[Federal Register: January 11, 1995]


[[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
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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: 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-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 
[[Page 2823]] 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: 
listserver@unixmail.rtpnc.epa.gov that says ``Subscribe RIN-2070-AC69 
<first name> <last name>.'' 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-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 <Return> 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; 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 [[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