[Federal Register: January 11, 1995] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 170 [OPP-250100; FRL-4928-7] RIN 2070-AC82 Pesticide Worker Protection Standard; Requirements for Crop Advisors AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: EPA is proposing to amend the worker protection requirements for agricultural establishments, by exempting certified or licensed crop advisors from the requirements. EPA is also proposing to exempt crop advising employees of certified or licensed crop advisors from the WPS requirements except pesticide safety training. A temporary exemption for all persons doing crop advising tasks to allow time for acquiring licensing or certification is also proposed. DATES: Written comments must be received on or before February 10, 1995. ADDRESSES: By mail, submit written comments 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. In person, bring comments to: Room 1132, Crystal Mall 2, 1921 Jefferson Davis Highway, Arlington, VA 22202. Information submitted in any 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, including non-CBI copies, 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: Docket- OPPTS@epamail.epa.gov; by sending a ``Subscribe'' message to listserver@unixmail.rtpnc.epa.gov 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-250100 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 VI. of this document. FOR FURTHER INFORMATION CONTACT: Donald E. Eckerman Office of Pesticide Programs (7506C) Environmental Protection Agency 401 M Street, SW Washington, DC 20460 Office location and telephone number: Room 1101, Crystal Mall 2 1921 Jefferson Davis Highway Arlington, VA 22202 Telephone: 703-305-7371. SUPPLEMENTARY INFORMATION: EPA is proposing this rule in response to comments received from crop advisor groups requesting exemptions from the Worker Protection Standard (WPS). Specifically, EPA is proposing to amend 40 CFR Part 170, governing worker protection requirements on agricultural establishments, to exempt certified or licensed crop advisors from the requirements of the rule. EPA is also proposing to exempt crop advising employees of certified or licensed crop advisors from the WPS requirements except pesticide safety training. A temporary exemption for all persons doing crop advising tasks to allow time for acquiring licensing or certification is also proposed. I. Statutory Authority This proposed rule is issued under the authority of section 25(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136w(a). II. Background 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) modification to the worker training requirements; (2) exceptions 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. The Agency is interested in receiving comments on all options and questions presented. FIFRA authorizes EPA to regulate the sale, distribution, and use of pesticides in the United States. The Act generally requires that EPA license by registration each pesticide product sold or distributed in the United States, if use of that the pesticide product 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 the product. In 1992 EPA revised the WPS (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 and expanded the WPS scope to include not only workers performing hand labor operations in fields treated with [[Page 2827]] pesticides, but also workers in or on farms, forests, nurseries, and greenhouses, as well as pesticide handlers who mix, load, apply, or otherwise handle pesticides for use at these locations in the production of agricultural commodities. The revisions to the WPS were intended to reduce the risk of pesticide poisonings and injuries among agricultural workers who are exposed to pesticide residues and pesticide handlers who may face more hazardous levels of exposure.Un der the 1992 WPS, crop advisors are defined by the tasks performed, specifically, as persons who assess pest numbers or damage, pesticide distribution, or the status or requirements of agricultural plants. The term does not include any person who is performing hand labor tasks. Crop consultants, pest control advisors, silviculturalists, scouts and crop advisors commonly perform crop advising tasks on farms, nurseries, greenhouses and forests. As such, these individuals when performing crop advisor tasks are included under the definition of crop advisor in the WPS. Persons performing crop advisor tasks during the pesticide application, before the inhalation exposure level listed in the labeling has been reached or one of the ventilation criteria has been met, or during a restricted entry interval (REI), are included in the WPS's definition of handlers. As handlers, crop advisors may enter treated areas during the REI without time limitations, if provided with the personal protective equipment (PPE) required on the product labeling and other protections as handlers. Employees of agricultural establishments who are performing crop-advising tasks in a treated area within 30 days of the expiration of an REI are provided the same protections as workers under Part 170. Employees of commercial pesticide handling establishments who are performing crop advisor tasks in a treated area after the expiration of an REI are excluded from the definition of ``worker'' under Part 170 and, therefore, their presence in the treated area does not trigger any WPS requirements. During the 1992 rulemaking, USDA expressed concerns about limiting the access of crop consultants and integrated pest management (IPM) scouts to treated areas immediately following pesticide applications. In response to this concern, EPA included crop advisors in the definition of handlers rather than workers so as to allow crop advisors unlimited access to treated areas during application and the REIs. Since promulgation of the WPS, EPA has received a number of comments on the requirements for crop advisors. Crop advisor groups and the National Association of State Departments of Agriculture (NASDA) have commented that crop advisors are capable, by virtue of their knowledge, training and experience, of determining the appropriate precautions to be followed when working in pesticide treated areas, and therefore should be excluded from the WPS. The National Alliance of Independent Crop Consultants (NAICC) commented that crop consultants, and their field survey and scouting employees, should be exempted from many of the provisions of the WPS. In April 1994, Congress passed the Pesticide Compliance Dates Extension Act which, among other things, exempted crop advisors from the requirements of the WPS until January 1, 1995. This delay was to allow time for EPA to resolve concerns that had been raised relative to the WPS, including the crop advisor requirements. Since the delay legislation, EPA has received additional comments, which are discussed under the appropriate sections in this preamble. III. Exemption of a Qualified Subset of Crop Advisors from WPS Requirements EPA is proposing to exempt a qualified subset of crop advisors, those who are certified or licensed, and their crop advisor employees from all requirements of the WPS except for pesticide safety training. Crop advisors who are certified or licensed could substitute the training received during licensing or certification, if equivalent to the WPS training. EPA is also proposing to exempt all individuals performing crop advisor activities from all the WPS requirements until January 1, 1996 to allow time for individuals to obtain certification or licensing. After January 1, 1996 only crop advisors who are certified or licensed and their direct employees will be exempt. All others performing crop advising tasks will be subject to the full WPS requirements. Based on the comments received since the 1992 rulemaking, EPA reconsidered the requirements applicable to crop advisors and has determined that there may be a subset of crop advisors, those who are licensed or certified and trained in pesticide safety, that could be exempted from providing the protections of the WPS for themselves and their employees. In general, the purpose of the WPS is to protect agricultural employees from the risks of exposure to pesticides. Trained crop advisors who are licensed or certified are generally more informed about the hazards associated with pesticides and good pesticide safety practices and should be capable of making informed judgement about risks and what protections should be provided for individuals performing crop advising tasks. EPA discussed the WPS with the Agronomy Society of America in order to obtain more information that would help EPA define the subset of crop advisors that could potentially be exempted. The Agronomy Society of America informed EPA that it has a Certified Crop Advisor program administered in each participating State by a board made up of representatives of various State agencies, universities, commodity associations, and other at-large members. In order to be certified as a crop advisor under this program, the individual must pass an examination on specified subject areas, have a combination of education and experience as a crop advisor, and to maintain certification, complete continuing education credits. The subject areas in the examination include pesticide safety, WPS requirements, and various subjects related to agricultural plant production. In addition, a variety of licensing and certification programs for crop advisors are administered by States across the country. For example, California licenses crop advisors and requires that licensees meet certain minimum qualifications including a minimum number of college level semester units in areas related to agriculture, and two years of technical experience. The National Alliance of Independent Crop Consultants (NAICC) commented that most of their members have degrees in agriculture and train their employees in pesticide safety. NAICC further suggested that nationally recognized registries of crop consultants, or State level licenses or certifications, could be used to define the crop advisors who would be exempt from WPS. Those individuals not meeting the requirements of a licensing or certification program could continue to work as crop advisors under the same protections as currently required in the WPS. NASDA recommended in a July 1994 petition for rulemaking that the WPS ``exclude paid crop advisors that work on a full-time basis for a group of agricultural employers but only part-time for any single farmer.'' NASDA did not provide its rationale for excluding this category of crop advisors from the WPS. NASDA also recommended that the WPS exclude persons such as government agency employees, pesticide company representatives, and [[Page 2828]] university researchers who perform crop advisor tasks. EPA is proposing, in Sec. 170.202(c)(2), Sec. 170.130(b)(2) and Sec. 170.230(b)(2) to exempt from the WPS protections, crop advisors who are licensed or certified by a program administered or approved by a State, Tribal, or Federal agency having jurisdiction over such licensing or certification, provided that the licensing or certification requires pesticide safety training that includes all the information set forth in Sec. 170.230(c)(4). EPA is also proposing in Sec. 170.202(c)(2) to exempt employees of licensed or certified crop advisors from the WPS protections except the pesticide safety training requirements. Under EPA's proposal, certified or licensed crop advisors, (including government agency personnel, pesticide company representatives, or university researchers) would be exempt from the WPS requirements. Currently under the WPS, if employers of government agency personnel, pesticide company representatives, or university researchers do not have a contractual relationship or exchange compensation of any type with an agricultural establishment or commercial pesticide handling establishment for crop advising activities, then neither the agricultural employer nor the commercial pesticide handling establishment is required to provide the WPS protections to the government agency personnel, pesticide company representatives, or university researchers. Also under EPA's proposal, those crop advisors who do not become certified or licensed will remain subject to the full requirements of the WPS if they are not employed by a licensed or certified crop advisor. After January 1, 1996 only crop advisors who are certified or licensed and their direct employees will be exempt. All others performing crop advising tasks will be subject to the full WPS requirements. EPA solicits comments on other possible ways for crop advisors to obtain training and experience equivalent to being certified or licensed by a program administered or approved by a State, Tribal, or Federal agency. Commenters suggesting other types of programs should include information on the requirements for such programs and how completion of the program could be verified for enforcement purposes. While EPA is willing to propose exempting the employees of certified or licensed crop advisors from WPS requirements, it remains concerned that employees may not have necessary protections readily available. EPA is interested in receiving comments on industry practices that would assure that proper protections are available to employees. These include but are not limited to routine use of PPE and/ or provision of PPE and decontamination supplies to employees. IV. Temporary Exemption for Crop Advisor Activities EPA is proposing in Sec. 170.202(c)(2) to exempt all individuals performing crop advisor activities until January 1, 1996. This will effectively extend the exemption for crop advisors in the delay legislation referenced earlier in this document and will allow those crop advisors who are not now licensed or certified to obtain such credentials prior to the end of the temporary exemption. EPA would like comment on the proposed temporary exemption expiration date and its feasibility in terms of sufficient time for crop advisors to complete licensing or certification requirements. Also, is a total temporary exemption necessary? Should a subset of crop advisors be exempt? Or should the exemption apply to only a few of the WPS requirements? V. Technical Amendments EPA is revising Sec. 170.202 (c) which exempts owners of agricultural establishments from Subpart C requirements for handlers, by reorganizing the paragraph into two parts: one for owners of agricultural establishments and one for crop advisors. The existing exemption for agricultural owners is being redesignated as paragraph (1) and it has been reformatted. No substantive change has been made to the exemption for agricultural establishment owners. VI. Public Docket and Electronic Comments A record has been established for this rulemaking under docket number ``OPP-250100'' (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 Room 1132 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. 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 rule amendment is one of the actions selected by EPA for this experiment. FFrom 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 raises 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: listserver@unixmail.rtpnc.epa.gov that says ``Subscribe RIN-2070-AC69 .'' Once you are subscribed to the ListServe, comments should be sent to: RIN-2070-AC69@unixmail.rtpnc.epa.gov. All comments and data in electronic form should be identified by the docket number OPP-250100 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: Docket-OPPTS@epamail.epa.gov. 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; [[Page 2829]] FAX: 202-260-3884; Internet: richards.john@epamail.epa.gov). 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 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. VII. Statutory Requirements As required by FIFRA sec. 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. VIII. Consultations EPA has had informal consultations with some States through the EPA regional offices and at regularly scheduled meetings of SFIREG where State representatives were present. No significant issues were identified as a result of EPA's discussion with the States. Additionally, as a result of consultation with USDA, EPA has revised its proposal to include the employees of crop advisors in the proposed exemption and has proposed the temporary exemption to allow time for crop advisors to become certified or licensed. EPA has also revised this document to clarify the proposal and to more directly request specific comment on the options. 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. In addition, the Agency estimates that the total potential cost savings associated with the proposed amendment would range from $1.7 million to $3.5 million over a ten year period, with a single crop advisor potentially saving as much as $1200 over a ten year period. This action 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 proposed rule would not have an adverse impact on any small entities. The proposed rule will provide cost savings to an estimated 2,500 to 5,000 crop advisors and an additional 15,000 employees of crop advisors who will be affected by the proposed amendments. I therefore certify that this proposal does not require a separate Regulatory Impact Analysis under the Regulatory Flexibility Act. C. Paperwork Reduction Act EPA has determined that there are no information collection burdens under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., associated with the requirements contained in this proposal. List of Subjects In Part 170 Administrative practice and procedure, Occupational safety and health, Pesticides and pests. Dated: January 3, 1995. Carol M. Browner, Administrator. Therefore, it is proposed that 40 CFR part 170 be amended as follows: [[Page 2830]] PART 170--WORKER PROTECTION STANDARD 1. The authority citation for Part 170 would continue to read as follows: Authority: 7 U.S.C. 136w. 2. In Section 170.130 by paragraph (b) to read as follows: Sec. 170.130 Pesticide safety training for workers. * * * * * (b) Exceptions. The following persons need not be trained under this section: (1) A worker who is currently certified as an applicator of restricted- use pesticides under part 171 of this chapter. (2) A worker who satisfies the training requirements of part 171 of this chapter. (3) A worker who satisfies the handler training requirements of Sec. 170.230(c). (4) A person who is licensed or certified as a crop advisor by a program administered or approved by a State, Tribal or Federal agency having jurisdiction over such licensing or certification, provided that a requirement for such licensing or certification is pesticide safety training that includes all the information set out in Sec. 170.230(c)(4) * * * * * 3. In Section 170.202 by revising paragraph (c) to read as follows: Sec. 170.202 Applicability of this subpart. * * * * * (c) Exemptions. The handlers listed in this paragraph are exempt from the specified provisions of this subpart. (1) Owners of agricultural establishments. (i) The owner of an agricultural establishment is not required to provide to himself or members of his immediate family who are performing handling tasks on their own agricultural establishment the protections of: (A) Section 170.210(b) and (c). (B) Section 170.222. (C) Section 170.230 (D) Section 170.232. (E) Section 170.234. (F) Section 170.235. (G) Section 170 240(e) through (g). (H) Section 170.250. (I) Section 170.260. (ii) The owner of the agricultural establishment must provide the protections required by paragraph (c)(1)(i) of this section to other handlers and other persons who are not members of his immediate family. (2) Licensed or certified crop advisors and their employees. (i) A person who is licensed or certified as a crop advisor by a program administered or approved by a State, Tribal or Federal agency having jurisdiction for such licensing or certification, provided that a requirement for such licensing or certification is pesticide safety training that includes all the information set out in Sec. 170.230(c)(4), is not required to provide to himself or his crop advisor employees the protections of: (A) Section 170.210(b) and (c). (B) Section 170.232. (C) Section 170.240. (D) Section 170.250. (E) Section 170.260. (ii) Any individual when performing tasks as a crop advisor is exempt until January 1, 1996 from the requirements of: (A) Section 170.210(b) and (c). (B) Section 170.230. (C) Section 170.232. (D) Section 170.240. (E) Section 170.250. (F) Section 170.260. 5. In Sec. 170.230 by revising paragraph (b) to read as follows: Sec. 170.230 Pesticide safety training for handlers. * * * * * (b) Exceptions. The following persons need not be trained under this section: (1) A handler who is currently certified as an applicator of restricted- use pesticides under part 171 of this chapter. (2) A handler who satisfies the training requirements of part 171 of this chapter. (3) A person who is licensed or certified as a crop advisor by a program administered or approved by a State, Tribal or Federal agency having jurisdiction over such licensing or certification, provided that a requirement for such licensing or certification is pesticide safety training that includes all the information set out in paragraph (c)(4) of this section. * * * * * [FR Doc. 95-584 Filed 1-6-95; 12:16 pm] BILLING CODE 6560-50-F