[Federal Register: April 10, 1995]


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ENVIRONMENTAL PROTECTION AGENCY
[OPP-00406; FRL-4948-3]


Guidance on Issuance of Worker Protection Standard Enforcement
Actions in Response to Personal Protective Equipment Violations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On February 13, 1995, the Agency distributed its ``Summary
Guidance on Issuance of WPS Enforcement Actions'' which applied to any
violations of the Worker Protection Standard (WPS). EPA was recently
asked to distribute further guidance specific to enforcement of the
personal protective equipment (PPE) provisions of the WPS. In response,
the Agency developed guidance which applies to PPE violations the 10
factors which EPA recommends be considered in determining the
appropriate recipients of WPS enforcement actions. This guidance was
distributed to EPA Regional Offices on March 30, 1995, for transmittal
to state pesticide enforcement personnel, the intended audience for the
guidance. EPA is publishing the March 30th guidance at the request of a
state organization.

FOR FURTHER INFORMATION CONTACT: Patricia L. Sims, Toxics and
Pesticides Enforcement Division, Office of Enforcement and Compliance
Assurance, 2245A, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, Telephone: (202) 564-4048.

SUPPLEMENTARY INFORMATION:

I. Background

    EPA is providing this document in response to requests made for
specific guidance concerning enforcement of the PPE provisions of the
FIFRA WPS. This summary guidance is organized according to the 10
factors to be considered in determining the appropriate recipients of
WPS enforcement actions, and employers/owners/operators' PPE
responsibilities.

II. Ten Factors for Consideration

    EPA recommends that accountability for compliance with the FIFRA
WPS be decided on a common sense, case-by-case basis. ``Summary
Guidance on Issuance of WPS Enforcement Actions,'' provided February
1995, identifies the following 10 factors which EPA recommends States
consider when they need to determine the appropriate recipient(s) of a
WPS enforcement action:
    1. Who has control over pesticide use;
    2. Who directs pesticide use;
    3. Who has control over the agricultural establishment for posting
and other WPS-related responsibilities;
    4. Who gives direction on the agricultural establishment for
posting and other WPS-related responsibilities;
    5. Who has control over the practices used by agricultural workers
on the establishment;
    6. Who directs the practices used by agricultural workers on the
establishment;
    7. Measures taken to comply with provisions of the WPS;
    8. Actions taken in response to incidents of noncompliance;
    9. History of prior violations; and
    10. Ability to assure continuing compliance with the WPS.
    Documentation by employers/owners/operators could assist them in
demonstrating to State regulatory officials, their efforts to comply
and responses to instances of noncompliance. The totality of the
circumstances should be considered in each case. The 10 factors are not
listed in any order of priority; each factor should be appropriately
considered in every case.

III. Employers/Owners/Operators PPE Responsibilities

    The 10 factors should be considered if an employee (including
workers and handlers) does not use PPE required by the WPS. It is
essential for employers/owners/operators to take an active role to
assure that PPE is used.
    The employer/owner/operator bears primary responsibility for WPS
PPE compliance. Employers/owners/operators must provide, clean and
maintain PPE, and instruct employees on its proper use. The employer/
owner/operator has a responsibility to inform employees who do not use
their PPE that such clothing or protective gear is required. In the
case of pesticide handlers, the responsibility to follow label
directions and use PPE properly is a shared one with the employer.
    The employer/owner/operator also has a responsibility to take
appropriate actions if an agricultural employee does not comply with
instructions to use PPE. If an employee does not use WPS required PPE,
appropriate supervisory actions that could be taken by the employer/
owner/operator to achieve compliance include warnings and
[[Page 18101]] nondiscriminatory discipline. If an employer/owner/
operator provides employees with appropriate PPE, training and
supervision per the specifications of the WPS, there should not arise
an occasion on which the employer/owner/operator would be subject to a
WPS/PPE enforcement action due to the individual decision of an
agricultural employee not to use the PPE.
    Enforcement officials will consider the facts of a case before
determining how to respond to any WPS violation, consistent with the 10
factors identified in the Agency's February 1995 summary WPS
enforcement guidance. EPA recommends that accountability for compliance
be decided on a common sense basis, and that the totality of the
circumstances be considered in each case, including enforcement actions
in response to PPE violations.

Dated: April 4, 1995.

Jesse Baskerville,
Director, Toxics and Pesticides Enforcement Division, Office of
Enforcement and Compliance Assurance.

[FR Doc. 95-8726 Filed 4-7-95; 8:45 am]
BILLING CODE 6560-50-F

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