot applications, this final rule maintains the spot application

provision in the regulations, but requires a more detailed description

of the location of spot applications to be recorded than is currently

required by section 110.3(a)(6). This final rule requires the certified

applicator to provide location, designated as ``spot application,''

followed by a concise description of the location and treatment for

spot applications of a federally restricted use pesticide. For example,

a certified applicator who applied pesticides for noxious weeds could

record the location and treatment as ``spot application,'' followed by

a concise description such as ``treated thistle over entire farm

acreage;'' a certified applicator who treated for fire ants could

record the location of the application by stating ``spot application,

sprayed fire ant mounds on pastures of lower creek farm.'' The

description of the location of spot applications should assist licensed

health care professionals to determine whether an individual has been

exposed to a federally restricted use pesticide.

Additionally we are making other changes for clarification and

consistency between the recordkeeping requirements for spot

applications and those for other applications set forth at section

110.3(a)(1-5) which is redesignated in this final rule as section

110.3(a). We are amending section 110.3(a)(6)(iv) from ``the date of

application'' to ``the month, day, and year on which the restricted use

pesticide application occurred.'' This language is consistent with that

used in section 110.3(a)(4).

Accordingly, this final rule amends the spot application provision

in section 110.3(a)(6), which is redesignated in this final rule as

section 110.3(b), to require certified applicators to maintain records

of applications of restricted use pesticides made on the same day in a

total area of less than one-tenth (1/10) of an acre. These records must

include, for the application, the brand or product name and EPA

registration number; total amount applied; location, designated as

``spot application,'' followed by a concise description of location and

treatment; and the month, day, and year on which the restricted use

pesticide application occurred. This final rule does not change

requirements as previously established for greenhouse and nursery

applications of restricted use pesticides. The provisions for spot

applications do not apply to applications of restricted use pesticides

in greenhouses and nurseries. Instead, certified applicators who make

applications in greenhouses and nurseries are required to keep all the

data elements required by section 110.3(a).

Section 110.3(b)--Time for Making an Official Record

The current regulations provide that the information required for a

record shall be recorded within 30 days following the pesticide

application.

Concerns were raised regarding the accuracy of the records for both

collecting information for a pesticide use data base and for medical

treatment if application information was only required to be recorded

within 30 days following the pesticide application. AMS responded by

proposing that a record of the application of a restricted use

pesticide be made within 7 days following the pesticide application.

AMS received 41 comments on this issue. Comments ranged from

suggestions that a record be completed upon application, within 24

hours, shortened to 2 days, 3 days, 5 days, 14 days and maintained at

the 30 day time period.

Some commentors supported requiring certified applicators to record

the required pesticide information within 7 days or less after

application of the pesticide in order to have information available for

medical treatment of possible pesticide exposure. AMS supports the need

to have accurate information available in cases of medical treatment

and has addressed these concerns by requiring in section 110.5(a), as

amended by this final rule, that certified applicators provide the

record information promptly to the atttending licensed health care

professional when necessary to provide medical treatment or first aid,

and immediately when the attending licensed health care professional

determines that there is a medical emergency.

AMS disagrees with those commentors who stated that pesticide

application information must be recorded shortly after the pesticide

has been applied so that it can be available for medical treatment. The

current regulations require certified applicators to provide accurate

record information for purposes of providing medical treatment or first

aid, in accordance with section 110.5(a), whether or not the time to

make a written record has elapsed. This final rule amends the

[[Page 8121]] regulations by adding language which clarifies the

certified applicator's responsibility to provide federally restricted

use pesticide record information for medical treatment.

AMS also received comments supporting allowing 30 days to record

pesticide application information because it was consistent with

section 1491(a)(2) of the FACT Act which requires certified commercial

applicators to provide a copy of a restricted use application record

within 30 days of the application. Although the FACT Act requires

certified commercial applicators to provide a copy of the record

information to their clients within 30 days of application, it does not

provide a time period within which a certified applicator, private or

commercial, shall make a record.

In addition, numerous commentors supported the 30 day period to

make a record because they believed the 7 days did not provide

certified applicators adequate time to make a record in peak production

periods. AMS has reevaluated the proposed 7 day time period and agrees

that during peak production periods certified applicators could need

more time to make accurate records due to the long hours many

applicators spend in the field during those periods.

Therefore, to provide a balanced approach to assure accurate

information for data collection on federally restricted use pesticides

and provide adequate time for certified applicators to make a record,

we are amending section 110.3(b), which is redesignated in this final

rule as section 110.3(c), to require that certified applicators must

complete the record within 14 days following the pesticide application.

However, whether or not the written record has been completed, the

certified applicator shall provide the information to be recorded in

accordance with section 110.5(a).

AMS also received comments from certified commercial applicators

objecting to the change in the time frame to provide copies of

restricted use application records to clients from 30 days to the

proposed 7 days. We did not propose to change, nor does this final rule

change the time within which certified commercial applicators must

provide clients with copies of records of restricted use applications.

Certified commercial applicators are still given 30 days to provide a

copy of the federally restricted use application record to their

clients.

AMS also received comments requesting clarification of the use of

the term ``official record'' in the supplementary information in the

proposed rule. The use of the term ``official record'' was incorrect.

Its use was our attempt to describe the recording of a pesticide

application as required under 7 CFR part 110.

Section 110.5(a)--Availability of Records To Facilitate Medical

Treatment

Currently, section 110.5(a) of the rule states: ``When a licensed

health care professional determines that any record of the application

of restricted use pesticide required to be maintained under Sec. 110.3

of this part is necessary to provide medical treatment or first aid to

an individual who may have been exposed to the restricted use pesticide

for which the record is maintained, the certified applicator required

to maintain the record shall provide the record information and any

available label information promptly to the licensed health care

professional. If it is determined by a licensed health care

professional to be a medical emergency, the record information of the

restricted use pesticide relating to the medical emergency shall be

provided immediately.''

AMS proposed to amend section 110.5(a) to address concerns that if

a strict interpretation was applied to this section, it would require

the licensed health care professional to personally make the record

information request and possibly hinder access to record information

and medical treatment. AMS never intended to prevent an individual

acting under the direction of the attending licensed health care

professional from requesting record information. We are aware that, in

some instances, the attending licensed health care professional may

rely on a person acting under his/her direction to make the contacts

necessary to obtain the pesticide record information.

In order to clarify the regulations concerning the availability of

pesticide record information to facilitate medical treatment, AMS

proposed to amend section 110.5(a) to provide that either the licensed

health care professional or an individual acting under the direction of

the attending licensed health care professional could request record

information when necessary to provide medical treatment or first aid.

The proposed amendment reads as follows: ``When a licensed health care

professional, or an individual acting under the direction of the

attending licensed health care professional, determines that any record

of the application of restricted use pesticide required to be

maintained under Sec. 110.3 of this part is necessary to provide

medical treatment or first aid to an individual who may have been

exposed to the restricted use pesticide for which the record is or will

be maintained, the certified applicator required to maintain the record

shall promptly provide the record information and any available label

information. If it is determined by a licensed health care

professional, or an individual acting under the direction of the

attending licensed health care professional, to be a medical emergency,

the record information of the restricted use pesticide, relating to the

medical emergency, shall be provided immediately.''

AMS received 28 comments regarding proposed section 110.5(a). Most

of the commentors supported the proposed change. Additionally, several

commentors supported the concept of the proposed amendment, but

suggested changes in the proposed language to decrease the possibility

of unqualified licensed health care professionals obtaining the record

information.

After consideration of the comments, AMS agrees that the proposed

language could be more specifically worded to address comments received

regarding access to records by licensed health care professionals who

may not be qualified to provide treatment for pesticide related

illness. Therefore, we are adding the word ``attending'' to licensed

health care professional to be consistent throughout the rule and help

eliminate request for records or record information from individuals

who may be licensed or certified by a state to provide medical

treatment or first aid, but are not qualified to provide medical

treatment for possible pesticide injury or illness. This final rule

amends section 110.5(a) to read as follows:

When the attending licensed health care professional, or an

individual acting under the direction of the attending licensed health

care professional, determines that any record of the application of a

restricted use pesticide required to be maintained under Sec. 110.3 is

necessary to provide medical treatment or first aid to an individual

who may have been exposed to the restricted use pesticide for which the

record is or will be maintained, the certified applicator required to

maintain the record shall promptly provide the record information and

any available label information. If it is determined by the attending

licensed health care professional, or an individual acting under the

direction of the attending licensed health care professional, to be a

medical emergency, the record information of the restricted use

pesticide, relating to the medical emergency, shall be provided

immediately.

[[Page 8122]]

Section 110.5(b)--Release of Record Information by Licensed Health Care

Professionals

Under the current regulations, licensed health care professionals

may release record information obtained through section 110.5(a) only

when necessary to provide medical treatment or first aid to an

individual who may have been exposed to the restricted use pesticide

for which the record is maintained. Section 110.5(b) provides: ``No

licensed health care professional shall release any record or

information from the record obtained under paragraph (a) of this

section except as necessary to provide medical treatment or first aid

to an individual who may have been exposed to the restricted use

pesticide for which the record is maintained.''

Due to concerns that section 110.5(b) was too restrictive, AMS

proposed to expand the circumstances under which the pesticide record

information could be utilized and released, and to clarify who had the

authority to release this information. Accordingly, AMS proposed to

amend section 110.5(b) to provide: A licensed health care professional,

or an individual acting under the direction of the attending licensed

health care professional, may utilize and release the record or record

information obtained under paragraph (a) of this section when necessary

to provide medical treatment or first aid to an individual or

individuals who may have been exposed to the restricted use pesticide

for which the record is or will be maintained. Further utilization and

release of such record or record information is limited to licensed

health care professionals who may use it: (1) To submit pesticide

poisoning incident reports to appropriate State or Federal agencies, or

(2) where consideration of medical ethics may necessitate such

utilization and release.

In general, the comments received supported the proposed amendments

to section 110.5(b). However, many comments expressed concern with the

use of the term ``medical ethics'' as a criterion for the release of

pesticide record information. One commentor stated, ``* * * matters of

ethics are, in some respects, shared by a group, but are also

inherently personal and subjective.'' Numerous commentors also thought

that the use of ``medical ethics'' was vague and were opposed to the

proposal unless the phrase was clarified as to what constitutes

``consideration of medical ethics.'' However, the comments generally

supported the use of record information by the licensed health care

professional if it would prevent further pesticide health hazards.

AMS agrees with the comments stating that the attending licensed

health care professional in some instances should be able to utilize

pesticide record information to prevent additional poisoning or

injuries. AMS also agrees with the commentors that stated that the use

of the term ``medical ethics'' is vague and open for broad

interpretation. Therefore, the amended language deletes the use of the

phrase ``medical ethics.'' Accordingly, this final rule provides the

attending licensed health care professional with the ability to release

pesticide record information to appropriate agencies when necessary to

prevent further injury or illness.

In addition, comments expressed the need to allow licensed health

care professionals the flexibility to meet requirements of pesticide

poisoning incident reporting. Again, comments generally supported the

concept. However, some commentors were concerned about the certified

applicator's right to confidentiality in the process of reporting.

AMS agrees that the proposed language can be improved in order to

address many of the comments and still provide the needed flexibility

to assure that licensed health care professionals can utilize and

release the pesticide record information for appropriate reasons.

Therefore, we are amending section 110.5(b) to read as follows:

(1) The attending licensed health care professional, or an

individual acting under the direction of the attending licensed health

care professional, may utilize and release the record or record

information obtained under paragraph (a) of this section when necessary

to provide medical treatment or first aid to an individual who may have

been exposed to the restricted use pesticide for which the record is or

will be maintained. (2) The attending licensed health care professional

may release the record or record information to appropriate federal or

state agencies that deal with pesticide use or any health issue related

to the use of pesticides when necessary to prevent further injury or

illness. (3) A licensed health care professional may release the record

or record information to submit pesticide poisoning incident reports to

appropriate state or federal agencies.

Section 110.7--Penalties

Section 110.7 provides that ``any certified applicator who violates

7 U.S.C. 136i-1 (a), (b), or (c) shall be liable for a civil penalty of

not more than $500 in the case of the first offense, and of not less

than $1,000 in the case of each subsequent offense, except that the

penalty shall be less than $1,000 for a second offense if the

Administrator determines that the certified applicator made a good

faith effort to comply with this part.''

Several state pesticide regulatory agencies had questions regarding

the application of the penalty provisions in section 110.7. After

reexamining the issue, AMS proposed to amend section 110.7 to eliminate

any ambiguity and make it clear that the Administrator of AMS, or the

Administrator's designee, has flexibility in assessing civil penalties.

The proposed changes paralleled the language in subsection (d) of the

FACT Act. AMS proposed to amend section 110.7 to provide that ``any

certified applicator who violates the requirements of 7 U.S.C. 136i-1

(a), (b), or (c) shall be subject to a civil penalty of not more than

$500 in the case of the first offense, and in the case of subsequent

offenses, be subject to a fine of not less than $1,000 for each

violation, except that the penalty shall be less than $1,000 if the

Administrator, or his designee, determines that the certified

applicator made a good faith effort to comply with this Part.''

Numerous comments supported the proposed amendment. For example,

one commentor stated, ``* * * the flexibility to tailor penalties to

specific situations and consider the effort made to comply with the

regulations are essential elements of good program implementation and

enforcement.''

Comments opposing the proposed change asserted that the Secretary

of Agriculture should not have the discretion to waive the fine. AMS

disagrees. The FACT Act provides the Secretary discretion to determine

whether or not a penalty shall be assessed for violations of the FACT

Act, and to assess a penalty of less than $1,000 if the Secretary

determines that the certified applicator made a good faith effort to

comply.

Therefore, we are adopting the proposed language, with some minor

changes for clarity. This final rule amends section 110.7 to read as

follows: ``Any certified applicator who violates the requirements of 7

U.S.C. 136i-1 (a), (b), or (c) or this part shall be subject to a civil

penalty of not more than $500 in the case of the first offense, and in

the case of subsequent offenses, be subject to a civil penalty of not

less than $1,000 for each violation, except that the civil penalty

shall be less than $1,000 if the Administrator determines that the

certified applicator made a good faith effort to comply with 7 U.S.C.

136i-1 (a), (b), and (c) and this part.'' [[Page 8123]]

Other Comments

We also received a number of comments which are beyond the scope of

this rulemaking proceeding, and therefore we are not addressing those

comments in this final rulemaking document.

Conclusion

Based upon the rationale in the proposed rule and this rulemaking

document, we are adopting the provisions of the proposal as a final

rule, except as previously discussed in this document and except for

minor editorial changes for clarity.

List of Subjects in 7 CFR Part 110

Pesticide and pests, reporting and recordkeeping requirements.

Therefore, 7 CFR part 110, is amended as follows:

PART 110--RECORDKEEPING ON RESTRICTED USE PESTICIDES BY CERTIFIED

APPLICATORS; SURVEYS AND REPORTS

1. The authority citation for part 110 is revised to read as

follows:

Authority: 7 U.S.C. 136a(d)(1)(c), 136i-1, and 450; 7 CFR 2.17,

2.50.

2. In Sec. 110.2, the definition of the term ``licensed health care

professional'' is amended by adding the phrase ``or certified''

immediately following the word ``licensed''.

3. In Sec. 110.2, the definition of the term ``medical emergency''

is revised to read as follows:

Sec. 110.2 Definitions.

* * * * *

Medical emergency. A situation that requires immediate medical

treatment or first aid to treat possible symptoms of pesticide

poisoning or exposure.

* * * * *

4. In Sec. 110.2, the definition of the word ``recordkeeping'' is

amended by removing the reference to ``Sec. 110.3(a)(1) through (6) of

this part'' and adding ``Sec. 110.3(a) and (b)'' in its place.

5. Section 110.3 is amended as follows:

a. Paragraph (a) is revised as set forth below.

b. Paragraphs (b) through (g) are redesignated as paragraphs (c)

through (h) respectively.

c. New paragraph (b) is added to read as set forth below.

d. Redesignated paragraph (c) is revised as set forth below.

Sec. 110.3 Records, retention, and access to records.

(a) Certified applicators of restricted use pesticides shall

maintain records of the application of restricted use pesticides.

Except as provided in paragraph (b) of this section, these records

shall include the following information for each application:

(1) The brand or product name, and the EPA registration number of

the restricted use pesticide that was applied;

(2) The total amount of the restricted use pesticide applied;

(3) The location of the application, the size of area treated, and

the crop, commodity, stored product, or site to which a restricted use

pesticide was applied. The location of the application may be recorded

using any of the following designations:

(i) County, range, township, and section;

(ii) An identification system utilizing maps and/or written

descriptions which accurately identify location;

(iii) An identification system established by a United States

Department of Agriculture agency which utilizes maps and numbering

system to identify field locations; or

(iv) The legal property description.

(4) The month, day, and year on which the restricted use pesticide

application occurred; and

(5) The name and certification number (if applicable) of the

certified applicator who applied or who supervised the application of

the restricted use pesticide.

(b) Certified applicators shall maintain records of the application

of restricted use pesticides made on the same day in a total area of

less than one-tenth (\1/10\) of an acre. Except for applications of

restricted use pesticides in greenhouses and nurseries, to which the

requirements of paragraph (a) of this section apply, these records

shall include the following information for the application:

(1) The brand or product name, and the EPA registration number of

the restricted use pesticide that was applied;

(2) The total amount of the restricted use pesticide applied;

(3) The location of the application, designated as ``spot

application,'' followed by a concise description of location and

treatment; and

(4) The month, day, and year on which the restricted use pesticide

application occurred.

within 14 days following the pesticide application. However, whether or

not the written record has been completed, the certified applicator

shall provide the information to be recorded in accordance with

Sec. 110.5(a).

* * * * *

6. Section 110.5 is revised to read as follows:

Sec. 110.5 Availability of records to facilitate medical treatment.

(a) When the attending licensed health care professional, or an

individual acting under the direction of the attending licensed health

care professional, determines that any record of the application of any