Pesticide Safety Training for Workers and Handlers; Grace Period and Retraining Interval

Part III

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 156 and 170

Worker Protection Standards; Grace Period and Retraining Activities,

Exemption of Certified and Licensed Crop Advisors, Exceptions to the

Early Entry Restrictions for Irrigation Activities, Limited Contact

Activities, and Reduced Entry Intervals for Certain Low Risk

Pesticides; Proposed Rules

Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[OPP-250097; FRL-4901-4]

RIN No. 2070-AC69

Pesticide Safety Training for Workers and Handlers; Grace Period

and Retraining Interval

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to revise the Worker Protection Standard

(WPS) for agricultural pesticides by providing three options for a

training grace period (number of days of employment before workers must

be trained) and a phase-in period associated with the grace period. EPA

is also proposing options for the retraining interval (number of years

before workers or handlers must be retrained). The objective of the

proposed changes to the Standard is to help meet the goal of providing

a trained workforce capable of better protecting itself against

pesticide illness and injury without imposing unreasonable costs on

agricultural employers.

DATES: Written comments, identified by the document control number OPP-

250097, must be received on or before February 10, 1995. EPA does not

intend to extend this comment period.

ADDRESSES: By mail, submit written comments to: Public Response

Section, Field Operations Division (7506C), Office of Pesticide

Programs, Environmental Protection Agency, 401 M St., SW., Washington,

DC 20460. In person, bring comments to: Rm

identified by the document control number OPP-

250097, must be received on or before February 10, 1995. EPA does not

intend to extend this comment period.

ADDRESSES: By mail, submit written comments to: Public Response

Section, Field Operations Division (7506C), Office of Pesticide

Programs, Environmental Protection Agency, 401 M St., SW., Washington,

DC 20460. In person, bring comments to: Rm. 1132, CM #2, 1921 Jefferson

Davis Highway, Arlington, VA. Information submitted as comment

concerning this document may be claimed confidential by marking any

part or all of that information as ``Confidential Business

Information'' (CBI). Information so marked will not be disclosed except

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

comment that does not contain CBI must be submitted for inclusion in

the public record. Information not marked confidential may be disclosed

publicly by EPA without prior notice. All written comments will be

available for public inspection in Rm. 1132 at the Virginia address

given above, from 8 a.m. to 4 p.m., Monday through Friday, excluding

legal holidays.

Comments and data may also be submitted electronically by any of

three different mechanisms: by sending electronic mail (e-mail) to:

[email protected]; by sending a ``Subscribe'' message to

[email protected] and once subscribed, send your

comments to RIN-2070-AC69; or through the EPA Electronic Bulletin Board

by dialing 202-488-3671, enter selection ``DMAIL,'' user name ``BB--

USER'' or 919-541-4642, enter selection ``MAIL,'' user name ``BB--

USER.'' Electronic comments must be submitted as an ASCII file avoiding

the use of special characters and any form of encryption. Comments and

data will also be accepted on disks in WordPerfect in 5.1 file format

or ASCII file format. All comments and data in electronic form must be

identified by the docket number OPP-250097 since all five documents in

this separate part provide the same electronic address

onic comments must be submitted as an ASCII file avoiding

the use of special characters and any form of encryption. Comments and

data will also be accepted on disks in WordPerfect in 5.1 file format

or ASCII file format. All comments and data in electronic form must be

identified by the docket number OPP-250097 since all five documents in

this separate part provide the same electronic address. No CBI should

be submitted through e-mail. Electronic comments on this proposed rule,

but not the record, may be viewed or new comments filed online at many

Federal Depository Libraries. Additional information on electronic

submissions can be found in unit VII. of this document.

FOR FURTHER INFORMATION CONTACT: Jeanne Heying, Certification and

Training, and Occupational Safety Branch (7506C), Office of Pesticide

Programs, Environmental Protection Agency, 401 M St., SW., Washington,

DC 20460. Office location and telephone number: Rm. 1109D, CM #2, 1921

Jefferson Davis Highway, Arlington VA, Telephone: 703-305-7371.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

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

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

136w(a).

II. Background

This proposed WPS rule amendment is one of a series of Agency

actions in response to concerns raised since publication of the final

rule in August 1992 by those interested in and affected by the rule. In

addition to this proposed amendment, EPA is publishing four other

notices soliciting public comment on concerns raised by various

affected parties. Other actions EPA is considering include: (1)

Modifications to the requirements for those performing crop advisor

tasks, (2) An exception to early entry restrictions for irrigation

activities; (3) Reduced restricted entry intervals (REIs) for low risk

pesticides; and (4) Reduced early entry restrictions for activities

involving limited contact with treated surfaces

various

affected parties. Other actions EPA is considering include: (1)

Modifications to the requirements for those performing crop advisor

tasks, (2) An exception to early entry restrictions for irrigation

activities; (3) Reduced restricted entry intervals (REIs) for low risk

pesticides; and (4) Reduced early entry restrictions for activities

involving limited contact with treated surfaces.

FIFRA authorizes the EPA to regulate the sale, distribution, and

use of pesticides in the United States. The Act requires generally that

EPA license by registration each pesticide product sold or distributed

in the United States, if use of the pesticide products will not cause

``unreasonable adverse effects on the environment,'' a determination

that takes into account the economic, social, and environmental costs

and benefits of the use of any pesticide.

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

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

agricultural workers and handlers from risks associated with

agricultural pesticides. The 1992 WPS superseded the original WPS

promulgated in 1974. The 1992 WPS expanded the scope of the original

WPS to include not only workers performing hand labor operations in

fields treated with pesticides, but also workers in or on farms,

forests, nurseries, and greenhouses, as well as handlers who mix, load,

apply, or otherwise handle pesticides for use at these locations in the

production of agricultural commodities. The WPS contains requirements

for training, notification of pesticide applications, use of personal

protective equipment, restricted entry intervals, decontamination, and

emergency medical assistance.

In Sec

,

forests, nurseries, and greenhouses, as well as handlers who mix, load,

apply, or otherwise handle pesticides for use at these locations in the

production of agricultural commodities. The WPS contains requirements

for training, notification of pesticide applications, use of personal

protective equipment, restricted entry intervals, decontamination, and

emergency medical assistance.

In Sec. 170.130(c)(4), the WPS sets out required training elements

for workers, including information on pesticide hazards and exposures,

signs and symptoms of pesticide poisoning, how to obtain emergency

medical care, decontamination measures in case of exposure and other

pesticide hazards that may arise in the course of their work.

Section 170.230(c)(4) of the WPS establishes the required training

elements for handlers. These include generally the same information as

for workers. However, handlers are provided additional information

related to their handling activities: the meaning and format of

pesticide labels; information on personal protective equipment; signs,

symptoms and treatment for heat-related illness; handling pesticides

and pesticide containers; environmental contamination and hazards to

non-target species; and other information on their responsibilities as

handlers. Training for handlers is more detailed than for workers, and

is targeted specifically toward handling needs and responsibilities.

Training for workers or handlers may be conducted by certified

applicators or other trainers who meet State, Federal,

d pesticide containers; environmental contamination and hazards to

non-target species; and other information on their responsibilities as

handlers. Training for handlers is more detailed than for workers, and

is targeted specifically toward handling needs and responsibilities.

Training for workers or handlers may be conducted by certified

applicators or other trainers who meet State, Federal,

or Tribal requirements. The agricultural employer, however, is

responsible for assuring that workers receive required training and the

handler employer is responsible for assuring that handlers receive the

required training.

To assist agricultural employers in fulfilling their

responsibilities to ensure training and to provide a uniform national

standard for the conduct of worker training, EPA and the U.S.

Department of Agriculture have established a joint training

verification program. Under this program, which would be administered

on a voluntary basis by States through agreements with EPA, workers who

have been trained may be issued a training verification card. The card

could be shown to each agricultural employer who hires the worker.

Under Sec. 170.130(d) possession of a valid card serves as proof of

training, thus relieving the employer of having to provide training or

to determine whether and when training is required.

The training verification program is beneficial to the agricultural

employer and workers alike in that it provides a common basis for

agreement that training provided to the worker meets the requirements

of the WPS. EPA expects the training verification card program to

benefit agricultural employers because it obviates the need to train a

worker, thus minimizing the costs of the WPS training requirement.

Without such a card system, the employer might have to provide training

more frequently and to more workers to assure that all had received

training

ided to the worker meets the requirements

of the WPS. EPA expects the training verification card program to

benefit agricultural employers because it obviates the need to train a

worker, thus minimizing the costs of the WPS training requirement.

Without such a card system, the employer might have to provide training

more frequently and to more workers to assure that all had received

training.

For workers, possession of a card assures that they will be able to

work immediately without unnecessary delay for training.

III. Current WPS Training Provisions at Issue

This proposal addresses three elements of the worker training

requirements. The three elements are: the grace period before training

must be provided; the phase-in period for the grace period for workers;

and the retraining requirement for workers and handlers.

1. The grace period before training must be provided. Section

170.130(a)(3)(i) requires agricultural employers to assure that workers

have been trained in pesticide safety before their 6th day of entry

into areas on the agricultural establishment that have been treated

with a pesticide or that have been under a restricted entry interval

(REI) within the previous 30 days.

EPA emphasizes that the grace period applies only to routine worker

training, not early-entry training or handler training. No changes are

being proposed or considered for early entry or handler training.

2. The interim grace period for workers. The current WPS requires

that the agricultural employer assure that a worker receives pesticide

safety training before the 6th day of entry into any treated area on

the agricultural establishment. Section 170.130(a)(3)(ii) provides for

an exception for a 5-year period until October 20, 1997, during which

time workers would be allowed to enter treated areas at the

establishment for 15 days before the employer must assure that they

have been trained. After October 20, 1997, the 15-day grace period is

no longer in effect.

3

entry into any treated area on

the agricultural establishment. Section 170.130(a)(3)(ii) provides for

an exception for a 5-year period until October 20, 1997, during which

time workers would be allowed to enter treated areas at the

establishment for 15 days before the employer must assure that they

have been trained. After October 20, 1997, the 15-day grace period is

no longer in effect.

3. The retraining requirement for workers and handlers. Section

170.130(a)(1) requires that agricultural employers assure that each

worker has been trained within the previous 5 years. Section

170.230(a)(1) requires that handler employers assure that each handler

has been trained within the previous 5 years.

IV. Reasons for this Proposal

The WPS is intended to reduce the risk of pesticide poisonings and

injuries among agricultural workers and pesticide handlers through

implementation of appropriate measures. Pesticide safety training is a

key component of the Standard - trained, informed workers and handlers

can take steps to avoid exposure or mitigate harmful pesticide effects,

thereby reducing the number and severity of pesticide poisonings and

other adverse effects.

Subsequent to promulgation of the final rule in 1992, the Agency

received comments from farm worker groups suggesting changes in the

grace period and the retraining interval. Additionally, the Agency was

petitioned by the National Association of State Departments of

Agriculture (NASDA) to eliminate the interim grace period. The Agency

also met a number of times with farm worker groups to hear their

concerns on the worker training provisions. Following is a summary of

their concerns on the training grace period and 5-year retraining

interval.

A. Training Grace Period

tionally, the Agency was

petitioned by the National Association of State Departments of

Agriculture (NASDA) to eliminate the interim grace period. The Agency

also met a number of times with farm worker groups to hear their

concerns on the worker training provisions. Following is a summary of

their concerns on the training grace period and 5-year retraining

interval.

A. Training Grace Period

Farm worker groups are concerned that the current grace period

would result in untrained workers being harmed on the job. They

contrasted the WPS grace period with the Occupational Safety and Health

Administration's (OSHA) Hazard Communication Standard training

requirement (29 CFR 1910.1200), under which workers must be trained

about hazardous chemicals in their work area before first exposure.

States and farm worker groups asserted that the grace period would

be difficult to enforce. Subsequent to publication of the WPS, the

California Department of Pesticide Regulation (CDPR) raised concern

about the anticipated difficulties in enforcing the training

requirement. They asserted that it may not be feasible to track

accumulated days in treated areas in anticipation of the required

training and that employers cannot track the activities of every worker

in their employ.

Additionally, farm worker groups were concerned that the grace

period could encourage employers to avoid providing the required

training. They were particularly concerned that, because of the

transient nature of the agricultural workforce, workers who move

frequently might never be trained if training were required only after

a 5-day grace period per establishment. They noted that some workers

might not spend 5 days on any particular establishment

grace

period could encourage employers to avoid providing the required

training. They were particularly concerned that, because of the

transient nature of the agricultural workforce, workers who move

frequently might never be trained if training were required only after

a 5-day grace period per establishment. They noted that some workers

might not spend 5 days on any particular establishment.

Finally, the farm worker groups argued that all workers should be

entitled to know how to protect themselves from pesticide residues

before entering treated areas; for training to be effective in reducing

risk, they argued, training must take place before possible exposure to

pesticides.

B. Five-Year Retraining

Farm worker groups are concerned that the 5-year retraining

interval is too long to be effective. They assert that large numbers of

workers and handlers, particularly field labor contractor employees,

might not have regular access to the safety poster displayed on the

agricultural establishment because they are hired off the farm and

taken directly to the field. EPA's confidence in the safety poster as a

means of reinforcing training, they claim, is misplaced. Also, many

workers and handlers may not read well (or not be literate in the

poster language), so the impact of poster messages might be limited.

Qualified trainers assert that repeat training enhances the retention

of safety training information.

The farm worker groups also requested a shorter retraining

interval. They pointed to other regulatory programs under OSHA, EPA,

and State initiatives that require annual retraining. They also noted

that agricultural employment is seasonal in nature, and farm workers

realistically cannot be expected to remember

assert that repeat training enhances the retention

of safety training information.

The farm worker groups also requested a shorter retraining

interval. They pointed to other regulatory programs under OSHA, EPA,

and State initiatives that require annual retraining. They also noted

that agricultural employment is seasonal in nature, and farm workers

realistically cannot be expected to remember

training information for such a long period of time. The groups

asserted that more frequent retraining is needed for farm workers who

are illiterate or have poor reading skills, and cannot rely on written

materials to refresh their training.

In response to these concerns, EPA proposes to revise the Worker

Protection Standard as described in units V. and VI. of this document.

V. The Grace Period and Interim Grace Period

EPA is proposing three options for consideration and comment: the

first option involves eliminating the 15-day grace period so that

employers would have to train workers before they enter a treated area,

and providing a 1-year interim period before the 0- day grace period

would go into effect, the second option involves shortening the 15-day

grace period so that employers would be required to train workers

between 1 and 5 days after the worker has been hired and the third

option involves requiring a weekly training program. The Agency is

interested in receiving comments on all options presented.

providing a 1-year interim period before the 0- day grace period

would go into effect, the second option involves shortening the 15-day

grace period so that employers would be required to train workers

between 1 and 5 days after the worker has been hired and the third

option involves requiring a weekly training program. The Agency is

interested in receiving comments on all options presented.

(1) Shortening the grace period from 15 to 0 days after a 1 year

interim grace period. The Agency is considering eliminating the

training grace period If the grace period were eliminated entirely, all

new workers would have to be trained before entering a treated area. An

interim grace period of 1 year is being proposed to allow employers to

prepare for the elimination of the grace period.

Training new workers before any possible exposure may be the most

protective option. No worker would lack training because he or she had

not worked enough days with a single employer. By eliminating the grace

period, it is expected that compliance would be easier for the employer

and state enforcement officer, because there would be no need to

determine whether the worker had accumulated the requisite number of

workdays on the establishment.

A 0-day grace period could result in the need for more frequent,

possibly daily, training sessions. More frequent training sessions

could result in increased training costs. Also, workers may have to be

trained more than once if the employer could not assure that the worker

had already received training.

hether the worker had accumulated the requisite number of

workdays on the establishment.

A 0-day grace period could result in the need for more frequent,

possibly daily, training sessions. More frequent training sessions

could result in increased training costs. Also, workers may have to be

trained more than once if the employer could not assure that the worker

had already received training.

(2) Shortening the grace period from 15 days to between 1 and 5

days. The Agency is considering shortening the grace period from 15

days to between 1 and 5 days. Workers would be trained earlier and

perhaps better able to avoid or mitigate pesticide exposures. By

shortening the grace period, the possibility that workers would remain

untrained because they moved frequently from employer to employer

without accumulating the requisite number of days at any given

establishment to require training would decrease.

Shortening the grace period is likely to increase the costs of

training, since employers with higher rates of turnover in the

workforce would have to schedule more frequent training sessions. Any

grace period at all could mean that agricultural employers would need

to track the number of days of entry each worker has accumulated in

order to determine whether training must be provided. This could

present a burden which could be substantial depending on the number of

workers hired at the establishment, and the number who possess training

verification cards.

quent training sessions. Any

grace period at all could mean that agricultural employers would need

to track the number of days of entry each worker has accumulated in

order to determine whether training must be provided. This could

present a burden which could be substantial depending on the number of

workers hired at the establishment, and the number who possess training

verification cards.

(3) Requiring a weekly training program. The Agency is considering

an option, where an employer would be required to provide a training

session once a week to all untrained workers. This option might reduce

the instances of workers entering treated areas before being trained,

while reducing the training burden on employers by allowing

predictability in providing training on a scheduled basis. A weekly

training session may also result in less disruption to field labor

activities. Also, a weekly training session may reduce cost by allowing

for more trainees per session. For establishments with employee

turnover, a weekly training session allows employers to ``accumulate''

new hires over the span of the week, potentially resulting in fewer

training sessions needed than if employers were required to train each

employee before applicable field entry. A weekly training session for

untrained workers may, however, add a recordkeeping burden to the

employer.

The Agency is interested in receiving information and comments on

all options, particularly the benefits expected to be gained by

shortening the grace period, as well as expected costs

g sessions needed than if employers were required to train each

employee before applicable field entry. A weekly training session for

untrained workers may, however, add a recordkeeping burden to the

employer.

The Agency is interested in receiving information and comments on

all options, particularly the benefits expected to be gained by

shortening the grace period, as well as expected costs. Specifically,

the Agency is seeking information on the following: the practicality

and effectiveness of the options, how the frequency of new hires may

effect the frequency of training sessions, the rate of turnover in

employment among agricultural workers and handlers, situations where

training before entry would not be possible, the risks and/or benefits

of providing safety training information before or after entering a

treated area, the feasibility of providing training on a short notice

to English and non-English speaking workers, mechanisms that are

available or will be available to provide training on short notice, the

impact on the employer and agricultural worker of a 1 year interim

grace period before the 0-day grace period would go into effect,

specific problems caused by eliminating or shortening the interim grace

period 5 years to 1 year and what could be done to eliminate those

problems, what the regulated community has done to develop training

programs in the 2 years since the WPS was issued and the estimated

costs of a 0-day, 1 to 5-day grace period or a weekly training regimen.

VI. The Retraining Interval for Workers and Handlers

cific problems caused by eliminating or shortening the interim grace

period 5 years to 1 year and what could be done to eliminate those

problems, what the regulated community has done to develop training

programs in the 2 years since the WPS was issued and the estimated

costs of a 0-day, 1 to 5-day grace period or a weekly training regimen.

VI. The Retraining Interval for Workers and Handlers

The Agency is proposing for comment three options for the

retraining interval for workers and handlers; (1) retaining the 5 year

retraining interval, (2) shortening the retraining interval from 5 to 3

years or (3) provide annual retraining.

Since chemical use patterns frequently change, and new hazards may

be identified for existing chemicals, a shortened retraining interval

would be helpful in mitigating the potential hazards to farm workers

and handlers.

The cost to employers of providing training to workers and handlers

during an ``out'' year (any year after the first year of

implementation) increases as the retraining period decreases. First

year training costs are unaffected by the retraining interval. All

workers must be trained during the first year, and handlers must be

trained before they first handle pesticides. Due to turnover in the

workforce, training after the first year will not be limited to every

third year for a 3 year retraining interval. Rather, some mix of

training and retraining will occur during all typical out years. A

shorter retraining interval may require more training sessions during

the average out year, with higher total costs. Also, if training of new

workers and retraining of workers in out years are done at the same

time, the costs of retraining (regardless of frequency) may be

partially subsumed in the costs for initial training

f

training and retraining will occur during all typical out years. A

shorter retraining interval may require more training sessions during

the average out year, with higher total costs. Also, if training of new

workers and retraining of workers in out years are done at the same

time, the costs of retraining (regardless of frequency) may be

partially subsumed in the costs for initial training.

The Agency is interested in receiving information and comments on

all options, particularly the benefits expected to be gained by

shortening the retraining interval, as well as the impacts of a 5 year,

3 year and annual retraining interval. Specifically, the Agency is

seeking information on the following: worker and handler retention of

safety training information, whether agricultural workers and handlers

have a greater need for retraining than workers in other occupations,

the

effectiveness of the pesticide poster in reinforcing previous training

and the burdens the various retraining options might place on

agricultural employers or other entities that may perform worker or

handler training. Concerns with each of the options are requested as

well.

Commenters supporting retaining the current 5-year retraining

interval, shortening the retraining interval to 3 years, or providing

annual retraining, should state explicitly the reasons for, and provide

information on the need, costs and feasibility of, the recommended

option.

VII. Solicitation of Comments

orker or

handler training. Concerns with each of the options are requested as

well.

Commenters supporting retaining the current 5-year retraining

interval, shortening the retraining interval to 3 years, or providing

annual retraining, should state explicitly the reasons for, and provide

information on the need, costs and feasibility of, the recommended

option.

VII. Solicitation of Comments

A record has been established for this rulemaking under docket

number ``OPP-250097'' (including comments and data submitted

electronically as described below). A public version of this record,

including printed, paper versions of electronic comments, which does

not include any information claimed as confidential business

information (CBI), is available for inspection from 8 a.m. to 4 p.m.,

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

located in Room1132 of the Public Response and Program Resources

Branch, Field Operations Division (7506C), Office of Pesticide

Programs, Environmental Protection Agency, CM #2, 1921 Jefferson Davis

Highway, Arlington, VA. Written comments should be mailed to: Public

Response and Program Resources Branch, Field Operations Division

(7506C) Office of Pesticide Programs, Environmental Protection Agency,

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

EPA is interested in receiving comments and information on all of

the proposed options. Comments are requested on: (1) general worker and

handler hiring and employment practices, such as the rate of turnover

and employment among agricultural workers and handlers, (2) the

practicality and effectiveness of the grace period options, including

how the frequency of hiring would affect the frequency of training

sessions, situations where training before entry would not be possible,

mechanisms that are available or will be available to provide training

on short notice and the estimated costs of reducing or eliminating the

grace period or providing a weekly training regimen, (3) the

practicality and effectiveness o

electronic

commenting more broadly in its rulemaking activities. Electronic

commenting through posting to the EPA Bulletin Board or through the

Internet using the ListServe function raise some novel issues that are

discussed below in this Unit.

To submit electronic comments, persons can either ``subscribe'' to

the Internet ListServe application or ``post'' comments to the EPA

Bulletin Board. To ``Subscribe'' to the Internet ListServe application

for this proposed exception, send an e-mail message to:

[email protected] that says ``Subscribe RIN-2070-AC69

.'' Once you are subscribed to the ListServe,

comments should be sent to: RIN-2070-AC[email protected]. All

comments and data in electronic form should be identified by the docket

number OPP-250097 since all five documents in this separate part

provide the same electronic address.

For online viewing of submissions and posting of comments, the

public access EPA Bulletin Board is also available by dialing 202-488-

3671, enter selection ``DMAIL,'' user name ``BB--USER'' or 919-541-

4642, enter selection ``MAIL,'' user name ``BB--USER.'' When dialing

the EPA Bulletin Board type at the opening message. When the

``Notes'' prompt appears, type ``open RIN- 2070-AC69'' to access the

posted messages for this document. To get a listing of all files, type

``dir/all'' at the prompt line. Electronic comments can also be sent

directly to EPA at:

[email protected].

ER'' or 919-541-

4642, enter selection ``MAIL,'' user name ``BB--USER.'' When dialing

the EPA Bulletin Board type at the opening message. When the

``Notes'' prompt appears, type ``open RIN- 2070-AC69'' to access the

posted messages for this document. To get a listing of all files, type

``dir/all'' at the prompt line. Electronic comments can also be sent

directly to EPA at:

[email protected].

Electronic comments must be submitted as an ASCII file avoiding the

use of special characters and any form of encryption. To obtain further

information on the electronic comment process, or on submitting

comments on this proposed exception electronically through the EPA

Bulletin Board or the Internet ListServe, please contact John A.

Richards (Telephone: 202-260-2253; FAX: 202-260-3884; Internet:

[email protected]).

Persons who comment on this proposed rule, and those who view

comments electronically, should be aware that this experimental

electronic commenting is administered on a completely public system.

Therefore, any personal information included in comments and the

electronic mail addresses of those who make comments electronically are

automatically available to anyone else who views the comments.

Similarly, since all electronic comments are available to all users,

commenters should not submit electronically any information which they

believe to be CBI. Such information should be submitted only directly

to EPA in writing as described earlier in this Unit.

Commenters and others outside EPA may choose to comment on the

comments submitted by others using the RIN-2070-AC69 ListServe or the

EPA Bulletin Board. If they do so, those comments as well will become

part of EPA's record for this rulemaking

any information which they

believe to be CBI. Such information should be submitted only directly

to EPA in writing as described earlier in this Unit.

Commenters and others outside EPA may choose to comment on the

comments submitted by others using the RIN-2070-AC69 ListServe or the

EPA Bulletin Board. If they do so, those comments as well will become

part of EPA's record for this rulemaking. Persons outside EPA wishing

to discuss comments with commenters or otherwise communicate with

commenters but not have those discussions or communications sent to EPA

and included in the EPA rulemaking record should conduct those

discussions and communications outside the RIN-2070-AC69 ListServe or

the EPA Bulletin Board.

The official record for this rulemaking, as well as the public

version, as described above will be kept in paper form. Accordingly,

EPA will transfer all comments received electronically in the RIN-2070-

AC69 ListServe or the EPA Bulletin Board, in accordance with the

instructions for electronic submission, into printed, paper form as

they are received and will place the paper copies in the official

rulemaking record which will also include all comments submitted

directly in writing. All the electronic comments will be available to

everyone who obtains access to the RIN-2070-AC69 ListServe or the EPA

Bulletin Board; however, the official rulemaking record is the paper

record maintained at the address in ``ADDRESSES'' at the beginning of

this document. (Comments

er copies in the official

rulemaking record which will also include all comments submitted

directly in writing. All the electronic comments will be available to

everyone who obtains access to the RIN-2070-AC69 ListServe or the EPA

Bulletin Board; however, the official rulemaking record is the paper

record maintained at the address in ``ADDRESSES'' at the beginning of

this document. (Comments

submitted only in written form will not be transferred into electronic

form and thus may be accessed only by reviewing them in the Public

Response and Program Resources Branch as described above.)

Because the electronic comment process is still experimental, EPA

cannot guarantee that all electronic comments will be accurately

converted to printed, paper form. If EPA becomes aware, in transferring

an electronic comment to printed, paper form, of a problem or error

that results in an obviously garbled comment, EPA will attempt to

contact the comment submitter and advise the submitter to resubmit the

comment either in electronic or written form. Some commenters may

choose to submit identical comments in both electronic and written form

to ensure accuracy. In that case, EPA requests that commenters clearly

note in both the electronic and written submissions that the comments

are duplicated in the other medium. This will assist EPA in processing

and filing the comments in the rulemaking record.

As with ordinary written comments, at the time of receipt, EPA will

not attempt to verify the identities of electronic commenters nor to

review the accuracy of electronic comments. Electronic and written

comments will be placed in the rulemaking record without any editing or

change by EPA except to the extent changes occur in the process of

converting electronic comments to printed, paper form

s with ordinary written comments, at the time of receipt, EPA will

not attempt to verify the identities of electronic commenters nor to

review the accuracy of electronic comments. Electronic and written

comments will be placed in the rulemaking record without any editing or

change by EPA except to the extent changes occur in the process of

converting electronic comments to printed, paper form.

If it chooses to respond officially to electronic comments on this

proposed rule, EPA will do so either in a notice in the Federal

Register or in a response to comments document placed in the rulemaking

record for this proposed rule. EPA will not respond to commenters

electronically other than to seek clarification of electronic comments

that may be garbled in transmission or conversion to printed, paper

form as discussed above. Any communications from EPA employees to

electronic commenters, other than those described in this paragraph,

either through Internet or otherwise are not official responses from

EPA.

VIII. Statutory Requirements

As required by FIFRA section 25(a), this proposed rule was provided

to the U.S. Department of Agriculture and to Congress for review. The

FIFRA Scientific Advisory Panel waived its review.

USDA provided extensive written comment. The general tenor of USDA

comments suggest suspending the proposed changes to the training

requirement until EPA observes the efficacy of current training

provisions and the feasibility of a 0-day grace period. However, the

Agency maintains that the options being proposed increase the chance of

protection through earlier provision of safety training. The Agency

intends to observe and evaluate the effectiveness of training in the

field, with whatever option is selected.

USDA's specific comments focused on the following areas: (1)

Elimination of the grace period; (2) retraining interval; (3) training

requirements by category; (4) the regulatory impact analysis; (5)

training verification.

ection through earlier provision of safety training. The Agency

intends to observe and evaluate the effectiveness of training in the

field, with whatever option is selected.

USDA's specific comments focused on the following areas: (1)

Elimination of the grace period; (2) retraining interval; (3) training

requirements by category; (4) the regulatory impact analysis; (5)

training verification.

(1) USDA expressed concern that elimination of the 5-day grace

period would create costs for the employer, by preventing scheduled

training for large groups, while providing little or no increase in the

protection for workers. EPA believes that the elimination of the grace

period will provide increased protection to workers by providing safety

information before workers enter a treated area. The incremental cost

incurred by the employer does not appear to outweigh the benefits that

come with the potential prevention of exposure.

EPA and USDA have differing opinions regarding the employer

recordkeeping burden necessitated by a grace period. However, it is

agreed that, for state regulators to verify compliance with the

regulations, some employer burden of recordkeeping would be necessary

during a grace period.

USDA questions the need to train workers before they enter a

treated field, due to other WPS protection provided workers, while EPA

believes that these provisions are part of an integrated package of

measures that are effective only after being explained through

training. USDA suggests that, as a means to enhance understanding of

pesticide safety, employers distribute the WPS worker training handbook

to newly hired employees and follow with training in a few days,

however this assumes that all employees would be able to read and

understand the materials.

part of an integrated package of

measures that are effective only after being explained through

training. USDA suggests that, as a means to enhance understanding of

pesticide safety, employers distribute the WPS worker training handbook

to newly hired employees and follow with training in a few days,

however this assumes that all employees would be able to read and

understand the materials.

(2) USDA questions the need for a shorter retraining interval,

however, professional training organizations and farmworker groups

assert that more frequent retraining is needed in order to assure

retention of the substance of training sessions. More frequent

retraining is especially needed for workers who may have poor reading

skills and cannot rely on written materials to recall all safety

information.

(3) USDA expresses concern that clear distinctions be made among

handlers, early-entry workers, production laborers and harvesters, and

that they may also warrant different training requirements. EPA

believes that the current regulation's distinctions between workers,

handlers, and early-entry workers address USDA's concerns since these

categories have different training requirements. This proposal does not

address the substance of training or the training requirements.

(4) USDA questions the strength of the conclusions of studies used

in the regulatory impact analysis to support the assumption that risk

is reduced through modifications of behavior after training. They also

note that EPA uses the same number estimate for workers trained with a

0-day grace period and a 15-day grace period. In the absence of data,

EPA did use the same estimate of workers, and, as a consequence,

conservatively overestimated the cost of a 0-day grace period. USDA

questions the accuracy of other data that EPA used in the analysis of

the costs of a 0-day grace period, however, EPA used USDA data and

agricultural census data for this analysis

ined with a

0-day grace period and a 15-day grace period. In the absence of data,

EPA did use the same estimate of workers, and, as a consequence,

conservatively overestimated the cost of a 0-day grace period. USDA

questions the accuracy of other data that EPA used in the analysis of

the costs of a 0-day grace period, however, EPA used USDA data and

agricultural census data for this analysis.

USDA asserts that the effect of a 0-day grace period could

influence the employer to lower pay, possibly eliminate jobs. EPA

believes that the cost of training would be small relative to the total

cost of labor. USDA noted that EPA's estimate of the number of workers

is incorrect. EPA used the same estimate of the number of workers as

was used, and agreed upon by USDA, for the 1992 WPS. USDA pointed out

that EPA's estimate of the number of handlers and workers is incorrect

due to the use of 1987 data instead of 1990 data. EPA believed that the

1987 data were better in that they were agricultural census data as

opposed to general census data.

USDA questions the use of 30 minutes per worker training session in

EPA's cost estimates. EPA's worker training program was field tested in

both English and Spanish, and, with questions, took approximately 30

minutes.

(5) USDA claims that the additional proof-of-identity requirement

would be extremely difficult for employers to meet and would be a

disincentive for employers to issue cards. This is a misreading of the

WPS provision that ...``If the agricultural employer is aware or has

reason to know that an EPA training verification card has not been

issued in accordance with the provisions of WPS, or has not been issued

to the employee bearing the card, or the date for retraining has past,

an employee's possession of that training verification card does not

relieve the employer of the training obligations under WPS.''

that ...``If the agricultural employer is aware or has

reason to know that an EPA training verification card has not been

issued in accordance with the provisions of WPS, or has not been issued

to the employee bearing the card, or the date for retraining has past,

an employee's possession of that training verification card does not

relieve the employer of the training obligations under WPS.''

USDA noted that issuing training cards would assist other employers

who hire already trained workers. In addition, USDA is concerned that

handlers and workers that possess cards will become preferred job

applicants. USDA fears that since not all states on or verification

cards it will cause a burden to job applicants in states where cards

are not honored and give job preference to those employees who possess

cards.

The regulation establishes a training verification program that is

voluntary, therefore, not all employers will participate. However,

employers who do participate will relieve themselves from the burden of

retraining workers who have already been trained.

Forty states, Puerto Rico and 2 tribes have entered into an

agreement to issue training verification cards. Three additional states

say they will be entering into an agreement. Four states already have

programs that are identical to the Federal program and will issue state

cards. Over 2.5 million cards have been delivered to states who have

entered into the program. By law, the employer can accept the card as

verification that the employee was trained.

USDA raised concern over the verification cards that have an

expiration date based on the initial 5-year retraining interval date.

Training cards are valid until the expiration date stated on the card.

When the retraining interval is changed, these training cards will

remain valid until the expiration date on the card.

IX. Regulatory Assessment Requirements

A. Executive Order 12866

trained.

USDA raised concern over the verification cards that have an

expiration date based on the initial 5-year retraining interval date.

Training cards are valid until the expiration date stated on the card.

When the retraining interval is changed, these training cards will

remain valid until the expiration date on the card.

IX. Regulatory Assessment Requirements

A. Executive Order 12866

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

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

because it raised potentially novel legal or policy issues arising out

of legal mandates, the President's priorities, or the principles set

forth in the Executive Order. The total cost of this rule depends on

the combination of options under the grace period and the retraining

interval selected. The costs have been estimated by EPA and are

presented in the Impact Assessment for the Worker Protection Standard,

Training Provisions Rule. This proposal was submitted to OMB for

review, and any comments or changes made have been documented in the

public record.

B. Regulatory Flexibility Act

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

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

not have a significant adverse impact on a substantial number of small

entities. The smallest entities regulated under the Worker Protection

Standard, family-operated agricultural establishments with no hired

labor, are not subject to the training requirements, and therefore have

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

labor) represent about 45 percent of the agricultural establishments

within the scope of the WPS. The smallest of those entities which do

hire labor are those with only one hired employee. Estimated costs per

worker or handler are similar for an establishment with one employee as

for larger establishments, causing no significant disproportionate

burden on small entities

tities (with no hired

labor) represent about 45 percent of the agricultural establishments

within the scope of the WPS. The smallest of those entities which do

hire labor are those with only one hired employee. Estimated costs per

worker or handler are similar for an establishment with one employee as

for larger establishments, causing no significant disproportionate

burden on small entities. After the first year of implementation, the

average annual training costs to comply with these regulations (not

including the costs already being incurred) is also very modest,

estimated at about $2.20 per worker.

The largest difference in costs per worker occurs on vegetable/

fruit/nut farms, where estimated incremental first year cost per worker

is $4.13 on small farms and $3.06 on larger farms; incremental first

year cost per handler is estimated at $11.55 for both small and large

farms. The largest cost per establishment is also on vegetable/fruit/

nut farms, where incremental first year cost per establishment is

estimated to be $4.13 to $11.55 for small (single-employee) farms, and

$77.49 for the typical large farm. Incremental cost of the proposed

training options is also very modest. Average incremental cost to

vegetable/fruit/nut farms (all sizes), is estimated at $37.15 the first

year and $17.51 in subsequent years.

I therefore certify that this proposal does not require a separate

analysis under the Regulatory Flexibility Act.

C. Paperwork Reduction Act

This proposal contains no information collection requirements, and

is therefore not subject to the Paperwork Reduction Act.

D. Public Docket

EPA has established a public docket (OPP-250097) containing the

information used in developing this proposed rule. The public docket is

open Monday through Friday from 8 a.m. to 4 p.m. and is located in

Crystal Mall #2, Room 1132, 1921 Jefferson Davis Highway, Arlington,

VA.

List of Subjects in Part 170

rements, and

is therefore not subject to the Paperwork Reduction Act.

D. Public Docket

EPA has established a public docket (OPP-250097) containing the

information used in developing this proposed rule. The public docket is

open Monday through Friday from 8 a.m. to 4 p.m. and is located in

Crystal Mall #2, Room 1132, 1921 Jefferson Davis Highway, Arlington,

VA.

List of Subjects in Part 170

Environmental protection, Pesticides and pests, Intergovernmental

relations, Occupational safety and health, Reporting and recordkeeping

requirements.

Dated: January 3, 1995.

Carol M. Browner,

Administrator.

Therefore, 40 CFR part 170 is proposed to be amended as follows:

1. The authority citation would continue to read as follows:

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

2. In Sec. 170.130, by revising the section heading and paragraph

(a)(1), removing paragraph (a)(3), and by revising paragraph (d)(2) to

read as follows:

Sec. 170.130 Pesticide safety training for workers.

(a) * * *

(1) Requirement. The agricultural employer shall assure that each

worker required by this section to be trained has been trained in

accordance with paragraph (c) of this section before the worker enters,

or before between the 1st and 6th day that the worker enters any area

or during the first weekly training session available to each worker

provided by the employer [grace period to be determined based on public

comment will be insert in the final rule] on the agricultural

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

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

such pesticide has been in effect. The agricultural employer shall

assure that each such worker has been trained during the last (Agency

will insert 1, 3, or 5 years in the final rule based on public comment)

counting from the end of the month in which the training was completed.

* * * * *

30 days, a pesticide to which this

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

such pesticide has been in effect. The agricultural employer shall

assure that each such worker has been trained during the last (Agency

will insert 1, 3, or 5 years in the final rule based on public comment)

counting from the end of the month in which the training was completed.

* * * * *

(d) * * *

(2) If the agricultural employer is aware or has reason to know

that an EPA-approved Worker Protection Standard worker training

certificate has not been issued in accordance with this section, or has

not been issued to the worker bearing the certificate, or the training

was completed more than (Agency will insert 1, 3, or 5 years in the

final rule based on public comment) before the beginning of the current

month, a worker's possession of that certificate does not meet the

requirements of paragraph (a) of this section.

* * * * *

3. In Sec. 170.230, by revising the section heading and paragraphs

(a) and (d)(2) to read as follows:

Sec. 170.230 Pesticide safety training for handlers.

(a) Requirement. Before any handler performs any handling task,

the handler employer shall assure that the handler has been trained in

accordance with this section during the last (Agency will insert 1, 3,

or 5 years in the final rule based on public comment) counting from the

end of the month in which the training was completed.

* * * * *

ec. 170.230 Pesticide safety training for handlers.

(a) Requirement. Before any handler performs any handling task,

the handler employer shall assure that the handler has been trained in

accordance with this section during the last (Agency will insert 1, 3,

or 5 years in the final rule based on public comment) counting from the

end of the month in which the training was completed.

* * * * *

(d) * * *

(2) If the handler employer is aware or has reason to know that an

EPA-approved Worker Protection Standard handler training certificate

has not been issued in accordance with this section, or has not been

issued to the handler bearing the certificate, or the handler training

was completed more than (Agency will insert 1, 3, or 5 years in the

final rule based on public comment) before the beginning of the current

month, a handler's possession of that certificate does not meet the

requirements of paragraph (a) of this section.

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

BILLING CODE 6560-50-P