[Federal Register Volume 60, Number 7 (Wednesday, January 11, 1995)]
[Proposed Rules]
[Pages 2820-2826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-583]
[[Page 2819]]
_______________________________________________________________________
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
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 /
Proposed Rules
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[[Page 2820]]
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. 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. No CBI should
be submitted through e-mail. Electronic comments on this proposed rule,
but not the record, may be viewed or new comments filed online at many
Federal Depository Libraries. Additional information on electronic
submissions can be found in unit VII. of this document.
FOR FURTHER INFORMATION CONTACT: Jeanne Heying, Certification and
Training, and Occupational Safety Branch (7506C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location and telephone number: Rm. 1109D, CM #2, 1921
Jefferson Davis Highway, Arlington VA, Telephone: 703-305-7371.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
This proposal is issued under the authority of section 25(a) of the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
136w(a).
II. Background
This proposed WPS rule amendment is one of a series of Agency
actions in response to concerns raised since publication of the final
rule in August 1992 by those interested in and affected by the rule. In
addition to this proposed amendment, EPA is publishing four other
notices soliciting public comment on concerns raised by various
affected parties. Other actions EPA is considering include: (1)
Modifications to the requirements for those performing crop advisor
tasks, (2) An exception to early entry restrictions for irrigation
activities; (3) Reduced restricted entry intervals (REIs) for low risk
pesticides; and (4) Reduced early entry restrictions for activities
involving limited contact with treated surfaces.
FIFRA authorizes the EPA to regulate the sale, distribution, and
use of pesticides in the United States. The Act requires generally that
EPA license by registration each pesticide product sold or distributed
in the United States, if use of the pesticide products will not cause
``unreasonable adverse effects on the environment,'' a determination
that takes into account the economic, social, and environmental costs
and benefits of the use of any pesticide.
In 1992 EPA revised the Worker Protection Standard (40 CFR part
170) (57 FR 38102, August 21, 1992) which is intended to protect
agricultural workers and handlers from risks associated with
agricultural pesticides. The 1992 WPS superseded the original WPS
promulgated in 1974. The 1992 WPS expanded the scope of the original
WPS to include not only workers performing hand labor operations in
fields treated with pesticides, but also workers in or on farms,
forests, nurseries, and greenhouses, as well as handlers who mix, load,
apply, or otherwise handle pesticides for use at these locations in the
production of agricultural commodities. The WPS contains requirements
for training, notification of pesticide applications, use of personal
protective equipment, restricted entry intervals, decontamination, and
emergency medical assistance.
In 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,
[[Page 2821]]
or Tribal requirements. The agricultural employer, however, is
responsible for assuring that workers receive required training and the
handler employer is responsible for assuring that handlers receive the
required training.
To assist agricultural employers in fulfilling their
responsibilities to ensure training and to provide a uniform national
standard for the conduct of worker training, EPA and the U.S.
Department of Agriculture have established a joint training
verification program. Under this program, which would be administered
on a voluntary basis by States through agreements with EPA, workers who
have been trained may be issued a training verification card. The card
could be shown to each agricultural employer who hires the worker.
Under 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.
For workers, possession of a card assures that they will be able to
work immediately without unnecessary delay for training.
III. Current WPS Training Provisions at Issue
This proposal addresses three elements of the worker training
requirements. The three elements are: the grace period before training
must be provided; the phase-in period for the grace period for workers;
and the retraining requirement for workers and handlers.
1. The grace period before training must be provided. Section
170.130(a)(3)(i) requires agricultural employers to assure that workers
have been trained in pesticide safety before their 6th day of entry
into areas on the agricultural establishment that have been treated
with a pesticide or that have been under a restricted entry interval
(REI) within the previous 30 days.
EPA emphasizes that the grace period applies only to routine worker
training, not early-entry training or handler training. No changes are
being proposed or considered for early entry or handler training.
2. The interim grace period for workers. The current WPS requires
that the agricultural employer assure that a worker receives pesticide
safety training before the 6th day of entry into any treated area on
the agricultural establishment. Section 170.130(a)(3)(ii) provides for
an exception for a 5-year period until October 20, 1997, during which
time workers would be allowed to enter treated areas at the
establishment for 15 days before the employer must assure that they
have been trained. After October 20, 1997, the 15-day grace period is
no longer in effect.
3. The retraining requirement for workers and handlers. Section
170.130(a)(1) requires that agricultural employers assure that each
worker has been trained within the previous 5 years. Section
170.230(a)(1) requires that handler employers assure that each handler
has been trained within the previous 5 years.
IV. Reasons for this Proposal
The WPS is intended to reduce the risk of pesticide poisonings and
injuries among agricultural workers and pesticide handlers through
implementation of appropriate measures. Pesticide safety training is a
key component of the Standard - trained, informed workers and handlers
can take steps to avoid exposure or mitigate harmful pesticide effects,
thereby reducing the number and severity of pesticide poisonings and
other adverse effects.
Subsequent to promulgation of the final rule in 1992, the Agency
received comments from farm worker groups suggesting changes in the
grace period and the retraining interval. Additionally, the Agency was
petitioned by the National Association of State Departments of
Agriculture (NASDA) to eliminate the interim grace period. The Agency
also met a number of times with farm worker groups to hear their
concerns on the worker training provisions. Following is a summary of
their concerns on the training grace period and 5-year retraining
interval.
A. Training Grace Period
Farm worker groups are concerned that the current grace period
would result in untrained workers being harmed on the job. They
contrasted the WPS grace period with the Occupational Safety and Health
Administration's (OSHA) Hazard Communication Standard training
requirement (29 CFR 1910.1200), under which workers must be trained
about hazardous chemicals in their work area before first exposure.
States and farm worker groups asserted that the grace period would
be difficult to enforce. Subsequent to publication of the WPS, the
California Department of Pesticide Regulation (CDPR) raised concern
about the anticipated difficulties in enforcing the training
requirement. They asserted that it may not be feasible to track
accumulated days in treated areas in anticipation of the required
training and that employers cannot track the activities of every worker
in their employ.
Additionally, farm worker groups were concerned that the grace
period could encourage employers to avoid providing the required
training. They were particularly concerned that, because of the
transient nature of the agricultural workforce, workers who move
frequently might never be trained if training were required only after
a 5-day grace period per establishment. They noted that some workers
might not spend 5 days on any particular establishment.
Finally, the farm worker groups argued that all workers should be
entitled to know how to protect themselves from pesticide residues
before entering treated areas; for training to be effective in reducing
risk, they argued, training must take place before possible exposure to
pesticides.
B. Five-Year Retraining
Farm worker groups are concerned that the 5-year retraining
interval is too long to be effective. They assert that large numbers of
workers and handlers, particularly field labor contractor employees,
might not have regular access to the safety poster displayed on the
agricultural establishment because they are hired off the farm and
taken directly to the field. EPA's confidence in the safety poster as a
means of reinforcing training, they claim, is misplaced. Also, many
workers and handlers may not read well (or not be literate in the
poster language), so the impact of poster messages might be limited.
Qualified trainers assert that repeat training enhances the retention
of safety training information.
The farm worker groups also requested a shorter retraining
interval. They pointed to other regulatory programs under OSHA, EPA,
and State initiatives that require annual retraining. They also noted
that agricultural employment is seasonal in nature, and farm workers
realistically cannot be expected to remember
[[Page 2822]]
training information for such a long period of time. The groups
asserted that more frequent retraining is needed for farm workers who
are illiterate or have poor reading skills, and cannot rely on written
materials to refresh their training.
In response to these concerns, EPA proposes to revise the Worker
Protection Standard as described in units V. and VI. of this document.
V. The Grace Period and Interim Grace Period
EPA is proposing three options for consideration and comment: the
first option involves eliminating the 15-day grace period so that
employers would have to train workers before they enter a treated area,
and providing a 1-year interim period before the 0- day grace period
would go into effect, the second option involves shortening the 15-day
grace period so that employers would be required to train workers
between 1 and 5 days after the worker has been hired and the third
option involves requiring a weekly training program. The Agency is
interested in receiving comments on all options presented.
(1) Shortening the grace period from 15 to 0 days after a 1 year
interim grace period. The Agency is considering eliminating the
training grace period If the grace period were eliminated entirely, all
new workers would have to be trained before entering a treated area. An
interim grace period of 1 year is being proposed to allow employers to
prepare for the elimination of the grace period.
Training new workers before any possible exposure may be the most
protective option. No worker would lack training because he or she had
not worked enough days with a single employer. By eliminating the grace
period, it is expected that compliance would be easier for the employer
and state enforcement officer, because there would be no need to
determine whether the worker had accumulated the requisite number of
workdays on the establishment.
A 0-day grace period could result in the need for more frequent,
possibly daily, training sessions. More frequent training sessions
could result in increased training costs. Also, workers may have to be
trained more than once if the employer could not assure that the worker
had already received training.
(2) Shortening the grace period from 15 days to between 1 and 5
days. The Agency is considering shortening the grace period from 15
days to between 1 and 5 days. Workers would be trained earlier and
perhaps better able to avoid or mitigate pesticide exposures. By
shortening the grace period, the possibility that workers would remain
untrained because they moved frequently from employer to employer
without accumulating the requisite number of days at any given
establishment to require training would decrease.
Shortening the grace period is likely to increase the costs of
training, since employers with higher rates of turnover in the
workforce would have to schedule more frequent training sessions. Any
grace period at all could mean that agricultural employers would need
to track the number of days of entry each worker has accumulated in
order to determine whether training must be provided. This could
present a burden which could be substantial depending on the number of
workers hired at the establishment, and the number who possess training
verification cards.
(3) Requiring a weekly training program. The Agency is considering
an option, where an employer would be required to provide a training
session once a week to all untrained workers. This option might reduce
the instances of workers entering treated areas before being trained,
while reducing the training burden on employers by allowing
predictability in providing training on a scheduled basis. A weekly
training session may also result in less disruption to field labor
activities. Also, a weekly training session may reduce cost by allowing
for more trainees per session. For establishments with employee
turnover, a weekly training session allows employers to ``accumulate''
new hires over the span of the week, potentially resulting in fewer
training sessions needed than if employers were required to train each
employee before applicable field entry. A weekly training session for
untrained workers may, however, add a recordkeeping burden to the
employer.
The Agency is interested in receiving information and comments on
all options, particularly the benefits expected to be gained by
shortening the grace period, as well as expected costs. Specifically,
the Agency is seeking information on the following: the practicality
and effectiveness of the options, how the frequency of new hires may
effect the frequency of training sessions, the rate of turnover in
employment among agricultural workers and handlers, situations where
training before entry would not be possible, the risks and/or benefits
of providing safety training information before or after entering a
treated area, the feasibility of providing training on a short notice
to English and non-English speaking workers, mechanisms that are
available or will be available to provide training on short notice, the
impact on the employer and agricultural worker of a 1 year interim
grace period before the 0-day grace period would go into effect,
specific problems caused by eliminating or shortening the interim grace
period 5 years to 1 year and what could be done to eliminate those
problems, what the regulated community has done to develop training
programs in the 2 years since the WPS was issued and the estimated
costs of a 0-day, 1 to 5-day grace period or a weekly training regimen.
VI. The Retraining Interval for Workers and Handlers
The Agency is proposing for comment three options for the
retraining interval for workers and handlers; (1) retaining the 5 year
retraining interval, (2) shortening the retraining interval from 5 to 3
years or (3) provide annual retraining.
Since chemical use patterns frequently change, and new hazards may
be identified for existing chemicals, a shortened retraining interval
would be helpful in mitigating the potential hazards to farm workers
and handlers.
The cost to employers of providing training to workers and handlers
during an ``out'' year (any year after the first year of
implementation) increases as the retraining period decreases. First
year training costs are unaffected by the retraining interval. All
workers must be trained during the first year, and handlers must be
trained before they first handle pesticides. Due to turnover in the
workforce, training after the first year will not be limited to every
third year for a 3 year retraining interval. Rather, some mix of
training and retraining will occur during all typical out years. A
shorter retraining interval may require more training sessions during
the average out year, with higher total costs. Also, if training of new
workers and retraining of workers in out years are done at the same
time, the costs of retraining (regardless of frequency) may be
partially subsumed in the costs for initial training.
The Agency is interested in receiving information and comments on
all options, particularly the benefits expected to be gained by
shortening the retraining interval, as well as the impacts of a 5 year,
3 year and annual retraining interval. Specifically, the Agency is
seeking information on the following: worker and handler retention of
safety training information, whether agricultural workers and handlers
have a greater need for retraining than workers in other occupations,
the
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effectiveness of the pesticide poster in reinforcing previous training
and the burdens the various retraining options might place on
agricultural employers or other entities that may perform worker or
handler training. Concerns with each of the options are requested as
well.
Commenters supporting retaining the current 5-year retraining
interval, shortening the retraining interval to 3 years, or providing
annual retraining, should state explicitly the reasons for, and provide
information on the need, costs and feasibility of, the recommended
option.
VII. Solicitation of Comments
A record has been established for this rulemaking under docket
number ``OPP-250097'' (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as confidential business
information (CBI), is available for inspection from 8 a.m. to 4 p.m.,
Monday through Friday, excluding legal holidays. The public record is
located in Room1132 of the Public Response and Program Resources
Branch, Field Operations Division (7506C), Office of Pesticide
Programs, Environmental Protection Agency, CM #2, 1921 Jefferson Davis
Highway, Arlington, VA. Written comments should be mailed to: Public
Response and Program Resources Branch, Field Operations Division
(7506C) Office of Pesticide Programs, Environmental Protection Agency,
401 M St., SW., Washington, DC 20460.
EPA is interested in receiving comments and information on all of
the proposed options. Comments are requested on: (1) general worker and
handler hiring and employment practices, such as the rate of turnover
and employment among agricultural workers and handlers, (2) the
practicality and effectiveness of the grace period options, including
how the frequency of hiring would affect the frequency of training
sessions, situations where training before entry would not be possible,
mechanisms that are available or will be available to provide training
on short notice and the estimated costs of reducing or eliminating the
grace period or providing a weekly training regimen, (3) the
practicality and effectiveness of eliminating the interim grace period
for training and (4) the retraining interval, including the impacts of
a retraining interval of less than 5 years, worker and handler
retention of safety training information over time, whether
agricultural workers and handlers have a greater need for retraining
than workers in other occupations, the effectiveness of the pesticide
poster in reinforcing previous training and the burdens the various
retraining options might place on agricultural employers or other
entities that may perform worker or handler training. Comments should
be distinguished as applying to workers, handlers, or both, as
applicable.
As part of an interagency ``streamlining'' initiative, EPA is
experimenting with submission of public comments on selected Federal
Register actions electronically through the Internet in addition to
accepting comments in traditional written form. This proposed exception
is one of the actions selected by EPA for this experiment. From the
experiment, EPA will learn how electronic commenting works, and any
problems that arise can be addressed before EPA adopts electronic
commenting more broadly in its rulemaking activities. Electronic
commenting through posting to the EPA Bulletin Board or through the
Internet using the ListServe function raise some novel issues that are
discussed below in this Unit.
To submit electronic comments, persons can either ``subscribe'' to
the Internet ListServe application or ``post'' comments to the EPA
Bulletin Board. To ``Subscribe'' to the Internet ListServe application
for this proposed exception, send an e-mail message to:
[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].
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. 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
[[Page 2824]]
submitted only in written form will not be transferred into electronic
form and thus may be accessed only by reviewing them in the Public
Response and Program Resources Branch as described above.)
Because the electronic comment process is still experimental, EPA
cannot guarantee that all electronic comments will be accurately
converted to printed, paper form. If EPA becomes aware, in transferring
an electronic comment to printed, paper form, of a problem or error
that results in an obviously garbled comment, EPA will attempt to
contact the comment submitter and advise the submitter to resubmit the
comment either in electronic or written form. Some commenters may
choose to submit identical comments in both electronic and written form
to ensure accuracy. In that case, EPA requests that commenters clearly
note in both the electronic and written submissions that the comments
are duplicated in the other medium. This will assist EPA in processing
and filing the comments in the rulemaking record.
As with ordinary written comments, at the time of receipt, EPA will
not attempt to verify the identities of electronic commenters nor to
review the accuracy of electronic comments. Electronic and written
comments will be placed in the rulemaking record without any editing or
change by EPA except to the extent changes occur in the process of
converting electronic comments to printed, paper form.
If it chooses to respond officially to electronic comments on this
proposed rule, EPA will do so either in a notice in the Federal
Register or in a response to comments document placed in the rulemaking
record for this proposed rule. EPA will not respond to commenters
electronically other than to seek clarification of electronic comments
that may be garbled in transmission or conversion to printed, paper
form as discussed above. Any communications from EPA employees to
electronic commenters, other than those described in this paragraph,
either through Internet or otherwise are not official responses from
EPA.
VIII. Statutory Requirements
As required by FIFRA section 25(a), this proposed rule was provided
to the U.S. Department of Agriculture and to Congress for review. The
FIFRA Scientific Advisory Panel waived its review.
USDA provided extensive written comment. The general tenor of USDA
comments suggest suspending the proposed changes to the training
requirement until EPA observes the efficacy of current training
provisions and the feasibility of a 0-day grace period. However, the
Agency maintains that the options being proposed increase the chance of
protection through earlier provision of safety training. The Agency
intends to observe and evaluate the effectiveness of training in the
field, with whatever option is selected.
USDA's specific comments focused on the following areas: (1)
Elimination of the grace period; (2) retraining interval; (3) training
requirements by category; (4) the regulatory impact analysis; (5)
training verification.
(1) USDA expressed concern that elimination of the 5-day grace
period would create costs for the employer, by preventing scheduled
training for large groups, while providing little or no increase in the
protection for workers. EPA believes that the elimination of the grace
period will provide increased protection to workers by providing safety
information before workers enter a treated area. The incremental cost
incurred by the employer does not appear to outweigh the benefits that
come with the potential prevention of exposure.
EPA and USDA have differing opinions regarding the employer
recordkeeping burden necessitated by a grace period. However, it is
agreed that, for state regulators to verify compliance with the
regulations, some employer burden of recordkeeping would be necessary
during a grace period.
USDA questions the need to train workers before they enter a
treated field, due to other WPS protection provided workers, while EPA
believes that these provisions are part of an integrated package of
measures that are effective only after being explained through
training. USDA suggests that, as a means to enhance understanding of
pesticide safety, employers distribute the WPS worker training handbook
to newly hired employees and follow with training in a few days,
however this assumes that all employees would be able to read and
understand the materials.
(2) USDA questions the need for a shorter retraining interval,
however, professional training organizations and farmworker groups
assert that more frequent retraining is needed in order to assure
retention of the substance of training sessions. More frequent
retraining is especially needed for workers who may have poor reading
skills and cannot rely on written materials to recall all safety
information.
(3) USDA expresses concern that clear distinctions be made among
handlers, early-entry workers, production laborers and harvesters, and
that they may also warrant different training requirements. EPA
believes that the current regulation's distinctions between workers,
handlers, and early-entry workers address USDA's concerns since these
categories have different training requirements. This proposal does not
address the substance of training or the training requirements.
(4) USDA questions the strength of the conclusions of studies used
in the regulatory impact analysis to support the assumption that risk
is reduced through modifications of behavior after training. They also
note that EPA uses the same number estimate for workers trained with a
0-day grace period and a 15-day grace period. In the absence of data,
EPA did use the same estimate of workers, and, as a consequence,
conservatively overestimated the cost of a 0-day grace period. USDA
questions the accuracy of other data that EPA used in the analysis of
the costs of a 0-day grace period, however, EPA used USDA data and
agricultural census data for this analysis.
USDA asserts that the effect of a 0-day grace period could
influence the employer to lower pay, possibly eliminate jobs. EPA
believes that the cost of training would be small relative to the total
cost of labor. USDA noted that EPA's estimate of the number of workers
is incorrect. EPA used the same estimate of the number of workers as
was used, and agreed upon by USDA, for the 1992 WPS. USDA pointed out
that EPA's estimate of the number of handlers and workers is incorrect
due to the use of 1987 data instead of 1990 data. EPA believed that the
1987 data were better in that they were agricultural census data as
opposed to general census data.
USDA questions the use of 30 minutes per worker training session in
EPA's cost estimates. EPA's worker training program was field tested in
both English and Spanish, and, with questions, took approximately 30
minutes.
(5) USDA claims that the additional proof-of-identity requirement
would be extremely difficult for employers to meet and would be a
disincentive for employers to issue cards. This is a misreading of the
WPS provision that ...``If the agricultural employer is aware or has
reason to know that an EPA training verification card has not been
issued in accordance with the provisions of WPS, or has not been issued
to the employee bearing the card, or the date for retraining has past,
an employee's possession of that training verification card does not
relieve the employer of the training obligations under WPS.''
[[Page 2825]]
USDA noted that issuing training cards would assist other employers
who hire already trained workers. In addition, USDA is concerned that
handlers and workers that possess cards will become preferred job
applicants. USDA fears that since not all states on or verification
cards it will cause a burden to job applicants in states where cards
are not honored and give job preference to those employees who possess
cards.
The regulation establishes a training verification program that is
voluntary, therefore, not all employers will participate. However,
employers who do participate will relieve themselves from the burden of
retraining workers who have already been trained.
Forty states, Puerto Rico and 2 tribes have entered into an
agreement to issue training verification cards. Three additional states
say they will be entering into an agreement. Four states already have
programs that are identical to the Federal program and will issue state
cards. Over 2.5 million cards have been delivered to states who have
entered into the program. By law, the employer can accept the card as
verification that the employee was trained.
USDA raised concern over the verification cards that have an
expiration date based on the initial 5-year retraining interval date.
Training cards are valid until the expiration date stated on the card.
When the retraining interval is changed, these training cards will
remain valid until the expiration date on the card.
IX. Regulatory Assessment Requirements
A. Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this is a ``significant regulatory action''
because it raised potentially novel legal or policy issues arising out
of legal mandates, the President's priorities, or the principles set
forth in the Executive Order. The total cost of this rule depends on
the combination of options under the grace period and the retraining
interval selected. The costs have been estimated by EPA and are
presented in the Impact Assessment for the Worker Protection Standard,
Training Provisions Rule. This proposal was submitted to OMB for
review, and any comments or changes made have been documented in the
public record.
B. Regulatory Flexibility Act
This rule was reviewed under the provisions of sec. 3(a) of the
Regulatory Flexibility Act, and it was determined that the rule would
not have a significant adverse impact on a substantial number of small
entities. The smallest entities regulated under the Worker Protection
Standard, 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. 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
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.
* * * * *
(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.
* * * * *
[[Page 2826]]
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.
* * * * *
(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